[Congressional Record: September 27, 2006 (Senate)]
[Page S10234-S10238]

                    MILITARY COMMISSIONS ACT OF 2006

  Mr. DURBIN. Mr. President, I rise to speak about the Military 
Commissions Act of 2006 which the Senate is likely to consider, 
possibly today, certainly this week.
  For those who have been following it, the debate in Washington the 
last few weeks has been very interesting. It has now been 5 years since 
the attacks of 9/11. The present administration has finally come 
forward and asked Congress

[[Page S10235]]

to pass a bill authorizing military trials to try suspected terrorists. 
At this late date, the President is demanding the Congress act 
immediately after the administration waited 5 years to come to 
  It is welcome news that the President is now working with the 
Congress to bring the planners of 9/11 to justice. Why do we have to do 
it today? Why do we have to do it this week?
  For some of us who have served in the Senate for a while, this 
reminds us of a debate that took place 4 years ago. Four years ago this 
Congress was told that before we could return home to face the November 
elections, we absolutely without fail had to vote on the question of 
authorizing the use of military force and giving the President the 
authority to invade Iraq. We were told there was a timetable that had 
to be met; that there was no time to spare.
  Despite the fact that we had limited information about the situation 
in Iraq, despite the fact that we had only vague assurances from the 
President that he would use diplomacy before he ever considered 
military action, despite the fact that we didn't have a coalition of 
allies or forces, we were told the decision had to be made. It had to 
be made in October, before an election.
  I recall it very well because I was up for reelection. Many of us 
were told: If you vote wrong on this one, you may not be reelected. It 
wasn't an easy vote. The toughest vote any Member of Congress can face 
is a vote for going to war. On that vote there were 23 Members of 
Congress who voted no--1 Republican, 22 Democrats--and I was one of 
that number. I look back on it now as the right vote. I have heard many 
Senators who voted to go to war that day who have said: We made a 
  I salute their courage for standing up and admitting that. I have yet 
to find a single Senator who voted against that war who has said the 

  Now we are being told, less than 2 months before another election, we 
absolutely have to have a vote this week on a--secure fence, they call 
it. See if you can catch the flaw in the logic.
  The proposal is to build a 700-mile fence on the Mexican border, 
which is 2,000 miles long. Do you catch the flaw in this logic? Is it 
possible that those determined to come into the United States might go 
around the fence? Over it? Under it? This 700-mile fence is a 19th or 
early 20th century answer to a 21st century challenge. It has now 
become a question of political bragging rights. Which party has the 
longest fence to take to the American voters? Is that the best we can 
do on Capitol Hill?
  I might add, this underlying bill says it is about time we get 
serious about building a fence between Canada and the United States--
thousands of miles. I try to envision this, what we are talking about. 
The 700-mile fence on the southern border is the equivalent of a fence 
from the Washington Monument in the Nation's Capitol to the Sears Tower 
in Chicago--a fence of 700 miles.
  We can argue the merits or demerits of this issue, but it is clear 
what it is all about. It is an effort to have a political vote as close 
to the election as possible. It is an effort to tap into voter 
sentiment on the issue of immigration. It is an effort to avoid our 
real responsibility, and that is to demand smart enforcement--tough 
enforcement at the border, and enforcement in the workplace so that 
those who are drawn to America to find a job will be discouraged 
because now there will be a tamper-proof ID to establish who a person 
really is before they have a chance to work in this country.
  It is also ignoring the obvious, too. We need agricultural workers 
immediately. The crops, the fruit and produce, are rotting right now in 
many States such as California because the workers are not permitted to 
come here. That is not good for the growers, of course. It is certainly 
not good for America. But it is a fact.
  We also face another reality. There are 10 to 12 million people here 
today who are undocumented. I know many of them in my city of Chicago, 
which I am honored to represent. Many come forward to talk about the 
challenges they face with current immigration laws, which are almost 
impossible to understand. Instead of looking at the whole picture and 
having an honest answer, even if it isn't that popular, the Republican 
leadership has decided that before we get out of town we are going to 
vote on a 700-mile fence, on the Mexican border and a study of a fence 
along the Canadian border. It tells you where we are politically.
  The second part of this bill is not much different. It is an effort, 
I am afraid, by many political strategists, to create a political wedge 
issue, a replay of what we faced 4 years ago with the vote on 
authorizing the President to invade Iraq. The reality is that the 
Congress has stood ready to create commissions to try terrorists for a 
long time. It was 2002, when Senator Arlen Specter, Republican of 
Pennsylvania, now chairman of the Judiciary Committee, came to me and 
asked me to cosponsor bipartisan legislation to authorize military 
commissions, and I did. The understanding was we should have 
commissions that are consistent with the rule of law and our 
constitutional values. That was 4 years ago. Nothing has happened, from 
the administration or in Congress. Now we are told we can't wait 
another day.
  Instead of working with Congress, the President unilaterally created 
military commissions that are inconsistent with American values and the 
law. It was no surprise when the Supreme Court ruled in the Hamdan 
decision this administration's military commissions were illegal.
  After the Hamdan decision, I had hoped that we could work with the 
administration by charting a new course, a bipartisan course, as we did 
with so many other things. When it came to the creation of the PATRIOT 
Act, it was a bipartisan effort after 9/11. When it came to reforming 
our intelligence agency, it was bipartisan. But, unfortunately, this 
effort has not been bipartisan. Instead, the Administration initially 
demanded that Congress pass a law simply ratifying the approach that 
the Supreme Court has already rejected. The Republican leadership of 
Congress rushed to rubberstamp the President's proposal.
  We need to create military commissions so those who are guilty of 
terrorism and war crimes can be held accountable. But we need to do it 
in a way that will meet the test of the body right across the street, 
the U.S. Supreme Court. They will ultimately look at our product and 
decide whether it meets constitutional muster. If the Court rejects 
these new military commissions, justice for the victims of 9/11 will be 
delayed yet again.

