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Gonzales on the Military Commissions Act of 2006 at the German Marshall Fund
October 25, 2006
BERLIN, GERMANY Thank you. I welcome this opportunity to engage in a dialogue with you about the legal challenges that the United States, and our allies in Europe, have faced in fighting terrorism against al Qaeda and its allies. On September 11, 2001, the world stood witness with shock and horror to images of planes turned into missiles, flying into the World Trade Center and the Pentagon, murdering thousands of innocents. Those images, as well as subsequent images from London, Madrid, Bali and elsewhere have left an indelible mark on citizens throughout the world, and they have fundamentally shaped how the United States is responding to the threat from international terrorism. When the enemy is willing to sacrifice their own lives to attack our citizens, when their cause is nothing less than territorial domination and a return to the barbarity of the Dark Ages, and when the cost of each tactical success for the enemy is measured in the hundreds and thousands of innocent lives lost, then we face something fundamentally different from crime—we are at war. Every resource of our Nation, including law enforcement, the military, and the intelligence services, must be directed at preventing future attacks before they occur. By its activity both before and after 9/11—and by its own statements—al Qaeda is clearly in a state of armed conflict with the United States and its allies. The action taken following 9/11 by the United States and its allies in invading Afghanistan was a clear recognition of that state of armed conflict. I recognize that many countries now believe that the conflict is concluded, but the United States does not. Rather, we believe that as al Qaeda has scattered, the battlefield has widened. There is a fundamental disagreement between the U.S. and some of its allies as to
whether we are still at war. But my main point today is that just because the U.S. still believes a state of war exists, that does not mean that the rule of law has no place. To the contrary, it means that a different set of rules is applicable. I hope to be able to explain today how we preserve the rule of law in fighting this conflict. We believe that, as part of this war, and in order to defend the security of our citizens, as well as the lives of citizens of Europe, we must have the ability to detain and remove terrorists from the battlefields of this conflict; to collect from them the vital intelligence that enables us to capture their associates and break up future terrorist plots; and to create effective and fair procedures that will allow us to prosecute and punish captured terrorists for their war crimes. The legal doctrines directed at achieving these ends are not the same as those we would employ during peacetime. The United States Supreme Court has recognized this in several of its decisions, including its recent Hamdan decision. The United States Congress likewise has endorsed this view, most recently in the Military Commissions Act of 2006. Over the past five years, the United States and its allies can point to a number of successes in our fight against terrorism. Our intelligence-gathering efforts were instrumental in capturing dozens of Osama bin Laden’s closest henchmen, including the mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, as well as Abu Zubaydah and Ramzi bin al Shibh. And the capture of those terrorists has led to actionable intelligence that has disrupted many other terrorist plots through both law enforcement and military operations. We have broken up a cell of 17 Southeast Asian terrorist operatives being groomed for attacks inside the United States; uncovered key operatives in al Qaeda’s biological weapons program – including a cell developing anthrax to be used in terrorist attacks. We have stopped planned strikes on U.S. Marines in Djibouti, and on the U.S. consulate in Karachi, and we have foiled a plot to hijack passenger planes and fly them into Heathrow Airport and Canary Wharf in London. As we know, just this summer, British investigators thwarted an al Qaeda plan to blow up airplanes bound for the United States with common household liquids that could be smuggled aboard in passengers’ carry-on luggage and assembled into bombs once onboard. These successes, and the vigorous prosecution of the armed conflict with al Qaeda, have undoubtedly made us safer, but we cannot delude ourselves. We are not yet safe. Accordingly, we are continuing to work with our allies to identify new ways to contain and combat the ever-changing threat of terrorism. Today, I would like to address one such way—the Military Commissions Act. This new American law provides for the full and fair trials of captured terrorists; reinforces and clarifies United States obligations under the Geneva Conventions;
