[Congressional Record: September 28, 2006 (Senate)]
[Page S10354-S10431]
MILITARY COMMISSIONS ACT OF 2006
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 3930, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 3930) to authorize trial by military commission
for violations of the law of war, and for other purposes.
Pending:
Specter amendment No. 5087, to strike the provision
regarding habeas review.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, just for purposes of advising
colleagues, there remains on the Specter amendment 16 minutes under the
control of the Senator from Virginia. I desire to allocate about 4
minutes to Senator Kyl, 2 to 3 minutes to Senator Sessions, and to wrap
it up, 2 to 3 minutes to Senator Graham. But we will alternate or do as
the Senator from Michigan--you have 33 minutes, I believe, under the
control of Senator Specter and those in support of his amendment.
Mr. LEVIN. Madam President, parliamentary inquiry: How much time is
remaining to Members on this side, including on the bill?
The PRESIDING OFFICER. Senator Specter's side controls 33 minutes.
Mr. LEVIN. On the Democratic side?
The PRESIDING OFFICER. Senator Warner controls 16 minutes, and the
proponent of the amendment controls 33.
Mr. LEVIN. And on the bill itself, is there time left?
The PRESIDING OFFICER. Senator Reid has allocated the remainder of
the debate time on the bill itself.
Mr. LEVIN. All time is allocated?
The PRESIDING OFFICER. Correct.
Mr. LEVIN. Madam President, I ask unanimous consent that I be allowed
to proceed for 30 seconds.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. LEVIN. Madam President, I wish to thank the Senator from
Connecticut for one of the most passionate statements I have ever heard
on this floor--heartfelt, right on target. The distinctions made in
this bill which will allow statements to be admitted into evidence that
were produced by cruel treatment is unconscionable. It is said that,
well, statements made after December 30 of 2005 won't be allowed, but
those that are produced by cruel and inhuman treatment prior to
December 30 of 2005 are OK. It is unconscionable. It is unheard of. It
is untenable, and the Senator from Connecticut has pointed it out very
accurately, brilliantly. I thank him for his statement.
Mr. WARNER. Madam President, we will proceed on Specter's amendment.
In due course, I will find the time to comment on my colleague's 30
seconds. I want to keep this thing in an orderly progression. I would
like to add the Senator from Texas, Mr. Cornyn, in the unanimous
consent agreement to be recognized as one of the wrap-up speakers on
those in opposition to the amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. KYL. Madam President, yesterday Senator Specter argued that one
sentence in the Hamdi opinion that refers to habeas corpus rights as
applying to all ``individuals'' inside the United States indicates that
alien enemy combatants have constitutional habeas rights when they are
held inside this country. I believe that Senator Specter is incorrect,
for the following reasons: (1) The Hamdi plurality repeatedly makes
clear that ``the threshold question before us is whether the Executive
has the authority to detain citizens who qualify as `enemy
combatants.''' The plurality expressly frames the issue before it in
terms of the rights of citizens no fewer than eight times. It is clear
that it is only the rights of citizens that the Hamdi plurality studied
and ruled on. (2) Elsewhere the Hamdi plurality criticized a rule that
would make the government's right to hold someone as an enemy combatant
turn on whether they are held inside or outside of the United States.
The plurality characterized such a rule as creating ``perverse
incentives,'' noted that it would simply encourage the military to hold
detainees abroad, and concluded that it should not create a
``determinative constitutional difference.'' The same effect would, of
course, be felt if enemy soldiers' habeas rights were made turn on
whether they were held inside or outside of the United States. The fact
that the Hamdi plurality rejected this type of geographical
gamesmanship in one context casts doubt on the theory that it endorsed
it in a closely related context. (3) Had Hamdi extended habeas rights
to alien enemy combatants held inside the United States, that would
have been a major ruling of tremendous consequence. Because courts
typically do not hide elephants in mouseholes, cf. Whitman v. ATA, it
is fair to conclude that no such groundbreaking ruling is squirreled
away in one ambiguous sentence in the Hamdi plurality opinion on the
floor Wednesday evening, I presented the argument that the
constitutional writ of habeas corpus does not extend to alien enemy
soldiers held during wartime. Senator Specter responded by quoting from
a passage in Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld,
542 U.S. 507 (2004), that he believes establishes that alien combatants
are entitled to habeas rights if they are held within the United
States. That statement, towards the beginning of section III.A of the
court's opinion, is a part of a statement of general principles noting
that ``[a]ll agree'' that, absent suspension, habeas corpus remains
available to every ``individual'' within the United States. Senator
[[Page S10355]]
Specter reads this statement, unadorned by any qualification as to
whether the individual in question is a U.S. citizen, an illegal
immigrant, or an alien enemy combatant, to stand for the proposition
that even the latter has a constitutional right to habeas corpus when
held within the United States.
I would suggest that this single, ambiguous statement cannot be
construed to bear that much weight, for three reasons.
Elsewhere in its opinion, the Hamdi plurality repeatedly makes clear
that the only issue it is actually considering is whether a U.S.
citizen has habeas and due process rights as an enemy combatant. The
plurality's emphasis on citizenship is repeatedly made clear throughout
Justice O'Connor's opinion. For example, on page 509, in its first
sentence, the plurality opinion says: ``we are called upon to consider
the legality of the detention of a United States citizen on United
States soil as an `enemy combatant' and to address the process that is
constitutionally owed to one who seeks to challenge his detention as
such.'' On page 516, the plurality again notes: ``The threshold
question before us is whether the Executive has the authority to detain
citizens who qualify as `enemy combatants.' '' On page 524, the
plurality once again emphasizes: ``there remains the question of what
process is constitutionally due to a citizen who disputes his enemy-
combatant status.'' On page 531: ``We reaffirm today the fundamental
nature of a citizen's right to be free from involuntary confinement by
his own government without due process of law.'' On page 532: ``neither
the process proposed by the Government nor the process apparently
envisioned by the District Court below strikes the proper
constitutional balance when a United States citizen is detained in the
United States as an enemy combatant.'' On page 533: ``We therefore hold
that a citizen-detainee seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government's
factual assertion before a neutral decisionmaker.'' On page 535:
military needs ``are not so weighty as to trump a citizen's core rights
to challenge meaningfully the Government's case and to be heard by an
impartial adjudicator.'' And on page 536-37: ``it would turn our system
of checks and balances on its head to suggest that a citizen could not
make his way to court with a challenge to the factual basis for his
detention by his government.''
Whatever loose language may have been used in the plurality's
statement of general principles at the outset of its analysis, it is
apparent that the only issue that the plurality actually studied and
intended to address is the constitutional rights of the U.S. citizen.
Another thing that augurs against interpreting the Hamdi plurality
opinion to extend constitutional habeas rights to alien enemy
combatants whenever they are held inside the United States is that,
elsewhere in its opinion, the plurality is quite critical of a
geographically-based approach to enemy combatant's rights. At page 524,
the plurality responds to a passage in Justice Scalia's dissent that it
reads as arguing that the government's ability to hold someone as an
enemy combatant turns on whether they are held inside or outside of the
United States. The plurality opinion states that making the ability to
hold someone as an enemy combatant turn on whether they are held in or
out of the United States:
creates a perverse incentive. Military authorities faced with
the stark choice of submitting to the full-blown criminal
process or releasing a suspected enemy combatant captured on
the battlefield will simply keep citizen-detainees abroad.
Indeed, the Government transferred Hamdi from Guantanamo Bay
to the United States naval brig only after it learned that he
might be an American citizen. It is not at all clear why that
should make a determinative constitutional difference.
It is doubtful that this same plurality--one that sees ``perverse''
effects in rules that would encourage the government to hold enemy
combatants outside of the United States in order to avoid burdensome
litigation--also intended to rule that full constitutional habeas
rights attach to alien enemy combatants as soon as they enter U.S.
airspace.
Finally, Senator Specter's argument that the ambiguous reference to
``individuals'' on page 525 of Hamdi extends habeas rights to foreign
enemy combatants held inside U.S. territory is inconsistent with the
common sense interpretive rule that one does not ``hide elephants in
mouseholes.'' Whitman v. American Trucking Association, 531 U.S. 457,
468 (2001). Although this rule of construction typically is applied by
the court to our enactments, I see no reason why its logic would not
operate when applied in reverse, by members of this body to the court's
opinions.
For the Hamdi court to have extended constitutional habeas rights to
alien enemy soldiers held inside the United States would have been a
major decision of enormous consequence to our nation's warmaking
ability. As the Hamdi plurality itself noted, ``detention to prevent a
combatant's return to the battlefield is a fundamental incident of
waging war.'' As I noted yesterday, during World War II the United
States detained over 425,000 enemy war prisoners inside the United
States. Yet as Rear Admiral Hutson--no supporter of section 7 of the
MCA--noted in his testimony at Monday's Judiciary Committee hearing,
aside from one petition filed by an American of Italian descent, no
habeas petitions challenging detention were filed by any of these World
War II enemy combatants. It is simply inconceivable that all of the
425,000 enemy combatants held inside the United States during this
period could have been allowed to sue our government in our courts to
challenge their detention. And were their right to do so made to turn
on whether they were held inside or outside of the United States, our
Armed Forces inevitably would have been forced to find some
accommodations for them in foreign territory. And since holding enemy
combatants near the war zone is neither practical nor safe, our
nation's whole ability to fight a war would be made to turn on whether
we could find some third country where we could hold enemy war
prisoners. I would submit that this elephant of a result simply will
not fit in the small space for it created by the one ambiguous passage
in the Hamdi plurality opinion.
For these three reasons, I believe that Senator Specter is incorrect
to interpret the Hamdi plurality opinion to extend constitutional
habeas corpus rights to alien enemy combatants held inside the United
States.
Just to conclude by summarizing the point as follows: On eight
separate times, the plurality opinion in Hamdi refers to the rights of
citizens. That is the question before the court. This is what it rules
on. This is our holding. At no point does it extend it to citizens.
There is one sentence rather loosely framed that refers to individuals.
Had the courts in that decision intended to apply the habeas right to
all individuals in the United States rather than citizens, it would
most assuredly have said so.
I don't think, with all due respect to my great friend, the chairman
of the committee, that relying on that one loose word in one sentence
of the opinion overrides all of the other reasoning, all of the other
clear statements, and the obvious intent of the opinion to relate it to
citizens only. With all due respect, I disagree with the reading of the
case and conclude that there is nothing wrong with this legislation
before us limiting the rights of habeas to those who are citizens and
not extending it to alien enemy combatants.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Madam President, by way of brief reply to the comments
of the Senator from Arizona, he argues that the Hamdi decision does not
apply to aliens but only to citizens, trying to draw some inferences.
But that does not stand up in the face of explicit language by Justice
O'Connor to this effect:
All agree that absent suspension the writ of habeas corpus
remains available to every individual detained in the United
States.
The Senator from Arizona can argue all he wants about inferences, but
that hardly stands up to an explicit statement on individuals. And
Justice O'Connor knows the difference between referring to an
individual or referring to a citizen or referring to an alien. And
``individuals'' covers both citizens and aliens.
Following the reference to individuals is the citation of the
constitutional provision that you can't suspend
[[Page S10356]]
habeas corpus except in time of rebellion or invasion.
Buttressing my argument is the Rasul v. Bush case where it applied
specifically to aliens; and it is true that the consideration was under
the statute section 2241. There the Court says that section 2241
``draws no distinction between Americans and aliens held in Federal
custody.''
That again buttresses the argument I have made in two respects.
First, Rasul specifically grants habeas corpus, albeit statutory, to
aliens and says there is no distinction. So on the face of the explicit
language of the Supreme Court of the United States there is a
constitutional requirement, and it is fundamental that Congress cannot
legislate in contradiction to a constitutional interpretation of the
Supreme Court. That requires a constitutional amendment--not
legislation.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Vermont.
Mr. LEAHY. Madam President, will the Senator from Pennsylvania yield?
Mr. SPECTER. Madam President, how much time remains under my control?
The PRESIDING OFFICER. Thirty minutes.
Mr. SPECTER. Madam President, I yield 10 minutes to the distinguished
Senator from Vermont.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Thank you, Madam President. If I require further time
beyond 10 minutes I will take time from that reserved to the Senator
from Vermont.
Let's understand exactly what we are talking about here. There are
approximately 12 million lawful permanent residents in the United
States today. Some came here initially the way my grandparents did or
my wife's parents did. These are people who work for American firms,
they raise American kids, they pay American taxes.
Section 7 of the bill before us represents a choice about how to
treat them. This bill could have been restricted to traditional notions
of enemy combatants--foreign fighters captured on the battlefield--but
the drafters of this bill chose not to do so.
Let's be very clear. Once we get past all of the sloganeering, all
the fundraising letters, all the sound bites, all the short headlines
in the paper, let's be clear about the choice the bill makes. Let's be
absolutely clear about what it says to lawful permanent residents of
the United States. Then let's decide if it is the right message to send
them and if it is really the face of America that we want to show.
Take an example. Imagine you are a law-abiding, lawful, permanent
resident, and in your spare time you do charitable fundraising for
international relief agencies to lend a helping hand in disasters. You
send money abroad to those in need. You are selective in the charities
you support, but you do not discriminate on the grounds of religion.
Then one day there is a knock on your door. The Government thinks that
the Muslim charity you sent money to may be funneling money to
terrorists and thinks you may be involved. And perhaps an overzealous
neighbor who saw a group of Muslims come to your House has reported
``suspicious behavior.'' You are brought in for questioning.
Initially, you are not very worried. After all, this is America. You
are innocent, and you have faith in American justice. You know your
rights, and you say: I would like to talk to a lawyer. But no lawyer
comes. Once again, since you know your rights, you refuse to answer any
further questions. Then the interrogators get angry. Then comes
solitary confinement, then fierce dogs, then freezing cold that induces
hypothermia, then waterboarding, then threats of being sent to a
country where you know you will be tortured, then Guantanamo. And then
nothing, for years, for decades, for the rest of your life.
That may sound like an experience from some oppressive and
authoritarian regime, something that may have happened under the
Taliban, something that Saddam Hussein might have ordered or something
out of Kafka. There is a reason why that does not and cannot happen in
America. It is because we have a protection called habeas corpus, or if
you do not like the Latin phrase by which it has been known throughout
our history, call it access to the independent Federal courts to review
the authority and the legality by which the Government has taken and is
holding someone in custody. It is a fundamental protection. It is woven
into the fabric of our Nation.
Habeas corpus provides a remedy against arbitrary detentions and
constitutional violations. It guarantees an opportunity to go to court,
with the aid of a lawyer, to prove that, yes, you are innocent.
As Justice Scalia stated in the Hamdi case:
The very core of liberty secured by the Anglo-Saxon system
of separated powers has been freedom from indefinite
imprisonment at the will of the Executive.
Of course, the remedy that secures that most basic freedom is habeas
corpus.
Habeas corpus does not give you any new rights, it just guarantees
you have a chance to ask for your basic freedom.
If we pass this bill today, that will be gone for the 12 million
lawful, permanent residents who live and work among us, to say nothing
of the millions of other legal immigrants and visitors who we welcome
to our shores each year. That will be gone for another estimated 11
million immigrants the Senate has been working to bring out of the
shadows with comprehensive immigration reform.
The bill before the Senate would not merely suspend the great writ,
the great writ of habeas corpus, it would eliminate it permanently. We
do not have to worry about nuances, such as how long it will be
suspended. It is gone. Gone.
Over 200 years of jurisprudence in this country, and following an
hour of debate, we get rid of it. My God, have any Members of this
Senate gone back and read their oath of office upholding the
Constitution? This cuts off all habeas petitions, not just those
founded on relatively technical claims but those founded on claims of
complete innocence.
We hundred Members in the Senate, we privileged men and women, are
supposed to be the conscience of the Nation. We are about to put the
darkest blot possible on this Nation's conscience. It would not be
limited to enemy combatants in the traditional sense of foreign
fighters captured in the battlefield, but it would apply to any alien
picked up anywhere in the world and suspected of possibly supporting
enemies of the United States.
We do not need this bill for those truly captured on the battlefield
who have taken up arms against the United States. That is why the
definition of enemy combatant has been so expansively redefined behind
closed doors in the dark of night.
This bill is designed instead to sweep others into the net. It would
not even require an administrative determination that the Government's
suspicions have a reasonable basis in fact. By its plain language, it
would deny all access to the courts to any alien awaiting--what a
bureaucratic term, to determine your basic human rights, ``any alien
awaiting''--a Government determination as to whether the alien is an
enemy combatant. The Government would be free to delay as long as it
liked--for years, for decades, for the length of the conflict which is
so undefined and may last for generations.
One need only look at Guantanamo. Even our own Government says a
number of people are in there by mistake, but we will not get around to
making that determination. Maybe in 5 years, maybe 10, maybe 20, maybe
30. And we wonder why some of our closest allies ask us, what in
heaven's name has happened to the conscience and moral compass of this
great Nation? Are we so terrified of some terrorists around this
country that we will run scared and hide? Is that what we will do, tear
down all the structures of liberty in this country because we are so
frightened?
It brings to mind that famous passage in ``A Man for All Seasons.''
Thomas More is talking to his protege, William Roper, and says
something to the effect that England is planted thick like a forest
with laws. He said, Would you cut down those laws to get after the
devil? And Roper said, of course I would cut down all the laws in
England to get the devil. And then More said, Oh, and when the last law
was down and the devil turned on you, what will protect you?
[[Page S10357]]
This legislation is cutting down laws that protect all 100 of us, and
now almost 300 million Americans. It is amazing the Senate would be
talking about doing something such as this, especially after the
example of Guantanamo. We can pick up people intentionally or by
mistake and hold them forever.
How many speeches have I heard in my 32 years in the Senate during
the cold war and after, criticizing totalitarian governments that do
things such as that? And we can stand here proudly and say it would
never happen in America; this would never happen in America because we
have rights, we have habeas corpus, and people are protected.
I am not here speculating about what the bill says. This is not a
critic's characterization of the bill. It is what the bill plainly
says, on its face. It is what the Bush-Cheney administration is
demanding. It is what any Member who votes against the Specter-Leahy
amendment and for the bill today is going to be endorsing.
The habeas stripping provisions in the bill go far beyond what
Congress did in the Detainee Treatment Act in three respects. First, as
the Supreme Court pointed out in Hamdan, the DTA removed habeas
jurisdiction only prospectively, for future cases. This new bill strips
habeas jurisdiction retroactively, even for pending cases. This is an
extraordinary action that runs counter to long-held U.S. policies
disfavoring retroactive legislation.
Second, the DTA applied only to detainees at Guantanamo. This new
legislation goes far beyond Guantanamo and strips the right to habeas
of any alien living in the United States if the alien has been
determined an enemy combatant, or even if he is awaiting a
determination--and that wait can take years and years and years. Then,
20 years later, you can say: We made a mistake. Tough. It allows
holding an alien, any alien, forever, without the right of habeas
corpus, while the Government makes up its mind as to whether he is an
enemy combatant.
And third, the impact of those provisions is extended by the new
definition of enemy combatant proposed in the current bill. The bill
extends the definition to include persons who supported hostilities
against the United States, even if they did not engage in armed
conflict against the United States or its allies. That, again, is an
extraordinary extension of existing laws.
If we vote today to abolish rights of access to the justice system to
any alien detainee who is suspected--not determined, not even charged;
these people are not even charged, just suspected--of assisting
terrorists, that will do by the back door what cannot be done up front.
That will remove the checks in our legal system that provide against
arbitrarily detaining people for life without charge. It will remove
the mechanism the Constitution provides to stop the Government from
overreaching and lawlessness.
This is so wrong. It grieves me, after three decades in this Senate,
to stand here knowing we are thinking of doing this. It is so wrong. It
is unconstitutional. It is un-American. It is designed to ensure the
Bush-Cheney administration will never again be embarrassed by a U.S.
Supreme Court decision reviewing its unlawful abuses of power. The
Supreme Court said, you abused your power. And they said, we will fix
that. We have a rubberstamp Congress that will set that aside and give
us power that nobody--no king or anyone else setting foot in this
land--had ever thought of having.
In fact, the irony is this conservative Supreme Court--seven out of
nine members are Republicans--has been the only check on the Bush-
Cheney administration because Congress has not had the courage to do
that. Congress has not had the courage to uphold its own oath of
office.
With this bill, the Congress will have completed the job of
eviscerating its role as a check and balance on the administration. The
Senate has turned its back on the Warner-Levin bill, a bipartisan bill
reported by the Committee on Armed Services, so it can jam through the
Bush-Cheney bill. This bill gives up the ghost. It is not a check on
the administration but a voucher for future wrongdoing.