  It is fortunate that under the leadership of Chairman John Warner and 
ranking member Carl Levin, the Senate Armed Services Committee took a 
hard look at this issue and produced bipartisan legislation that is 
vastly superior to the bill proposed by the administration. It is 
disappointing, but not surprising, that the White House and Republican 
leadership of the Senate did not accept the Armed Services Committee 
bill. I am afraid that was our last best hope for a bipartisan effort. 
But perhaps many of them do not want a bipartisan bill. Many of those 
strategists want a partisan issue.
  It is more important that the protection of America be done on a 
bipartisan basis and a sensible basis than that we posture in these 
last few moments before an election to try to win some advantage in the 
  I want to salute a number of Republican Senators, one of whom is 
presiding at this moment, for their leadership on this issue: Senator 
John Warner of Virginia, Senator John McCain of Arizona, and Senator 
Lindsey Graham of South Carolina, who is presiding. Senator Warner is a 
World War II vet and former Secretary of the Navy; John McCain, 
Vietnam, a Vietnam vet, former prisoner of war; Lindsey Graham, who was 
a judge advocate in the Air Force Reserves and is the only Senator 
currently serving in the National Guard or Reserves.
  They spoke out, and I am sure they took some heat for saying the 
administration's proposal was not good enough. The chorus behind them 
was a strong one. General Colin Powell stepped forward and said the 
administration's proposal did not meet the moral test of a country that 
wants to fight terrorism on a global basis. He was joined by General 
Vessey and General Shalikashvili and other military leaders who were 
equally critical.
  Thanks to their efforts, the bill we will consider is better than it 
otherwise would have been. For example, the bill would make it a crime 
to use abusive interrogation techniques like

[[Page S10236]]

waterboarding, induced hypothermia, painful stress positions, and 
prolonged sleep deprivation.
  What it comes down to is this: How will we treat detainees and 
prisoners? Is there a limit to what we can or should do? Will the 
Geneva Conventions work? This administration, the Bush administration, 
said a few years ago they were quaint and obsolete in a war against 
terrorism. Thank goodness that point of view is no longer acceptable.
  President Bush says he has one test for this legislation: Will it 
allow the administration's secret prisons and coercive interrogation 
techniques to continue?
  Of course we must detain and aggressively interrogate suspected 
terrorists. We live in a dangerous world. There are people in this 
world who wish us ill. We learned it on 9/11. We learned it in 
countries around the world, that these are people who cannot be trifled 
with. They must be taken seriously, and I would not support any 
legislation that prevented our military or intelligence investigators 
from asking the hard questions of those they have detained.
  But there are other tests we have to apply as well. First, is the 
legislation we are about to pass consistent with American values and 
law? What makes us better than the terrorists is that there are some 
lines we won't cross, even in war. I believe we can fight terrorism 
effectively and stay true to our Constitution.
  Just as important: Will this legislation put our own troops at risk 
or make it more difficult to fight the war on terror. As dozens of 
military leaders have argued in recent weeks, this is not the last war 
we will fight, and the standards we set today for the treatment of 
detainees and prisoners will determine how our brave soldiers will be 
treated in this and future wars.
  Despite the great efforts of Senators Warner, McCain, and Graham, I 
am concerned that provisions in the bill that will come before us do 
not meet these tests.
  Let's take one example. The bill would revise a law known as the War 
Crimes Act to give Bush administration officials and those who preceded 
them, back to 1997, amnesty, amnesty for authorizing illegal 
interrogation techniques.