and buttresses our ability to gather vital intelligence and disrupt future terrorist attacks. The Detention of Enemy Combatants With respect to our international obligations, the United States provides individuals detained as enemy combatants at Guantanamo with greater legal rights than those owed to lawful prisoners of war under the Geneva Conventions. As many of you know, the Third Geneva Convention requires that, where there is any doubt regarding a belligerent’s status as a prisoner of war, the detaining power must bring the individual before an “Article 5” military tribunal to determine whether the individual warrants the enhanced privileges of prisoners of war. The Geneva Conventions otherwise provide that enemy combatants may be detained for the duration of the hostilities, a fundamental precept of the law of war. The United States goes well beyond these international obligations in the course of this present conflict. As President Bush has stated, the United States has no interest in serving as the world’s jailer, and we have no interest in detaining individuals who do not threaten our citizens. Accordingly, we have released alien enemy combatants to their home countries where those nations have agreed that they will prevent such individuals from returning to combat, and where we have been assured that those nations will treat such individuals humanely. Indeed, we have repeatedly asked our European allies to join us in these efforts by agreeing to take back their citizens detained at Guantanamo or by helping persuade other countries to provide better security and human rights assurances to allow us to increase the number of transfers. But despite demands that Guantanamo be closed, the United States has received little help from our European allies regarding the fate of these detainees. We also put in place procedures to ensure that the individuals we detain are, in fact, enemy combatants. The United States gives Article 5-like “Combatant Status Review Tribunals” to every detainee held at Guantanamo to determine whether they should be detained as an enemy combatant at all. Based on the decisions of these tribunals and based on our parallel efforts to repatriate detainees where appropriate and consistent with our national security, we have transferred approximately 340 individuals from Guantanamo. The legal rights afforded to detainees do not stop there. Our law provides that each and every detainee has the opportunity to appeal the determination of the Combatant Status Review Tribunal to the federal court of appeals in Washington, D.C. In other words, the United States provides every detainee at Guantanamo Bay the opportunity to challenge his detention not merely before a military tribunal, but also before a civilian court. These points, it seems to me, are lost in the recent debate over the Act’s restrictions on habeas corpus, which allows an individual in police custody to seek his release from detention before a civilian judge. Indeed, the entire debate is premised on
several misconceptions. First, habeas corpus is a civilian remedy. Alien enemy combatants captured outside the United States have never had the right to file a writ of habeas corpus under the United States Constitution in prior armed conflicts. Thus, the restrictions on habeas corpus do not, and cannot, deprive enemy combatants of any constitutional right that they have ever had under United States law. Second, as I have explained, the United States already provides enemy combatants with the opportunity to challenge the legality of their detention before a civilian court, by appealing the determinations of our Combatant Status Review Tribunals. This process—which goes well beyond what is required for lawful prisoners of war under both international and domestic law—provides the same opportunity to get into federal court that these individuals would claim through the writ of habeas corpus. Although some critics have focused on detention, the Military Commissions Act is fundamentally about prosecution. The law permits the prosecution of suspected war criminals before military commissions, which have been used during times of war by the United States and other countries. By law, these commissions can be used to try only “unlawful enemy combatants.” This definition expressly excludes lawful prisoners of war, and it is carefully defined to include only those unlawful combatants who have taken active and purposeful steps to further hostilities against the United States and its allies not those who may provide an incidental or unintended benefit to the enemy. Some have questioned why terrorists should be tried as war criminals in the first place. Although the law of war permits us to detain dangerous enemy combatants for the duration of hostilities to keep them from attacking us, we also believe that we must have the capability to bring them to justice for their crimes. Some ask, why not then try these terrorists in civilian courts just like any other individual who commits a crime? Here again, this view reflects a fundamental denial of the existence and the practicalities of this armed conflict. In the War on Terror, members of al Qaeda are not merely common criminals. Al Qaeda seeks to employ weapons of mass slaughter as a means of achieving political goals against both the civilian and military capacity of the United States, Europe, and our allies throughout the world. Their members continue to fight our Armed Forces on battlefields across the world, and they will continue to do so until we stop them. Their crimes are nothing less than war crimes. For hundreds of years, the United States and other nations have used military commissions—not civilian courts—to try enemy combatants under such circumstances. Article 84 of the Geneva Conventions provides that lawful prisoners of war must be tried by military, not civilian, courts. It is entirely fitting that we continue to do so, consistent with our obligations under both international and domestic law.