Abolishing habeas corpus for anyone the Government thinks might have
assisted enemies of the United States is unnecessary and morally wrong,
a betrayal of the most basic values of freedom for which America
stands. It makes a mockery of the Bush-Cheney administration's lofty
rhetoric about exporting freedom across the globe. We can export
freedom across the globe, but we will cut it out in our own country.
What hypocrisy.
I read yesterday from former Secretary of State Colin Powell's letter
in which he voiced concern about our moral authority in the war against
terrorism. The general and former head of the Joint Chiefs of Staff and
former Secretary of State was right.
Admiral John Hutson testified before the Judiciary Committee that
stripping the courts of habeas corpus jurisdiction was inconsistent
with our history and our tradition. The admiral concluded:
We don't need to do this. America is too strong.
When we do this, America will not be a stronger nation. America will
be a weaker nation. We will be weaker because we turned our back on our
Constitution. We turned our back on our rights. We turned our back on
our history.
I ask unanimous consent to have printed in the Record a letter from
more than 60 law school deans and professors who state that the
Congress would gravely disserve our global reputation by doing this.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 27, 2006.
To United States Senators and Members of Congress.
Dear Senators and Representatives: We, the undersigned law
deans and professors, write in our individual capacity to
express our deep concern about two bills that are rapidly
moving through Congress. These bills, the Military
Commissions Act and the National Security Surveillance Act,
would make the indefinite detention of those labeled enemy
combatants and the executive's program of domestic
surveillance effectively unreviewable by any independent
judge sitting in public session. While different in
character, both bills unwisely contract the jurisdiction of
courts and deprive them of the ability to decide critical
issues that must be subject to judicial review in any free
and democratic society.
Although the Military Commissions Act of 2006 (S. 3929/S.
3930) was drafted to improve and codify military commission
procedures following the Supreme Court's June 2006 decision
in Hamdan v. Rumsfeld, it summarily eliminates the right of
habeas corpus for those detained by the U.S. government who
have been or may be deemed to be enemy combatants: Detainees
will have no ability to challenge the conditions of their
detention in court unless and until the administration
decides to try them before a military commission. Those who
are not tried will have no recourse to any independent court
at any time. Enacting this provision into law would be a
grievous error. As several witnesses testified before the
Senate Judiciary Committee on Monday, Article I, Section 9 of
the Constitution specifies that ``[t]he Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it,''
conditions that are plainly not satisfied here.
Similarly, the National Security Surveillance Act of 2006
(S. 3876) would strip courts of jurisdiction over pending
cases challenging the legality of the administration's
domestic spying program and would transfer these cases to the
court established by the Foreign Intelligence Surveillance
Act of 1978 (FISA). The transfer of these cases to a secret
court that issues secret decisions would shield the
administration's electronic surveillance program from
effective and transparent judicial scrutiny.
These bills exhibit a profound and unwarranted distrust of
the judiciary. The historic role of the courts is to ensure
that the legislature promulgates and the executive faithfully
executes the law of the land with due respect for the rights
of even the most despised. Any protections embodied in these
bills would be rendered worthless unless the courts can hold
the executive accountable to enacted law. Moreover, the bills
ignore a central teaching of the Supreme Court's decision in
Hamdan v. Rumsfeld: the importance of shared institutional
powers and checks and balances in crafting lawful and
sustainable responses to the war on terror. Absent effective
judicial review, there will be no way to enforce any of the
limitations in either bill that Congress is currently seeking
to place upon the executive's claimed power.
We recognize the need to prevent and punish crimes of
terrorism and to investigate and prosecute such crimes. But
depriving our courts of jurisdiction to determine whether the
executive has acted properly when it detains individuals in
this effort would endanger the rights of our own soldiers and
nationals abroad, by limiting our ability to demand
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that they be provided the protections that we deny to others.
Eliminating effective judicial review of executive acts as
significant as detention and domestic surveillance cannot be
squared with the principles of transparency and rule of law
on which our constitutional democracy rests.
The Congress would gravely disserve our global reputation
as a law-abiding country by enacting bills that seek to
combat terrorism by stripping judicial review. We
respectfully urge you to amend the judicial review provisions
of the Military Commissions Act and the National Security
Surveillance Act to ensure that the rights granted by those
bills will be enforceable and reviewable in a court of law.
Sincerely,
James J. Alfini, President and Dean, South Texas College of
Law.
Michelle J. Anderson, Dean, CUNY School of Law.
Katharine T. Bartlett, Dean and A. Kenneth Pye Professor of
Law, Duke Law School.
Molly K. Beutz, Yale Law School.
Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe
Smith Professor of International Law, Yale Law School.
Harold J. Krent, Dean & Professor, Chicago-Kent College of
Law.
Lydia Pallas Loren, Interim Dean and Professor of Law,
Lewis & Clark Law School.
Dennis Lynch, Dean, University of Miami School of Law.
John Charles Boger, Dean, School of Law, University of
North Carolina at Chapel Hill.
Jeffrey S. Brand, Dean, Professor and Chairman, Center for
Law & Global Justice, University of San Francisco Law School.
Katherine S. Broderick, Dean and Professor, University of
the District of Columbia, David A. Clarke School of Law.
Brian Bromberger, Dean and Professor, Loyola Law School.
Robert Butkin, Dean and Professor of Law, University of
Tulsa College of Law.
Evan Caminker, Dean and Professor of Law, University of
Michigan Law School.
Judge John L. Carroll, Dean and Ethel P. Malugen Professor
of Law, Cumberland School of Law, Samford University.
Neil H. Cogan, Vice President and Dean, Whittier Law
School.
Mary Crossley, Dean and Professor of Law, University of
Pittsburgh School of Law,
Mary C. Daly, Dean & John V. Brennan Professor Law and
Ethics, St. John's University School of Law.
Richard A. Matasar, President and Dean, New York Law
School.
Philip J. McConnaughay, Dean and Donald J. Farage Professor
of Law, The Pennsylvania State University, Dickinson School
of Law.
Richard J. Morgan, Dean William S. Boyd School of Law,
University of Nevada, Las Vegas.
Fred L. Morrison, Popham Haik Schnobrich/Lindquist & Vennum
Professor of Law and Interim Co-Dean, University of Minnesota
Law School,
Kenneth M. Murchison, James E. & Betty M. Phillips
Professor of Law, Louisiana State University, Paul M. Hebert
Law Center.
Cynthia Nance, Dean and Professor, University of Arkansas,
School of Law.
Nell Jessup Newton, William B. Lockhart Professor of Law,
Chancellor and Dean, University of California at Hastings
College of Law,
Maureen A. O'Rourke, Dean and Professor of Law, Michaels
Faculty Research Scholar, Boston University School of Law.
Margaret L. Paris, Dean, Elmer Sahlstrom Senior Fellow,
University of Oregon School of Law.
Stuart L. Deutsch, Dean and Professor of Law, Rutgers
School of Law-Newark.
Stephen Dycus, Professor, Vermont Law School.
Allen K. Easley, President and Dean, William Mitchell
College of Law.
Christopher Edley, Jr., Dean and Professor, Boalt Hall
School of Law, UC Berkeley.
Cynthia L. Fountaine, Interim Dean and Professor of Law,
Texas Wesleyan University School of Law.
Stephen J. Friedman, Dean, Pace University School of Law.
Dean Bryant G. Garth, Southwestern Law School, Los Angeles,
California.
Charles W. Goldner, Jr., Dean and Professor of Law, William
H. Bowen School of Law, University of Arkansas at Little
Rock.
Mark C. Gordon, Dean and Professor of Law, University of
Detroit Mercy School of Law.
Thomas F. Guernsey, President and Dean, Albany Law School.
Don Guter, Dean, Duquesne University School of Law.
Jack A. Guttenberg Dean and Professor of Law.
LeRoy Pernell, Dean and Professor, Northern Illinois
University College of Law.
Rex R. Perschbacher, Dean and Professor of Law, University
of California at Davis School of Law.
Raymond C. Pierce, Dean and Professor of Law, North
Carolina Central University School of Law.
Peter Pitegoff Dean and Professor of Law, University of
Maine School of Law.
Efren Rivera Ramos, Dean, School of Law, University of
Puerto Rico.
William J. Rich, Interim Dean and Professor of Law,
Washburn University School of Law.
James V. Rowan, Associate Dean, Northeastern University
School of Law, Boston, Massachusetts.
Edward Rubin, Dean and John Wade-Kent Syverud Professor of
Law, Vanderbilt University.
David Rudenstine, Dean, Cardozo School of Law.
Lawrence G. Sager, Dean, University of Texas School of Law,
Alice Jane Drysdale Sheffield Regents Chair in Law, Capital
University Law School.
Joseph D. Harbaugh, Dean and Professor, Shepard Broad Law
Center, Nova Southeastern University.
Lawrence K. Hellman, Dean and Professor of Law, Oklahoma
City University School of Law.
Patrick E. Hobbs, Dean and Professor of Law, Seton Hall
University School of Law.
Jose Roberto Juarez, Jr., Dean and Professor of Law,
University of Denver Sturm College of Law.
W. H. Knight, Jr., Dean and Professor, University of
Washington School of Law, Seattle, Washington.
Brad Saxton, Dean & Professor of Law, Quinnipiac University
School of Law.
Stewart J. Schwab, the Allan R. Tessler Dean & Professor of
Law, Cornell Law School.
Geoffrey B. Shields, President and Dean and Professor of
Law, Vermont Law School.
Aviam Soifer, Dean and Professor, William S. Richardson
School of Law, University of Hawai'i.
Emily A. Spieler, Dean, Edwin Hadley Professor of Law,
Northeastern University School of Law.
Kurt A. Strasser, Interim Dean and Phillip I. Blumberg
Professor, University of Connecticut Law School.
Leonard P. Strickman, Dean, Florida International
University, College of Law.
Steven L. Willborn, Dean & Schmoker Professor of Law,
University of Nebraska College of Law.
Frank H. Wu, Dean, Wayne State University Law School.
David Yellen, Dean and Professor, Loyola University Chicago
School of Law.
Mr. LEAHY. Kenneth Starr, the former independent counsel and
Solicitor General for the first President Bush, wrote that the
Constitution's conditions for suspending habeas corpus have not been
met and that doing it would be problematic.
The post-9/11 world requires us to make adjustments. In the original
PATRIOT Act five years ago, we made adjustments to accommodate the
needs of the Executive, and more recently, we sought to fine-tune those
adjustments. I think some of those adjustments sacrificed civil
liberties unnecessarily, but I also believe that many provisions in the
PATRIOT Act were appropriate. I wrote many of the provisions of the
PATRIOT Act, and I voted for it.
This bill is of an entirely different nature. The PATRIOT Act took a
cautious approach to civil liberties and while it may have gone too far
in some areas, this bill goes so much further than that. It takes an
entirely dismissive and cavalier approach to basic human rights and to
our Constitution.
In the aftermath of 9/11, Congress provided in section 412 of the
PATRIOT Act that an alien may be held without charge if, and only if,
the Attorney General certifies that he is a terrorist or that he is
engaged in activity that endangers the national security. He may be
held for seven days, after which he must be placed in removal
proceedings, charged with a crime, or released. There is judicial
review through habeas corpus proceedings, with appeal to the D.C.
Circuit.
Compare that to section 7 of the current bill. The current bill does
not provide for judicial review. It would preclude it. It does not
require a certification by the Attorney General that the alien is a
terrorist. It would apply if the alien was ``awaiting'' a Government
determination whether the alien is an ``enemy combatant.'' And it is
not limited to seven days. It would enable the Government to detain an
alien for life without any recourse whatsoever to justice.
What has changed in the past 5 years that justifies not merely
suspending but abolishing the writ of habeas corpus for a broad
category of people who have not been found guilty, who have not even
been charged with any crime? What has turned us? What has made us so
frightened as a nation that now the United States will say, we can pick
up somebody on suspicion, hold them forever, they have no right to even
ask why they are being held, and besides that, we will not even charge
them with anything, we will just hold them? What has changed in the
last 5 years?
Is our Government is so weak or so inept and our people so terrified
that we have to do what no bomb or attack could ever do, and that is
take away
[[Page S10359]]
the very freedoms that define America? We fought two world wars, we
fought a civil war, we fought a revolutionary war, all these wars to
protect those rights.
And now, think of those people who have given their lives, who fought
so hard to protect those rights. What do we do? We sit here, privileged
people of the Senate, and we turn our backs on that. We throw away
those rights.
Why would we allow the terrorists to win by doing to ourselves what
they could never do and abandoning the principles for which so many
Americans today and throughout our history have fought and sacrificed?
What has happened that the Senate is willing to turn America from a
bastion of freedom into a cauldron of suspicion, ruled by a government
of unchecked power?
Under the Constitution, a suspension of the writ may only be
justified during an invasion or a rebellion, when the public safety
demands it. Six weeks after the deadliest attack on American soil in
our history, the Congress that passed the PATRIOT Act rightly concluded
that a suspension of the writ would not be justified.
But now, 6 weeks before a midterm election, as the fundraising
letters are running around, the Bush-Cheney administration and its
supplicants in Congress deem a complete abolition of the writ the
highest priority, a priority so urgent that we are allowed no time to
properly review, debate, and amend a bill we first saw in its current
bill less than 72 hours ago. There must be a lot of fundraising letters
going out.
Notwithstanding the harm the administration has done to national
security--first by missing their chance to stop September 11 and then
with their mismanaged misadventures in Iraq--there is no new national
security crisis. Apparently, there is only a Republican political
crisis. And that, as we know, is why this un-American, unconstitutional
legislation is before us today.
We have a profoundly important and dangerous choice to make today.
The danger is not that we adopt a pre-9/11 mentality. We adopted a
post-9/11 mentality in the PATRIOT Act when we declined to suspend the
writ, and we can do so again today.
The danger, as Senator Feingold has stated in a different context, is
that we adopt a pre-1776 mentality, one that dismisses the Constitution
on which our American freedoms are founded.
Actually, it is worse than that. Habeas corpus was the most basic
protection of freedom that Englishmen secured from their King in the
Magna Carta. The mentality adopted by this bill, in abolishing habeas
corpus for a broad swath of people, is not a pre-9/11 mentality, it is
a pre-1215--that is the year, 1215--mentality, a mentality we did away
with in the Magna Carta and our own Constitution.
Every one of us has sworn an oath to uphold the Constitution. In
order to uphold that oath, I believe we have a duty to vote for this
amendment--
the Specter-Leahy amendment--and against this irresponsible and
flagrantly unconstitutional bill. That is what I will do.
The Senator from Vermont answers to the Constitution and to his
conscience. I do not answer to political pressure.
Madam President, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
The Senator from Virginia.
Mr. WARNER. Madam President, we have colleagues on this side who are
ready to proceed. Now, there is a great deal of time left on the other
side, but in order of preference, I say to Senator Sessions, if you are
ready to proceed.
Mr. SESSIONS. Madam President, I will be pleased to do so.
Mr. WARNER. Madam President, might I inquire of the amount of time
under my control for those in opposition to the amendment?
The PRESIDING OFFICER. Senator Warner controls 11 minutes.
Mr. WARNER. Eleven minutes.
The PRESIDING OFFICER. Senator Specter controls 20 minutes.
Mr. SESSIONS. Madam President, if the chairman would approve, I would
ask for 3 minutes.
Mr. WARNER. Yes. And following that, Senator Cornyn for such time as
he may need.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, habeas corpus--the right to have your
complaints heard while in custody--is a part of our Constitution. But
we have to remember habeas corpus did not mean everything in the whole
world when it was adopted. So what did ``habeas'' mean? What does it
mean today and at the time it was adopted? It was never, ever, ever,
ever intended or imagined that during the War of 1812, if British
soldiers were captured burning the Capitol of the United States--as
they did--that they would have been given habeas corpus rights. It was
never thought to be. Habeas corpus was applied to citizens, really, at
that time. I believe that is so plain as to be without dispute.
So to say: Habeas corpus, what does it mean? What did those words
mean when the people ratified it? They did not intend to provide it to
those who were attacking the United States of America. We provide
special protections for prisoners of war who lawfully conduct a war
that might be against the United States. We give them great
protections. But unlawful combatants, the kind we are dealing with
today, have never been given the full protections of the Geneva
Conventions.
Second, my time is limited, and I have been so impressed with the
debate that has gone on with Senators Kyl and Cornyn and Graham, and I
associate myself generally with those remarks, but I want to recall
that in a spate of an effort to appease critics and those who had
``vague concerns,'' not too many years ago, this Congress passed
legislation that said that CIA-gathered information could not be shared
with the FBI. We passed a law in this Congress to appease the left in
America, the critics of our efforts against communism, primarily. And
we have put a wall between the CIA and FBI.
So that was politically good. Everybody must have been happy about
that. I was not in the Senate then. Then they complained that the CIA
was out talking with people who had criminal records who may have been
involved in violence, and this was somehow making our CIA complicitous
in dealing with dangerous people, and we banned that. We passed a
statute that eliminated that. And everybody felt real good that we had
done something special.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SESSIONS. Madam President, I ask unanimous consent for an
additional minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. After 9/11, we realized both of those were errors of
the heart perhaps, but of the brain. And so what happened? We reversed
both of them. We reversed them both. And we need to be sure that the
legislation we are dealing with today does not create a long-term
battle with the courts over everybody who is being detained. That is a
function of the military and the executive branch to conduct a war.
Madam President, I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I understand I have 6 minutes on the
bill in general.
The PRESIDING OFFICER. The Senator is correct.
Mr. FEINGOLD. Madam President, I oppose the Military Commissions Act.
Let me be clear: I welcomed efforts to bring terrorists to justice.
Actually, it is about time. This administration has too long been
distracted by the war in Iraq from the fight against al-Qaida. We need
a renewed focus on the terrorist networks that present the greatest
threat to this country.
We would not be where we are today, 5 years after September 11, with
not a single Guantanamo Bay detainee having been brought to trial, if
the President had come to Congress in the first place, rather than
unilaterally creating military commissions that did not comply with the
law. The Hamdan decision was a historic rebuke to an administration
that has acted for years as if it is above the law.
I have hoped that we would take this opportunity to pass legislation
that allows us to proceed in accordance with our laws and our values.
That is what separates America from our enemies. These trials,
conducted appropriately, have the potential to demonstrate to
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the world that our democratic constitutional system of government is
our greatest strength in fighting those who attack us.
That is why I am saddened I must oppose this legislation because the
trials conducted under this legislation may send a very different
signal to the world, one that I fear will put our troops and personnel
in jeopardy both now and in future conflicts. To take just a few
examples, this legislation would permit an individual to be convicted
on the basis of coerced testimony and hearsay, would not allow full
judicial review of the conviction, and yet would allow someone
convicted under these rules to be put to death. That is just simply
unacceptable.
Not only that, this legislation would deny detainees at Guantanamo
Bay and elsewhere--people who have been held for years but have not
been tried or even charged with any crime--the ability to challenge
their detention in court. The legislation before us is better than that
originally proposed by the President, which would have largely codified
the procedures the Supreme Court has already rejected. And that is
thanks to the efforts of some of my Republican colleagues, for whom I
have great respect and admiration. But this bill remains deeply flawed,
and I cannot support it.
One of the most disturbing provisions of this bill eliminates the
right of habeas corpus for those detained as enemy combatants. I
support an amendment by Senator Specter to strike that provision from
the bill.
Habeas corpus is a fundamental recognition that in America the
Government does not have the power to detain people indefinitely and
arbitrarily. And in America, the courts must have the power to review
the legality of executive detention decisions.
This bill would fundamentally alter that historical equation. Faced
with an executive branch that has detained hundreds of people without
trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the
executive branch alone, could be picked up, even in the United States,
and held indefinitely without trial and without any access whatsoever
to the courts. They would not be able to call upon the laws of our
great Nation to challenge their detention because they would have been
put outside the reach of the law.
Some have suggested that terrorists who take up arms against this
country should not be allowed to challenge their detention in court.
But that argument is circular. The writ of habeas allows those who
might be mistakenly detained to challenge their detention in court
before a neutral decisionmaker. The alternative is to allow people to
be detained indefinitely with no ability to argue that they are not, in
fact--that they are not, in fact--enemy combatants.
There is another reason we must not deprive detainees of habeas
corpus, and that is the fact that the American system of government is
supposed to set an example for the world as a beacon of democracy.
A group of retired diplomats sent a very moving letter to explain
their concerns about this habeas-stripping provision. Here is what they
said:
To proclaim democratic government to the rest of the world
as the supreme form of government at the very moment we
eliminate the most important avenue of relief from arbitrary
governmental detention will not serve our interests in the
larger world.
Many dedicated patriotic Americans share these grave reservations
about this particular provision of this bill. Unfortunately, the
suspension of the Great Writ is not the only problem with this
legislation. Unfortunately, I do not have time to discuss them all.
But the bill also appears to permit individuals to be convicted, and
even sentenced to death, on the basis of coerced testimony. According
to the legislation, statements obtained through cruel, inhuman, or
degrading treatment, as long as it was obtained prior to December 2005,
when the McCain amendment became law, would apparently be admissible in
many instances in these military commissions.
Now, it is true that the bill would require the commission to find
these statements have sufficient and probative value. But why would we
go down this road of trying to convict people based on statements
obtained through cruel, inhuman, or degrading interrogation techniques?
Either we are a nation that stands against this type of cruelty and for
the rule of law or we are not. We cannot have it both ways.
In closing, let me do something I do not do very often, and that is
quote my former colleague, John Ashcroft. According to the New York
Times, in a private meeting of high-level officials in 2003 about the
military commission structure, then-Attorney General Ashcroft
reportedly said:
Timothy McVeigh was one of the worst killers in U.S.
history. But at least we had fair procedures for him.
How sad that this Congress would seek to pass legislation about which
the same cannot be said.
Mr. President, I strongly support Senator Specter's amendment to
strike the habeas provision from this bill.
At its most fundamental, the writ of habeas corpus protects against
abuse of government power. It ensures that individuals detained by the
government without trial have a method to challenge their detention.
Habeas corpus is a fundamental recognition that in America, the
government does not have the power to detain people indefinitely and
arbitrarily. And that in America, the courts must have the power to
review the legality of executive detention decisions.
It goes without saying that this is not a new concept. Habeas corpus
is a longstanding vital part of our American tradition, and is
enshrined in the U.S. Constitution, article 1, section 9, where it
states:
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
The Founders recognized the importance of this right. Alexander
Hamilton in Federalist Paper No. 84 explained the importance of habeas
corpus, and its centrality to the American system of government and the
concept of personal liberty. He quoted William Blackstone, who warned
against the ``dangerous engine of arbitrary government'' that could
result from unchallengeable confinement, and the ``bulwark'' of habeas
corpus against this abuse of government power.
As a group of retired judges wrote to Congress, habeas corpus
``safeguards the most hallowed judicial role in our constitutional
democracy--ensuring that no man is imprisoned unlawfully.''
This bill would fundamentally alter that historical equation. Faced
with an administration that has detained hundreds of people without
trial for years now, it would eliminate the right of habeas corpus for
anyone the executive branch labels an alien ``enemy combatant.''
That's right. It would eliminate the right of habeas corpus for any
alien detained by the United States, anywhere in the world, and
designated by the government as an enemy combatant. And it would do so
in the face of years of abuses of power that--thus far--have been
reined in primarily through habeas corpus challenges in our Federal
courts.
Let me be clear about what it does. Under this legislation, some
individuals, at the designation of the executive branch alone, could be
picked up, even in the United States, and held indefinitely without
trial and without any access whatsoever to the courts. They would not
be able to call upon the laws of our great Nation to challenge their
detention because they would have been put outside the reach of the
law.
That is unacceptable, and it almost surely violates our Constitution.
The rule of law is something deeper and more profound than the
collection of laws that we have on paper. It is a principle that
undergirds our entire society, and that has been central to our nation
since its very founding. As Thomas Paine explained at the time of our
country's birth in 1776, the rule of law is that principle, that
paramount commitment, ``that in America, the law is king. . . . and
there ought to be no other.'' The rule of law tells us that no man is
above the law--and as an extension of that principle--that no executive
will be able to act unchecked by our legal system.
Yet by stripping the habeas corpus rights of any individual who the
executive branch decides to designate as an enemy combatant, that is
precisely
[[Page S10361]]
where we end up--with an executive branch subject to no external check
whatsoever. With an executive branch that is king.
Now, it may well be that this provision will be found
unconstitutional as an illegal suspension of the writ of habeas corpus.
But that determination will take years of protracted litigation. And
for what? The President has been urging Congress to pass legislation so
that Khalid Sheikh Mohammed, the alleged mastermind of 9-11, and other
``high value'' al-Qaida detainees can be tried. This bill is supposed
to create a framework for prosecuting unlawful enemy combatants for war
crimes that the Supreme Court can accept following the decision this
summer in the Hamdan case. There is absolutely no reason why we need to
restrict judicial review of the detention of individuals who have not
been charged with any crime.
That raises another point. People who are actually subject to trial
by military commission will at least be able to argue their innocence
before some tribunal, even if I have grave concerns about how those
military commissions would proceed under this legislation. But people
who have not been charged with any crime will have no guaranteed venue
in which to proclaim and prove their innocence. As three retired
generals and admirals explained in a letter to Congress:
The effect would be to give greater protections to the
likes of Khalid Sheikh Mohammed than to the vast majority of
the Guantanamo detainees.
How does this make any sense? Why would we turn our back on hundreds
of years of history and our Nation's commitment to liberty?
We have already, in the Detainee Treatment Act, said that no new
habeas challenges can be brought by detainees at Guantanamo Bay. The
Supreme Court found in Hamdan v. Rumsfeld that the Detainee Treatment
Act did not apply to Hamdan's pending habeas petition, and went forward
with considering his argument that the President's military commission
structure was illegal. And I would think that we should all be pleased
that it did so, because otherwise we would have had to wait for several
more years for Hamdan's trial to be completed before he would have had
any chance to challenge the President's military commission system in
court. The Supreme Court's decision striking down those commissions
would have occurred several years later. And we would be right back
where we are now, but with several more years of delay.
There is another reason why we must not deprive detainees of habeas
corpus, and that is the fact that the American system of government is
supposed to set an example for the world, as a beacon of democracy. And
this provision will only serve to harm others' perception of our system
of government.
A group of retired diplomats sent a very moving letter explaining
their concerns about this habeas-stripping provision. Here is what they
said:
To proclaim democratic government to the rest of the world
as the supreme form of government at the very moment we
eliminate the most important avenue of relief from arbitrary
governmental detention will not serve our interests in the
larger world.
They went on to explain further:
The perception of hypocrisy on our part--a sense that we
demand of others a behavioral ethic we ourselves may advocate
but fail to observe--is an acid which can overwhelm our
diplomacy, no matter how well intended and generous.
That is a direct quote.
Let's not go down this road. Let's remove this provision from the
bill.
As is already clear, I'm not the only one who has serious concerns
about this provision. There is bipartisan support for this amendment.
And Congress has received numerous letters objecting to the habeas
provision, including from Kenneth Starr; a group of former diplomats;
two different groups of law professors; a group of retired judges; and
a group of retired generals. Many, many dedicated patriotic Americans
have grave reservations about this particular provision of the bill.
They have reservations not because they sympathize with suspected
terrorists. Not because they are soft on national security. Not because
they don't understand the threat we face. No. They, and we in the
Senate who support this amendment, are concerned about this provision
because we care about the Constitution, because we care about the image
that America presents to the world as we fight the terrorists. Because
we know that the writ of habeas corpus provides one of the most
significant protections of human freedom against arbitrary government
action ever created. If we sacrifice it here, we will head down a road
that history will judge harshly and our descendants will regret.
Let me close with something that this group of retired judges said.
For two hundred years, the federal judiciary has maintained
Chief Justice Marshall's solemn admonition that ours is a
government of laws, and not of men. The proposed legislation
imperils this proud history by abandoning the Great Writ. . .
.
Mr. President, we must not imperil our proud history. We must not
abandon the Great Writ. We must not jeopardize our Nation's proud
traditions and principles by suspending the writ of habeas corpus, and
permitting our government to pick people up off the street, even in
U.S. cities, and detain them indefinitely without court review. That is
not what America is about.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, I ask unanimous consent for 3 minutes
from our time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. First of all, Madam President, I would like to point out
there are many myths about this legislation. We need to get to the
facts and get to the truth so people can understand what the choices
are.
Our distinguished colleague from Wisconsin, in my view, also
perpetrated another myth by saying this war is all about Iraq, when, in
fact, the new leader of al-Qaida in Iraq, succeeding al-Zarqawi, just
reported in an Associated Press story that 4,000 al-Qaida foreign
fighters have been killed in Iraq due to the war effort there. But this
is a global war, and it requires a uniformed treatment of the
terrorists in a way that reflects our values but also the fact that we
are at war.
I think our colleagues need to be reminded of legislation which we
passed in December of 2005, known as the Detainee Treatment Act. When
people come here and suggest that we are stripping all legal rights
from terrorists who are detained at Guantanamo Bay, they are simply
flying in the face of the Detainee Treatment Act that we passed in
December 2005, which provides not only a review through a combatant
status review tribunal, with elaborate procedures to make sure there is
a fair hearing, but then a right to appeal to the District of Columbia
Circuit Court of Appeals, not only to make sure that the right
standards were applied--that is, whether the military applied the right
rules to the facts--but also to attack the constitutionality of the
system should they choose to do so. So those who claim we are simply
stripping habeas corpus rights are simply flying in the face of the
facts as laid out in the Detainee Treatment Act.
Now, the question may be: Are we going to provide what the law
requires? Are we going to provide additional rights and privileges that
some would like to confer upon these high-value detainees located at
Guantanamo Bay? But the fact is, to do what the proponents of this
amendment propose would be to divert our soldiers from the battlefield
and to tie their hands in ways with frivolous litigation and appeals.
And the last thing that I would think any of us would want to do would
be to provide an easy means for terrorists to sue U.S. troops in U.S.
courts, particularly when it is not required by the Constitution, laws
of the United States, not mandated by the Supreme Court, and we have
provided an adequate substitute remedy, which I believe is entirely
consistent with the U.S. Supreme Court's decisions in this area.
We have provided an avenue or a process by which these detainees can
have their rights protected, such rights as they have being unlawful
combatants attacking innocent civilians. America is conferring rights
upon them that we do not have to confer, but we are conferring them
because we believe there ought to be a fair process and we ought to be
consistent with our Constitution and with the decisions of the U.S.
Supreme Court.
[[Page S10362]]
The last thing I would think any of us would want to do would be to
tie the hands of our soldiers to permit terrorists to sue U.S. troops
in Federal court at will.
The PRESIDING OFFICER (Mr. Ensign). The Senator's time has expired.
The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I ask unanimous consent for 10 minutes from
Senator Warner's side on the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Mr. President, I appreciate the opportunity to talk
generally about the bill. I have already spoken about the importance of
not affording habeas corpus to the unlawful combatants when they have
more protections than international law requires, or than any other
country provides.
Speaking on the bill, for the last 5 years, our most important job
has been to protect our families from another terrorist attack.
Our children, our mothers, fathers, grandparents, and grandchildren--
none of them deserved to die in the 9/11 attacks; none deserve to die
in another terrorist attack. That is why we are doing everything we can
to protect our families by stopping terrorists, capturing them,
learning their secrets, foiling their plots, and bringing the
terrorists to justice.
Through our hard work, there has not been another direct attack on
U.S. soil since 9/11. We have worked hard to prevent and stop attacks
in the last 5 years and must continue to prevent future attacks. We
dramatically boosted airport and airline security. We hired new airport
screeners, implemented new checks, and even put armed agents on flights
where necessary.
We added thousands of new FBI agents, thousands of new intelligence
officers, and increased their budgets by billions to provide new armies
against terrorism.
We passed the PATRIOT Act to provide the tools needed to discover
terrorist plots and stop them. We reorganized our intelligence agencies
to bring a single focus and purpose against terrorism.
We tore down the walls between law enforcement and intelligence to
get terror planning and plot information to authorities as quick as
possible.
All of this is going on as I speak, as we sleep at night, as our
children go to school, we are fighting the war on terrorism.
The President recently highlighted some of the successes we have had
because of our terror fighting tools and efforts. He recounted how we
have captured terrorists, used new tools to learn their secrets,
captured additional terrorists, connected the dots of their
conspiracies, and foiled their terror attack plans.
But now some want to tie the hands of our terror fighters, they want
to take away the tools we use to fight terror--handcuff us, hamper us--
in our fight to protect our families.
It's not new, really. Partisans have slowed our efforts to fight
terror every step of the way.
Many on the other side voted against the PATRIOT Act.
Many blocked reauthorization of the PATRIOT Act for months. The
Democrat Leader actually boasted, ``We killed the PATRIOT Act.''
Thank Heavens that wasn't true. Now, I know that they all love our
country. They are not unpatriotic. They just don't understand the
terrorist enemies we face.
These critics are not willing to do what is necessary to protect
fully our families from terrorists.
You don't have to take my word for it, just look at their record over
the last 5 years. Whether or not you would say terror war critics have
a weak record on terror, they have certainly tried to block, slow down,
and take away our terror fighting tools.
Some congressional Democrats voted to cut and run from Iraq. Nothing
would embolden terrorists more than to see the U.S. turn tail and run
home.
Osama bin Laden cited America quitting Somalia, and failing to
respond to the U.S.S. Cole bombing, as signs of U.S. weakness and
vulnerability. We all know what happened later.
Democrats in the Senate have blocked the appointment of senior anti-
terror officials. The 9/11 commission report recommended better
coordination between law enforcement and intelligence officials. Only
last week did Democrats stop blocking the appointment of the senior
Justice Department official for National Security.
Partisans readily spread classified information leaked to the public
or the media. They call news conferences to highlight cherry-picked
intelligence information, or quote newspaper articles betraying our
Nation's secret terror fighting programs. Don't they think this
encourages the enemy or demoralizes our troops or allies?
Some propose to handcuff our ability to discover terrorist plots.
They propose to make it hard to listen in on a potential terrorist
calling from a foreign country, or to a foreign country to discuss
terror plans.
If al-Qaida calls in, we ought to be listening. That is authorized
under the Constitution. The Constitution clearly gives the President
the power to intercept phone calls under the foreign intelligence
exception in the amendment.
In my meetings with intelligence officials both abroad and here at
home I have heard repeatedly how the disclosure, not only of classified
information, but also of our interrogation techniques, are extremely
damaging.
Our personnel have encountered enemy combatants trained to resist
disclosed interrogation techniques thanks to leakers in our media.
If we lay out precisely the techniques that will be used and we print
them in the Federal Register, they will be in an al-Qaida training
manual within 48 hours.
I'm pleased that with the current Military Commissions legislation
moving forward, we have clarified our strict adherence to standards
that forbid torture in any way, shape or form and we are allowing our
CIA to move forward with a humane interrogation program whose
techniques will not be published in the Federal Register, or even
worse, in another newspaper disclosure.
Critics support trial procedures that would give terrorists secret
intelligence information.
Why on Earth would we hand over classified evidence and information
to terrorists so that information could be used against us in the
future?
Remember the 1993 World Trade Center bombing? The prosecution of
terror suspects there involved giving over 200 names of terror suspects
to the attorneys representing the terrorists. They gave them that in a
trial, and some months later, after an investigation of the bombings in
Africa, we captured the al-Qaida documents which had all of that
information that had been given to the attorneys. So once you give it
to a detainee or the detainee's attorney, you can count on it getting
out.
One other thing is important. Some would propose exposing our terror
fighters to legal liability. They oppose giving our terror fighters
certainty and clarity in how to go about their jobs. They leave them
vulnerable to prosecution and handcuff their efforts and leave the rest
of us vulnerable to terror plots that went undiscovered.
Right now, these people are worried and they are buying insurance.
People who are trying to carry out the very important intelligence
missions of the United States, if they ask any questions, or if they
don't give them four square meals a day and keep them in a comfortable
motel, they are afraid they are going to get sued. We need to give
protection to the people who are operating within the law as we are
laying it out to make sure they don't cross over the line.
The problem we have is that if the critics take away the valuable
tools we have in breaking apart terror plots, we are going to be
significantly less safe. As the President said, the CIA interrogation
program has already succeeded in breaking apart terror conspiracies and
preventing several terror attacks. Critics within the program are
preventing us from punishing terrorists and gaining valuable
information that could prevent future attacks.
One thing I, along with the President and my Republican colleagues,
share with the war critics is a strong opposition to torture. It is
abhorrent, evil, and has no place in the world. What I oppose is how
terror war critics would go soft on terror suspects, allowing them
comforts they surely don't deserve.
Critics are being tough on targets. Terrorists argue that we should
treat them like prisoners of war under the
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Geneva Conventions. Article 72 of the Geneva Conventions on treatment
of prisoners of war says POWs shall be allowed to receive parcels
containing foodstuffs. Is that what critics think the 9/11 Commission
conspirators deserve? Cookie care packages?
Article 71 says POWs shall be allowed to send and receive letters and
cards. Is that what opponents of the bill believe people who conspire
to cut off our heads deserve--letters from home? ``Mail call Ramzi bin
al-Shibh.''
Article 60 requires us to grant all POWs monthly advances of pay. It
even says how much: below sergeant, 8 Swiss francs; officers, 50 Swiss
francs; generals, 75 Swiss francs.
Do the critics think Khalid Sheik Mohammed deserves 50 Swiss francs
or 75?
Critics of being tough on terrorists say that we should adhere to
international standards of decency. Where was the decency when
international troops withdrew without a fight from Srebenica, Bosnia
allowing the genocide of its men and boys?
Where was the decency when the U.N. allowed Sudan, guilty of genocide
in Darfur, to serve on the Human Rights Commission, and allowed Cuba to
help monitor international human rights? This was neither moral nor
decent.
Some say that the tough treatment we are debating will lead to bad
treatment of America's soldiers in the future. That is a close cousin
to the argument that if we leave the terrorists alone they will stop
attacking us, or that America made them do it.
Do we need a reminder of how badly they are already treating us? The
Wall Street Journal reporter kidnapped by terrorists, Daniel Pearl, had
his head cut off long before the criminal acts of Abu Grahib or news of
the CIA prisons.
The charred bodies of our Special Forces dragged through the streets
of Mogadishu tell us what the vague standards of the Geneva Convention
got us.
As I said before, I support a torture ban. I also support provisions
that clearly ban cruel, inhuman treatment or intentionally causing
great suffering or serious injury. These are serious felonies, as they
should be. But what we cannot do is give up tough treatment short of
this that protects our families from attack.
What do critics think would happen if we went soft on terrorists?
Would they be satisfied with only name, rank and serial number? Would
they have us say to our terror suspects, ``Oh gosh darn, I was so
hoping you would willingly tell us your terror plots. Oh well, here's
your 50 Swiss franc advance pay, don't eat too much from your cookie
care package, we've scheduled a dentist appointment for you for
Tuesday.''
Of course not, that would be absurd to think that terrorists will
willingly tell us their plots. Terror war critics have been watching
too many Law and Order TV shows if they think some hokey good cop--bad
cop law enforcement approach will work on al-Qaida.
These people flew airplanes into buildings for heaven's sake, or
should I say for hell's sake.
America must fight with honor. We must fight from the moral high
ground.
But do not tell me we lack a moral basis for our fight against
terror. Show me someone who doubts America's moral basis in this fight
against terror and I will show you someone who has lost their own moral
compass.
The compass of America's future points to this bill. We live in an
age where we must fight terror. To win, we must fight tough in that
fight against terror. We must give our terror fighters the tools they
need and the protections they require to protect our families from
terror.
We cannot fall into the traps our terror war critics suggest:
handcuffing our law enforcement and intelligence agents, blocking our
terror fighting leadership, releasing and spreading our terror war
secrets, giving terror suspects our terror fighting methods and
techniques, granting terrorists overly-comfortable protections, going
soft on terrorists who hold the secrets of their plots, their attacks.
Our agents deserve better, our soldiers deserve better, our families
deserve better.
To start where I began, this is what all our efforts are about.
Protecting our vulnerable families. Protecting our children, protecting
our mothers and fathers, protecting grandparents and grandchildren.
None of the vulnerable it protects deserved to die in the 9/11 attacks,
and none deserve to die again in another terrorist attack.
I urge my colleagues to support this legislation.
Mr. WARNER. Mr. President, we are anxious to move to a vote on the
Specter amendment to accommodate a number of colleagues. Therefore, I
urge that the remaining time on the Specter amendment under the control
of Senator Specter, and the time in opposition under my control, be now
utilized by colleagues, such that we can move to that vote.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. That is not a unanimous consent request, is it?