  Think about this for a second. This administration wrote a memo. The 
author of that memo is a gentleman who is now before us as a potential 
nominee for the Federal court. In that memo it was recommended that we 
might use, as part of interrogation techniques, using dogs to threaten 
and intimidate prisoners. That was in the memo.
  Now, fast forward to Abu Ghraib and to those awful, horrific 
photographs we saw of the treatment of prisoners in that jail. You will 
recall, as I do, one of our soldiers holding on a leash a dog that was 
growling at one of the prisoners. That soldier is in jail today for 
using that dog and using that technique. The person who wrote the memo 
suggesting the use of dogs as an interrogation technique is not only 
facing no questioning, but the administration is proposing he be given 
a lifetime appointment to the second highest court in the land.
  Where is the justice, when soldiers who use these techniques, as 
wrong as they are, end up in prison, and those who write the memos 
suggesting these techniques not only are not held accountable, they are 
rewarded? And now we are presented with this bill, which says we will 
give amnesty to those who conceived of these interrogation techniques.
  Over 4 years ago, then-White House Counsel Alberto Gonzales 
recommended to the President that the Geneva Convention should not 
apply to the war on terrorism. In a January 2002 memo to the President, 
Mr. Gonzales concluded the war on terrorism ``renders obsolete'' the 
Geneva Conventions. Think of that. The Geneva Conventions, 
international agreements that have guided America for more than a 
century, were obsolete, we were told by the White House Counsel at that 
time, Mr. Gonzales.
  In his memo to President Bush, Mr. Gonzales specifically warned that 
administration officials could be prosecuted under the War Crimes Act 
if the President did not set aside the Geneva Conventions. He argued 
that a presidential determination that the Geneva Conventions do not 
apply would ``substantially reduce the threat of domestic criminal 
prosecution under the War Crimes Act'' and ``would provide a solid 
defense to any future prosecution.''
  It was during that period of redefining conduct that some terrible 
memos and terrible standards were generated by this administration, 
standards which led to some of our soldiers being imprisoned. Now this 
bill would say that the authors of those terrible standards cannot be 
held accountable.
  General Colin Powell, who was Secretary of State at the time, 
strongly disagreed with the recommendation to set aside the Geneva 
Conventions. He had decades of military experience informing his 
judgment. He argued that complying with the Geneva Conventions and 
effectively fighting the war on terrorism were not only possible, it 
was the course America should follow. In a memo to Mr. Gonzales, 
Secretary Colin Powell concluded that setting aside the Geneva 

        . . . will reverse over a century of U.S. policy and 
     practice in supporting the Geneva conventions and undermine 
     the protections of the law of war for our own troops.

  General Powell said:

       It will undermine public support among critical allies, 
     making military cooperation more difficult to sustain.

  Now look at what happened in the 4 years that followed. From 
Washington DC, to Guantanamo, to Abu Ghraib, damage has been done to 
America's image. It is clear that Secretary Colin Powell was right. 
Unfortunately, the President rejected his wise counsel. In February 
2002 the President issued a memo directing that the Geneva Conventions 
would not apply to the war on terrorism.
  Just this summer, in the Hamdan case, the Supreme Court ruled that 
the President's position on the Geneva Conventions is illegal. The 
Supreme Court reminded the President and all of us that we are a nation 
of laws, even in a time of war.
  Now, 4 years after Gonzales warned President Bush about possible 
prosecutions under the War Crimes Act, the administration wants an 
amnesty, retroactive immunity for their actions. According to a recent 
Washington Post story, Alberto Gonzales told Republican Members of 

        . . . a shield is needed for actions taken by 
     U.S. personnel under a 2002 Presidential order which the 
     Supreme Court declared illegal.

