And with the Home Secretary's recently proposed U.K. Counter-Terrorism Bill 2008, the U.K. has turned its attention to important concerns such as the questioning of terrorist suspects; enhanced sentences; and pre-charge detention of terrorist suspects. That is a feature we do not have under our law.
We, too, are engaged in vigorous political debate on the best ways to balance the security needs of our country with the important safeguards of civil liberties and due process essential to our legal systems.
More than 60 years ago, in opening what would become known as the Nuremberg Tribunals, the chief counsel for the United States , Robert Jackson , who once served as Attorney General and who was also a Justice of our Supreme Court, remarked on the importance of the measured response applied by the Allied Nations in trying Nazi war criminals. That these countries, as he put it, "flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason." The Nuremberg trials were criticized by some at the time as simply victors' justice, but they created a record of the evil they prosecuted, and were conducted in an open and fair way.
In our conflict today, I recognize that honest men and women on both sides of the ocean can disagree on the best solutions, and that the differences in our approaches concern more than just minor details or semantics. But all of our responses must be seen as part of our effort to strike the best balance possible between competing, though equally vital, goals.
I'd like to talk for a moment about one area in particular where we've been trying to strike this balance, and that is the military commissions system we've established for detainees designated as unlawful enemy combatants, including the six individuals we recently charged with responsibility for planning the attacks of September 11th .
I noted earlier the difficulties posed by ordinary terrorism prosecutions. When it comes to prosecuting people apprehended by the U.S. military on the battlefields in Afghanistan , or to prosecuting senior al Qaeda leaders captured with the assistance of foreign partners, we are proceeding in the face of obstacles that could well preclude, or artificially narrow, any prosecution that could be brought in an ordinary criminal court.
In these war crimes cases, we have collected evidence under very different circumstances from those employed by traditional law enforcement. Our civilian justice system provides for strict rules governing the collection and authentication of evidence. Battlefields and foreign terrorist safe houses are not like typical crime scenes, and soldiers engaged in combat with an utterly ruthless enemy cannot be expected to gather evidence the way police officers might when they examine a crime scene once the danger has passed, or where they arrest a suspect.
Many legal systems would have difficulty addressing these evidentiary challenges; but given jurisdictional and evidentiary limitations particular to our legal system, they pose acute difficulties for our traditional criminal courts. To take just one example, the hearsay rules that apply in our courts could require the judge to exclude otherwise reliable statements obtained by our military from unavailable foreign witnesses. To take another, the Miranda rules, if applied literally, could force the United States to send defense attorneys to foreign battlefields before we could rely on statements made by al Qaeda members following their capture.