[Pages S2474-S2477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

MORNING BUSINESS

Mr. McCONNELL. Mr. President, I ask unanimous consent that there now
be a period for morning business with Senators permitted to speak for
up to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I rise for two purposes. The first is to
draw attention to a recent program at the Supreme Court on the work of
Justice Robert Jackson and Thomas Dodd, the father of Senator
Christopher J. Dodd, dealing with the International Military Tribunals
at Nuremberg. I was happy to read the remarks of my colleague, Senator
Dodd, at the event, and I was interested to find that many of the
conclusions he draws from his father's experiences remain essential to
our conduct of international justice today--and, unfortunately, they
are all too often forgotten.
I would first echo the remarks made by Senator Dodd and salute the
extraordinary work performed by Justice Robert Jackson and Thomas Dodd
in their roles as the U.S. Chief Prosecutor and Deputy Prosecutor,
respectively, at Nuremberg over 50 years ago.
The Nuremberg Tribunal taught us many lessons: that even in the
depths of war, justice is not blind; that those who practice terror,
oppression, hatred, and mass murder will be punished. Perhaps equally
important, however, was the notion that they should also be afforded a
trial. Indeed, the United States committed itself to overcoming the
passions of the moment and reaffirming the rule of law. I believe this
action set an important precedent that is still applicable today.
Critically, the Tribunal also helped record the horrific crimes of
the Nazi regime so the whole world would see the brutality and
understand the depravity of those unimaginable acts.
Unfortunately, crimes against humanity have occurred since the
Nuremberg Tribunals, and they continue to occur today in places such as
Darfur in Sudan. I believe that it is again necessary to remind
ourselves of the important lessons learned over 50 years ago when
Justice Robert Jackson and then Thomas Dodd--soon to be Senator Thomas
Dodd--brought before the world the evidence of Nazi atrocities and
said, ``This cannot stand.''
I ask unanimous consent that the remarks of Senator Dodd at the
Supreme Court on February 15, 2005, entitled, ``Justice Served, Lessons
Learned: Robert Jackson, Thomas Dodd and the Nuremberg Trials,'' be
printed in the Record following my comments here today.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BIDEN. Mr. President, I encourage my colleagues to take the time
to read this speech and consider this important message and its
application today.

Exhibit 1

Justice Served, Lessons Learned: Robert Jackson, Thomas Dodd, and the
Nuremberg Trials

It's a privilege to be with you in the Supreme Court
Chamber, where cases that have changed the course of our
nation's history have been argued and decided.

[[Page S2475]]

