Congressional Record: July 16, 2003 (Senate)
Page S9448-S9484


                           Amendment No. 1268

  The PRESIDING OFFICER. All time having expired, the Senator from New 
Mexico, Mr. Bingaman, is now recognized to offer an amendment on which 
there shall be 40 minutes of debate equally divided in the usual form.
  The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Madam President, I send an amendment to the desk on 
behalf of myself and Senators Specter, Daschle, Byrd, Leahy, Levin, 
Rockefeller, Corzine, Durbin, and Carper.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman], for himself, 
     Mr. Specter, Mr. Daschle, Mr. Byrd, Mr. Leahy, Mr. Levin, Mr. 
     Rockefeller, Mr. Corzine, Mr. Durbin, and Mr. Carper, 
     proposes an amendment numbered 1268.

  Mr. BINGAMAN. Madam President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To require a report on the individuals being detained by the 
             United States Government as enemy combatants)

       Insert after section 8123 the following:
       Sec. 8124. (a) Report on Individuals Detained as Enemy 
     Combatants by United States Government.--Not later than 90 
     days after the date of the enactment of this Act, the 
     Secretary of Defense shall submit to the appropriate 
     committees of Congress a report on the individuals being 
     detained by the United States Government as enemy combatants.
       (b) Elements.--Except as provided in subsection (c), the 
     report under subsection (a) shall set forth the following:
       (1) The name and nationality of each individual being 
     detained by the United States Government as an enemy 
       (2) With respect to each such individual--
       (A) a statement whether the United States Government 
     intends to charge, repatriate, or release such individual; or
       (B) if a determination has not been made whether to charge, 
     repatriate, or release such individual, a description of the 
     procedures (including the schedule) to be employed by the 
     United States Government to determine whether to charge, 
     repatriate, or release such individual.
       (3) With respect to each such individual who the United 
     States Government intends to charge, the schedule for the 
     filing of the charges and the trial of such individual.
       (c) Classification of Certain Individuals.--(1) If the 
     Secretary determines that the inclusion of an individual in 
     the report under subsection (a) would harm the national 
     security of the United States, the Secretary may include such 
     individual in a classified annex.
       (2) Determinations under paragraph (1) shall be made on a 
     case-by-case basis.
       (3) If the Secretary determines to omit one or more 
     individuals from the unclassified form of the report, the 
     Secretary shall include in the report an explanation of the 
     omission of the individual or individuals.
       (d) Form.--The report under subsection (a) shall, to the 
     maximum extent practicable, be submitted in unclassified 
     form, but may include a classified annex.
       (e) Definitions.--In this section:
       (1) The term ``appropriate committees of Congress'' means--
       (A) the Committees on Armed Services and the Judiciary and 
     the Select Committee on Intelligence of the Senate; and
       (B) the Committees on Armed Services and the Judiciary and 
     the Permanent Select Committee on Intelligence of the House 
     of Representatives.
       (2) The term ``enemy combatant'' means--
       (A) an individual held under the authority of the Military 
     Order of November 13, 2001 (Volume 66, No. 222, pages 57833-
     57836 of the Federal Register); or
       (B) an individual designated as an enemy combatant and held 
     under other legal authority.

  Mr. BINGAMAN. Madam President, I came to the floor two days ago to 
express my concern about the administration's detention policies with 
respect to three different categories of

