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Here is a publication called Spotlight, sindicating) which is headlined "Ultraliberals Again Pushing Genocide Treaty in Congress.” I notice that they have a picture of Harry Truman and Chuck Percy on the first page. I don't know whether Harry Truman is depicted as an ultraliberal. There is also a picture of Sam Ervin in the newsletter.
You and I were both mentioned in this, and I don't quite know how they characterize an ultraliberal. You and I sat with Wallace Bennett, hardly an ultraliberal, on the Banking Committee for years. We sat side by side with him. I remember a speech he gave on the floor of the Senate about how conservative I was for 6 years with him on the Banking Committee. I also notice that I was rated No. 1 for supporting the Reagan administration this year, out of 100 Senators.
This kind of attempt to use emotional words like "ultraliberals" as thought we were “radic-libs” I had thought was over. In the past there were simplistic approaches of labeling people in this way, impugning their motives and suggesting that they are trying to undercut the Constitution of the United States.
How do you react to that? Do you pay any attention to it?
Senator PROXMIRE. Is this the Liberty Lobby that you are citing here?
The CHAIRMAN. Pardon?
Senator PROXMIRE. Yes; that is put out by Liberty Lobby, I think. If I am wrong, I will correct the record on this.
The CHAIRMAN. Liberty Lobby is here in the room now and will testify shortly.
I met a very lovely young woman from there just this morning.
Senator PROXMIRE. The Liberty Lobby made a very kind and generous statement about me. They interviewed me on this. They said that I was one of their favorite Senators, that I agreed with them on most things.
But, on this issue, the Genocide Treaty, I disagree.
So, I think it hardly can be said that they view my position as one of an ultraliberal.
As you know, you and I agree about trying to hold down spending and on a lot of other issues that are not regarded as "ultraliberal."
The CHAIRMAN. Well, what I hope is that we are not going to have a hysterical campaign on this issue. Let it be historical, but not hysterical. Let's try to get down to the issues the way you have and the way Strom Thurmond has this morning. I think all of the opening statements were unemotional and rational.
This is something we can rationalize and think through. I think you have contributed to this in your testimony this morning.
Senator Boschwitz. You may be expecting too much, Mr. Chairman. The CHAIRMAN. Oh, you can always hope.
Senator BOSCHWITZ. You are quite right, but I am afraid that this is not an issue which will be rationally approached and rationally thought through.
The CHAIRMAN. Well, let's hope it is. It will be in the committee and we hope it will be conducted rationally on the floor of the Senate. I think certainly the Senators who have appeared this morning, their comments, whether on one side or the other of the issue, have been rational, and I hope our whole discussion will be rational.
I am sure, however, that all of the rules of the Senate will be used on both sides. We can expect that. There is no chance that we are going to try to put this on the floor this year, though I see no reason why it can't be moved to the floor some time next year.
First, I would like to congratulate the senior Senator from Wisconsin for the work that he has done over the years. Liberty Lobby quotes me as saying that I have been continuously impressed because Senator Proxmire has "kept all of our feet to the fire on this issue over the years." I am so glad that he has, and am delighted that Liberty Lobby picked up that quotation. The senior Senator from Wisconsin should feel very complimented.
In connection with the treaty itself, I think probably the best thing that we as Senators can do is to send a copy of the treaty to those who disagree with us on it. I am not sure, from the mail that I have seen, that the people who write in as opposing the treaty, having been stirred up by a variety of groups across the length and breadth of our Nation, have read the treaty or understand it. The key phrase in it is in article VI, which says that nobody can be tried in an international tribunal unless the contracting party "shall have accepted its jurisdiction."
So, this treaty is a two-stage thing. One stage is the general question of taking action against genocide. The second is if we wish to do so, we can accept the jurisdiction of the World Court or some other body. But these are not the same thing.
The thought that goes through my mind is perhaps it would be a good idea if we had some amendment or understanding to the effect that such jurisdiction would not be accepted by the United States in the foreseeable future; and if it were to be accepted, it would require the same two-thirds vote as passage of the treaty.