Mr. WARNER. No.
Mr. LEVIN. We have three Senators who have been allocated time
specifically, and that time may be used relative to the amendment or in
general debate on the bill. I will not agree to any restriction on the
use of time that the Senator has been allocated.
Mr. WARNER. I recognize that. It is in our mutual interests to the
move ahead on the bill. There will be time after the vote for Senators
to speak. You have 18 minutes on the bill. I have 47 under my control
on general debate.
The PRESIDING OFFICER. The Senator from California is recognized.
Mr. WARNER. Mr. President, the time for the Senator from California
is under which category?
The PRESIDING OFFICER. General debate time.
Mrs. FEINSTEIN. Mr. President, I strongly believe the true test of a
nation comes when we face hard decisions and hard times. It is really
not the easy decisions that test our character and our commitment to
fundamental principles and values. It is when the easy answer is not
the right answer, but is politically expedient.
We face one of those times right now. The war against terror has
challenged our country to fight a nontraditional enemy--one that is not
part of any State or military. The enemy does not wear a uniform, it
has no code of ethics, and it relishes in the killing of innocents. It
strikes in cowardly ways. They have also challenged us as to whether we
can continue during this period in fighting this enemy to abide by the
bedrock of our justice system, the Constitution.
Before us on the floor of the Senate is a bill to address how our
country will interpret the Geneva Conventions, and how we will treat
those we apprehend and detain in this nontraditional, asymmetric war.
I truly believe that how we answer these challenges will not only
test our commitment to our Constitution, but it will also test our very
foundation of justice. It sends a message, also, to other countries--a
message that will ultimately dictate how our soldiers and personnel are
treated should they be captured by others.
Earlier this month, a bipartisan group of Senators worked together to
develop a solution to these complex issues, and the Armed Services
Committee reported a compromise military commissions bill to the Senate
by a vote of 15 to 9.
Unfortunately, that is not the bill that is before this body today.
Instead, House and Senate Republicans met with the White House and made
changes that significantly altered the impact of this legislation and
changed the bill in such a manner that I cannot at present support its
passage without substantial amendment.
I do not believe the bill before us is constitutional. It is being
rushed through a month before a major election in which the leadership
of this very body is challenged.
The first of my concerns is the issue of habeas corpus. I very much
support the amendment offered by the chairman of the Judiciary
Committee. The bill before us eliminates a basic right of the American
justice system, and that is the right of habeas corpus review. It is
constitutionally provided to ensure that innocent people are not held
captive or held indefinitely.
Habeas corpus has been a cornerstone of our legal system. It goes
back, as it has been said, to the days of the Magna Carta. Our Founding
Fathers enshrined this right in the Constitution because they
understood mistakes happen and there is need for someone to appeal a
mistake or a wrong conviction.
Just a few weeks ago, a man named Abu Bakker-Qassim, who was held at
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Guantanamo, described how he was held for years, even though he had
never been a terrorist or a soldier. He was never even on a
battlefield. He had been sold by Pakistani bounty hunters to the United
States military for $5,000. Qassim said it was only because of the
availability of habeas corpus that this mistake was able to be
corrected. That is why Senator Specter's amendment is right.
If innocent people are at Guantanamo--and they presumably are and
have been--or if abuses are taking place--and its likely some have--
there must be an avenue to address these problems. Eliminating habeas
corpus rights is a serious mistake and it will open the door to other
efforts to remove habeas corpus.
Next, I am very concerned about the ability to use coerced testimony.
This will be the first time in modern history that United States
military tribunals will be free to admit evidence that was obtained
through abusive tactics so long as the judge determines it is reliable
and relevant or so long as it was obtained before December 30, 2005.
We have heard from countless witnesses that coerced testimony is
inherently unreliable. We don't want to send the message that coercion
is an acceptable tactic to use on Americans as well.
The fact is we had testimony in the Judiciary Committee from the head
of all of the Judge Advocate Corps who said they did not believe
torture worked.
I am very concerned about the definition of torture and the lack of
clarity on cruel and inhumane treatment--especially combined with
giving the President discretion to decide what he believes
interrogation methods are permissible.
We have already seen through press reports that this administration
pushes the boundaries on allowable interrogation techniques and these
abuses cannot continue.
Finally, I am concerned about the rules for what evidence may be used
to convict someone and then their limited ability to have a court
review their case.
If one is not allowed to know what the basis of conviction was and
then is only given limited judicial review of their conviction, how can
we be confident that we are not holding innocent people who were caught
in the wrong place at the wrong time--such an outcome severely harms
our standing in the global community.
I believe these issues are too important for us to rush through a
bill of this magnitude.
These are difficult times and difficult issues. However, I do not
believe the expediency of the moment or the political winds of an
impending election should lead us to abandon our core values as a
Nation.
The Founding Fathers created specific constitutional limitations. And
since that time the United States has been at the forefront of
demanding humane treatment of all people. We must not turn our back on
these fundamental principles.
I am disappointed to be voting against this bill. I had hoped a real
bipartisan compromise could be reached.
The PRESIDING OFFICER. The Senator's time has expired. Who yields
time?
Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished
Senator from Oregon.
The PRESIDING OFFICER. The distinguished Senator is recognized for 10
minutes.
Mr. SMITH. Mr. President, this is a most difficult issue we are
engaged in. We are arguing about what I believe is a cornerstone
principle of the rule of law, and that is the issue of habeas corpus.
I know this is an unusual war, and I don't know its duration. No one
fully does. But I do know if we are going to be true to our
Constitution and to the rule of law, we have to be true to that law.
I have traveled as a Senator all over this globe and have spoken with
great pride about our rule of law and the superiority of democracy to
other means of government. While I support this bill in providing due
process for these detainees, I rise because I am concerned about the
provisions relating to habeas corpus.
I am reminded of the words of Thomas Jefferson who once said:
The habeas corpus secures every man here, alien or citizen,
against everything which is not law, whatever shape it may
assume.
On another occasion he said:
I would rather be exposed to the inconveniences attending
too much liberty than to those attending too small a degree
of it.
What we are talking about is section 7 of this bill, which will
further strip the Federal courts of jurisdiction to hear pending Gitmo
cases as it applies to all pending and future cases. Had this proposal
been law earlier this year, the Supreme Court may not have had
jurisdiction to hear the Hamdan case, which is what brings us here
today.
At the heart of the habeas issue is whether the President should have
the sole authority to indefinitely detain unlawful enemy combatants
without any judicial restraints. Congress will provide the President
with this unilateral authority by enacting legal restrictions aimed at
stripping courts of jurisdiction to hear habeas claims. In doing so,
the President does not have to show any cause for detaining an
individual labeled an ``unlawful enemy combatant.''
Stripped of jurisdiction by recent legislation, U.S. courts will not
have the ability to hear an individual's request to learn why he is
even being detained. Providing detainees with the right to ask a court
to evaluate the legality of their detention I believe would not cost
U.S. lives. However, it will test American laws.
Claims have been made that providing detainees the right to hear why
they are being detained necessitates providing them with classified
information. I do not believe this to be true. Similar to the military
commission legislation, it would only allow a judge or an attorney with
security clearance to see the evidence against the defendant to
evaluate its reliability and probative value.
Permanent detention of foreigners without reason damages our moral
integrity regarding international rule of law issues. To quote:
``History shows that in the wrong hands, the power to jail people
without showing cause is a tool of despotism.'' A responsibility this
Nation has always assumed is to ensure that no one is held prisoner
unjustly.
Stripping courts of their authority to hear habeas claims is a
frontal attack on our judiciary and its institutions, as well as our
civil rights laws. Habeas corpus is a cornerstone of our constitutional
order, and a suspension of that right, whether for U.S. citizens or
foreigners under U.S. control, ought to trouble us all. It certainly
gives me pause.
The right to judicial appeal is enshrined in our Constitution. It is
part and parcel of the rule of law. The Supreme Court has described the
writ of habeas corpus as ``the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless State action.''
Some of the darkest hours in our Nation's history have resulted from
the suspension of habeas corpus, notably the internment of Japanese
Americans during World War II.
Obviously, I am not here to question the wisdom of Abraham Lincoln.
We have had no wiser President. But one of the most controversial
decisions of his administration was the suspension of habeas corpus for
all military-related cases, ignoring the ruling of a U.S. circuit court
against this order. He, in fact, I believe, if my memory of history
serves me, imprisoned the entire Maryland Legislature because of their
attempts to secede from the Union. He did it. It happened. It is not
necessarily the proudest moment of his administration. But it is
something that has been raging with controversy ever since.
Habeas petitions are not clogging the courts and are not frivolous.
The administration claims that the approximately 200 pending habeas
claims are clogging our courts and are for the most part frivolous.
These petitions are not an undue administrative burden. Judges always
have the discretion to dismiss frivolous claims, and indefinite
detainment of a foreigner without showing cause, Mr. President, is not
frivolous.
I suppose what brings me to the floor today is my memory of my study
of the law. While I was in law school, I was particularly taken with
the study of the Nuremberg trials. The words of
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Justice Robert H. Jackson inspired me then and inspire me still. He was
our chief counsel for the allied powers. What he said on that occasion
in his closing address to the international military tribunal is an
inspiration. Said he:
That four great nations, 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.
On the fairness of the Nuremberg proceedings, he said in his closing
statement:
Of one thing we may be sure. The future will never have to
ask with misgiving, what could the Nazis have said in their
favor. History will know that whatever could be said, they
were allowed to say. They have been given the kind of a Trial
which they, in the days of their pomp and power, never gave
to any man. But fairness is not weakness. The extraordinary
fairness of these hearings is an attribute to our strength.
I simply feel this particular provision in this bill ought to be
taken out. We ought not to suspend the writ of habeas corpus. We should
go the extra mile, not as a sign of weakness, but as evidence of our
strength.
I intend to vote for the underlying bill and ultimately will leave
the judgment of its constitutionality without habeas to the judgment of
the judiciary, but I believe we are called upon to go the extra mile to
show our strength and not our weakness, and ultimately our Nation will
be stronger if we stand by the rule of law.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I thank the distinguished Senator from
Oregon for those very cogent remarks, especially in the context of
additional Republican support, stated bluntly, and in light of more
moderate Republican support.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, the Democratic leader has yielded 2 minutes
of his leadership time to me. I ask unanimous consent that I be allowed
to proceed on that basis.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I support the Specter-Leahy amendment on
the writ of habeas corpus. The habeas corpus language in this bill is
as legally abusive of the rights guaranteed in the U.S. Constitution as
the actions at Abu Ghraib, Guantanamo, and the CIA's secret prisons
were physically abusive of the detainees themselves.
The Supreme Court has long held that all persons inside the United
States, including lawful permanent residents and other aliens, have a
constitutional right to the writ of habeas corpus. Yet, this provision
purports to apply even to aliens who are detained inside the United
States, including lawful permanent residents.
Unlike the provision that was included in the Detainee Treatment Act
last year, this court-stripping provision would apply on a world-wide
basis, not just at Guantanamo. It would apply to detainees of all
Federal agencies, not just the Department of Defense. It would attempt
to expressly strip the courts of jurisdiction over all pending cases.
This provision goes beyond stripping the courts of habeas corpus
jurisdiction. It also prohibits the U.S. courts from hearing or
considering ``any other action against the United States or its agents
relating to any aspect of the detention, treatment, or trial'' of an
alien detainee. As a result, this provision would leave many detainees
without any alternative legal remedy at all, even after released, even
if there is every reason to believe that the detention was in error,
and even if the detainee was tortured or abused while in U.S. custody.
For example, the Canadian Government recently concluded, after a
comprehensive review, that one of its citizens had been handed over by
U.S. authorities to a foreign country which subjected him to torture
and cruel and inhuman treatment, without any evidence that he was an
enemy combatant or that he supported any terrorist group. Under this
habeas corpus court-stripping provision, this individual would have no
legal remedy in the U.S. courts even after he was finally released from
illegal detention, unless the United States acknowledges that it made a
mistake when it determined that he was an enemy combatant.
The fundamental premise of last year's Detainee Treatment Act, DTA,
was that we could restrict future habeas corpus suits, because we were
providing an alternative course of access to the courts.
The language in the bill before us would deprive many detainees of
the right to file a writ of habeas corpus without providing any
alternative form of relief. For example: The provision applies on a
worldwide basis, not just at Guantanamo. DOD detainees outside
Guantanamo do not have access to Combatant Status Review Tribunals--
CSRTs--so they can't get to court to review CSRTs. Because this bill
would deprive them of the writ of habeas corpus or any other legal
remedy, they would have no access to the courts at all.
The provision applies to detainees of all Federal agencies, not just
DOD. Detainees of other Federal agencies do not get CSRTs, so they
can't get to court to review CSRTs. Because this bill would deprive
them of the writ of habeas corpus or any other legal remedy, they would
have no access to the courts at all.
The provision even applies to lawful resident aliens who are detained
and held inside the United States. Because this bill would deprive them
of the writ of habeas corpus or any other legal remedy, they would have
no access to the courts at all.
Even in cases where DOD regulations provide detainees a right to
Combatant Status Review Tribunals--CSRTs--such tribunals may not be an
adequate substitute for judicial review under a writ of habeas corpus.
CSRTs are permitted to use coerced testimony, hearsay evidence, and
evidence that is never disclosed to the accused. Detainees before those
status review tribunals are denied access to witnesses and documents
needed to rebut allegations made by the government. Courts reviewing
CSRT determinations are not authorized to make an independent
determination whether there is a lawful basis for the detention.
The court stripping provision in the bill does more than just
eliminate habeas corpus rights for detainees. It also prohibits the
U.S. courts from hearing or considering ``any other action against the
United States or its agents relating to any aspect of the detention,
treatment, or trial'' of an alien detainee.
A separate provision in the bill adds that no person--whether
properly held as an alien detainee or not--may invoke the Geneva
Conventions as a source of rights in any court of the United States.
Other provisions establish new defenses for individuals who may be
accused of violating standards for the treatment of detainees under
U.S. and international law.
Taken together, these provisions do not just deprive detainees of the
ability to challenge the basis on which they have been detained--they
are an effort to insulate the United States from any judicial review of
our treatment detainees, an effort to ensure that there will be no
accountability for actions that violate the laws and the standards of
the United States.
Last year, this Congress took an important stand for the rule of law
by enacting the Detainee Treatment Act, which prohibits the cruel,
inhuman or degrading treatment of detainees in the custody of any U.S.
agency anywhere in the world. That landmark provision is at risk of
being rendered meaningless, if we establish rules ensuring that it can
never be enforced.
Earlier this month, we received a letter from three retired Judge
Advocates General, who urged us not to strip the courts of habeas
corpus jurisdiction. That letter, signed by Admiral Hutson, Admiral
Guter, and General Brahms, stated:
We urge you to oppose any further erosion of the proper
authority of our courts and to reject any provision that
would strip the courts of habeas jurisdiction.
As Alexander Hamilton and James Madison emphasized in the
Federalist Papers, the writ of habeas corpus embodies
principles fundamental to our nation. It is the essence of
the rule of law, ensuring that neither king nor executive may
deprive a person of liberty without some independent review
to ensure that the detention has a reasonable basis in law
and fact. That right must be preserved. Fair hearings do not
jeopardize our security. They are what our country stands
for.
We have received similar letters from nine distinguished retired
Federal
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judges, from hundreds of law professors from around the United States,
and from many others.
If we don't strike this court-stripping language in the bill before
us, if instead of Congress being a check on excessive executive power,
Congress attempts to write a blank check to the executive branch, our
expectation is that the courts will find this provision to be a
legislative excess and strike it down as unconstitutional. We have a
chance to do the right thing and not just to rely on the courts. This
body is the body of last resort legislatively when it comes to
protecting that great writ of habeas corpus which is in the
Constitution. I hope we live up to that responsibility today.
Mr. BYRD. Mr. President, the military commissions bill before us
would strip from the U.S. Constitution of one of its most precious
protections: the writ of habeas corpus. The Great Writ. The bill would
deny those who are detained indefinitely--even those who may be
innocent--the opportunity to challenge their detention in court.
Habeas corpus is a procedure whereby a Federal court may review
whether an individual is being improperly detained. The concept of
habeas corpus is deeply rooted in the English common law and was
specifically referenced in the Magna Carta of 1215, which stated:
No Freeman shall be taken, or imprisoned, or be disseised
of his Freehold, or Liberties, or free Customs, or be
outlawed, or exiled, or any otherwise destroyed; nor will we
pass upon him, nor condemn him, but by lawful Judgment of his
Peers, or by the Law of the Land.
The legal procedure for issuing writs of habeas corpus was codified
by the English Parliament in response to concerns by the British people
that no monarch should be permitted to hold innocent people against
their will without due process of law.
It is precisely because the Founders of the United States feared
elimination of the writ that, when they enumerated the powers of the
Congress in the very first article of the U.S. Constitution, they
included specific reference to the writ of habeas corpus and sought to
protect it. The language they included in article I, section 9, clause
2 of the Constitution, also known as the ``Suspension Clause,'' reads
as follows. It states:
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
I wonder whether those who drafted the provision in this bill to
eliminate habeas corpus have read this clause of the Constitution.
Inconceivably, the U.S. Senate is being asked to abolish a fundamental
right that has been central to democratic societies, including our own,
for centuries. The outrageous provision we debate today could imprison
indefinitely, without access to the courts, not just suspects picked up
overseas but even those taken into custody on U.S. soil.
Some persons detained at Guantanamo may be terrorists guilty of
plotting against the people and the Government of these United States.
Of course terrorists must be properly detained and prosecuted for their
evil deeds. But some detainees may be innocent. Some may be persons
simply swept up because they were in the wrong place at the wrong time.
How can we know which truly deserve to be held and tried as enemy
combatants if we abolish the legal right of the incarcerated to fairly
challenge their detention in court?
The provision in the bill before us deprives Federal courts of
jurisdiction over matters of law that are clearly entrusted to them by
the Constitution of the United States. The Constitution is clear on
this point: The only two instances in which habeas corpus may be
suspended are in the case of a rebellion or an invasion. We are not in
the midst of a rebellion, and there is no invasion. It is notable that
those who drafted the Constitution deliberately used the word
``suspended.'' They did not say that habeas corpus could be forever
denied, abolished, revoked, or eliminated. They said that, in only two
instances, it could be ``suspended,'' meaning temporarily. Not forever.
Not like in this bill.
How can we, the U.S. Senate, in this bill abolish habeas corpus by
approving a provision that so clearly contravenes the text of the
Constitution? Where is our respect for the checks and balances that
were built into our system by the Framers? They included an explicit
prohibition against blanket suspension of the writ of habeas corpus
precisely to protect innocent persons from being subject to arbitrary
and unfair action by the state.
This flagrant attempt to deny a fundamental right protected by the
Constitution reveals how White House and Pentagon advisers continue to
chip away at the separation of powers. They relentlessly pursue their
dangerous goal of consolidating power in the hands of the Executive at
the expense of the Congress, the judiciary, and, sadly, the People. How
can we even contemplate such an irresponsible and dangerous course as
this de facto canceling of the writ of habeas corpus.
The Constitution of the United States is a time-tested contract
between our people and their Government, for which thousands of
American military men and women have died. Why would we seek to violate
its terms? Aren't we fighting the terrorists precisely to preserve
individual liberties and the rule of law? If we as a people jettison
the very democratic ideals that have made our Nation great and we
become, instead, exactly like those whom we seek to imprison--standing
for nothing and capable of anything--then what are we fighting for? And
if we indefinitely and illegally detain innocent parties of other
nations, with what credibility can we request that they release our
own?
Mr. President, I ask my colleagues to join me in support of the
amendment that has been offered to preserve the writ of habeas corpus.
Mr. REID. Mr. President, I have received a letter from over 100 law
professors and other distinguished citizens expressing their opposition
to the habeas corpus provisions in the military tribunal bill. They
urge support for the Specter-Leahy amendment to remedy that flaw. I ask
unanimous consent that the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Hon. Bill Frist,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Dennis Hastert,
Speaker, House of Representatives, Washington, DC.
Hon. Harry Reid,
Democratic Leader, U.S. Senate, Washington, DC.
Hon. Nancy Pelosi,
Democratic Leader, House of Representatives, Washington, DC.
Dear Senator Frist, Senator Reid, Speaker Hastert and Rep.
