Then and now, redux

Senator Schumer (D-NY) on trying detainees in civilian courts:

those who commit acts of war against the United States, particularly those who have no color of citizenship, don’t deserve the same panoply of due process rights that American citizens receive. Should Osama bin Laden be captured alive—and I imagine most Americans hope he won’t be captured alive. But if he is, it is ludicrous to suggest he should be tried in a Federal court on Center Street in Lower Manhattan.

Of course, that was a few years ago. (Specifically, it's on page 122 of this; we reproduce Schumer's full statement below the fold.) Interesting.

Schumer's full statement:

On September 11th, our world changed dramatically, and our focus and our priorities changed along with it. We went from a country of peace whose most pressing concern was a slipping economy to a Nation at war with a new kind of enemy. In this war, we are battling terrorists instead of nations. In this war, some of our enemies are already here plotting against us in our towns and cities and on our own American soil. The FBI has already captured some suspects who the Justice Department believes were involved in the terrorist plot of September 11th.

There are also those prisoners of war who we have captured and will capture in Afghanistan and other countries who will receive a trial of some sort. It is clear we need to try those suspects in a forum that achieves two primary goals—two goals, I might add, that may not conflict. First, the Government must have the power to use even the most sensitive classified evidence against these sus- pects without compromising national security in any way, shape, or form. In addition, those who commit acts of war against the United States, particularly those who have no color of citizenship, don’t deserve the same panoply of due process rights that American citizens receive. Should Osama bin Laden be captured alive—and I imagine most Americans hope he won’t be captured alive. But if he is, it is ludicrous to suggest he should be tried in a Federal court on Center Street in Lower Manhattan.

Nevertheless, the second priority is to ensure that our proceedings, wherever they are held, respect our Nation’s great tradition of due process. No one wants trials that are ad hoc or regarded as unfair, so we need established and fair procedures. We all want and we all must have trials that both protect our national security interests and at the same time respect our Nation’s great tradition of due process. I believe we can, and the question is how we get those two goals to co-exist. The administration has proposed the use of secret military tribunals as part of the solution. Secret military tribunals constitute a significant departure from our normal legal system. I believe strongly—and many of my colleagues on both sides of the aisle agree—that any departure this significant should be vetted by Congress. That is what we are doing here today.

Congressional involvement is essential for a number of reasons. First, it respects our tradition of checks and balances. Second, it offers an opportunity to discuss how to meet the two goals of safeguarding national security and ensuring basic rights. That discussion will not only produce a better final product, but it will give the final product more legitimacy in the eyes of the American people and of our friends abroad.

I think that is the lesson we learned from the anti-terrorism bill. The Justice Department sent up a list of anti-terrorism proposals that some criticized as going too far. Chairman Leahy offered a set of proposals that some thought didn’t go far enough, and there were some points, for instance, many of us, myself included, agreed with the Justice Department and others where we agreed with Senator Leahy. We ended up with a bill, in my judgment, that was more balanced, more fair, and more effective than either of the first proposals by either side, and that is because this committee was involved, not in a dilatory way, not in a partisan way, but simply in a way to come to the best product. And the final product was better public policy. That is what I hope we can work towards with this issue as well.

The President is clearly right in saying that some of the terrorism trials will require a forum outside our regular Federal courts. And the administration is also correct in saying that some of the terrorist suspects we capture, especially an American citizen who commits an act of terrorism in this war, could be tried in our regular Federal courts with certain processes to guard secrecy. So we agree that trying at least some terrorists will require a new type of forum, and for others, particularly for American citizens, we may be able to use our preexisting courts, although we might need new procedures to protect national security. There is that much of a consensus.

But when we use a new type of forum or when we use new procedures in a traditional forum, we need to figure out how such a process should work. That means answering the following types of questions: Should traditional Article III judges preside, or should we bring in special magistrates? What standards of evidence are most appropriate? What burdens of proof should be used? Should a conviction require the decisions of a unanimous jury? How do we ensure that defendants receive effective assistance of counsel? Is there a right to appeal? If so, how should the appeals process work?

These are just some of the questions we hope to begin to answer today.

It is also interesting to note that the proposed answers to these questions don’t fall along the typical liberal and conservative lines. There are some on the right, such as William Safire and the Cato Institute, who oppose military commissions. There are some on the left, including some of the witnesses here today, who support military commissions. It just shows how complicated these issues really are.

HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY, 107th Congress, 1st Session, DEPARTMENT OF JUSTICE OVERSIGHT hearing, TUESDAY, DECEMBER 4, 2001 (MORNING SESSION) at 121-23 (OPENING STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK).