Last fall, as members of the Senate were preparing to pass the ill-advised Military Commissions Act, Senator Hillary Clinton stood before the Senate and made plain her opposition to the legislation:
Mr. President, During the Revolutionary War, between the signing of the Declaration of Independence, which set our founding ideals to paper, and the writing of our Constitution, which fortified those ideals under the rule of law, our values – our beliefs as Americans – were already being tested.
We were at war and victory was hardly assured, in fact the situation was closer to the opposite. New York City and Long Island had been captured. General George Washington and the Continental Army retreated across New Jersey to Pennsylvania, suffering tremendous casualties and a body blow to the cause of American Independence.
It was at this time, among these soldiers at this moment of defeat and despair, that Thomas Paine would write, “These are the times that try men’s souls.” Soon afterward, Washington lead his soldiers across the Delaware River and onto victory in the Battle of Trenton. There he captured nearly 1000 foreign mercenaries and he faced a crucial choice.
How would General Washington treat these prisoners? The British had already committed atrocities against Americans, including torture. As David Hackett Fischer describes in his Pulitzer Prize winning book, Washington’s Crossing, thousands of American prisoners of war were “treated with extreme cruelty by British captors.” There are accounts of injured soldiers who surrendered being murdered instead of quartered, countless Americans dying in prison hulks in New York harbor, starvation and other acts of inhumanity perpetrated against Americans confined to churches in New York City.
You can imagine, the light of our ideals shone dimly in those early dark days, years from an end to the conflict, years before our improbable triumph and the birth of our democracy. General Washington was not that far from where the Continental Congress had met and signed the Declaration of Independence. But it is easy to imagine how far that must have seemed. General Washington announced a decision unique in human history, sending the following order for handling prisoners:
Treat them with humanity, and Let them have no reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren.
Therefore, George Washington, our commander-in-chief before he was our President, laid down the indelible marker of our nation’s values even as we were struggling as a nation – and his courageous act reminds us that America was born out of faith in certain basic principles. In fact, it is these principles that made and still make our country exceptional and allow us to serve as an example. We are not bound together as a nation by bloodlines. We are not bound by ancient history; our nation is a new nation. Above all, we are bound by our values….
We must stand for the rule of law before the world, especially when we are under stress and under threat. We must show that we uphold our most profound values. The rule of law cannot be compromised.
Our Supreme Court in its Hamdan v. Rumsfeld decision ruled that the Bush Administration’s previous military commission system had failed to follow the Constitution and the law in its treatment of detainees. The question before us is whether this Congress will follow the decision of the Supreme Court and create a better system that withstands judicial examination – or attempt to confound that decision, a strategy destined to fail again.
The bill before us allows the admission into evidence of statements derived through cruel, inhuman and degrading interrogation. That sets a dangerous precedent that will endanger our own men and women in uniform overseas.
Will our enemies be less likely to surrender? Will informants be less likely to come forward? Will our soldiers be more likely to face torture if captured? Will the information we obtain be less reliable? These are the questions we should be asking. And based on what we know about warfare from listening to those who have fought for our country, the answers do not support this bill.
As Lieutenant John F. Kimmons, the Army’s Deputy Chief of Staff for Intelligence said, “No good intelligence is going to come from abusive interrogation practices.”
Allowing coercive treatment and torturous actions toward prisoners not only violates the fundamental rule of law and the institutions of justice, not only will it fail to bear fruit in intelligence gathering, but it promotes radicalization. Ayman al-Zawahiri, Osama bin Laden’s second-in-command, the architect of many of the attacks on our country and throughout Europe and the world, has said, over and over, that torture helps the cause of extremism – watering the seeds of jihad….
This bill undermines the Geneva Conventions by allowing the President to issue Executive Orders to redefine what are permissible interrogation techniques. Have we fallen so low as to debate how much torture we are willing to stomach? By allowing this Administration to further stretch the definition of what is and is not torture, we lower our moral standards to those whom we despise, undermine the values of our flag wherever it flies, put our troops in danger, and jeopardize our moral strength in a conflict that cannot be won simply with military might.
Once again, there are those who are willing to stay a course that is not working, giving the Bush-Cheney Administration a blank check – a blank check to torture, to create secret courts using secret evidence, to detain people, including Americans, to be free of judicial oversight and accountability, to put our troops in greater danger….
This bill would not only deny detainees habeas corpus rights – a process that would allow them to challenge the very validity of their confinement – it would also deny these rights to lawful immigrants living in the United States. If enacted, this law would give license to this Administration to pick people up off the streets of the United States and hold them indefinitely without charges and without legal recourse….
When our nation seeks to lead the world in service to our interests and our values, will we still be able to lead by example?…
Let’s pass a bill that strengthens our moral standing in the world, that declares clearly that we will not retreat from our values before the terrorists. We will not give up who we are. We will not be shaken by fear and intimidation. We will not give one inch to the evil and nihilistic extremists who have set their sights on our way of life.
Vladimir Bukovsky, who spent nearly 12 years in Soviet prisons, labor camps, and psychiatric hospitals for nonviolent human rights activities had this to say: “If Vice President Cheney is right, that some ‘cruel, inhumane, or degrading’ treatment of captives is a necessary tool for winning the war on terrorism, then the war is lost already.”
This was a strong statement endorsing the moral vision for the United States of America endorsed by the founding fathers of this country and embodied in the Constitution of the United States of America. Hillary Clinton did the right thing when she voted against the Military Commissions Act in the fall of 2006.
And yet, where is Senator Clinton on the Military Commissions Act now, in the year 2007?
I cannot find a single reference to the Military Commissions Act on her website at www.hillaryclinton.com. And, more substantially, Hillary Clinton has failed to cosponsor S. 576, a bill proposed in the Senate to repeal many of the most onerous features of the Military Commissions Act. If passed, some of its main acts would be to:
* Restore the right of habeas corpus for people detained by the U.S.
* Narrow the definition of the MCA term “unlawful enemy combatant” to individuals who directly participate in attacks against the United States.
* Let United States detainees invoke the ethical codes of the Geneva Conventions again.
* Let U.S. detainees obtain a civilian lawyer for their defense.
* Prohibit the use of evidence garnered through torture.
* Prohibit the use of hearsay, upon the judge’s discretion.
* Let juries know how statements were obtained from detainees.
* Permit federal appeals courts to review the decisions of military commissions.
Hillary Clinton has not added her name to the list of Senators formally supporting S. 576. I certainly hope she does so soon. If you care about the issues surrounding the Military Commissions Act as much as I do, I suggest that when Senator Clinton’s staffers call you on the phone and ask for a campaign contribution on her behalf, you reply that the check will be in the mail — as soon as Senator Clinton’s name is on that bill.