[[Page S9452]]

individuals, and this is particularly in the period since 9/11.
  One of those groups I spoke about was immigrants. There, of course, 
the concern has been underscored by the report done by the inspector 
general in the Department of Justice pointing out the abuses that have 
been engaged in by both the Department of Justice and the FBI with 
regard to immigrants after the 9/11 tragedy.
  Another group I spoke about were material witnesses. There have been 
several abuses there. In some cases, I think the FBI has acknowledged 
that. I think, again, we have a serious issue there of adequate 
attention to civil liberties and human rights.
  The third group I spoke about is the group designated by the 
Department of Defense and the President as so-called enemy combatants. 
That is a group my amendment deals with today.
  The amendment is very straightforward with regard to these 
individuals. It requires a report. It says to the Department of 
Defense, the Secretary of Defense, give the appropriate committees of 
the Congress a report within 90 days of the time this law becomes 
effective. The report shall indicate who these people are that the 
administration has designated as enemy combatants, and it shall tell us 
what plans the Department has with regard to charging these individuals 
with crimes, with regard to trying them for those crimes, and if there 
is an intention to repatriate some of these individuals to particular 
countries, to please advise us of that, but tell us something about who 
these individuals are and what you intend to do with them. That is the 
thrust of the amendment.
  There is a proviso in the amendment that says if there is a national 
security problem that the Department or the Secretary of Defense sees 
in giving us any of this information, of course, that doesn't need to 
be included in the unclassified version of the report. That could be 
kept in a separate, classified annex and assigned whatever 
classification the Secretary determines is appropriate.
  The administration is holding 3 individuals today--that I am aware 
of--in the United States as enemy combatants and is holding close to 
700 at our military base in Guantanamo Bay, Cuba. In all cases, these 
individuals are being called incommunicado. They are given no access to 
counsel and no opportunity for judicial review as yet.
  Let me say what I think should be obvious to everybody, and that is 
that I am not advocating that these individuals be released. What I am 
saying is that we should afford them the right to be charged with a 
crime. Tell us what action they have taken that justifies their 
incarceration, and set up some opportunity for them to be tried for 
those actions. Many of these enemy combatants have been in custody by 
our Government for well over 18 months--in some cases over 20 months.
  President Bush announced recently--in the last 2 weeks--that 6 of the 
700 or so of these enemy combatants will be tried by a military 
tribunal. As far as I know, there has been no indication yet as to what 
they will be tried for. There is no indication yet, or designation, or 
appointment of a military tribunal or commission to do the trying of 
these individuals. There has been no date set for these trials. But the 
President has said that 6 of the 680 or 700 individuals are eligible--I 
believe that is the phrase used by the Department of Defense and the 
White House--to be tried by military tribunals.