As a United States Senator, it's not often that I make my
way across the street to this building and to this branch of
government.
Two years ago, I was here to observe oral argument in
Nevada Department of Human Resources v. Hibbs. That case
considered the constitutionality of the Family and Medical
Leave Act. I was interested because I authored the Family and
Medical Leave Act in the Senate.
The bill had survived two Presidential vetoes and had taken
seven years to become law. But in this institution, these
facts were of little consequence. Nothing is quite as
humbling as Justices deciding whether or not to strike down a
law you labored over for years. I was relieved when the
Court, by a margin of 6 to 3, upheld the Act.
But that visit, and others I've made over the years,
prompted me to think about the differences between the Senate
and the Supreme Court.
Senators show up to work in suits; Justices wear robes.
Senators are under the constant scrutiny of television
cameras; Justices have somehow managed to keep them out of
this Chamber.
And, of course, Senators have to run for re-election every
six years; Justices of the Supreme Court have the best job
security in the world.
So it's understandable why no fewer than 13 United States
Senators later served on the Supreme Court. That number
includes three Chief Justices--Salmon Portland Chase, Edward
Douglass White, and Oliver Ellsworth of Connecticut.
I tried to comfort myself by finding what I assumed would
be an equally long list of Justices who resigned their seats
on the Court for the honor and privilege of serving in the
U.S. Senate. But that list was exactly one name long.
That lone individual, I discovered, was David Davis, U.S.
Supreme Court Justice, and later Senator from Illinois. He
was appointed to the Court by Abraham Lincoln in 1862, and
served here for 15 years before resigning in 1877 when he was
elected a Senator by the Illinois state legislature.
It should be noted, though, that the U.S. Senate wasn't his
first choice. He was a candidate for the presidential
nomination five years earlier in 1872. He sought the
nomination of what was then known as the ``Liberal
Republican'' party. Some might suggest it was that
characteristic that would make him most unique today.
I'd like to recognize, of course, Justice Souter, who has
joined us this evening. And though he isn't here today, I'd
also like to recognize Chief Justice Rehnquist.
Justice Rehnquist is a wonderful student of history who has
done so much to educate our nation and the world about this
unique institution. And as I'm sure many of you know, from
1952 to 1953 he served as a law clerk for Justice Robert
Jackson.
Last month I had the honor of participating in the
inauguration of President Bush. I don't think anyone watching
the ceremony on that day could fail to be moved by the
courage and fortitude displayed by Chief Justice Rehnquist. I
think I speak for everyone here, and countless others, as
well, in wishing him well this evening.
I'd like to thank Barrett Prettyman of the Supreme Court
Historical Society for his kind introduction, and I'd like to
thank Professor John Barrett for his historical notes as
well.
I'd also like to thank Greg Peterson of the Robert H.
Jackson Center for his remarks, and for the invitation to
speak to you this evening. And I'd like to welcome members of
the Jackson family who have joined us this evening.
If Nuremberg was the most profound experience that
influenced my father's life, there were few individuals whose
words and ideas carried greater weight with my father than
those of Robert H. Jackson.
Justice Jackson was truly an extraordinary man whose life's
journey took him from a farmhouse in upstate New York, to the
U.S. Department of Justice, where he served as Solicitor
General and Attorney General, to the Supreme Court, to a
courtroom in Nuremberg, Germany. Following Nuremberg, he
returned to this very chamber where, less than five months
before he passed away, he and his eight colleagues voted to
end racial segregation in schools across our land.
Robert Jackson graduated from neither college nor law
school.
And prior to his appointment to the Supreme Court, he had
never served as a judge. Yet he became one of the most
respected jurists of his time, one known for his
thoughtfulness, his fairness, his courage, and his
eloquently-written opinions. He was an ardent defender of the
freedoms articulated in our nation's Bill of Rights.
Of particular relevance today, Justice Jackson defended
these freedoms even during times of war, and even when he was
at odds with many of his fellow justices. He was one of only
three justices to dissent in Korematsu v. United States,
which allowed the detention of Japanese-Americans in
internment camps during World War II--a decision we now
regard as a stain on our nation's historical commitment to
freedom and justice.
Most of all, Justice Jackson was committed to promoting and
enforcing the rule of law, not only here in the United States
but around the globe, as well.
Having witnessed the horrors of Nazi Germany, he had a deep
and abiding belief that the law is humanity's strongest and
