This week, two military judges dismissed charges against a Canadian and a Yemeni detained at Guantanamo Bay, ruling that their war-crimes trials cannot move forward, throwing the entire military commissions process and those being held under it into question.
At issue in these cases is not simply whether Omar Khadr and Salim Ahmed Hamdan are "lawful" or "unlawful" enemy combatants as the judges have determined. Rather, what is at stake is whether America stands for what is right or what is wrong - whether we stand for justice that secures America or vengeance that weakens us. What is at stake is the rule of law, America's moral authority and their vital connection to America's security.
Indeed, one of the saddest days in my 26-year career in the Senate occurred last fall when the Congress passed the Military Commissions Act (MCA), allowing evidence obtained through torture to be admitted into evidence, denying individuals the right to counsel, the right to invoke the Geneva Conventions. Indeed, with passage of the MCA, Congress removed the single most important and effective safeguard of liberty man has known:
The right of habeas corpus, permitting prisoners to be brought before court to determine whether their detainment is lawful.
In removing habeas corpus protections, the MCA affirmed vengeance as a tool in fighting terrorism - discarding sixty years of precedent and respect for the rule of law.
My father served as Executive Trial Counsel under Chief Prosecutor and Supreme Court Justice Robert Jackson at the Nuremberg trials of Nazi war criminals, which set a high standard for moral authority and rule of law in the 20th Century. Trials were far from the obvious choice following World War Two and the extermination of 10 million people - and vengeance was an understandable reaction.
Churchill wanted to promptly shoot the Nazi leaders. Stalin wanted show trials - and then to shoot them. And many legal scholars argued there was no court or precedent under which to try them.
The parallels with the situation we find ourselves in today are chilling - today we see an Administration that too often uses the law and its advocates not to uphold justice but to undermine it, enlisting attorneys to weaken laws and agencies that protect citizens here at home and our men and women in uniform abroad.
Let there be no doubt that Mr. Khadr, Mr. Hamdan and their fellow detainees are accused of serious crimes - crimes they might well be guilty of.
Yet once again, we should reject the certainty of execution and incarceration for uncertainty of the rule of law and justice.
Why? Because America has always stood for something more and our ability to lead reflected it. Based on our moral leadership, we were able to forge alliances and respect around the world, that in turn helped to secure the nation.
Indeed, the subjugation of habeas and the use of torture make us weaker as a nation, not stronger.
America can lead again, but we must restore our moral authority. That is why I introduced the Restoring the Constitution Act (RCA). By insisting that suspected terrorists will be treated consistent with norms of our national law and the Geneva Conventions, to which we remain a signatory, we can protect our national security while upholding the international credibility so critical to securing America.
In the coming weeks I will be making a major push to bring the RCA to the floor of the United States Senate for a vote. To do that we need enough votes to pass the bill in the Senate Armed Services Committee. My good friend Senator Carl Levin has shown remarkable leadership as the Democratic Chairman of the Committee and has a long record of distinguished service in the Senate. But he alone cannot bring this bill to the full Senate, and bringing the RCA to a vote in Committee without the votes will unfortunately not advance our cause. That is why I need your help - making your voice heard by all members of the committee, Republican and Democrat alike. With your help I know we can get the votes to restore America's moral authority in the world.
It's time we stand up and say once and for all that the choice between vengeance and insecurity is a false choice - that American leadership ought to draw strength from not our worst fears but our highest ideals. In the end, we serve not only the interest of justice, but also the long term interests of the United States.
Justice Jackson said of Nuremberg, "To pass these defendants a poisoned chalice is to put it to our own lips as well." If we fail to rise to this moment, I fear we will be drinking from that chalice for many years to come.
Here's what you can do today to help restore the Constitution:
Watch my video discussing the bill and upload your own explaining why you believe America is most secure when we draw strength from our highest ideals, not our worst fears -- add the tag "restoringtheconstitution" and we'll add your videos to http://restore-habeas.org.