Pelosi: We agree with the views set forth in the undated
letter sent this month to Members of Congress from Judge John
J. Gibbons, Judge Shirley M. Hufstedler, Judge Nathaniel R.
Jones, Judge Timothy K. Lewis, Judge William A. Norris, Judge
George C. Pratt, Judge H. Lee Sarokin, Judge William S.
Sessions, and Judge Patricia M. Wald.
These nine distinguished, retired federal judges expressed
deep concern about the lawfulness of a provision in the
Military Commissions Act of 2006 stripping the courts of
jurisdiction to test the lawfulness of Executive detention
outside the United States.
This matter is even more urgent now. The provision would
eliminate habeas for all alleged alien enemy combatants,
whether lawful or unlawful, even if they are detained in the
United States.
We concur with the request made by the judges that Congress
remove the provision stripping habeas jurisdiction from the
proposed Military Commissions Act.
Respectfully, (100 Signatures)
The PRESIDING OFFICER. Who yields time?
Mr. GRAHAM. Mr. President, how much time is remaining?
The PRESIDING OFFICER. On which side?
Mr. GRAHAM. On the Warner side.
The PRESIDING OFFICER. Senator Warner has 4 minutes in opposition to
the Specter amendment.
Mr. WARNER. Mr. President, I yield that to the Senator from South
Carolina.
The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
Mr. GRAHAM. Mr. President, this has been a very spirited debate and I
am going to give you a spirited answer to what I am proposing with my
vote. No. 1, my moral compass is very much intact, and when people
mention moral compasses and the conscience of the Senate, I am going to
sleep very good casting my vote. I think I have a decent moral compass
about what we should be doing to people: What is humane, what is not;
what is right, what is wrong. I have tried to balance the interests of
our troops and the interests
[[Page S10367]]
of our country when it comes to dealing with people who find themselves
in our capture.
Why not habeas for noncitizen, enemy combatant terrorists housed at
Gitmo? No. 1, the whole Congress has agreed prospectively habeas is not
available; the Detainee Treatment Act will be available. The only
reason we are here is because of the Hamdan decision. The Hamdan
decision did not apply to the Detainee Treatment Act retroactively, so
we have about 200 and some habeas cases left unattended and we are
going to attend to them now.
Why do we--I and others--want to take habeas off the table and
replace it with something else? I don't believe judges should be making
military decisions in a time of war. There is a reason the Germans and
the Japanese and every other prisoner held by America have never gone
to Federal court and asked the judge to determine their status. That is
not a role the judiciary should be playing. They are not trained to
make those decisions.
Under the Geneva Conventions article 5, the combatant tribunal
requirement is a military decision. So I believe very vehemently that
the military of our country is better qualified to determine who an
enemy combatant is over a Federal judge. That is the way it has been,
that is the way it should be and, with my vote, that is the way it is
going to be.
What is the problem? Why am I worried about having Federal judges
turning every enemy combatant decision into a trial? In 1950 the
Supreme Court, denying habeas rights to German and Japanese prisoners,
said:
Such trials would hamper the war effort and bring aid and
comfort to the enemy.
I agree with that.
They would diminish the prestige of our commanders not only
with enemies, but wavering neutrals.
I agree with that.
It would be difficult to devise a more effective fettering
of a field commander than to allow the very enemies he has
ordered to reduce to submission to call him to account in his
own civil courts and divert his efforts and attention from
the military offensive abroad to the legal defensive at home.
I agree with that. That is why we shouldn't be doing habeas cases in
a time of war. Nor is it unlikely that the result of such enemy
litigiousness would be conflict between judicial and military opinion--
highly comforting to the enemies of the United States.
These trials impede the war effort. It allows a judge to take what
has historically been a military function.
What I am proposing for this body and our country is to allow the
military to do what they are best at doing: controlling the
battlefield. Let them define who an enemy combatant is under the Geneva
Conventions requirements, under the Combatant Status Review Tribunal
system, which is Geneva Conventions compliant, in my opinion, and let
the Federal courts come in after they made their decision to see if the
military applied the correct law, the procedures were followed, and the
evidence justifies the decision of the military.
To substitute a judge for the military in a time of war to determine
something as basic as who our enemy is is not only not necessary under
our Constitution, it impedes the war effort, it is irresponsible, it
needs to stop, and it should never have happened. I am confident
Congress has the ability, if we choose to redefine the rights of an
enemy combatant, noncitizen--what rights they have in a time of war and
what has happened.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRAHAM. Mr. President, I will ask unanimous consent to have
printed in the Record, if I may, examples of the habeas petitions filed
on behalf of detainees against our troops.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Examples of Habeas Petitions Filed of Behalf of Detainees
1. Canadian detainee who threw a grenade that killed an
Army medic in firefight and who comes from family with
longstanding al Qaeda ties moves for preliminary injunction
forbidding interrogation of him or engaging in ``cruel,
inhuman, or degrading'' treatment of him (n.b. this motion
was denied by Judge Bates).
2. ``Al Odah motion for dictionary internet security
forms''--Kuwaiti detainees seek court orders that they be
provided dictionaries in contravention of GTMO's force
protection policy and that their counsel be given high-speed
internet access at their lodging on the base and be allowed
to use classified DoD telecommunications facilities, all on
the theory that otherwise their ``right to counsel'' is
unduly burdened.
3. ``Alladeen--Motion for TRO re transfer''--Egyptian
detainee who Combatant Status Review Tribunal adjudicated as
no longer an enemy combatant, and who was therefore due to be
released by the United States, files motion to block his
repatriation to Egypt.
4. ``Paracha--Motion for PI re Conditions''--Motion by high
level al Qaeda detainee complaining about base security
procedures, speed of mail delivery, and medical treatment;
seeking an order that he be transferred to the ``least
onerous conditions'' at GTMO and asking the court to order
that GTMO allow him to keep any books and reading materials
sent to him and to ``report to the Court'' on ``his
opportunities for exercise, communication, recreation,
worship, etc.''
5. ``Motion for PI re Medical Records''--Motion by detainee
accusing military's health professionals of ``gross and
intentional medical malpractice'' in alleged violation of the
4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and
unspecified international agreements.
6. ``Abdah--Emergency Motion re DVDs''--``emergency''
motion seeking court order requiring GTMO to set aside its
normal security policies and show detainees DVDs that are
purported to be family videos.
7. ``Petitioners' Supp. Opposition''--Filing by detainee
requesting that, as a condition of a stay of litigation
pending related appeals, the Court involve itself in his
medical situation and set the stage for them to second-guess
the provision of medical care and other conditions of
confinement.
8. ``Al Odah Supplement to PI Motion''--Motion by Kuwaiti
detainees unsatisfied with the Koran they are provided as
standard issue by GTMO, seeking court order that they be
allowed to keep various other supplementary religious
materials, such as a ``tafsir'' or 4-volume Koran with
commentary, in their cells.
Mr. SPECTER. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. There is 12 minutes remaining.
Mr. SPECTER. Mr. President, I think it would be appropriate, if I may
have Senator Warner's concurrence, to tell our colleagues that this
will be the end of the time allocated for this amendment and we could
expect to vote at about 11:45 or 11:50?
Mr. WARNER. Mr. President, very definitely. As soon as all time on
this amendment is allocated or yielded back, my intention is to move to
a vote.
Mr. SPECTER. I thank my distinguished colleague.
Mr. President, I fully realize it is unpopular to speak for aliens,
unpopular to speak on what might be interpreted to be in favor of enemy
combatants, but that is not what this Senator is doing. What I am
trying to establish is a course of judicial procedure to determine
whether they are enemy combatants.
I submit that the materials produced on this floor and in the
hearings of the Judiciary Committee show conclusively that the
Combatant Status Review Tribunals do not have an adequate way of
determining whether these individuals are enemy combatants. What we are
doing is defending the jurisdiction of the Federal courts to maintain
the rule of law. If the Federal courts are not open, if the Federal
courts do not have jurisdiction to determine constitutionality, then
how are we to determine what is constitutional?
My own background is one of a reverence for the law, a reverence for
the independence of the judiciary, and a reverence for the rule of law
as interpreted by our Constitution. If it hadn't been for the Federal
courts, the Supreme Court of the United States, we would not have seen
the decision in Brown v. Board of Education in 1954. The legislative
branches were too mired in politics, the executive was too mired in
politics, and it was only the Supreme Court which could recognize the
injustice of segregation and it led to that decision.
Similarly, it was the Federal courts which changed the criminal
procedure in this country as a matter of basic fairness. Prior to the
decision of the case of Brown v. Mississippi in 1936, the Federal
courts did not establish standards for State criminal courts. It was
determined as a matter of States rights that States could establish
their own determinations. But in that case, the evidence was
overwhelming about a brutal, coerced confession and, for the first
time, the Supreme Court of the United States stepped in and said:
States may not take an individual,
[[Page S10368]]
take him across State lines, have a feigned hanging, extract a
confession, and use that to convict him. That was done by the Federal
courts.
I had the occasion when I was in the Philadelphia district attorney's
office to witness firsthand on a daily basis a revolution in
constitutional criminal procedure. I was litigating the issues in the
criminal courts when Mapp v. Ohio came down, imposing the rule of
exclusion of evidence in State courts if obtained in violation of the
fourth amendment and, when Escobedo came down, limiting admissions and
confessions if not in conformity with rules. Then Miranda v. Ohio came
down. I found those decisions as a prosecutor very limiting and
impeding. But the course of time has demonstrated that those decisions
have improved the quality of justice in America. Chief Justice
Rehnquist, a recognized conservative, sought to eliminate or limit
Miranda when he came to the Supreme Court of the United States. Later
in his career, he said in Miranda that the protections of those
warnings were appropriate and were helpful in our society.
There are four fundamental, undeniable principles and facts involved
in the issue we are debating today. The first undeniable principle is
that a statute cannot overrule a Supreme Court decision on
constitutional grounds, and a statute cannot contradict an explicit
constitutional provision. That is point No. 1.
Point No. 2, the Constitution is explicit in the statement that
habeas corpus may be suspended only with rebellion or invasion.
Fact No. 3, uncontested. We do not have a rebellion or an invasion.
Fact and principle No. 4, the Supreme Court says that aliens are
covered by habeas corpus.
We have already had considerable exposition of the opinion by Justice
O'Connor that the constitutional right of habeas corpus applies to
individuals, which means citizens and aliens. The case of Rasul v.
Bush, which explicitly involved an alien, says this in the opinion of
Justice Stevens speaking for the Court:
Habeas corpus received explicit recognition in the
Constitution, which forbids the suspension of--
Then Justice Stevens cites the constitutional provision.
The privilege of the writ of habeas corpus cannot be suspended unless
in the cases of rebellion or invasion, and neither is present here. So
you have the express holding of the Supreme Court in Rasul v. Bush that
habeas corpus applies to aliens.
Justice Stevens went on to say that:
Executive imprisonment has been considered oppressive and
lawless since John, at Runnymede.
What this bill would do in striking habeas corpus would take our
civilized society back some 900 years to King John at Runnymede which
led to the adoption of the Magna Charta in 1215, which is the
antecedent for habeas corpus and was the basis for including in the
Constitution of the United States the principle that habeas corpus may
not be suspended.
I believe it is unthinkable, out of the question, to enact Federal
legislation today which denies the habeas corpus right which would take
us back some 900 years and deny the fundamental principle of the Magna
Charta imposed on King John at Runnymede.
Mr. President, how much time do I have?
The PRESIDING OFFICER. There is 3\1/2\ minutes remaining.
Mr. SPECTER. Mr. President, the argument has been made that there is
an alternative procedure which passes constitutional muster. But the
provisions of the statute which set up the Combatant Status Review
Tribunal are conclusively insufficient on their face. The statute
provides that the Combatant Status Review Tribunal may be reviewed by
the Court of Appeals for the District of Columbia only to the extent
that the ruling was consistent with the standards and procedures
specified by the Secretary of Defense.
Now, to comply with the standards of procedures determined by the
Secretary of Defense does not mean exclude on its face a factual
determination as to what happens to the detainees.
When the Senator from South Carolina argues that judges should not
make military decisions, I agree with him totally. But the converse of
that is that judges should make judicial decisions, to decide whether
due process is decided. The converse, that judges should not make
military decisions, is the principle that the Secretary of Defense
ought not to decide what the constitutional standards are. The
Secretary of Defense should not decide what the constitutional
standards are. That is up to the Supreme Court of the United States,
and the Supreme Court of the United States has decided that aliens are
entitled to the explicit constitutional protection of habeas corpus.
The argument is made that the Swain case allows for alternative
procedures. The Swain case involved a District of Columbia habeas
corpus proceeding which was virtually identical with habeas corpus
provided under Federal statute 2241, so of course it was satisfactory.
A number of straw men have been set up: One, that we could not apply
these principles to the 18,000 detainees in Iraq--nobody seeks to do
that; the straw man that we should not give search and seizure
protections of the fourth amendment--no one seeks to do that; or the
fifth amendment protection against the privilege of self-incrimination.
In essence and in conclusion, what this entire controversy boils down
to is whether Congress is going to legislate to deny a constitutional
right which is explicit in the document of the Constitution itself and
which has been applied to aliens by the Supreme Court of the United
States.
The distinguished chairman of the Armed Services Committee has said
that he does not want to have this matter come back to Congress. But
surely as we are standing here, if this bill is passed and habeas
corpus is stricken, we will be on this floor again rewriting the law.
The PRESIDING OFFICER. The time of the Senator has expired. All time
has expired.
Is there further debate on the amendment?
Mr. WARNER. Mr. President, may I inquire, the distinguished Senator
from Michigan seeks a little additional time on leader time, is that
correct?
Mr. LEVIN. I have already accomplished that. I thank my friend.
Mr. WARNER. At this time I would like to yield to the Senator from
South Carolina 3 minutes off of the time under my control on the bill.
The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
Mr. GRAHAM. What I am trying to stress to the body is that this is a
war we are fighting, not crime, and habeas corpus rights have not been
given to any other prisoners under U.S. control in the past, for very
good reason. It impedes the war effort.
Let me give you a flavor of what is coming out of Guantanamo Bay.
This is what is happening to the troops defending America by the people
who are incarcerated, determined by our military to be an enemy
combatant. A Canadian detainee, who threw a grenade that killed an Army
medic in a firefight and who comes from a family with longstanding al-
Qaida ties, moved for a preliminary injunction forbidding interrogation
of him or engaging in cruel, inhuman or degrading treatment. In other
words, he was going to ask the judge to take over running the jail and
his interrogation.
A Kuwaiti detainee sought a court order that would provide
dictionaries in contravention of Gitmo force protection policy and that
their counsel have high-speed Internet access.
Another one applied for a motion that would allow them to change the
base security procedures to allow speedy mail delivery medical
treatment. He sought an order transferring him to the least onerous
condition at Gitmo. He asked the court to allow him to keep any books
and reading materials sent to him and report to the court over his
opportunities for exercise, communication, recreation and worship.
We are not going to turn this war over to a series of court cases,
where our troops are having to account for a bunch of junk by people
trying to kill Americans. They will have their day in court, but they
are not going to turn this whole war into a mockery with my vote.
I yield back.
Mr. WARNER. Mr. President, I believe there is no time remaining?
The PRESIDING OFFICER. There is no time remaining.
[[Page S10369]]
Mr. WARNER. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The question is on agreeing to the amendment. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Maine (Ms. Snowe).
The PRESIDING OFFICER (Mr. Graham). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 48, nays 51, as follows:
[Rollcall Vote No. 255 Leg.]
YEAS--48
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Smith
Specter
Stabenow
Sununu
Wyden
NAYS--51
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Snowe
The amendment (No. 5087) was rejected.
Mr. WARNER. I move to reconsider the vote.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, the managers of the bill have been
notified there are still three amendments remaining, one by Senator
Rockefeller, one by Senator Kennedy, one from Senator Byrd. If I
understand from my distinguished ranking member, we will proceed to the
amendment of Senator Rockefeller.
Mr. ROCKEFELLER. I have yielded 5 minutes to the Senator from
Massachusetts, if that is okay, on a separate matter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, the ranking member is about to advise the
Senator with regard to which amendment might be forthcoming.
Mr. LEVIN. If Senator Rockefeller is ready, I understand there is a
time agreement of 1 hour equally divided.
The PRESIDING OFFICER. That is correct.
Five minutes of the time of the Senator from West Virginia has been
previously allocated to the Senator from Massachusetts, Mr. Kerry.
Mr. KERRY. If I could correct that, my time is not supposed to come
from the Senator from West Virginia. I believe I have time already
allocated, so it would be separate.
Mr. ROCKEFELLER. If the situation is it is deducted from this
Senator's time, I would object.
The PRESIDING OFFICER. It is the understanding of the Chair that the
Senator from Massachusetts, the unanimous consent was obtained at 10
o'clock with 5 minutes coming from the time of the Senator from West
Virginia.
Mr. LEVIN. Mr. President, that unanimous consent request was
apparently agreed to and is in place right now?
The PRESIDING OFFICER. That is correct.
The Senator from West Virginia.
Amendment No. 5095
Mr. ROCKEFELLER. Mr. President, I send an amendment to the desk on
behalf of myself, and Senators Clinton, Wyden, Mikulski and Feingold.
The PRESIDING OFFICER. The clerk will report.
The Senator from West Virginia, [Mr. Rockefeller], for
himself, Mrs. Clinton, Mr. Wyden, Ms. Mikulski, and Mr.
Feingold, proposes an amendment numbered 5095.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide for congressional oversight of certain Central
Intelligence Agency programs)
At the end, add the following:
SEC. 11. OVERSIGHT OF CENTRAL INTELLIGENCE AGENCY PROGRAMS.
(a) Director of Central Intelligence Agency Reports on
Detention and Interrogation Program.--
(1) Quarterly reports required.--Not later than three
months after the date of the enactment of this Act, and every
three months thereafter, the Director of the Central
Intelligence Agency shall submit to the congressional
intelligence committees a report on the detention and
interrogation program of the Central Intelligence Agency
during the preceding three months.
(2) Elements.--In addition to any other matter necessary to
keep the congressional intelligence committees fully and
currently informed about the detention and interrogation
program of the Central Intelligence Agency, each report under
paragraph (1) shall include (but not be limited to), for the
period covered by such report, the following:
(A) A description of any detention facility operated or
used by the Central Intelligence Agency.
(B) A description of the detainee population, including--
(i) the name of each detainee;
(ii) where each detainee was apprehended;
(iii) the suspected activities on the basis of which each
detainee is being held; and
(iv) where each detainee is being held.
(C) A description of each interrogation technique
authorized for use and guidelines on the use of each such
technique.
(D) A description of each legal opinion of the Department
of Justice and the General Counsel of the Central
Intelligence Agency that is applicable to the detention and
interrogation program.
(E) The actual use of interrogation techniques.
(F) A description of the intelligence obtained as a result
of the interrogation techniques utilized.
(G) Any violation of law or abuse under the detention and
interrogation program by Central Intelligence Agency
personnel, other United States Government personnel or
contractors, or anyone else associated with the program.
(H) An assessment of the effectiveness of the detention and
interrogation program.
(I) An appendix containing all guidelines and legal
opinions applicable to the detention and interrogation
program, if not included in a previous report under this
subsection.
(b) Director of Central Intelligence Agency Reports on
Disposition of Detainees.--
(1) Quarterly reports required.--Not later than three
months after the date of the enactment of this Act, and every
three months thereafter, the Director of the Central
Intelligence Agency shall submit to the congressional
intelligence committees a report on the detainees who, during
the preceding three months, were transferred out of the
detention program of the Central Intelligence Agency.
(2) Elements.--In addition to any other matter necessary to
keep the congressional intelligence committees fully and
currently informed about transfers out of the detention
program of the Central Intelligence Agency, each report under
paragraph (1) shall include (but not be limited to), for the
period covered by such report, the following:
(A) For each detainee who was transferred to the custody of
the Department of Defense for prosecution before a military
commission, the name of the detainee and a description of the
activities that may be the subject of the prosecution.
(B) For each detainee who was transferred to the custody of
the Department of Defense for any other purpose, the name of
the detainee and the purpose of the transfer.
(C) For each detainee who was transferred to the custody of
the Attorney General for prosecution in a United States
district court, the name of the detainee and a description of
the activities that may be the subject of the prosecution.
(D) For each detainee who was rendered or otherwise
transferred to the custody of another nation--
(i) the name of the detainee and a description of the
suspected terrorist activities of the detainee;
(ii) the rendition process, including the locations and
custody from, through, and to which the detainee was
rendered; and
(iii) the knowledge, participation, and approval of foreign
governments in the rendition process.