  There are serious questions about how those tribunals will function, 
and I am sure there will be many debates about that. Even more serious 
is a question relating to those who remain in jail, who have not--as 
yet at least--been given any indication of charges, any indication of 
when trials might be conducted in relation to them.
  The obvious question we need to be asking--we in the Congress--since 
we have an oversight responsibility over the administration, the 
executive branch, is, Where does the Government or this administration 
intend to go with regard to these individuals?
  So far, the administration takes the position that once the President 
says someone is an enemy combatant, they can keep them incarcerated, 
presumably until the war on terrorism is over. But the President has 
said--and I think he is probably right--this war on terrorism is of 
indefinite duration; it is not a war that we can see the end of--at 
least not in the near future. It appears to be the President's view and 
the administration's view that these individuals can be kept as 
prisoners from now on, without the administration having an obligation 
to say who they are, without the administration having an obligation to 
charge them with a crime, without the administration having any 
obligation to afford them a hearing.
  The administration takes the view that they do not come under the 
Geneva Convention, but evidently they come under none of the other 
procedural requirements that we have always thought applied in our 
system either.
  In my view, this is not a tenable position. It is not consistent with 
the commitment to liberty and the rule of law on which this country was 
founded. We demand that other governments show greater respect for 
human rights than this, and we should be demanding better from our own 
Government as well.
  The amendment is very straightforward and very modest, in my view. It 
simply says that the Secretary of Defense shall provide us with a 
report on the status of these detainees--provide that to the relevant 
committees of the Congress. Under the amendment, the report should 
include the name and nationality of the individuals involved, a 
statement as to whether our Government intends to charge them with some 
offense, or intends to repatriate them, or intends to release them--
whatever action we intend to engage in.
  There is nothing in the amendment that biases what is done with these 
individuals in any way. In the case of the individuals for whom such a 
determination has not been made, we ask for a description of the 
process the Department of Defense is intending to follow and the 
timeline for actually making a decision regarding these individuals.
  Madam President, I believe strongly that we have an obligation to 
require some accountability with regard to this set of individuals.
  We have made provision in the amendment, as I said before, so that 
the Secretary can withhold any information from any report he deems to 
be information necessary to withhold for national security reasons.
  The administration, in my view, needs to take some action and needs 
to advise the Congress on what it is doing with these people. If the 
individuals have committed crimes, let's see them charged with crimes. 
If they have not committed crimes, let's see them repatriated. Let's 
see some action taken. We in Congress need to understand what that 
action is. That is the thrust of the amendment. I hope it will receive 
broad bipartisan support.
  I appreciate Senator Specter cosponsoring the amendment, as well as 
the other Members I mentioned. I believe there is at least one other 
Member who wishes to speak in behalf of the amendment. So I reserve the 
remainder of my time.
  Mr. LEAHY. Mr. President, the distinguished Senator from New Mexico, 
Mr. Bingaman, has an amendment which would require the Department of 
Defense to share with the relevant congressional committees information 
about those who are being held as enemy combatants. I am pleased to 
cosponsor this amendment.
  The amendment safeguards any national security concerns by 
authorizing the Secretary of Defense to provide this information in 
classified form where national security requires it. It is a cautious 
amendment. It does not force the administration to change the way it 
designates or treats enemy combatants, but merely secures the ability 
of Congress to carry out the oversight that our laws, our Constitution, 
our traditions, and our practice require us to do.
  Although the cases involving enemy combatants detained within the 
U.S. have been well publicized, we know very little about those who are 
being detained in Guantanamo Bay. Because they are held outside U.S. 
territory, the courts have found they do not have the power to review 
their detention. I do not doubt some of these detainees are dangerous 
individuals who wish the United States harm, but doubts have been 
raised on behalf of some of these detainees, and I think the Congress 
should have the information necessary to make judgments about this 

[[Page S9453]]