noblest weapon against tyranny and oppression.
We gather here this evening two days after the 113th
anniversary of Justice Jackson's birth, and just a few months
after the 50th anniversary of his passing on October 9, 1954.
It's fitting, as well, that we assemble here two weeks
after the 60th anniversary of the liberation of Auschwitz.
More than any other events, the liberation of Auschwitz and
the Nuremberg trials were the two events that laid bare
before the entire world the horrors committed by the Nazi
regime.
At liberation, the Western world saw, for the very first
time, the gas chambers, the cattle cars, and the crematoria.
They saw gruesome piles of corpses, and the emaciated few who
had survived the largest and deadliest of Hitler's death
camps. At Nuremberg, the war and the Final Solution were
painstakingly and meticulously documented and recorded so the
existence of these horrific events would never, ever be in
doubt.
With each passing day, there remain fewer and fewer of
those who can personally bear witness to the atrocities of
the Nazi regime. As a result, our generation's responsibility
becomes even greater--to ensure that the lessons we learned
six decades ago do not fade away into the mist of history.
This responsibility was one that my father took very, very
seriously--and it was reflected in how he raised his six
children. From a very early age, he would tell us about Adolf
Hitler and Heinrich Himmler, and describe places like
Auschwitz, Buchenwald, and Dachau.
My father believed firmly that the value of the Nuremberg
experience would not only be in the individual sentences
meted out to the named defendants--but, in a larger sense, in
the legacy the trial would leave to future generations.
In hindsight, some might think it was inevitable that
nations like ours would judge criminals like the Nazis
according to the rule of law. In reality, there was great
debate, both here in the United States and among our allies,
over how to handle the Nazi leaders.
We know today that as many as four Supreme Court Justices,
and many others including the powerful Senator from Ohio,
Robert Taft, felt that the trials at Nuremberg would be a
case of ex post facto judgment, and would therefore be
illegal under our own Constitution. The Chief Justice at the
time, Harlan Stone, called Nuremberg a ``high-grade lynching
party.''
A great many in our nation and around the world advocated a
different treatment for captured Nazi officials--one that had
long been practiced by nations victorious in war: summary
execution. Winston Churchill was said to have supported such
a policy.
Why, so the argument went, should we show any mercy to
these criminals--men who were responsible for the ruthless
slaughter of six million Jews, and five million other
innocent men, women, and children?
Men who razed to the ground entire villages and towns and
massacred those who lived in them.
Men who launched an aggressive war that eventually claimed
over 54 million lives, and turned the European continent into
a mass graveyard.
The argument was a compelling one. But a different one
would win the day. That case was the one advocated by men
like Justice Robert Jackson and a young lawyer named Thomas
Dodd. These two and others believed that the best way to
judge these crimes against humanity, and to deter future
crimes, would be a fair, legal trial.
They insisted on the rule of law, rather than the rule of
the mob.
And so in the summer of 1945, Justice Jackson assembled not
a team of executioners, but a team of legal professionals who
would meticulously use the Nazis' own documents, records, and
testimony to prove their guilt. My father was one of the men
he chose to be on that team.
During his fifteen months at Nuremberg, my father wrote
daily letters to my mother. These beautifully written letters
always began with the words ``Grace, my dearest one.'' They
fill up this volume I hold in my hand--and a second volume of
equal length.
I had no idea that these letters even existed until the
early 1990's. Before reading these letters I, arranged them
in chronological order. I finally completed this long process
in the summer of 1995.
Without any prior awareness, you can imagine my shock when
on the evening of July 28, 1995, I sat down to begin reading
the letters and realized that the first letter to my mother
was written on July 28, 1945--50 years earlier, to the day.
My father arrived in Europe on that day with mixed
feelings. He knew that he had an opportunity to be part of a
historic occasion. But he was reluctant to leave my mother
and their children. I was only a year old at the time--and a
very active child according to my mother. Sometimes I wonder
if I was the reason my father decided to go to Nuremberg.
Ultimately, the decision was made to see the job through.
As he explained it, ``Sometimes a man knows his duty, his
responsibility so clearly, so surely, he cannot hesitate--he
dare not refuse it. Even great pain and other sacrifices seem
unimportant in such a situation. The pain is no less for this
knowledge--but the pain has a purpose at least.''
He threw himself into a job he expected would last only a
few months. In July 1945,