What would be your reaction to trying to work out some understanding along that line? I would think this would completely gut the opposition argument.
Senator PROXMIRE. I agree wholeheartedly with that. It is my recollection that this was the understanding that was offered before. I would think it would be appropriate.
There is just no question in my mind that there is no way that this treaty or any treaty will overrule the Constitution of the United States. The Supreme Court has made that very clear. In fact, the treaty will not overrule a law passed by the Federal Government. It does overrule the law of a State, however, because the Federal Government affirms the treaty.
This should be very clear to all of us. We are not acting now in a way that would revise the law of our country.
Furthermore, we have to have separate implementing legislation, and this implementing legislation has to be acted upon, as was indicated by Senator Helms earlier today, by both the House and the Senate. That implementing legislation will determine the extent to which our Americans will be subject to any jurisdiction. I am positive that we would take the position that Americans would be tried
for genocide, if they are tried, in American courts and with American constitutional protections.
Senator PELL. One thought might be if there is a declaration added at the time that we pass it-hoping that we do—it could read:
That the U.S. Government declares it is not hereby accepting the jurisdiction of any international penal tribunal, nor does it intend to do so in the future should any such tribunal ever be created.
I would think something along those lines would counter the argument that has been presented.
Incidentally, in connection with the point you made about treaty law and Federal law, my understanding is that they are both considered equal; hence the one that is the most current would prevail. Wouldn't that be correct?
Senator PROXMIRE. Well, perhaps you are right. But the research that my staff has done indicates that Supreme Court decisions on a number of occasions consistently have indicated that the Constitution would be supreme and that the treaty would not replace Federal law passed by the Federal Government, as distinguished from State law.
Senator PELL. I do not want to argue against your and my position, but my understanding always has been that the provision that is the most current is the one that would prevail; hence, if a treaty is signed, until some other law is passed in violation of that treaty, or saying something different than the treaty, the treaty law would prevail. I think that is correct.
Senator PROXMIRE. I understand that the way you have stated it is correct. I think that the way Senator Thurmond stated it was correct. What he said, however, was that a future administration or a future Congress could make Americans subject to an international tribunal.
Why we cannot affect that. That is up to future Congresses and future Presidents. We would not try to bind them. They can do anything they want. All we can do is to act within our present capacity. It would be my recommendation and understanding that we could have an understanding of the kind that the Senator from Rhode Island has suggested or that we could make the point clear in the implementing legislation.
Senator PELL. Good. That would be my hope, too. I thank you very much for all you have done in this regard.
The CHAIRMAN. It might be well at this point to put on the record the judgment of legal counsel for the committee. The need to pass implementing legislation is clearly involved in this treaty. The treaty does not become effective upon enactment. Implementing legislation must be enacted. That is what I wanted to ask Senator Strom Thurmond about. If the Senate did adopt the treaty—and I will ask Senator Thurmond this question—will the Judiciary Committee go ahead with the implementing legislation ? The treaty itself is not self-executing. Also, treaties do have the same status as Federal statutes. They override prior statutes or treaties, as well as inconsistent State laws.
Senator BOSCHWITZ. I have no comments other than the comments that I made prior to the Senator's arrival.
I have one last question for you, Senator Proxmire. Because of your devotion to this particular issue, have you done any head counting at all in the new Senate? Since 1974 we have instituted a new provision on cloture, and it has gone from two-thirds to three-fifths. Do you feel there is a better chance to achieve cloture now? There undoubtedly will be a filibuster on this issue. Do you think there is a chance for this new Senate to override the filibuster and adopt cloture?
Senator PROXMIRE. In 1979, Mr. Chairman, after the 1978 election, I went around and talked to a number of Senators who had been opposed to the treaty in the past. I got the distinct impression that we would have no trouble invoking cloture.
The situation has changed now, and I have not yet had an opportunity to talk to the Senators who were newly elected.
Frankly, I think the administration will play a very important role in this.