  I hope this amendment will be adopted. It will make the Department of 
Defense to make decisions more quickly as to whether to charge many of 
the individuals it is currently holding. No one advocates haste that 
will compromise ongoing intelligence gathering or hurt our national 
security, but at the same time, the United States cannot be in the 
position of indefinitely detaining individuals without charging them 
with any wrongdoing. That is inconsistent with United States traditions 
and will continue to cause us difficulty in our relations with the 
nations of citizens who are being held, ranging from Pakistan to Great 
Britain. It also puts us in a difficult situation when we tell other 
countries not to do what we are doing.
  Indeed, according to the New York Times, the President's decision to 
certify two British nationals for trial before a military tribunal 
created friction between our two nations, as Prime Minister Blair 
arrives to address a joint meeting of Congress tomorrow.
  Let me be clear, this amendment does not require any enemy combatant 
to be charged, let alone released, but it does ask the Secretary of 
Defense to explain where the investigatory process stands in the case 
of each detainee.
  Finally, I hope this amendment will encourage the administration to 
make decisions about what charges he intends to bring, if any, against 
Jose Padilla and Yaser Hamdi, U.S. citizens currently being held 
indefinitely without charge in the United States. Their detentions have 
raised grave legal questions, and it is deeply discomforting to see in 
this case American citizens held indefinitely, in a legal twilight 
zone, without access to counsel or those protections to which we 
believe U.S. citizens are generally entitled, and also those 
protections that we preach to the rest of the world we uphold and we 
ask them to uphold when one of our citizens is being detained in their 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Madam President, soon after the war in Afghanistan 
started, I joined with others to go with Secretary of Defense Rumsfeld 
to Guantanamo Bay to assure ourselves that the Department of Defense is 
complying and will comply with provisions of the Geneva Convention with 
regard to the treatment of prisoners who are held at Guantanamo Bay and 
other places arising from that war.
  It is my understanding the individuals who are detained are those who 
have participated in the battles in Afghanistan against our soldiers, 
and those who are, at the request of the Department of Justice, held 
for suspected terrorist activities in the United States in the war 
against terrorism.
  The Department of Defense does not have control over these personnel. 
I believe they are really under the jurisdiction of the Department of 
Justice. I do not intend to make any kind of point of order based on 
legislation. I think we should just face this directly.
  I think the concept of Senator Bingaman's amendment is directly 
contrary to what we should be doing with regard to activities of people 
who have conducted themselves as enemies of the United States in war 
and those who are involved in the terrorist activities as part of the 
terrorist war against the United States.
  Placing a requirement that we disclose and give a schedule as 
required by this Bingaman amendment is totally contrary to the best 
interests of the United States. It would place an unwarranted pressure 
on the administration to decide on charging and prosecuting enemy 
combatants prior to completion of intelligence and law enforcement 
  These people in Guantanamo Bay were held incommunicado from one 
another. One of the reasons was the concept of the knowledge of who 
else was detained might deter one of these people from giving us the 
information we needed to find the leaders in the war on terrorism 
against the United States.
  The process of investigation is a very long and tedious one. These 
people use different languages. We found they are using names and 
declaring they are from countries that are totally untrue. The real 
problem is how to deal with these people in a way to end the war in 
Afghanistan and to end the war on terrorism.
  It is the executive branch's authority and responsibility to conduct 
the global war on terrorism. It is the executive branch's 
responsibility to conduct the war in Afghanistan. For Congress to 
impose a restriction on the activities that are consistent with 
precedent and consistent with the manner in which similar people have 
been detained over the years when we have been involved in war, such as 
World War II, and the Germans came to our shores and the spies who were 
intercepted throughout the world--they were held in the combatant 
status. These people are in combatant status and, as such, their 
treatment is subject to the Geneva Convention.
  Only this basic law would impose conditions upon the right of the 
administration and the Departments of the executive branch to fully 
exploit the intelligence and investigative capabilities of the 
detention in a combatant status in order to deal with these two 
terrible scourges we face right now.
  Unfortunately, the war in Afghanistan seems to be taking unfortunate 
turns lately, and I hope we can meet that situation. We meet it through 
information that we gather from some of these people. I am reliably 
informed that some of these people, in the way they have been treated, 
have divulged information to us that has led to the capture and 
detention of others in a similar capacity as having been enemies of the 
United States.
  In short, I think it would be highly inadvisable to adopt the 
Bingaman amendment, and it would have a negative impact on both the war 
on terrorism and the conduct of wartime operations in Afghanistan.
  There are cases pending in the courts now that this amendment, I 
understand, would terminate because there are people who, through civil 
rights cases, filed to determine the court's opinion as to the ``combat 
status'' designation, and I do not think we should take action now as a 
Congress to interrupt that process.
  Madam President, does Senator Inouye wish to comment?
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Madam President, the committee has been advised, No. 1, 
that the procedure and process employed in Guantanamo and other places 
of detention meet the requirements set forth by the Geneva Convention.
  No. 2, the matter is being represented by counsel and presently in 
court. As our chairman indicated, it would not be appropriate for this 
committee to be intervening while a court case is pending.
  No. 3, I think we should keep in mind that this is not a war. This is 
an experience that this Nation has not had in its past history. This is 
a war on terrorism. It is not the uniformed enemy to which we are 
always accustomed where we know who their commanders are, we know where 
they are coming from, they wear a different type of uniform. In this 
war, we have no idea who the terrorists are. It could be this young 
lady here, for all I know.
  Having said that, if we follow provisions of this amendment and the 
Defense Department and the Department of Justice are required to give 
out the names, the rank, the charges, et cetera, and to give an 
indication as to when one can expect this prisoner to be released, I 
think we may be working right into the hands of the organization we are 
trying to combat: al-Qaida.
  If I were in charge of the al-Qaida operations, I would like to know 
what is happening to those below me. And if I new Mr. One is coming out 
next August or Mr. Two is coming out in September, I can make plans 
  As I pointed out, this is a war that none of us have experienced in 
the past. The chairman and I could speak of World War II and the Hump, 
the Japanese, the Germans, the camps and such.
  On this matter, we have never experienced anything like this. So I 
hope as long as Guantanamo is open to inspection--and the chairman and 
I have gone there. It has been always open to Members of Congress if 
they wish to go there for themselves to look over the conditions, to 
taste their food, and in fact talk to them to see if they are being 
tortured, as some would suggest. I think my colleagues will find that 
as Americans we have treated our detainees in an humane fashion.
  Now, no one would want to be detained even for an hour, but in this