  One reason the White House may be pushing for amnesty is because 
high-ranking administration officials have authorized the use of 
several controversial interrogation techniques that appear to violate 
the law. In late 2002, relying on the President's decision to set aside 
the Geneva Conventions, Defense Secretary Rumsfeld approved numerous 
interrogation tactics for use at Guantanamo. The commander of 
Guantanamo Bay's detention operations gave the Guantanamo policies to 
senior officers in Iraq, and they became the bedrock for interrogation 
tactics in Iraq, according to the Department of Defense's own 
investigation. The horrible images that emerged from Abu Ghraib have 
seared into our mind the nature of some of these techniques, including 
threatening detainees with dogs and forcing detainees into painful 
stress positions for long periods of time.
  When other countries have used these techniques throughout modern 
history, the United States, through our State Department, has condemned 
them as torture. In a memo that has been publicly released, the Federal 
Bureau of Investigation concluded that the techniques authorized by the 
Defense Secretary but ``are not permitted by the U.S. Constitution.''
  Senior military lawyers, known as Judge Advocates General, have also 
raised serious concerns. To take just one example, in a recent hearing 
of the Senate Armed Services Committee, MG Jack Rives, the Air Force 
JAG, said ``some of the techniques that have been authorized and used 
in the past have violated Common Article 3'' of the Geneva Conventions.
  These are not human rights groups, partisans, or journalists. This is 
our own State Department, our FBI, and military lawyers saying the 
administration has authorized interrogation techniques that violate the 
  And who will accept responsibility for these mistakes? The soldiers. 
The soldiers will go to jail. But if this bill

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passes, those who sent out the memos will be off the hook. So while the 
administration claims they want to do right by the victims of 9/11 and 
our brave men and women in uniform, it appears that they are not doing 
what justice requires.
  This amnesty will protect someone else. Sadly, it will also protect 
those who commit war crimes against Americans. Let's not forget the 
original intent of the War Crimes Act, enacted in 1996 by a Republican-
controlled Congress, adopted by a voice vote in the House and a 
unanimous vote in the Senate. Conservative Republican Congressman 
Walter Jones proposed it after he met with a retired Navy pilot who 
spent 6 years in the Hanoi Hilton, the same Vietnamese prison where 
Senator John McCain was detained.
  Congressman Jones wanted to give the Justice Department the authority 
to prosecute war criminals like the Vietcong who abused American POWs.
  Here is what Senator Jesse Helms, a leading conservative on the 
Republican side of the aisle, said of the War Crimes Act:

       This bill will help to close major gaps in our Federal 
     criminal law by permitting American servicemen and nationals, 
     who were victims of war crimes, to see the criminals brought 
     to justice in the United States.

  So keep in mind that if we water down the War Crimes Act to immunize 
American government officials, we also make it harder to prosecute war 
criminals who abuse Americans.
  There is another very troubling provision in this legislation. It 
would eliminate the writ of habeas corpus for detainees. Habeas corpus 
is a Latin phrase that means ``you have the body.'' It is the name for 
the procedure that allows a prisoner to challenge his detention.
  Over 700 lawyers from Chicago sent me a letter strongly opposing the 
elimination of habeas corpus for detainees. Here is how they explained 
the importance of habeas corpus:

       The right of habeas corpus was enshrined in the 
     Constitution by our Founding Fathers as the means by which 
     anyone who is detained by the Executive may challenge the 
     lawfulness of his detention. It is a vital part of our system 
     of ``checks and balances'' and an important safeguard against 
     mistakes which can be made even by the best intentional 
     government officials.