The CHAIRMAN. I think so, too.
Senator PROXMIRE. I am very hopeful that the administration will support the treaty. If it does, i think that can make a big difference. But I think we have a good, strong, fighting chance in any event.
The CHAIRMAN. I think it will make all the difference, really.
I recall vividly my first week in the U.S. Senate, about 10 months ago, and the very first U.S. Senator who approached me on any matter whatsoever was the distinguished Senator from Wisconsin. He approached me on the floor and asked me what I thought we could do about the Genocide Treaty. I believe I told him that I thought we had a good chance to hold some hearings this year and that I hoped we would be able to get the treaty ratified.
I am delighted that we are having this hearing. My hope is if not before this session ends, then, at least, in the next session one of the very first matters that we will take up will be the Genocide Convention.
The Senator already has pointed out a couple of things. One of the things that struck me is that by not ratifying this treaty we are actually doing ourselves and American citizens far more potential damage than we would by ratifying it. I would like the Senators to correct me if I am wrong. But I believe we have no authority whatsoever to stop any 1 of the y0 nations who have ratified the Genocide Treaty from punishing an American citizen charged with genocide. We have no jurisdiction whatsoever. By ratifying the Genocide Convention, in fact, we can exercise the right of extradition, to have an American citizen charged in another country with the crime of genocide returned to the United States.
So, in effect, we are not gaining anything at all, and we are doing more damage to ourselves by not ratifying the treaty because of the fact that we cannot preclude a conviction in another nation that already has ratified the convention.
Is that not correct?
Senator PROXMIRE. Senator Dodd, I think you raise a fascinating point, and think you are correct. I am not positive on this. I think it would be a good question to ask the American Bar Association experts and others who will testify. But I do think that is right.
We suffer no increased vulnerability, certainly, by ratifying the convention.
Senator Dopp. That is my point.
Senator PROXMIRE. It may be, as you point out, that we would provide an element of protection for American citizens. The fact is that every major country in the world, every important country, including all of our NATO allies, has ratified the convention. We are virtually alone among the developed major countries in not acting. Because of the fact that they have ratified the Genocide Treaty, I presume they could proceed as you described. If an American citizen, for example, were within their borders, and therefore within their control, there could be that vulnerability. I cannot see how that vulnerability would in any way be increased, and it might be very well reduced, as you point out, if we ratify the convention and assert our insistence that American citizens be tried in this country, and so on.
Senator Dodd. I will pursue that question with the bar association and other witnesses because my analysis and my staff's analysis is that we are doing more damage to American citizens by allowing them to be tried in a jurisdiction that may not follow the same principles of jurisprudence that we have in this Nation. We would be doing them damage, in fact.
Also, as the chairman has pointed out, this is not a self-executing treaty. I gather you agree with that statement.
Senator PROXMIRE. I do.
Senator Dodd. It would require implementing legislation by the U.S. Congress.
Senator PROXMIRE. It is interesting that implementing legislation would have to go to the committee chaired by the distinguished Senator from South Carolina. So there is no question that it would be painstakingly reviewed and very, very carefully considered and challenged.
Senator Dod). To reinforce my first point, are you aware of any behavior included under the convention that 'is not already prohibited under American domestic law ?
Senator PROXMIRE. I don't know of any. I think this is another reason, as I pointed out in my statement, why the likelihood of genocide occurring in another free nation, a Western nation, is very small today. It is in totalitarian and other such countries where it is more likely to occur.
As you point out so well, this is not making this country's citizens more vulnerable. It would make them less vulnerable and it would also permit us to be an effective force in fighting for human rights. Senator Dopp. I guess the only other
point is to respond to those who have raised the constitutional issue. I presume it has been discussed before. Article I, section 8, clause 10, of the Constitution says, “The Congress shall have power to define and punish offenses against the law of nations.” While the framers of the Constitution may not have specifically had the Genocide Convention in mind they certainly had in mind that we should have the authority to take part in the development of the law of nations, particularly when involving a matter such as this.