(E) For each detainee who was rendered or otherwise
transferred to the custody of another nation during or before
the preceding three months--
(i) the knowledge of the United States Government, if any,
concerning the subsequent treatment of the detainee and the
efforts made by the United States Government to obtain that
information;
(ii) the requests made by United States intelligence
agencies to foreign governments for information to be
obtained from the detainee;
[[Page S10370]]
(iii) the information provided to United States
intelligence agencies by foreign governments relating to the
interrogation of the detainee;
(iv) the current status of the detainee;
(v) the status of any parliamentary, judicial, or other
investigation about the rendition or other transfer; and
(vi) any other information about potential risks to United
States interests resulting from the rendition or other
transfer.
(c) CIA Inspector General and General Counsel Reports.--
(1) Annual reports required.--Not later than one year after
the date of the enactment of this Act, and annually
thereafter, the Inspector General of the Central Intelligence
Agency and the General Counsel of the Central Intelligence
Agency shall each submit to the congressional intelligence
committees a report on the detention, interrogation and
rendition programs of the Central Intelligence Agency during
the preceding year.
(2) Elements.--Each report under paragraph (1) shall
include, for the period covered by such report, the
following:
(A) An assessment of the adherence of the Central
Intelligence Agency to any applicable law in the conduct of
the detention, interrogation, and rendition programs of the
Central Intelligence Agency.
(B) Any violations of law or other abuse on the part of
personnel of the Central Intelligence Agency, other United
States Government personnel or contractors, or anyone else
associated with the detention, interrogation, and rendition
programs of the Central Intelligence Agency in the conduct of
such programs.
(C) An assessment of the effectiveness of the detention,
interrogation, and rendition programs of the Central
Intelligence Agency.
(D) Any recommendations to ensure that the detention,
interrogation, and rendition programs of the Central
Intelligence Agency are conducted in a lawful and effective
manner.
(3) Construction of reporting requirement.--Nothing in this
subsection shall be construed to modify the authority and
reporting obligations of the Inspector General of the Central
Intelligence Agency under section 17 of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403q) or any other
law.
(d) Certification of Compliance.--Not later than three
months after the date of the enactment of this Act, and
promptly upon any subsequent approval of interrogation
techniques for use by the Central Intelligence Agency, the
Attorney General shall submit to the congressional
intelligence committees--
(1) an unclassified certification whether or not each
approved interrogation technique complies with the
Constitution of the United States and all applicable
treaties, statutes, Executive orders, and regulations; and
(2) an explanation of why each approved technique complies
with the Constitution of the United States and all applicable
treaties, statutes, Executive orders, and regulations.
(e) Form of Reports.--Except as provided in subsection
(d)(1), each report under this section shall be submitted in
classified form.
(f) Availability of Reports.--Each report under this
section shall be fully accessible by each member of the
congressional intelligence committees.
(g) Definitions.--In this section:
(1) Congressional intelligence committees.--The term
``congressional intelligence committees'' means--
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
(2) Law.--The term ``law'' includes the Constitution of the
United States and any applicable treaty, statute, Executive
order, or regulation.
Mr. ROCKEFELLER. Mr. President, for 4 years the Central Intelligence
Agency's program was kept from the full membership of the Senate and
House Intelligence Committees.
For 4 years the CIA imprisoned and interrogated suspected terrorists
at secret black sites under a policy that prevented Congress from not
only knowing about the program but from acting on it and regulating it.
For 4 years, the White House refused to brief Intelligence Committee
members about the program's legal business and operations, as is
required by law.
For 4 years, the members of the Senate and the House Intelligence
Committees, whose duty it is to authorize the funding of every CIA
program, were kept in the dark by an administration which ignored the
legal requirement to keep the Congress fully and currently informed on
all intelligence activities.
The amendment I have offered reverses the executive branch's 4-year
policy of indifference toward Congress.
My amendment corrects a serious omission in the pending bill: the
need for Congress to reassert its fundamental right to understand the
intelligence activities it authorizes and funds.
My amendment would subject the CIA's detention and interrogation to
meaningful congressional oversight for the first time in 4 years by
requiring a series of reviews and reports that will enable the Congress
to evaluate the program's scope and legality, as well as its
effectiveness.
The amendment establishes this absent congressional oversight in four
ways. First, my amendment requires the Director of the CIA to provide a
quarterly report to all members of the Intelligence Committees in both
the House and the Senate detailing the detention facilities, how they
are operated, and how they are used by the CIA.
It requires that the detainees held at these facilities be listed by
name as well as the basis for their detention and the description of
interrogation techniques used on them and the accompanying legal
rationale.
This quarterly report also requires the recording of any violation or
abuse under the CIA program as well as an assessment of the
effectiveness of the detention and interrogation program.
This issue of the effectiveness of interrogation techniques is
incredibly important and often overlooked as an aspect of the debate
over the CIA program. Interrogations that coerce information can
produce bad intelligence--not necessarily, but they can produce
misleading intelligence--fabricated intelligence to get out of the
treatment, information that can harm, not help, our efforts to locate
and capture terrorists.
Second, my amendment would require the Director of the CIA to provide
a quarterly report to all members of the Intelligence Committees on the
disposition of each detainee transferred out of the CIA prisons,
whether the detainee was transferred to the Department of Defense for
prosecution before a military commissioner for further detention,
whether the detainee was transferred to the custody of the Attorney
General to stand trial in civilian court, or whether the detainee was
rendered or otherwise transferred to the custody of another nation.
There needs to be a comprehensive and accurate accounting of
detainees held by the CIA. Congress has a responsibility to know who is
held by the CIA, why they are held and for how long they are held.
The CIA detention and interrogation program cannot function as a
black hole into which people disappear for years on end.
We have been told by CIA leaders that the agency does not want to
be--they say this constantly to us--they do not want to be the prison
warden for the United States Government. The goal of the CIA program
should be to obtain, through lawful means, intelligence information
that can identify other terror suspects to prevent further terrorist
attacks and then to bring to justice those who we believe to be
criminals. This is the so-called endgame that everyone talks about.
If the CIA detention program is allowed to function as some sort of
prisoner purgatory, we have then failed.
Also of concern to me is the lack of existing oversight in how the
United States transports or renders detainees to other countries for
imprisonment and interrogation.
The limited information the administration has shared with the Senate
Intelligence Committee on the CIA's rendition program does not by any
means assure, at least this Senator, that the intelligence community
has a program in place, so to speak, to assert what happens to these
individuals when they are transferred to foreign custody, such as how
they are treated, how they are interrogated, whether they divulge
intelligence information of value, and whether this information is then
provided to the CIA.
The CIA's rendition program deserves far greater scrutiny and
congressional oversight than it has been given to date.
The third way in which this amendment establishes a meaningful
oversight of the CIA detention and interrogation program is to require
the CIA Inspector General and the CIA general counsel each separately
review the program on an annual basis to report their findings to the
Intelligence Committees. These independent Agency reviews would assess
the CIA's compliance with any applicable law or regulation and the
conduct of detention, interrogation and rendition activities as well as
to report to Congress any violations of law or other abuse on the part
of personnel involved in the program.
[[Page S10371]]
The annual reviews of the Inspector General and the general counsel
also would evaluate the effectiveness of the detention and
interrogation program; effectiveness at obtaining valuable and reliable
intelligence.
Finally, my amendment requires the Attorney General to submit to
Congress an unclassified certification whether or not each
interrogation technique approved for use by the CIA complies with the
United States Constitution and all applicable treaties, statutes and
regulations. I believe this is a very important certification.
All Americans, not just the Congress, need an ironclad assurance from
our Nation's top enforcement officer that the CIA program and the
interrogation techniques it employs are lawful in all respects. The CIA
officers in the field, I might say, above all, need this assurance.
I do not believe there is anything particularly controversial about
this amendment, and I hope that Democrats and Republicans alike can
embrace the need for restoring respect for the oversight role of the
Intelligence Committees of the Congress over intelligence.
Only through reports that will be provided under this amendment will
the Congress have the information it lawfully deserves to understand
the CIA's detention and interrogation program and determine whether the
program is producing the unique intelligence mission that justifies its
continued operation.
Only when the President works with the Congress are we able to craft
intelligence programs that are legally sound and operationally
effective. Only when the President works with the Congress can America
stand strong in its fight against terrorism.
Intelligence gathering through interrogation is one of the most
important tools we have in the war on terrorism. My amendment would
provide the congressional oversight necessary to assure that our
intelligence officers in the field have clear guidelines for effective
and legal interrogation.
Before yielding the floor, I will address two other matters very
briefly.
Those who have taken the time to read through the bill we are
debating will find the word ``coercion'' repeatedly in the text of the
legislation. Coercion is a fitting word when considering how the Senate
finds itself rushed into voting on a bill with far-reaching legal and
national security implications.
The final text of the underlying bill was negotiated by a handful of
Republican Senators, many of whom I respect, and the White House.
Democrats were not consulted. I was not consulted. This Senator was not
consulted. Senator Levin was not consulted. We were kept out of these
closed-door sessions.
I say that because the Senate Intelligence Committee is the only
Senate committee responsible for authorizing CIA activities and the
only committee briefed on classified details of the CIA's detention and
interrogation program. We were denied an opportunity to consider this
bill, in fact, on sequential referral, which is our due.
In the mad dash to pass this bill before the Senate recesses,
Senators are being given only five opportunities, I believe, to amend
the bill, effectively preventing the Senate from trying to produce the
best bill possible on the most important subject possible with respect
to the gathering of intelligence. It does not have to be this way.
Finally, I am troubled by what I view as misleading statements about
the current state of the CIA detention and interrogation program made
by President Bush and senior administration officials. I say this for
the record, and strongly.
The President and others have stated in recent weeks that the CIA
program was halted as a result of the Supreme Court's Hamdan decision
on June 29, 2006. This assertion is false.
Significant aspects of this program were halted following the passage
of the Detainee Treatment Act in 2005, prohibiting cruel, inhuman, or
degrading treatment of detainees, well before the Supreme Court
decision.
The President has also been very forceful in his public statements
asserting that the post-Hamdan application of Geneva Conventions Common
Article 3 has created legal uncertainties about the CIA interrogation
procedures that the Congress must resolve through legislation--only
us--in order for the CIA program to continue. This assertion is
misleading, and it is false as well.
Concerns over the legal exposure of CIA officers have existed since
the program's inception and did not begin with the Supreme Court's
Hamdan decision. These mischaracterizations illustrate to me why it is
important for Congress to understand all facts about the CIA program.
Congress cannot and should not sit on the sidelines blithely ignorant
about the details of a critical intelligence program that has been
operating without meaningful congressional scrutiny for years.
I thank the Presiding Officer and yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. LEVIN. Mr. President, will the Senator from Massachusetts yield
for a unanimous consent request?
Mr. KERRY. Yes.
Mr. LEVIN. Mr. President, I ask unanimous consent that I be added as
a cosponsor to the Rockefeller amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, the last week before we leave for a long
recess has always been extraordinarily busy--particularly when an
election is only 42 days away. But, sadly, this has become too much the
way the Senate does business and often its most important business.
Today, the leadership of the Senate has decided that legislation that
will directly impact America's moral authority in the world merits only
a few hours of debate. What is at stake is the authority that is
essential to winning and to waging a legitimate and effective war on
terror, and also one that is critical to the safety of American troops
who may be captured.
If, in a few hours, we squander that moral authority, blur lines that
for decades have been absolute, then no speech, no rhetoric, and no
promise can restore it.
Four years ago, we were in a similar situation. An Iraq war
resolution was rushed through the Senate because of election-year
politics--a political calendar, not a statesman's calendar. And 4 years
later, the price we are paying is clear for saying to a President and
an administration that we would trust them.
Today, we face a different choice--to prevent an irreversible
mistake, not to correct one. It is to stand and be counted so that
election-year politics do not further compromise our moral authority
and the safety of our troops.
Every Senator must ask him or herself: Does the bill before us treat
America's authority as a precious national asset that does not limit
our power but magnifies our influence in the world? Does it make clear
that the U.S. Government recognizes beyond any doubt that the
protections of the Geneva Conventions have to be applied to prisoners
in order to comply with the law, restore our moral authority, and best
protect American troops? Does it make clear that the United States of
America does not engage in torture, period?
Despite protests to the contrary, I believe the answer is clearly no.
I wish it were not so. I wish this compromise actually protected the
integrity and letter and spirit of the Geneva Conventions. But it does
not. In fact, I regret to say, despite the words and the protests to
the contrary, this bill permits torture. This bill gives the President
the discretion to interpret the meaning and application of the Geneva
Conventions. It gives confusing definitions of ``torture'' and ``cruel
and inhuman treatment'' that are inconsistent with the Detainee
Treatment Act, which we passed 1 year ago, and inconsistent with the
Army Field Manual. It provides exceptions for pain and suffering
``incidental to lawful sanctions,'' but it does not tell us what the
lawful sanctions are.
So what are we voting for with this bill? We are voting to give the
President the power to interpret the Geneva Conventions. We are voting
to allow pain and suffering incident to some undefined lawful
sanctions.
This bill gives an administration that lobbied for torture exactly
what it wanted. And the administration has
[[Page S10372]]
been telling people it gives them what they wanted. The only guarantee
we have that these provisions will prohibit torture is the word of the
President. Well, I wish I could say the word of the President were
enough on an issue as fundamental as torture. But we have been down
this road.
The administration said there were weapons of mass destruction in
Iraq, that Saddam Hussein had ties to al-Qaida, that they would exhaust
diplomacy before they went to war, that the insurgency was in its last
throes. None of these statements were true.
The President said he agreed with Senator McCain's antitorture
provisions in the Detainee Treatment Act. Yet he issued a signing
statement reserving the right to ignore them. Are we supposed to trust
that word?
He says flatly that ``The United States does not torture,'' but then
he tries to push the Congress into allowing him to do exactly that. And
even here he has promised to submit his interpretations of the Geneva
Conventions to the Federal Register. Yet his Press Secretary announced
that the administration may not need to comply with that requirement.
And we are supposed to trust that?
Obviously, another significant problem with this bill is the
unconstitutional limitation of the writ of habeas corpus. It is
extraordinary to me that in 2 hours, and a few minutes of a vote, the
Senate has done away with something as specific as habeas corpus, of
which the Constitution says: ``[t]he Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.''
Well, we are not in a rebellion, nor are we being invaded. Thus, we
do not have the constitutional power to suspend the writ. And I believe
the Court will ultimately find it unconstitutional.
The United States needs to retain its moral authority to win the war
on terror. We all want to win it. We all want to stop terrorist
attacks. But we need to do it keeping faith with our values and the
Constitution of the United States.
Mr. President, a veteran of the Iraq War whom I know, Paul Rieckhoff,
wrote something the other day that every Senator ought to think about
as they wrestle with this bill. He wrote that he was taught at Fort
Benning, GA, about the importance of the Geneva Conventions. He didn't
know what it meant until he arrived in Baghdad. Paul wrote:
America's moral integrity was the single most important
weapon my platoon had on the streets of Iraq. It saved
innumerable lives, encouraged cooperation with our allies and
deterred Iraqis from joining the growing insurgency. But
those days are over. America's moral standing has eroded,
thanks to its flawed rationale for war and scandals like Abu
Ghraib, Guantanamo and Haditha. The last thing we can afford
now is to leave Article 3 of the Geneva Conventions open to
reinterpretation, as President Bush proposed to do and can
still do under the compromise bill that emerged last week.
We each need to ask ourselves, in the rush to find a ``compromise''
we can all embrace, are we strengthening America's moral authority or
eroding it? Are we on the sides of the thousands of Paul Rieckhoffs in
uniform today, or are we making their mission harder and even worse,
putting them in greater danger if they are captured?
Paul writes eloquently:
If America continues to erode the meaning of the Geneva
Conventions, we will cede the ground upon which to prosecute
dictators and warlords. We will also become unable to protect
our troops if they are perceived as being no more bound by
the rule of law than dictators and warlords themselves. The
question facing America is not whether to continue fighting
our enemies in Iraq and beyond but how to do it best. My
soldiers and I learned the hard way that policy at the point
of a gun cannot, by itself, create democracy. The success of
America's fight against terrorism depends more on the
strength of its moral integrity than on troop numbers in Iraq
or the flexibility of interrogation options.
I wish I could say this compromise serves America's moral mission and
protects our troops, but it doesn't. No eloquence we can bring to this
debate can change what this bill fails to do.
We have been told in press reports that it is a great compromise
between the White House and my good friends, Senator McCain, Senator
Warner, and Senator Graham. We have been told that it protects the
``integrity and letter and spirit of the Geneva Conventions.''
I wish that what we are being told is true. It is not. Nothing in the
language of the bill supports these claims. Let me be clear about
something--something that it seems few people are willing to say. This
bill permits torture. This bill gives the President the discretion to
interpret the meaning and application of the Geneva Conventions. This
bill gives an administration that lobbied for torture exactly what it
wanted.
We are supposed to believe that there is an effective check on this
expanse of Presidential power with the requirement that the President's
interpretations be published in the Federal Register.
We shouldn't kid ourselves. Let's assume the President publishes his
interpretation of permissible acts under the Geneva Convention. The
interpretation, like the language in this bill, is vague and
inconclusive. A concerned Senator or Congresswoman calls for oversight.
Unless he or she is in the majority at the time, there won't be a
hearing. Let's assume they are in the majority and get a hearing. Do we
really think a bill will get through both houses of Congress? A bill
that directly contradicts a Presidential interpretation of a matter of
national security? My guess is that it won't happen, but maybe it will.
Assume it does. The bill has no effect until the President actually
signs it. So, unless the President chooses to reverse himself, all the
power remains in the President's hands. And all the while, America's
moral authority is in tatters, American troops are in greater jeopardy,
and the war on terror is set back.
Could the President's power grab be controlled by the courts? After
all, it was the Supreme Court's decision in Hamdan that invalidated the
President's last attempt to consolidate power and establish his own
military tribunal system. The problem now is that the bill strips the
courts the power to hear such a case when it says ``no person may
invoke the Geneva Conventions . . . in any habeas or civil action.''
What are we left with? Unfettered Presidential power to interpret
what--other than the statutorily proscribed ``grave violations''--
violates the Geneva Conventions. No wonder the President was so
confident that his CIA program could continue as is. He gets to keep
setting the rules--rules his administration have spent years now trying
to blur.
Presidential discretion is not the only problem. The definitions of
what constitute ``grave breaches'' of Article 3 are murky. Even worse,
they are not consistent with either the Detainee Treatment Act or the
recently revised Army Field Manual. These documents prohibit ``cruel,
inhumane, or degrading treatment'' defined as ``the cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth, Eighth, and
Fourteenth Amendments.'' The definition is supported by an extensive
body of case law evaluating what treatment is required by our
constitutional standards of ``dignity, civilization, humanity, decency,
and fundamental fairness.'' And, I think quite tellingly, it is
substantially similar to the definition that my good friend, Senator
McCain, chose to include in his bill. And there is simply no reason why
the standard adopted by the Army Field Manual and the Detainee
Treatment Act, which this Congress has already approved, should not
apply for all interrogations in all circumstances.
In the bill before us, however, there is no reference to any
constitutional standards. The prohibition of degrading conduct has been
dropped. And, there are caveats allowing pain and suffering
``incidental to lawful sanctions.'' Nowhere does it tell us what
``lawful sanctions'' are.
So, what are we voting for with this bill? We are voting to give the
President the power to interpret the Geneva Conventions. We are voting
to allow pain and suffering incident to some undefined lawful
sanctions. The only guarantee we have that these provisions really will
prohibit torture is the word of the President.
The word of the President. I wish I could say the words of the
President were enough on an issue as fundamental as torture. Fifty
years ago, President Kennedy sent his Secretary of State abroad on a
crisis mission--to
[[Page S10373]]
prove to our allies that Soviet missiles were being held in Cuba. The
Secretary of State brought photos of the missiles. As he prepared to
take them from his briefcase, our ally, a foreign head of state said,
simply, ``put them away. The word of the President of the United States
is good enough for me.''
We each wish we lived in times like those--perilous times, but times
when America's moral authority, our credibility, were unquestioned,
unchallenged.
But the word of the President today is questioned. This
administration said there were weapons of mass destruction in Iraq,
that Saddam Hussein had ties to Al Qaeda, that they would exhaust
diplomacy before we went to war, that the insurgency was in its last
throes. None of these statements were true, and now we find our troops
in the crossfire of civil war in Iraq with no end in sight. They keep
saying the war in Iraq is making us safer, but our own intelligence
agencies say it is actually fanning the flames of jihad, creating a
whole new generation of terrorists and putting our country at greater
risk of terrorist attack. It is no wonder then that we are hesitant to
blindly accept the word of the President on this question today.
