April 8, 2007

Senator Ben Cardin on Military Commissions Act

A letter from Senator Ben Cardin:

Thank you for contacting me regarding the treatment of detainees and the trial of suspected terrorists by the U.S. Government.

In September 2006, I voted against H.R. 6166, the Military Commissions Act. Both the House and Senate passed this bill and President Bush signed it into law in October 2006. When it comes to establishing procedures for trying suspected terrorists, Congress has an obligation under the Constitution to enact legislation that will be upheld by the courts. Congress acted on H.R. 6166 as a result of a June 2006 Supreme Court decision. The Supreme Court in Hamdan v. Rumsfeld struck down the President's military commissions, stating that they violated the Uniform Code of Military Justice and the Geneva Conventions. The Court noted that Congress, not the President, has the authority under Article I, Section 8 of the Constitution to "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." I voted against H.R. 6166 because I am concerned
that the courts will strike down the Military Commissions Act, too.

Perhaps the biggest problem with the Military Commissions Act is that it eliminates the fundamental legal action by which detainees can seek relief from unlawful imprisonment, known as habeas corpus, and permits the Federal Government to
hold detainees indefinitely without charge, trial, or the right to an independent hearing to weigh the evidence against them. On February 13, 2007, Senator Chris Dodd (D-CT) introduced S. 576, the Restoring the Constitution Act. This bill, which was referred to the Committee on Armed Services, restores habeas corpus for
individuals held in U.S. custody and overturns many of the provisions of the Military Commissions Act. I will give this bill careful consideration and I anticipate that the Senate Judiciary Committee, on which I sit, will hold hearings on it, too.

I strongly support our government's efforts to isolate, track down, and deter, or capture those individuals who are planning terrorist attacks against the United States. We must bring these terrorists to justice swiftly. I was disappointed that the House leadership failed to reach out to Members on both sides of the aisle
last year in crafting the Military Commissions Act. We should heed the warning given by former Chairman of the Joint Chiefs of Staff and Secretary of State Colin Powell, who argues that "the world is beginning to doubt the moral basis of our fight against

The 9/11 Commission recommended that "the United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists." New principles might draw upon Article 3 of the
Geneva Conventions. Allegations that "the United States abused prisoners in its custody make it harder to build the diplomatic, political, and military alliances the [U.S.] government will need." I believe the Military Commissions Act undermines the protections of the Geneva Conventions and, by weakening our moral authority,
makes it harder for us to work with allies to win the war against terrorism and protect Americans.

I share the concerns of many current and former military officers who testified to Congress that any weakening of these protections will place American soldiers at risk if they are captured. I am pleased that in December 2005, Congress adopted Senator John McCain's (R-AZ) legislation and outlawed the use of torture and cruel, inhuman, or degrading treatment by U.S. personnel, which would endanger the treatment of our American soldiers who are held captive. But I am disappointed that this legislation allows the use of statements obtained by some of this prohibited behavior to be admissible in court.

We must join with our allies to win the war against terrorism and bring terrorists to justice. Our Constitution contains the very values we hold dear that make us proud to be Americans, and which motivate our soldiers to lay down their lives in defense of this country. I have sworn to uphold and defend our Constitution
and to protect our democracy. The Military Commissions Act takes a step backward, is inconsistent with the rule of law, and will make it harder to work with our allies to build an effective coalition to defeat terrorism.

Five years after the 9/11 attacks, it is inexcusable that not a single one of the terrorists who planned the 9/11 attacks has been brought to trial. Congress must ultimately discharge its constitutional duty to create military commissions that are
consistent with the rule of law and that will produce convictions of terrorists that will be upheld by our courts.

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