[[Page S9454]]

wartime condition and terrorist condition I think there is a necessity. 
We have done our duty in a way that Americans need not be embarrassed 
and ashamed. So I hope my colleagues will not look favorably upon this 
amendment and wait for another day.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. How much time remains?
  The PRESIDING OFFICER. The Senator has 10\1/2\ minutes.
  Mr. BINGAMAN. I yield myself such time as I may consume.
  Madam President, I will respond to a few of the points my colleagues 
from Alaska and Hawaii made. First, I will say what this amendment does 
not do. There is nothing in this amendment that restricts what action 
the Department of Defense, the Department of Justice, or any other 
agency of the Government is permitted to take with regard to these 
enemy combatants. This is an amendment that asks for a report. It does 
not say certain action has to be taken with regard to these 
individuals. It says tell us the status.
  Second, there is nothing in this amendment that affects court cases. 
If there are court cases related to any of these enemy combatants, then 
it is perfectly appropriate for the Justice Department to indicate who 
the person is or which individuals are involved and say they are 
subject to pending litigation, if that is the case. But the reality is, 
if one is designated an enemy combatant, they are taken out of the 
court system. That designation takes one out of the court system and 
puts them in the custody of the military. It is the position of our 
military that from that point on, one has no right to a hearing, no 
right to be charged, is an enemy combatant, and accordingly they will 
deal with them as they choose.
  The Senator from Alaska says this is something that is probably in 
the jurisdiction of the Department of Justice. I think that sort of 
makes my case. These people are in nowhere land. They are in limbo.
  There is an article that came out in the morning paper in my home 
State in Albuquerque where there was a little report on the speech I 
gave 2 days ago talking about this problem, and I will read a sentence 
from that report: White House spokesman Taylor Gross referred questions 
about Bingaman's speech and proposed amendment to the Justice and 
Defense Departments. A Justice Department spokeswoman referred 
questions to the Defense Department. A spokesman for the Defense 
Department declined to comment.