The President said he agreed with Senator McCain's antitorture
provisions in the Detainee Treatment Act. Yet, he issued a signing
statement reserving the right to ignore them. He says flatly that ``The
United States does not torture''--and then tries to bully Congress into
allowing him to do exactly that. And even here, he has promised to
submit his interpretations of the Geneva Convention to the Federal
Register--yet his Press Secretary announced that the administration may
not need to comply with that requirement.
We have seen the consequences of simply accepting the word of this
administration. No, the Senate cannot just accept the word of this
administration that they will not engage in torture given the way in
which everything they have already done and said on this most basic
question has already put our troops at greater risk and undermined the
very moral authority needed to win the war on terror. When the
President says the United States doesn't torture, there has to be no
doubt about it. And when his words are unclear, Congress must step in
to hold him accountable.
The administration will use fear to try and bludgeon anyone who
disagrees with them.
Just as they pretended Iraq is the central front in the war on terror
even as their intelligence agencies told them their policy made
terrorism worse, they will pretend America needs to squander its moral
authority to win the war on terror.
They are wrong, profoundly wrong. The President's experts have told
him that not only does torture put our troops at risk and undermine our
moral authority, but torture does not work. As LTG John Kimmons, the
Army's deputy chief of staff for intelligence, put it:
No good intelligence is going to come from abusive
practices. I think history tells us that. I think the
empirical evidence of the last five years, hard years, tell
us that. Any piece of intelligence which is obtained under
duress, through the use of abusive techniques, would be of
questionable credibility. And additionally, it would do more
harm than good when it inevitably became known that abusive
practices were used. We can't afford to go there.
Neither justice nor good intelligence comes at the hands of torture.
In fact, both depend on the rule of law. It would be wrong--tragically
wrong--to authorize the President to require our sons and daughters to
use torture for something that won't even work.
Another significant problem with this bill is the unconstitutional
elimination of the writ of habeas corpus. No less a conservative than
Ken Starr got it right:
Congress should act cautiously to strike a balance between
the need to detain enemy combatants during the present
conflict and the need to honor the historic privilege of the
writ of habeas corpus.
Ken Starr says, ``Congress should act cautiously.'' How cautiously
are we acting when we eliminate any right to challenge an enemy
combatant's indefinite detention? When we eliminate habeas corpus
rights for aliens detained inside or outside the United States so long
as the Government believes they are enemy combatants? When we not only
do this for future cases but apply it to hundreds of cases currently
making their way through our court system?
The Constitution is very specific when it comes to habeas corpus. It
says, ``[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.'' We are not in a case of rebellion, nor are we
being invaded. Thus, we really don't have the constitutional power to
suspend the Great Writ. And, even if we did, the Constitution allows
only for the writ to be suspended. It does not allow the writ to be
permanently taken away. Yet, this is exactly what the bill does. It
takes the writ away--forever--from anyone the administration determines
is an ``enemy combatant,'' even if they are lawfully on U.S. soil and
otherwise entitled to full constitutional protections, and even if they
have absolutely no other recourse.
Think of what this means. This bill is giving the administration the
power to pick up any non-U.S. citizen inside or outside of the United
States, determine in their sole and unreviewable discretion that he is
an unlawful combatant, and hold him in jail--be it Guantanamo Bay or a
secret CIA prison--indefinitely. Once the Combatant Status Review
Tribunal determines that person is an enemy combatant, that is the end
of the story--even if the determination is based on evidence that even
a military commission would not be allowed to consider because it is so
unreliable. That person would never get the chance to challenge his
detention; to prove that he is not, in fact, an enemy combatant.
We are not talking about whether detainees can file a habeas suit
because they don't have access to the Internet or cable television. We
are talking about something much more fundamental: whether people can
be locked up forever without even getting the chance to prove that the
Government was wrong in detaining them. Allow this to become the policy
of the United States and just imagine the difficulty our law
enforcement and our Government will have arranging the release of an
American citizen the next time our citizens are detained in other
countries.
Mr. President, we all want to stop terrorist attacks. We all want to
effectively gather as much intelligence as humanly possible. We all
want to bring those who do attack us to justice. But, we weaken--not
strengthen--our ability to do that when we undermine our own
Constitution; when we throw away our system of checks and balances;
when we hold detainees indefinitely without trial by destroying the
writ of habeas corpus; and when we permit torture. We endanger our
moral authority at our great peril. I oppose this legislation because
it will make us less safe and less secure. I urge my colleagues to do
the same.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WARNER. Mr. President, I yield 5 minutes to our colleague from
Missouri.
The PRESIDING OFFICER. The Senator from Missouri is recognized for 5
minutes.
Mr. BOND. Mr. President, I thank the manager of the bill for yielding
me 5 minutes.
There is no question that this bill, this military commissions bill,
is absolutely essential if we are going to continue to have good
intelligence and move forward with the program of interrogating and
containing detainees in an appropriate manner that will maintain our
standing, our honor, and puts tighter control on the United States than
other countries do on their unlawful combatants.
I respectfully suggest that the Rockefeller amendment is not only
unnecessary, but the simple fact is, the unintended effect is it would
complicate the passage of this important military commissions bill. It
would either delay or perhaps even derail this bill, which is
absolutely essential if we are to get our CIA agents back in the field
doing appropriately limited interrogation techniques to find out what
attacks are planned against the United States.
The President has pointed out, the interrogation is the thing that
has uncovered plots that could have been very serious. We need to have
our CIA professionals under carefully controlled
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circumstances doing the interrogation that gets the information.
As to the question about whether this is about oversight, well, our
committee should be all about oversight. We need to be looking at these
things. We need to be looking every day at what the agencies are doing,
what the intelligence community is doing. But as I have said here on
the floor before, unfortunately, for the last 4 years, we have been
looking in the rearview mirror. It has been our fault, not the fault of
the agencies, that we have not done enough oversight because when we
spent 2 years in the Phase I investigation, we found out the
intelligence was flawed, the intelligence was inadequate because our
intelligence assets were cut 20 percent in the 1990s. We had no human
intel on the ground.
But, most of all, there was no pressure, no coercion by
administration officials of the intelligence agencies, and there was no
misrepresentation of the findings of the intelligence community--same
intelligence that we in the Congress relied upon in supporting the
decision to go to war against the hotbed of terrorism, Iraq.
Now, I do not take issue with that first phase. But Phase II has cost
us another 2 years, and we have not learned anything more than we
learned in the first phase and with the WMD and the 9/11 Commission.
If we would get back to looking out the front windshield, instead of
looking in the rearview mirror, we should be doing precisely this kind
of interrogation in the oversight committee. And I take no issue with
many of the questions the Senator from West Virginia raises. As a
matter of fact, I probably would have some of my own. But I do question
the need for a very lengthy, detailed report every 3 months. If you
read all of the requirements, this is a paperwork nightmare. They are
going to have to comply and tell us how they are going to comply, and
we are going to oversee them.
I believe putting out this lengthy report gets us nowhere. Frankly,
if our past experience is any guide, we will probably see those reports
leaked to the press because reports have a way, regrettably, of being
leaked and being disclosed.
I think there is one big problem with the Rockefeller amendment. In
the amendment, he requires every 3 months the Attorney General--any
time there are any new interrogation techniques, the Attorney General
shall submit an unclassified certification whether or not each approved
interrogation technique complies with the Constitution of the United
States, applicable treaty statutes, Executive orders, relations, and an
explanation of why it complies.
Mr. President, what we would just order in this amendment is to
spread out for the world--and especially for al-Qaida and its related
organizations--precisely what interrogation techniques are going to be
used. Let me tell you something. I visited with intelligence agents
around the world, some of whom have been in on the most sensitive
interrogations we have had. I have asked them about that, and they have
explained to me how they interrogate people. These interrogations I
have learned about comply--even though they were before the passage of
this law--with the detainee treatment law. They do comply, and I think
they are appropriate. The important thing, they say, is that what the
terrorists don't know is most important. They don't know how they are
going to be questioned or what is going to happen to them. The
uncertainty is the thing that gets them to talk. If we lay out, in an
unclassified version, a description of the techniques by the Attorney
General, that description will be in al-Qaida and Hezbollah and all of
the other terrorist organizations' playbook. They will train their
assets that: This is what you must be expected to do, and Allah wants
you to resist these techniques.
Mr. ROCKEFELLER. Will the Senator yield for a question?
Mr. BOND. Yes, I am happy to.
Mr. ROCKEFELLER. Is the Senator aware, when he talks about delaying
implementation of this program, that there are no CIA detainees? What
are we holding up?
Mr. BOND. Mr. President, we are passing this bill so that we can
detain people. If we catch someone like Khalid Shaikh Mohammed, we have
no way to hold him, no way to ask him the questions and get the
information we need, because the uncertainty has brought the program to
a close. It is vitally important to our security, and unfortunately the
Rockefeller amendment would imperil it.
General Hayden promised to come before the committee, and I look
forward, in our oversight responsibilities, to hearing how they are
implementing this act.
I thank the Chair.
Mr. ROCKEFELLER. That is simply not true.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, at this juncture, I ask unanimous consent
that we step off of this amendment and allow the distinguished Senator
from New Mexico to speak for up to 10 minutes regarding the bill.
The PRESIDING OFFICER. The Senator from New Mexico is recognized for
10 minutes.
Mr. DOMENICI. Mr. President, I will speak on this vital subject. I
rise to speak in support of the Military Commission Act of 2006.
First off, we must all ask ourselves a very simple question: Do we
believe the United States must have a terrorist attack prevention
program?
I submit that the answer is a clear and resounding yes. I believe the
American people expect us to have a strong terrorist attack prevention
program and that they believe if we don't, we are derelict in our duty.
They know that we are at risk, that this is a war, and that there are
many people out there who are waiting to do damage and harm to our
people. To have anything less than a terrorist prevention program,
which is the best we can put together, is shameful. I cannot support
any legislation that would prevent the CIA from protecting America and
its citizens.
The legislation before us allows the Federal Government to continue
using one of the most valuable tools we have in our war on terror--the
CIA terrorist interrogation program.
The global war on terror is a new type of war against a new type of
enemy, and we must use every tool at our disposal to fight that war--
not just some tools, but all of them. These tools include interrogation
programs that help us prevent new terrorist attacks.
The CIA interrogation program is such a program. It is helping us
deny terrorists the opportunity to attack America. It has allowed us to
foil at least eight terrorist plots, including plans to attack west
coast targets with airplanes, blow up tall buildings across our Nation,
use commercial airliners to attack Heathrow Airport and bomb our U.S.
Marine base in Africa.
Mr. President, clearly, this program is valuable. Clearly, this
program is necessary in the global war on terror. We must take
legislative action that will allow the program to continue. The CIA
must be allowed to continue going after those who have information
about planned terrorist attacks against our Nation and our friends. The
CIA must be allowed to go after those who are in combat with us.
I applaud the White House, the Senate leadership, and the Armed
Services Committee for working together to craft a bill that, No. 1,
authorizes military tribunals and establishes the trial and evidentiary
rules for such tribunals; and No. 2, clarifies the standards the CIA
must comply with in conducting terrorist interrogations. We must keep
the bill in its current form, fending off amendments that would put the
CIA's program in jeopardy.
Regarding the Byrd sunset amendment, we don't know when the global
war on terror will end, so we cannot arbitrarily tie one hand behind
the CIA's back by suddenly terminating the interrogation program with a
sunset provision.
We have already voted on the habeas corpus amendment, and I am glad
we did not add habeas provisions to this bill. We cannot give
terrorists the right to bring a habeas corpus petition that seeks
release from prison on the grounds of unlawful imprisonment, as the
Specter amendment would. Such legislation will clog our already
overburdened courts.
Additionally, such petitions are often frivolous and disrupt
operations at Guantanamo Bay. Examples of the frivolous petitions that
have been filed include an al-Qaida terrorist complaining
[[Page S10375]]
about base security procedures, speed of mail delivery, and medical
treatment; as well as a detainee asking that normal security policies
be set aside so that he could be shown DVDs that are alleged to be
family videos. Such petitions are not necessary.
The underlying bill allows appeals of judgments rendered by military
commissions to the District of Columbia Circuit Court of Appeals--a
very significant court. These are appeals of judgments rendered by the
military commissions. That is a totally appropriate way to do it. When
I finally understood that, I could not believe that some would come to
the floor and argue as they did. My colleagues have said we are
abandoning habeas corpus; we have never done anything like this before.
They act as if we have decided to be totally unjust and unfair when, as
a matter of fact, this is about as fair a treatment as you could give
terrorist suspects and still have an orderly process. I think we have
done the right thing. Giving terrorist suspects access to the court
known as the second highest court in America provides an adequate
opportunity for review of detainees' cases.
I laud the occupant of the chair for explaining this matter early on
to many of us who did not understand the issue, and it has become clear
to many of us that we have done the right thing in terms of the habeas
corpus rule that we have adopted. It will be upheld, in my opinion,
after I have read some other cases, by the courts.
Mr. President, my primary standard in determining whether to support
this legislation is whether the legislation will allow the CIA
interrogation program to continue. The answer to that question must be
yes. If the answer to that question is no, then we are foolhardy, at a
minimum, and totally stupid at a maximum, if we decide that the kinds
of enemies we have will not be subject to the CIA terrorist
interrogation program we have now. The program must continue.
The administration has informed me that this bill, in its current
form, will allow the CIA terrorist interrogation program to continue. I
sought that information as a critical piece of information before I
started looking at all of the amendments to see where we were.
Therefore, this bill must pass, and it must pass in its current form.
We must remember that we are dealing with terrorists, not white-
collar criminals. We are not even dealing with the types of prisoners
of war there were in the Second World War, some of whom, from the
German area, might have been severely abusing the rights of prisoners-
of-war. But we still did not in any way have the situation we have now
with reference to prisoners of war in the Second World War.
We must remember that we are dealing with terrorists who know no
limits, follow no rules, have no orderliness about them. They are just
going to do what we let them do. We must give our best--the CIA--the
tools they need to do their job to fight this war on terror against
these terrorists.
It is my privilege to be on the side of this bill. I believe the
American people will be on the side of this bill. Some thought early
that it was the wrong thing to do. Just as it happens with many bills,
we got off on the wrong foot. But we are back straight, with both feet
on the right path, and we must pass the bill as is.
I wonder if those who want to destroy this bill or make it
ineffective would really ask the American people in honesty and
sincerity, do they want the CIA program to continue or are they really
trying to say we should not allow the program? If my colleagues are on
the side of the latter, they ought to tell us and tell the American
people. Then we would understand whom they are for and there would be
no question in the American people's minds.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, I yield to the chairman of the
Intelligence Committee, the Senator from Kansas, such time as he needs.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
Mr. ROBERTS. Mr. President, I thank the chairman of the Armed
Services Committee, who is an ex officio member of the Intelligence
Committee and does extremely valuable work as we try to work in a
commensurate fashion on national security.
I rise in opposition to the amendment being offered by my good friend
from West Virginia, Senator Rockefeller, who is vice chairman of our
committee. The amendment calls for yet another unnecessary and
repetitious requirement of reporting.
Now, I do not take issue with some of the numerous questions the
Senator from West Virginia seeks. Some of these questions should be
answered in the context of our regular committee oversight.
The issue is not if reasonable questions are answered, but how and
how often. I really question the need for a formal quarterly report--
four times a year--unreasonable in scope and length that will be a very
unnecessary burden on the hard-working men and women at the CIA.
The simple fact is that the vice chairman and other members of the
committee have been fully briefed in the past, present, and prospective
future about CIA's detention and interrogation operations and will
continue to be briefed. The vice chairman and other members of the
Intelligence Committee can get answers to their questions and more
through the course of the committee's normal oversight activities. They
only need to ask.
I just mentioned the prospective future of the CIA's interrogation
program. That is because without this legislation, there will be no CIA
program. Let's be clear. If we adopt what I believe is an unnecessary
amendment, contrary with the House, this bill will end up in conference
with the House. If that happens, I fear the bill will languish
throughout the fall while Members are out campaigning. Meanwhile, the
CIA will be unable to interrogate captured unlawful alien combatants.
Forgive me, Mr. President, but I think the American people deserve
better than to have this Nation's efforts against al-Qaida bog down
because some in this body--and I don't question their intent--are
insisting on an unnecessary symbolic and redundant series of reporting
requirements that could and will be answered through the regular
committee oversight. All we have to do is ask and then to listen and
then to respond. Where are our priorities? Where should they be?
As I have listened to the debate on this bill in the relative safety
and comfort of Capitol Hill, I cannot help but wonder whether some of
us have lost our perspective. While we must do our duty as elected
officials--and we will do that--we cannot forget that we are a nation
at war. Consequently, our first and foremost duty should be to support
our troops and intelligence officers at home and abroad, not to mandate
four times a year reporting requirements that are unprecedented in
scope and detail. The CIA will not be detecting and interdicting
unlawful alien combatants; it will be writing one report after another.
I am on the side of our hard-working intelligence officers and
against the terrorists. I think that is an obvious choice. I think most
Members would think they would be in that position. But I do not
believe in making their job more difficult by legislating additional
reporting requirements which are needless and burdensome and which will
likely delay enactment of this vital national security legislation.
If this were to pass, we can be reasonably certain that it will have
a chilling effect on interrogation operations. We are sending a signal
to our intelligence officers to be risk averse, the very thing we don't
want to do. In fact, the very implication of this amendment is they are
unable to carry out their duties with honor and respect for the law,
and that, my colleagues, is just not true.
So let us do our duty, as we should, and get this bill done and to
the President.
Mr. President, I oppose the amendment and I urge my colleagues to do
the same.
I yield the floor.
The PRESIDING OFFICER (Mr. Vitter). The Senator from Virginia is
recognized.
Mr. WARNER. Mr. President, I wonder if I may engage my distinguished
chairman in a colloquy. I am privileged to serve on his committee. Some
years ago I served on the committee and at one time was vice chairman
of the committee. So I draw on, if I may say
[[Page S10376]]
with some modesty, a long experience of working with the Intelligence
Committee, and, as the chairman knows, the chairman and ranking member
of the Armed Services Committee have always had a role of participation
in his committee. I guess if I can add up all the years as chairman and
ranking, it is about 12 or 15, I think, of my 28 years on the Armed
Services Committee. I have watched this committee and have been a
participant for many years.
As I read through the amendment offered by our distinguished
colleague from West Virginia--he has the title of vice chairman. That
came about because the chairman and the vice chairman traditionally on
this committee work to achieve the highest degree--I guess the word is
the committee working together as an entity.
I say to the chairman, it is my judgment that this amendment is
really in the nature of a substitute for the oversight responsibilities
of the committee.
As we both know, the world environment changes overnight. This
business of trying to operate on the basis of reports is simply, in my
judgment, not an effective way for the committee to function. The
Senator from Kansas, as chairman, in consultation with the vice
chairman, has to call hearings and meetings and briefings in a matter
of hours in order to keep the committee currently informed about world
situations.
I say with all due respect to my colleagues here and to our vice
chairman of the Intelligence Committee, this amendment is a substitute
for the committee's responsibilities, the basic responsibilities to be
performed by this committee. It is for that reason I oppose the
amendment. But I would like to have the chairman's views.
Mr. ROBERTS. Mr. President, if the chairman will yield.
Mr. WARNER. Yes.
Mr. ROBERTS. Let me repeat what I said in my statement--and I share
the distinguished Senator's views, more especially from his experience
on both committees, the Intelligence Committee and the Armed Services
Committee. We both face the same kind of responsibilities, our
oversight responsibilities. We take them very seriously. We may have
differences of opinion on the Intelligence Committee or on the Armed
Services Committee, but we do our oversight.
The simple fact is that the vice chairman, myself, and other members
of the committee--and let me stress now full membership of the
committee; we worked very hard to get that access--have been fully
briefed in the past and the present and also prospectively of the CIA's
detention and interrogation operations.
The vice chairman and other members of the Intelligence Committee, if
people have problems, if people have questions, if people need to get
more briefs, if people want to basically get into some--I say ``some''
because I think some of the questions are not reasonable--say they have
questions about this, all they have to do is ask. I can guarantee as
chairman that those in charge of this particular program at the CIA
will be there and have been there.