[[Page S2476]]

this 38-year-old attorney had no idea that he would be
promoted from staff counsel to trial counsel, then to senior
trial counsel, and then to Executive Trial Counsel--the
deputy prosecutor for the United States.
The Nuremberg trials themselves were an absolutely massive
undertaking, with so many questions that had to be answered:
Who would be the judges?
Who would be the lawyers?
Would the defendants be tried together or separately?
Would the trials be conducted under American or European
legal customs?
Would they be military or civilian trials?
And perhaps the most pressing practical question: Where
would the trials be held?
My father, like many, expressed reservations about holding
the trial in Nuremberg. The city, he said, was ``probably the
worst in Germany'' in terms of destruction. He suggested that
Heidelberg, which had survived the war essentially intact,
would have been a better alternative.
But for reasons of principle--if not practicality--he knew
that Nuremberg was the right choice. It was, after all,
Nuremberg where the Nazis met on September 10, 1935 to codify
into law their regime of oppression, terror, and hatred. And
so it was totally fitting that in Nuremberg, these Nazis were
brought to justice.
My father's ambivalent outlook towards his participation in
the trial changed dramatically on August 14th, 1945. On that
day, he and his fellow prosecutors began interrogating
prisoners. He described it as ``a day I shall never forget,''
and the day that followed as ``the most fascinating day of my
life.''
From August through November 1945, my father spent much of
his time face to face with some of the most vital cogs in
Hitler's murderous Nazi machine. William Keitel. Hans Frank.
Rudolph Hess. Hermann Goering. One by one, each of them would
do his best to deflect blame and to deny. My father remarked
that ``It would be relieving to hear one of them admit some
blame for something. They blame everything on the dead or
missing.''
Throughout the course of the investigation and trial, my
father became one of Justice Jackson's closest associates--
and one of his closest friends, as well.
There's no question that my father viewed Justice Jackson
as much more than a professional colleague. ``I am proud of
my association with him,'' he wrote, ``and even more proud of
his friendship.''
My father admired Jackson greatly for his keen intellect,
his quiet dignity, and for his steadfast dedication to seeing
the trial through to the end. In a letter he wrote to Justice
Jackson's son on the occasion of the Justice's passing in
1954, my father called him ``one of a very few great men whom
I have been privileged to meet in my lifetime.''
I will not go into much detail discussing the proceedings
of the trial itself. Much of the trial was actually fairly
tedious. For the most part, anyone expecting tearful
admissions of guilt was sorely disappointed.
My father, for his part, presented several aspects of the
prosecution's case, including those on concentration camps,
on economic oppression, and on slave labor. He cross-examined
numerous witnesses, including six of the defendants. Four of
those defendants were ultimately sentenced to death. The
other two served lengthy terms in prison.
For my father, though, Nuremberg was about much more than
the defendants, the evidence, and the sentences. It was about
the opportunity, as he put it, ``to write a record that will
mark a new point in man's relation with man.''
My father returned from Nuremberg with a deep commitment to
the rule of law and its role in upholding the basic human
rights and human dignity of every man, woman, and child.
That commitment is the reason why--as a Congressman and a
Senator--he was such a staunch supporter of the civil rights
movement. It's the reason he was such an ardent opponent of
Communism. And it is the reason why he embraced bold new
efforts to eliminate poverty in our nation and throughout the
world.
My father also left Nuremberg as an ardent believer in the
need to create and use law to preserve and promote human
dignity.
Nuremberg was essentially a trial without precedent. As I
mentioned earlier, when Justice Jackson and others were
developing the guidelines for the Nuremberg trials, there was
a great deal of debate and disagreement over the legality of
the proceedings.
Justice Jackson spent a great deal of time arguing why, in
fact, there was legal precedent in international law for the
crime of waging aggressive war.
But beyond those legal arguments, there was another, far
more fundamental point--a point that Robert Jackson and my
father shared. That the crimes committed by the Nazis were so
heinous, so unthinkable, that they violated the basic rules
by which all of humanity must abide.
As Justice Jackson said in his opening statement, ``The
wrongs which we seek to condemn and punish have been so
calculated, so malignant and so devastating, that
civilization cannot tolerate their being ignored because it
cannot survive their being repeated.''
This idea of a natural law, rooted in basic standards and
norms of human behavior, was a powerful argument in favor of
the Nuremberg trials. Perhaps no document embodies the idea
that such basic standards exist more than our own Declaration
of Independence, which affirms that ``all men are created
equal, that they are endowed by their Creator with certain
inalienable rights, that among these rights are life,
liberty, and the pursuit of happiness.''
Natural law was a concept for which my father was a
strenuous advocate. I can remember a story he told me about a
paper he wrote at Yale for a professor of his, Harold Lasky,
a renowned socialist. In the paper, my father argued
passionately in favor of natural law theory. When he got the
paper back, a note was written on the front page: ``I
disagree with everything you have written. A Plus.''
The Nuremberg trials' lasting legacy, my father believed,
would be in international institutions that could punish
crimes against humanity, and more importantly, deter those
crimes in the future.
As he put it, ``By a declaration of criminality against
these organizations, this tribunal will put on notice not
only the people of Germany, but the people of the whole
world. Mankind will know that no crime will go unpunished
because it was committed in the name of a political party or
a state; that no crime will be passed by because it is too
big; that no criminals will avoid punishment because there
are too many.''
Regrettably, my father's and Robert Jackson's vision has
not yet been fully realized.
Over the last six decades, we have not witnessed the level
of horrific destruction and carnage perpetrated by the Nazis.
But we have seen, time and again, terrible crimes against
humanity in places like Cambodia, Iraq, Bosnia, Rwanda, and
today in the Darfur province of the Sudan.
Tragically, many of the individuals involved in these
crimes--people like Joseph Stalin, Pol Pot, and Idi Amin--
were never brought to justice. In some of these cases, the
world did eventually create tribunals--but always, like
Nuremberg, temporary, ad hoc courts that were established
after the fact.
To truly be called effective, a court must not simply
punish the guilty, then disband. It must serve as a permanent
reminder to any potential criminals that they, too, will be
held accountable. Such a court can not only punish crimes--it
can deter them.
In my view, there is only one kind of institution that can
ensure the kind of accountability that can prevent future war
crimes--and that is a permanent court empowered to indict,
prosecute, and judge international criminals.
After many, many years of effort, the International
Criminal Court came into existence on July 1, 2002.
Unfortunately, rather than lend its support to this effort,
the United States has walked away from it.
I'm aware that there are complex issues that need to be
resolved regarding our nation and the International Criminal
Court. But I strongly believe that our nation's interests,
and the world's interests, would be far better served if we
worked to address those issues rather than abandoning the
entire process.
What, after all, does it say about a nation that prides
itself in upholding freedom, justice, and human rights when
it simply disengages itself from an institution whose goal is
to promote those values? And what does it say about an
institution's power to bring criminals to justice when the
most powerful nation in the world refuses to play a part?
The tragic events in Darfur today represent exactly the
kind of situation in which people like my father and Robert
Jackson envisioned international courts playing a prominent
role. It is my hope that the current administration will see
the Darfur genocide as an opportunity to participate in this
institution in some way, rather than simply standing on the
sidelines. Otherwise, the cry of ``never again'' will ring
tragically hollow.
There is another legacy of Nuremberg that is just as
powerful as its role in the development of international law.
As I mentioned earlier, the decision to hold a trial at
Nuremberg--rather than summary executions--was not an easy
choice.
We rejected the certainty of executions for the uncertainty
of a trial. We turned away from violence that was certainly
within our ability, and, many would argue, within our right.
But what we learned is that our nation became stronger, and
more respected, because we took the course that we did.
At the heart of that decision was the idea that this nation
will not tailor its eternal principles to the conflict of the
moment--and the recognition that if we did, we would be
walking in the very footsteps of the enemies we despised.
This is a principle I believe we would all do well to
remember today.
This past year, we all were horrified at the images and
stories of abuse of prisoners held in places like Abu Ghraib
in Iraq and Guantanamo Bay, Cuba.
The abuse itself was shocking. In my view, though, even
more troubling are the comments on this issue that we've
heard from some who occupy positions of great power in our
government.
Legal justifications for the use of torture by American
troops;
For turning over individuals to other nations known to
torture detainees;
And, perhaps most egregiously, legal justifications that
would explicitly exempt any executive branch official from
prosecution for torture ``if they are carrying out the
President's Commander-in-Chief powers.''
Sixty years ago at Nuremberg, the United States and our
allies considered the defense