  The reality is, we are allowing the administration to put these 
people in a category and then take the position that no rights apply to 
these individuals. There is no obligation on the Department of Justice 
to follow procedures with regard to these individuals. There is no 
obligation on the Department of Defense.
  There is nothing in my amendment that questions the treatment of 
these individuals. Others have questioned the treatment of these 
individuals. I have not questioned the treatment of these individuals 
in Guantanamo. There is nothing in the amendment that questions the 
treatment of these individuals.
  Also, the point my good friend from Hawaii has made, that this would 
give al-Qaida or some other terrorist organization information that 
could be useful to them about when individuals might be released, 
first, we have a proviso that anything the Department of Defense 
determines might be contrary to national security, they should keep it 
classified. They can give it any level of classification they want to 
give it. If they want to say it is code level classification, they can 
do that, whatever classification they think is appropriate.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. BINGAMAN. I am glad to yield to my colleague from Illinois.
  Mr. DURBIN. I am happy to be a cosponsor of this amendment. I ask the 
Senator from New Mexico--he has made the point it is still up to the 
administration to decide which names and identities will remain 
classified and not publicly disclosed. If there is any concern about 
national security and the threat of terrorism, as I understand this 
amendment, the Senator makes a clear exception so the administration 
has the last word in terms of this disclosure; is that not true?
  Mr. BINGAMAN. Madam President, in response to that question, let me 
say that is exactly right. We have gone out of our way to make it clear 
the Departments can keep secret, can keep code classification, whatever 
classification level the Department decides is appropriate, any 
information they think is vital to our national security. So we are 
saying, as to the information that is not of that type, tell us what 
can be told about who these people are and what the intent is as far as 
what to do with them.
  Mr. DURBIN. I ask the Senator from New Mexico, through the Chair, if 
he would yield for one additional question. Is it not true historically 
that when we are in the midst of a national security challenge or 
crisis, and questions of civil liberties arise, that many times we do 
not want to face them head on; that it is not until later in history 
that we look back and say we should have asked harder questions, 
questions about the suspension of civil liberties in wartime, questions 
about internment camps, questions about policies that we followed?
  If I understand what the Senator is seeking in this amendment, it is 
to say at this point in time what we are asking for is a disclosure of 
those people who have been detained and arrested and are in special 
status, whose rights at least may be compromised because of our concern 
about national security; and that disclosure is all that this amendment 
is about, giving the administration the last word and determination as 
to which names might be held back and not disclosed because of security 

  Mr. BINGAMAN. Madam President, in response to that follow-on 
question, that is exactly correct. The Senator from Illinois is exactly 
right in pointing out that in what we are trying to do, we are not--
this is not an amendment I am offering 6 weeks after the 9/11 tragedy. 
This is an amendment I am offering 20 months or more after the 9/11 
tragedy. We know that many of these individuals have been there well 
over a year and a half. It is time that we in Congress exercise our 
oversight responsibility and say: Who are they? What are they intending 
to be charged with? I do not anticipate that these are individuals we 
are going to some day say we have decided to release. I assume that we 
have them there for good reason, and that we are going to prosecute 
them and that we are going to find them guilty. That is my assumption, 
assuming the system works as it is intended to work.
  So my thought is, let's get some idea of where we are going so that 
we begin to build in some accountability and begin to recognize what we 
historically have recognized, and that is that there are certain legal 
protections that apply if one is jailed by the United States 
Government. There are certain legal rights that we will be afforded.
  Mr. DURBIN. I ask the Senator from New Mexico if--I do not know how 
much time he has remaining, Madam President.
  The PRESIDING OFFICER. There are 3 minutes 15 seconds remaining.
  Mr. DURBIN. If I might ask the Senator from New Mexico this question: 
What is at issue in his amendment, if I am not mistaken, is whether we 
are going to afford any form of due process to these detainees. Is it 
not also true that we have to look beyond these detainees to how we as 
Americans would be treated in other countries, whether we are 
establishing a standard which we could live by?
  In other words, I am asking the Senator from New Mexico if we believe 
that we can detain individuals, without disclosure of who they are, and 
the circumstances of their detention, does that not invite the same 
conduct against Americans or service men and women overseas and give 
the United States little or no room to complain?
  I ask the Senator from New Mexico if he is not asking for us to stand 
up for some basic elements of due process which we would ask to be 
afforded to Americans in similar situations.
  Mr. BINGAMAN. In response to the question, I think the Senator from 
Illinois makes a very good point. If we are going to proclaim our 
commitment to liberty and to freedom as we always have, and as I 
certainly want to be able to do, and if we are going to insist that 
U.S. citizens, when they are captured

[[Page S9455]]

in overseas incidents, whether they be military or civilian, that they 
be given some reasonable treatment through the court systems of those 
countries, then we have to have some adherence to reasonable legal 
process for these individuals that we have incarcerated. That is all I 
am asking. Tell us what we are going to do. If they come back and say 
we are not going to do anything, then we can see whether a follow-on 
amendment or follow-on action is appropriate.