  To a nonlawyer, habeas corpus may sound like an abstract legal 
principle, but eliminating it would have practical and very damaging 
consequences: it would prevent courts from reviewing the lawfulness of 
the administration's detention and interrogation practices. This is yet 
another form of amnesty for the administration.
  Why is the administration so interested in protecting itself from 
judicial review?
  Perhaps it is because the courts have repeatedly ruled that the 
administration's policies violate the law.
  After the September 11 terrorist attacks, the administration 
unilaterally created a new detention policy which applies to many 
hundreds who have been held in detention, some for years. The 
administration claimed the right to seize anyone, including an American 
citizen in the United States, and to hold him until the end of the war 
on terrorism, whenever that may be.
  They claimed than even an American citizen who is detained has no 
rights. That means no right to challenge his detention, no right to see 
the evidence against him, and no right even to know why he is being 
held. In fact, an administration lawyer claimed in court that detainees 
would have no right to challenge their detentions even if they were 
being tortured or summarily executed.
  Using their new detention policy, the administration has detained 
thousands of individuals in secret detention centers around the world. 
While it is the most well-known, Guantanamo Bay is only one of these 
detention centers. Many have been captured in Afghanistan and Iraq, but 
people who never raised arms against us have been taken prisoner far 
from the battlefield, in places like Bosnia and Thailand.
  Who are the detainees in Guantanamo Bay? Back in 2002, Defense 
Secretary Rumsfeld described them as ``the hardest of the hard core'' 
and ``among the most dangerous, best trained, vicious killers on the 
face of the Earth.'' However, the administration has since released 
hundreds of the detainees and it now appears that Secretary Rumsfeld's 
assertion was false.
  According to media reports, military sources indicate that many 
detainees have no connection to al-Qaida or the Taliban and were sent 
to Guantanamo over the objections of intelligence personnel who 
recommended they be released.
  There have been all sorts of studies.
  I recall visiting Guantanamo recently where Admiral Harry Harris said 
to me--I asked him about the prisoners there. He said, ``They are not 
being punished--they are only being detained.''
  They haven't been charged with anything--and that is the point. 
Habeas corpus allows these people being held for years to ask why they 
are being held. They are not automatically released, but under habeas 
corpus they can ask: On what basis are you keeping me as a prisoner?
  I hope my colleagues will stop and think about this for a moment. If 
there is a dangerous person in Guantanamo who threatens an American 
soldier or any American citizens with an act of terrorism, if they have 
been complicit in any act of terrorism involving al-Qaida or Taliban, 
from my point of view they should be incarcerated and held until there 
is no danger to the United States. But if we are simply holding 455 
people with no charges, indefinitely, and no right to challenge the 
basis for their detention, until this war on terrorism, which has no 
definable end to it, comes to an end, that is not consistent with the 
principle of justice.
  In 2004, in the landmark decision of Rasul v. Bush, the Supreme Court 
rejected the administration's detention policy. The Court held that 
detainees can file habeas corpus claims in court to ask why they are 
being detained.
  Rather than changing their policies to comply with the Court's 
decision, the administration has asked the Republican-controlled 
Congress to change the law to eliminate habeas corpus for detainees. 
This would overturn the Court's decision in Rasul v. Bush and immunize 
the administration's detention policies from judicial review.
  Tom Sullivan is a prominent attorney in Chicago and a friend of mine. 
Tom served in the Army during the Korean war. He is a former U.S. 
Attorney. On a pro bono basis, he and his law partner Jeff Colman have 
taken on the cases of several Guantanamo detainees.
  Tom says that his clients were not detained on the battlefield and 
that they are not even accused of engaging in hostilities against the 
United States. He believes they are innocent and are in Guantanamo 
because of mistakes that were made in the fog of war. Tom has been a 
lawyer for more than 50 years. He believes habeas corpus is the bedrock 
of the American legal system because it is the only recourse available 
when the government has mistakenly detained an innocent person.
  ADM John Hutson was a Navy judge advocate for 28 years. Admiral 
Hutson testified yesterday at a Senate Judiciary Committee hearing. 
Here is what he said about eliminating habeas for detainees:
  It is inconsistent with our own history and tradition to take this 
action. If we diminish or tarnish our values, those values that the 
Founders fought for and memorialized in the Constitution and have been 
carefully preserved by the blood and honor or succeeding generations, 
then we will have lost a major battle in the war on terror . . . We 
don't need to do this. America is too strong. Our system of justice is 
too sacred to tinker with in this way.
  Admiral Hutson also testified that eliminating habeas will put our 
own troops at risk:

       If we fail to provide a reasonable judicial avenue to 
     consider detention, other countries will fell justified in 
     doing the same thing. . . . It is U.S. troops who are forward 
     deployed in greater numbers and on more occasions than all 
     other nations combined. It is our troops who are in harm's 
     way and deserve judicial protections. In future wars, we will 
     want to ensure that our troops and those of our allies are 
     treated in a manner similar to how we treat our enemies. We 
     are now setting the standard for that treatment.

  When I visited the detention facility at Guantanamo, I saw American 
soldiers doing their duty in a very bleak and desolate spot. I salute 
them for serving their country. Every day they wake up, put on the 
uniform of the United States and serve us with honor and distinction. 
Congress should not do anything to make their job more difficult.

[[Page S10238]]

  We should not have a double standard where our brave men and women in 
uniform go to jail and high-ranking political appointees are not held 
accountable. What kind of message does that send to our soldiers?
  If we eliminate habeas corpus for detainees at Guantanamo, we will 
put our troops in the impossible position of serving as jailers for men 
who are indefinitely detained with no ability to challenge their 
  Think about that for a moment. If there were an American employee or 
an American citizen or an American soldier being held in a foreign 
place with no charges against them, indefinitely, with no recourse 
under the law, we would be protesting in the strongest terms.
  The American people want us to bring the planners of 9/11 to justice. 
That should be the focus of our legislation, not giving amnesty to 
administration officials and not immunizing the administration's 
policies from judicial review.
  These provisions fail two crucial tests. They are inconsistent with 
American values, and they would put our troops at risk. They must be 
  I look forward to the consideration of this bill on the Senate floor 
with amendments to be offered to make these changes so that we can come 
forward with a bipartisan bill, a bill that will make America safer but 
not at the expense of our basic values.
  I yield the floor.
  (The remarks of Mr. Domenici pertaining to the introduction of S. 
3962 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Mississippi.