Equally as important, military commissions are necessary because in many cases, the use of civilian courts would simply be unavailable or impractical. The collection of evidence and the prosecution of terrorists pose a host of difficulties not associated with the civilian justice system. For example, our civilian courts in the United States strictly limit the introduction of hearsay statements, that is, the admission into evidence of the assertions of individuals not present in court. Yet many whose statements we will need for military commissions are likely to be foreign nationals who are not subject to the jurisdiction of a United States tribunal, or who may be unavailable because of military necessity, incarceration, injury, or death. Therefore, if we are to put terrorists on trial, military commissions must be permitted to hear a broad range of evidence, including hearsay evidence where it is reliable. International war crimes tribunals, such as the International Criminal Tribunal for the former Yugoslavia, have similarly adopted broad rules of admissibility. Finally, our civilian justice system provides for strict rules governing the collection and authentication of evidence. But battlefields and foreign terrorist safe houses are not like typical crime scenes, and the United States military cannot be expected to gather evidence like police officers in the course of fighting the enemy. Again, like international war crimes tribunals, military commissions will consider a broad range of evidence—all evidence that the military judge deems to be reliable and probative of the guilt or innocence of the accused. Protections Afforded by Military Commissions Although military commissions are both necessary and appropriate, let me emphasize that they are also venues in which the accused will receive a full and fair trial. The procedures for military commissions, like those of international war crimes tribunals, are adapted to wartime circumstances, but they contain all of the procedural protections that we in the international community regard as fundamental. Consider the specific protections afforded by the legislation Congress enacted: The trial itself will be presided over by an independent military judge, drawn from among the same judges who preside over the courts-martial of U.S. troops, and whose impartiality is protected under law. The accused shall be presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt—the highest standard of proof recognized under U.S. law. The accused shall have the right to examine and respond to every piece of evidence—including classified evidence—that is introduced before the trier of fact.
The world community, too, shall have the right to see the evidence and observe the proceedings, because, with a narrow exception for national security, all trial proceedings shall be open and public. The Act plainly and unequivocally bars all evidence collected through torture, as under domestic and international law. The United States does not engage in torture, and consistent with our law and practice, no evidence obtained by torture shall be admitted at a commission proceeding. For statements of the accused, the law further provides that the judge may admit such evidence only if he finds that the statements are reliable and that their admission would serve the interests of justice. This rule tracks closely Rule 95 of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, both of which require an inquiry into the reliability of the evidence and its impact on the integrity of the procedures. The law does not, as some have charged, require the admission of coerced evidence. Rather, it simply provides that an impartial judge shall determine under the circumstances whether the evidence is fit to be considered by the trier of fact. In addition to these protections at trial, the Act grants convicted terrorists several opportunities to appeal, both to a military review court and to a civilian court of appeals. The Supreme Court also may exercise jurisdiction to review commission judgments. As in the detention context, this access to our domestic courts is another extraordinary protection in the history of armed conflict. Implementing the Geneva Conventions The Military Commissions Act thus establishes military commissions in compliance with the law of war, which includes the Geneva Conventions. The Act also contains critical provisions to clarify the meaning of those Conventions. I do not believe the Geneva Conventions were drafted with the threat of al Qaeda in mind. The drafters of the Conventions understood armed conflict as a choice between two models: international conflicts between nation-states and civil wars within a single State. And last summer, our Supreme Court held that Common Article 3 applies to our conflict with al Qaeda. Common Article 3 has been part of the Geneva Conventions since 1949, yet some of its provisions, such as its prohibition upon “outrages upon personal dignity,” are not well-defined. What constitutes an “outrage upon personal dignity” or “humiliating and degrading treatment”? International law provides relatively few precedents, and the law which did exist suggested that courts could reach widely varying
conclusions. The United States takes its treaty obligations seriously, however, and indeed, we had previously made any violation of Common Article 3 a war crime. The Military Commissions Act reinforces the commitment of the United States to Geneva by providing clarity to the meaning of its terms under our domestic law. The Act clearly defines nine “grave breaches” of Common Article 3. These include things like murder and torture—all of which were already illegal under United States law, and none of which America has ever condoned. These also include clear and undeniable outrages upon personal dignity, such as rape, sexual abuse, and the performing of human experiments. Beyond the floor set by these provisions, the Act then provides that the President may issue regulations concerning our understanding of the Geneva Conventions for conduct that falls short of a “grave breach”—for example, conduct that constitutes an “outrage upon personal dignity” or “humiliating and degrading treatment.” These regulations will be public, and therefore open to congressional and public scrutiny. Conclusion I close with a reminder that Germany and the United States are great nations, but neither will succeed in defeating terrorism without the help of the other, and the help of other friends and allies. Though there may be differences in approach, our objectives are the same. It is important that we continue to dialogue, to discuss, to educate. Our friendship is based on trust, and trust is based on understanding and understanding based on communication. Germany and other European countries have more experience dealing with terrorism. I am sure there are lessons we can learn from you. And I hope in our discussions you may learn some things as well. Germany and the United States have taken great strides in fighting terrorism, but there is still much work left to do. For those of us who work at the United States Department of Justice, everyday is September 12, 2001. Everyday is that day after. Everyday requires renewed commitment to combating and preventing terrorism. And everyday we will look to the Government of Germany and to the German people as our partner in making the world a safer place for our children and grandchildren. Thank you. ###
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