  This amendment simply says, give us a report. Tell us the status of 
these individuals; tell us your plans with regard to these individuals; 
or give us some idea whether or not you are going to charge them. If 
you are going to charge them with something, tell us what you might 
charge them with. If you decide to make that decision later on, tell us 
when you might decide to make that decision.
  It is the most modest of amendments. I hope very much it will be 
supported by my colleagues on a bipartisan basis.
  How much time remains?
  The PRESIDING OFFICER. The Senator has 53 seconds.
  Mr. BINGAMAN. I retain that and I yield the floor.
  Mr. STEVENS. Madam President, for the information of the Senate, the 
Intelligence Committee has access to information about enemy combatants 
who are being detained, including names the Red Cross is fully engaged 
with in the continuing meaningful access to detainees.
  This Congress was briefed about the creation of the military 
tribunals and the handling of detainees. The tribunals were created by 
Executive order. That was published in the Federal Register. It has 
been a matter of public record for some time.
  Any detainees brought before military tribunals have full access to 
military and, at their request, civilian counsel. We are talking now 
about the requirement to publish, to release these names. By the way, 
they have been released, in effect, in classified form, but with the 
intervention of our Intelligence Committee, which is the oversight 
committee for this body in regard to information such as this.
  I cannot believe we would be faced on an appropriations bill with a 
matter of this kind. It does not get into money, but it does deal with 
something the Department of Defense has connection with. It is relevant 
and therefore we must deal with it.
  However, the broad release of the names of these individuals, even in 
classified form, could compromise our ability to access information 
which could prevent more terrorist attacks, could prevent more attacks 
on our military in Afghanistan. This is a military problem in that 
sense. That is why the Department of Defense is involved. It is the 
Department of Justice's sense in terms of deciding how they are 
prosecuted. If they are prosecuted in civilian courts is another 
matter. Then they would be fully accounted for in the public sector. If 
the prosecutor in the tribunals--the tribunals themselves can be 
closed, if that is the decision. The person would still have the right 
to counsel and a right to be tried before the tribunal, but we would 
not necessarily have public access to that trial because of the 
information involved.
  If people want to go to Guantanamo and know who is there, go there. 
We went there. I don't understand why we should take this action now.
  By the way, the Senator is not quite correct; it not only says the 
names and the nationality but also whether they are to be charged, 
repatriated, a statement of what procedure is going to be followed to 
determine whether they are charged or repatriated. That is intelligence 
information. And with respect to such individuals in the United States, 
intention to charge, a schedule for the filing of the charge and the 
date for the trial. If it is a military tribunal, it could well be 
classified. To require the determination now of what would be done--it 
is true there is an exclusion here; the Secretary can omit. But if he 
omitted one or more individuals, then he would include in the report an 
explanation of the mission of the individual or individuals. It could 
include a classified index. If it could include a classified index, why 
should it be published? We do not publish a classified index.