[[Page S2477]]

``I was just following orders'' to be so cowardly that it was
prohibited under the rules of the trial.
Perversely, there are some who consider that defense
acceptable for Americans today.
The proponents of these rationalizations tell us that we
are living in different times.
That we are facing enemies who show blatant disregard for
human life, and whose organizations transcend international
borders.
As a result, the argument goes, we must re-evaluate certain
conventions and practices that we have long respected.
I wonder how men like Robert Jackson and my father would
respond to these arguments. Would they be swayed by them?
Would they be persuaded somehow that the followers of Osama
bin Laden and Saddam Hussein are fundamentally different from
the despicable and depraved defendants who swore allegiance
to Adolf Hitler?
Would these men, who prosecuted the Nazis based on
testimony and documentary evidence, be heartened by the
argument that the best responses we can muster against evil
today are attack dogs and water-boarding?
I truly, truly think not. On the contrary, I believe that
Robert Jackson and my father would be tremendously
disappointed and saddened at some of the actions taken by
Americans on behalf of our nation--and by some of the
official legal arguments made in support of those actions.
I believe that Robert Jackson and Thomas Dodd would see
these actions as a reflection of a government that has turned
away from the lessons of history and stepped back from the
very values of due process and equal justice that we expect
of others worldwide.
Is the threat of international terrorism a dangerous one?
Unquestionably. But we cannot allow that danger to compromise
bedrock principles which have stood since the birth of our
nation--values like the right to be free from torture or from
indefinite detention without a charge.
We enshrined these values in our Constitution not simply
because we believe Americans are entitled to them. We did so
because they affirm a basic sense of human dignity in each
and every man and woman. And because we, as a nation, are
committed to upholding that dignity--even if others do not.
If we cavalierly toss aside those values in response to a
particular enemy or threat, it is not our enemies, but we who
will pay the ultimate price.
As Justice Jackson said at Nuremberg, ``we must never
forget that the record on which we judge these defendants
today is the record on which history will judge us tomorrow.
To pass these defendants a poisoned chalice is to put it to
our own lips as well. ``
A century and a half ago, in his second State of the Union
address, Abraham Lincoln said that in giving or denying
freedom to slaves, ``We shall nobly save or meanly lose the
last, best hope of earth.''
The issue then was how our nation treats the enslaved.
Sixty years ago, the question was how to treat Nazi war
criminals. Today, we face the same choice with regard to the
way we treat international terrorists.
If we heed the example set at Nuremberg by people like
Robert Jackson and Thomas Dodd, if we treat our enemies
according to our standards--not theirs--we feed the flame of
liberty and justice that has rightly led our nation on its
journey for these past two and a quarter centuries.
And we set a shining and lasting example for a true global
community--one grounded in the principles of justice,
freedom, and peace.
And we live up to the great memory of Robert Jackson and of
a young counsel named Thomas Dodd.

____________________