  The term ``enemy combatant'' means an individual held under the 
authority of military order of November 13, 2001, as published in the 
Federal Register, or an individual designated as an enemy combatant and 
held under other legal authorities. In both instances, they have 
quality access to courts that protect their rights. Other people are 
pursuing those cases.
  The interrogation process of people like this is ongoing and very 
timely. It does not lend itself to detailed plans, firm dates, and firm 
schedules. We saw some of that when we were in Guantanamo, but the 
interrogation efforts in many ways require somehow to get through to an 
individual who has lied to us about who the person is, where they are 
from, and refused to give any data at all concerning their own 
background. They were captured under wartime conditions.
  This amendment is an attempt to poke Congress' nose under a tent, 
that we belong only if we are in an unclassified area. That is what the 
Intelligence Committee has already done. I am reliably informed the 
Intelligence Committee has access to information about these enemy 
combatants in detention, including their names. If they started 
releasing the names of these individuals, even in classified form, it 
could compromise sources and methods of their acquisition and 
compromise the possibility of gaining information on them that might 
prevent further terrorist activities.
  If the Senator wishes further time, I will be glad to not yield back 
my time but I intend to yield back the time and move to table.
  Mr. BINGAMAN. I appreciate the courtesy. I will use my remaining 50 
  The PRESIDING OFFICER. Forty-five seconds.
  Mr. BINGAMAN. Madam President, first of all, if the Secretary of 
Defense believes the release of any of these names compromises our 
national security, he is given full reign to keep that information 
classified at any level of classification he decides is appropriate. So 
we are not in any way interfering with national security.
  In my view, it is not appropriate for us to say, look, if you want to 
check on them, get on a plane and go down to Guantanamo. We and the 
American people need to be persuaded there is some adequate due process 
and legal process being followed.
  Regarding the idea of these military tribunals, there have been no 
tribunals established. The President said 6 individuals out of the 
nearly 700 are eligible to be considered or to be tried by military 
tribunals. There are no military tribunals established.
  I urge support for the amendment and I yield the floor.
  Mr. STEVENS. Madam President, I yield back the remainder of my time.
  Before that, I ask unanimous consent that the second and third votes 
in this stack of three votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. STEVENS. I yield back the remainder of my time, I move to table 
the Senator's amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. STEVENS. The first vote will be on tabling the Dorgan amendment; 
the second vote will be on the Bingaman amendment; and the third vote 
will be on Burma.
  The PRESIDING OFFICER. That is correct.


  The PRESIDING OFFICER (Mr. Hagel). Under the previous order, there 
are now 2 minutes equally divided prior to a vote on the motion to 
table the Bingaman amendment.
  Who yields time?
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, this is a very straightforward amendment 
which just requires a report from the Secretary of Defense on those 
people we are incarcerating under the status of ``enemy combatant'' and 
what our intentions are with regard to charging them or making a 
decision on charging them.
  We have a proviso in there that if the release of any of this 
information will jeopardize national security, the Secretary can 
withhold that and put it in a classified annex and give it any level of 
classification the Secretary determines is appropriate.
  So it seems to me essential that the Congress exercise some oversight 
of this process. If we are going to be a nation that stands for liberty 
and freedom and legal process, then we ought to ensure that everyone 
who has been taken into custody in our country be afforded some legal 
protection. There are no military tribunals that have been established. 
The problem is not resolved. We should ask for this report.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, these people are being held consistent 
with the Geneva Convention. The Intelligence Committee of the Senate 
has access to names and information concerning those who are detained.
  The Red Cross is fully engaged and has meaningful access to the 
detainees. We need to have the interrogation process continue so that 
we can see if we can get information from these people that might lead 
to us having the ability to prevent further terrorist attacks against 
the United States.
  They are enemy combatants. There is fully published, in the Federal 
Register, the procedure under which they will be handled. This 
amendment, as a matter of law, forces the disclosure and a plan of when 
they are to be released. It is contrary to the best interests of 
national security, in my opinion. I made a motion to table and I urge 
its support.
  The PRESIDING OFFICER. All time has expired.
  The question now occurs on agreeing to the motion to table amendment 
No. 1268. This will be a 10-minute vote. The yeas and nays have been 
ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from New Hampshire (Mr. 
Sununu) is necessarily absent.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Florida (Mr. Graham), the Senator from 
Massachusetts (Mr. Kerry), the Senator from Connecticut (Mr. 
Lieberman), and the Senator from Georgia (Mr. Miller) are necessarily 
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 42, as follows:

                      [Rollcall Vote No. 279 Leg.]


     Graham (SC)


     Nelson (FL)
     Nelson (NE)

                             NOT VOTING--6

     Graham (FL)
  The motion was agreed to.
  Mr. STEVENS. Mr. President, I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.