The inspector general of the CIA has briefed the committee--I am not
going to get into the details of that briefing--both the vice chair and
myself in regards to any question on what has happened, with what has
gone wrong allegedly or otherwise with the interrogation and detention
program, and we get an update as to where are those cases. If there was
egregious behavior, what is happening to those people? Are they being
prosecuted? And the answer to that is yes.
All we have to do is ask. As I look at this, I must say in scope, it
is unprecedented. They ask questions that I think, quite frankly, if I
were an interrogator working within the confines of the Central
Intelligence Agency, would have a very chilling effect on me to know
that four times a year I would be held responsible for all of these
questions which I think those in charge at the Agency can certainly
respond to any committee request in terms of a briefing. I would be a
little nervous.
And that is not the case because, as I said in my remarks, the CIA
will not be detecting and interdicting unlawful alien combatants; it
will be writing one report after another, four times a year. If we look
at the length, breadth, and depth, it is not whether we get this
information, it is how we get the information. All we have to do is
ask.
This is a tremendous burden. I must tell my colleagues that I don't
know where we are going to get enough staff on the committee to respond
to these four mandated reports. It is going to be a rather unique
situation when we have a lot of work to do. We have briefings, as the
Senator from Virginia indicated, every week. We have one this
afternoon--it is terribly important--requested by members. Yet I think
we are going to have to hire more people to do this if, in fact, we do
this, and I think the CIA will as well.
I am not too sure, again, if I were an individual interrogator that I
would want to stay in the business.
Mr. WARNER. Mr. President, I thank my colleague. Another observation
of all of us who have had the responsibility of being a chairman and
ranking member of committees, I know it is sometimes difficult to get
witnesses to appear, but I found thus far, certainly with General
Hayden--and I have known him for a number of years--I have a high
degree of confidence in his ability to administer this Agency, the CIA.
It is of great importance to this Senator because it is in Virginia, if
I may say. I view the agency and each and every one of its employees as
someone for whom I have an obligation to speak on their behalf when
necessary.
I find that General Hayden is very forthcoming, very responsive. When
the Chair and ranking member desire to see him, my understanding is he
makes himself available. It is not as if we have to wait until a report
comes, read it, and then decide to bring him down. The Chair, in
consultation with the ranking member--he and his team are quite
responsive; am I not correct in that?
Mr. ROBERTS. I am happy to respond to the distinguished chairman.
What he has described is accurate. It may be the situation with General
Hayden, the Inspector General, or anybody else we request to appear
before the committee that they may be in a situation where there would
be sensitive intelligence information that at that particular time
would not be provided, but there certainly would be the promise that it
will be provided if at all possible.
So I am not saying that it is a carte blanche kind of situation. That
is to be expected. But the great preponderance of requests we make of
the General and of the Inspector General have been very prompt and very
full, and, again, all we have to do is ask.
It is just that--I don't want to call it a book report, but that is
about where we are. It is on some very important matters. I know
members of the committee feel very strongly about this. I can't recall
a time when members on the committee have asked me for help to get
information from the executive or from the CIA or from any of our
intelligence agencies where I haven't worked overtime to get that job
done.
I thank the chairman for his question.
Mr. WARNER. Mr. President, I thank my distinguished colleague. I
think we have framed for the full Senate the parameters of what I
regard are the points to be considered at such time we vote on this
amendment.
On that matter, I see the distinguished vice chairman and my
colleague. How much time remains under the control of the Senator from
Virginia?
The PRESIDING OFFICER. There is 8\1/2\ minutes remaining under the
control of the Senator from Virginia.
Mr. WARNER. I thank the Chair.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, if I might speak for 2 or 3 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Mr. President I have a one-page summary. Some of the
arguments I have heard are absolutely incredible. The fact of the
matter is there isn't any reporting done. For 4 years this has gone on.
People say: Just call them in; call in the head of the CIA, whoever it
is, before the committee. That doesn't yield information. We have so
many requests for information from the CIA that have not been responded
to. They are not responsive to the committee because they don't want to
be responsive to the committee, because they are directed not
[[Page S10377]]
to be responsive to the committee, I am assuming, by the Director of
the National Intelligence Office.
We don't have oversight on these programs we are talking about.
Anybody who suggests otherwise is wrong. I heard the opposition to the
amendment say it is going to slow down the passage of the bill. Now,
that is brilliant. We could have started this in a timely fashion, and
all the House has to do is accept the Senate amendment, if one were to
pass. In a heartbeat, it is done. So what is in that argument?
The Senator from Missouri has stated--and this is very important for
my colleagues to hear--that the amendment would require public
disclosure of the CIA's interrogation techniques. That is categorically
false--wrong. It is a dangerous thing to say. It is an irresponsible
thing to say on the floor of the Senate. The reports on the CIA program
would be classified and they would be sent to the congressional
Intelligence Committees and them alone. So we need to get that straight
right now.
The information that is provided in the reports is made to sound like
we are rewriting the Constitution 17 times in a hot summer's several
months. This is information which has not been provided to us for 4
years, what these reports would be asked to do, and then they could
taper off if we found a responsive intelligence community. But we have
not been provided these in 4 years. Am I meant to be worried about
that? Is it the job of the Senate Intelligence Committee and the House
to do oversight? Yes, it is, and we can't because they won't give us
the information. The chairman can say that he and I are briefed, but
that is seldom and on very discrete matters that don't cover this bill.
So the Senator from Virginia, whom I obviously greatly respect,
suggests this amendment is a substitute for oversight. This amendment,
to the contrary, is going to allow us to do oversight, and that is my
point. It is our responsibility under the law to do it. We cannot do
it. We are not allowed to do it. We are systematically prevented from
getting information from the people who are required by law to give it
to us. That is called not being transparent, and that is called us not
knowing what is going on and thus not being able to help with the war
on terror.
I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. ROCKEFELLER. Mr. President, I yield 4 minutes to the Senator from
Michigan.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 4
minutes.
Mr. LEVIN. I thank the Chair, and I thank my friend from West
Virginia.
Mr. President, this amendment just simply requires regular reports on
detention and interrogation programs. It will give us access to legal
opinions. It is essential that this amendment be adopted.
I just want to ask my good friend from West Virginia if he heard the
chairman of the Intelligence Committee say that all we have to do is
ask for reports and we will get them. Did I hear that right?
Mr. ROCKEFELLER. The Senator from Michigan heard that correctly.
Mr. LEVIN. Well, Mr. President, just one example here. I have been
trying to get a memo called the second Bybee memo now for 2\1/2\ years.
I haven't asked once, I haven't asked twice, I have probably asked a
dozen times for the Bybee memo, and my good friend, the chairman of the
Armed Services Committee, has asked for the Bybee memo, without any
luck. So the idea that all we have to do is ask is just simply wrong.
Chairman Warner asked on May 13, 2004--2004--that all legal reviews
and related documentation concerning approval of interrogation
techniques be provided to the committee. It has never been provided.
On April 12, 2005, I submitted questions to John Negroponte, who was
the nominee for the Director of National Intelligence, requesting to
see if the intelligence community has copies of the so-called Bybee
memo.
In April of 2005, I asked General Hayden, on his nomination to be
Deputy National Intelligence Director, to see if he could determine if
the intelligence community has a copy of the second Bybee memo and to
provide it to the committee.
Then on the intelligence budget hearing, April 28, 2005, I asked
Secretary Cambone: Can you get us a copy of the second Bybee memo? This
has to do with what interrogation techniques are legal. This is written
by the Office of Legal Counsel, this memo. He says he will get a reply
to me. That was April 2005.
In May of 2005, I wrote the Director of Central Intelligence, Porter
Goss, requesting the second Bybee memo. Then I get a letter from the
Director of Congressional Affairs, Joe Whipple, saying the memorandum
can only be released by the Department of Justice. So in July, I write
the Department of Justice, the Attorney General: Can we get a copy of
the second Bybee memo? Letter after letter after letter.
Then there is a hearing by the Senate Intelligence Committee, July
2005. This is a hearing on Benjamin Powell's nomination to be general
counsel in the Office of the Director of National Intelligence. I asked
Mr. Powell: Can you provide us for the record a copy of that second
Bybee memo? That decision, we are told a week later, is not a decision
he can make; that is within the Department of Justice's purview, and on
it goes.
Another year of stonewalling, of denial, of coverup by the Department
of Justice of a memo which is so critically important, according to
press reports and according now also to the acknowledgment by the
Department of Justice. It sets a legal framework for the interrogation
of detainees, and the Senate can't get a copy.
Apparently, two Members of the Senate, the chairman and vice chairman
of the Intelligence Committee, have seen this memo. That is it. Members
of the Intelligence Committee can't get it. Members of the Armed
Services Committee can't get it. All we have to do is ask? How many
times do we have to ask before we get documents?
There are 70 documents we still can't get from the Department of
Defense relative to the operation of the Feith shop. All we have to do
is ask? There are documents we have asked of the Intelligence Committee
for years beyond the Bybee amendment without any response.
The PRESIDING OFFICER. The Senator has used 4 minutes.
Mr. LEVIN. I thank the Chair, and I thank my good friend from West
Virginia for trying to get some institutional support behind these
requests that are made by Senators and committees frequently for
documents.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, in consultation with my distinguished
ranking member, I would like to inquire if there is further debate
desired on this amendment. If not, my understanding is the leadership
will select a time--joint leadership--for votes on this amendment and
others at some point this afternoon and with the full expectation that
this matter will be voted on final passage.
So at this time, could I inquire as to the time for the Senator from
Virginia and the Senator from Michigan?
The PRESIDING OFFICER. The time is 18 minutes for the Senator from
Virginia and 5 minutes 10 seconds for the Senator from West Virginia.
Mr. LEVIN. Mr. President, may I inquire of the Senator from West
Virginia as to whether, if he has completed debate on this amendment,
he would be willing to yield the balance of his time to the Senator
from Michigan for use on the bill?
Mr. ROCKEFELLER. I would, with the exception of 1 minute to summarize
just before we vote on it, so you can have the balance of the time.
Mr. LEVIN. Mr. President, I ask unanimous consent that the balance of
the time of the Senator from West Virginia minus that 1 minute be
assigned to the Senator from Michigan for use or allocation on the bill
itself.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. WARNER. Mr. President, I would make a similar request that the
balance of my time be allocated to me for use on the bill.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. WARNER. Therefore, I believe all time has been yielded back on
both sides, and we can prepare the floor now for the receiving of an
amendment
[[Page S10378]]
from the distinguished Senator from Massachusetts.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Amendment No. 5088
Mr. KENNEDY. Mr. President, I believe my amendment No. 5088 is at the
desk, and I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Massachusetts [Mr. Kennedy] proposes an
amendment numbered 5088.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
AMENDMENT NO. 5088
(Purpose: To provide for the protection of United States persons in the
implementation of treaty obligations)
On page 83, between lines 8 and 9, insert the following:
(2) Protection of united states persons.--The Secretary of
State shall notify other parties to the Geneva Conventions
that--
(A) the United States has historically interpreted the law
of war and the Geneva Conventions, including in particular
common Article 3, to prohibit a wide variety of cruel,
inhuman, and degrading treatment of members of the United
States Armed Forces and United States citizens;
(B) during and following previous armed conflicts, the
United States Government has prosecuted persons for engaging
in cruel, inhuman, and degrading treatment, including the use
of waterboarding techniques, stress positions, including
prolonged standing, the use of extreme temperatures,
beatings, sleep deprivation, and other similar acts;
(C) this Act and the amendments made by this Act preserve
the capacity of the United States to prosecute nationals of
enemy powers for engaging in acts against members of the
United States Armed Forces and United States citizens that
have been prosecuted by the United States as war crimes in
the past; and
(D) should any United States person to whom the Geneva
Conventions apply be subjected to any of the following acts,
the United States would consider such act to constitute a
punishable offense under common Article 3 and would act
accordingly. Such acts, each of which is prohibited by the
Army Field Manual include forcing the person to be naked,
perform sexual acts, or pose in a sexual manner; applying
beatings, electric shocks, burns, or other forms of physical
pain to the person; waterboarding the person; using dogs on
the person; inducing hypothermia or heat injury in the
person; conducting a mock execution of the person; and
depriving the person of necessary food, water, or medical
care.
Mr. KENNEDY. Mr. President, I understand we have an hour evenly
divided on the amendment.
The PRESIDING OFFICER. Under the agreement, the Senator has 25
minutes under his control.
Mr. KENNEDY. Mr. President, I yield myself 10 minutes on the
amendment.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I have here before me the Department of
Army regulations and rules for interrogating prisoners. In the document
I have here, which is the official military document to define
permissible interrogation techniques, it outlines certain
interrogations which are prohibited and it lists these: forcing the
person to be naked, perform sexual acts, or pose in a sexual manner;
applying beatings, electric shock, burns, or other forms of physical
pain; waterboarding; using dogs; inducing hypothermia or heat injury;
conducting mock executions; depriving the person of necessary food,
water, and medical care.
Those techniques are prohibited by the Department of Defense. Those
techniques are prohibited from being used against adversaries in any
kind of a conflict, blatant violations the requirement for humane
treatment, and what I would consider to be torture. Certainly the Army
and Department of Defense have effectively found that out that these
techniques do not work. They have banned them and there has not been
any objection to it.
What does our amendment say? Well, it says we in the United States
are not going to tolerate those techniques if any of our military
personnel are captured. But not all of the people who are representing
the United States in the war on terror are wearing a uniform. For
example, we have SEALs, we have some special operations, special
forces, we have CIA agents. We have contractors and aid workers. We
have more people around the world looking out after our security
interests than any other country in the world.
What does this amendment say? Well, if our military personnel are not
going to do this those we capture, we are saying to countries around
the world: You cannot do this against any American personnel you are
going to capture in this war on terror, or in any other conflict. This
amendment is about protecting American personnel who are involved in
the war on terror. It is saying to foreign countries: If you use any of
these techniques, the United States will say this is a war crime and
you will be held accountable. How can anybody be against that? This
administration has sown confusion about our commitments to the Geneva
Conventions, so that protection does not exist now. That protection
does not exist now. Restoring that protection is basically what this
amendment is all about.
I am not going to take much time, but I just want to remind our
colleagues about how we viewed some of these techniques in our
conflicts in previous wars.
On the issue of waterboarding, the United States charged Yukio Asano,
a Japanese officer on May 1 to 28, 1947, with war crimes. The offenses
were recounted by John Henry Burton, a civilian victim:
After taking me down into the hallway they laid me out on a
stretcher and strapped me on. The stretcher was then stood on
end with my head almost touching the floor and my feet in the
air. They then began pouring water over my face and at times
it was impossible for me to breathe without sucking in water.
The torture continued and continued. Yukio Asano was
sentenced to fifteen years of hard labor. We punished people
with fifteen years of hard labor when waterboarding was used
against Americans in World War II.
What about the case of Matsukichi Muta, another Japanese officer,
tried on April 15 to 25, 1947, for, among other charges, causing a
prisoner to receive shocks of electricity and beating prisoners. Shocks
of electricity. He was sentenced to death by hanging. Death by hanging.
We could go on.
In another case prosecuted from March 3 to April 30, 1948--the
Japanese officer was sentenced for exposing prisoners to extreme cold
temperatures, forcing them to spend long periods of time in the nude,
making the prisoner stand in the cold for long periods of time, hour
after hour, throwing water on him and inducing hypothermia. This
officer received 15 years of hard labor. Fifteen years.
We didn't tolerate those abuses, and we should not tolerate those
abuses inflicted on any Americans who are going to be taken in the war
on terror. That is what this amendment is all about. It will tell the
Secretary of State to notify every signatory from 194 nations, that if
any of their governments are going to use any of these techniques on
any Americans that are taken in this war on terror, that we will
consider this a violation of the Geneva Conventions and that they will
be accountable.
This is to protect our servicemen and servicewomen, those who are in
the intelligence agencies, those performing dangerous duties, those who
are not wearing the uniform in their battle against terror. We are
putting everyone on notice.
We did not make up this list. All these techniques are taken right
out of the Defense Department's code of conduct for interrogations.
I would take more time and review for my colleagues, where we tried
individuals in World War II and sentenced individuals who performed
these kinds of abuses on Americans to long periods of incarceration and
even to death.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, at this moment I suggest the absence of a
quorum, with the time not chargeable to either side.
Mr. KENNEDY addressed the Chair.
Mr. WARNER. I beg your pardon. I thought my colleague yielded the
floor.
Mr. KENNEDY. I did. If you want to yield your time, I wouldn't object
to it, but I object if you are calling for equal time.
Mr. WARNER. No, I said charged to neither side.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S10379]]
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, do I have additional time? How much time
have I used?
The PRESIDING OFFICER. There are 18 minutes 20 seconds remaining on
the time of the Senator.
Mr. KENNEDY. I would like to yield myself 5 more minutes.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator is recognized.
Mr. KENNEDY. Mr. President, it will be quite surprising to me if the
Senate is not prepared to accept this amendment. I look back at the
time that we actually passed the War Crimes Act of 1996. At that time
it was offered by Walter B. Jones, a Republican Congressman. It was
offered in response to our Vietnam experience, where American
servicemen--including one of our own colleagues and dear friends,
Senator McCain--had been subject to torture during that period of time.
When this matter came up, both in the House of Representatives and
the Senate of the United States, it passed in the Senate of the United
States without a single objection. It passed the House by voice vote.
This is what it says, under War Crimes, chapter 118:
Whoever, whether inside or outside the United States,
commits a war crime . . .
And it talks about the circumstances--
. . . as a member of the armed forces of the United States or
a national United States. It is in Title 18 so those out of
uniform are subject to the code.
So that is the CIA. Those are the SEALS. Those are the people
involved now in our war on terror. Then it continues along to define a
war crime as a violation of Common Article 3 of the Geneva Conventions.
That provision protects against cruel treatment and torture. It
prevents the taking of hostages. It prohibits outrages upon personal
dignity. Those are effectively the kinds of protections that act
affords.
We heard a great deal from the administration, from the President,
that he wanted specificity in the War Crimes Act and the Geneva
Conventions in terms of what is permitted and what is not permitted. He
felt those terms are too vague. Well, on that he is right. There is
confusion in the world. There is confusion in the world about our
commitment to the Geneva Conventions and what we think it means. There
is a good deal of confusion in the world in the wake of what happened
at Abu Ghraib. There we found out that these harsh interrogation
techniques had been used. Sure, we have had 10 different reviews of
what happened over there. What we always find out is it is the lower
lights, the corporals and the sergeants who are the ones being tried
and convicted. Those in the higher ranks are not. No one has stood up
and said clearly, those are violations of the Geneva Conventions. So we
have Abu Ghraib, which all of us remember. And it has caused confusion.
We have the circumstances in Guantanamo--the conduct of General
Miller, who brought these harsh interrogation techniques to Guantanamo
at Secretary Rumsfeld's direction. When the Armed Services Committee
questioned his whole standard of conduct, he moved toward early
retirement to avoid coming up and facing the music. This caused
confusion about our commitments to the Geneva Conventions.
Then you had the Bybee memorandum, which was effectively the rule of
law for some 2 years, which permitted torture, any kind of torture, and
it said that any individual who is going to be involved in torturing
would be absolved from any kind of criminality if the purpose of their
abusing any individual was to get information and there was no specific
intent to have bodily harm for that individual. This caused confusion
about our commitments to the Geneva Conventions.
That was the Bybee amendment. Finally, Attorney General Gonzales had
to repudiate that or he never would have been approved as the Attorney
General of the United States. That is the record in the Judiciary
Committee. I sat through those hearings. I heard the Attorney General
say they were repudiating the Bybee memorandum on that.
This is against a considerable background of where we have seen some
extraordinary abuses.
Then we have tried to clarify our commitment. We have the action in
the Senate of the United States, by a vote of 90 to 9, accepting
Senator McCain's Amendment to prohibit cruel, inhumane, and degrading
treatment; to make the Army Field Manual the law of the land; to say we
are not interested in torture. Senator McCain understands. He believes
that waterboarding is torture. He believes using dogs is torture. This
is not complicated. We don't have to cause confusion. We have it
written down on this list of prohibited techniques. It is not my list
of prohibited techniques, but it is written down by the Department of
Defense. This amendment says if a foreign country is going to practice
these kinds of behavior against an American national who is out there
in the war on terror and is being picked up, we are going to consider
this to be a war crime. This is about protecting Americans.
I don't understand the hesitancy on the other side, not being willing
to accept this amendment. Let's go on the record about what we say is
absolutely prohibited and what we know has been favored techniques that
have been used by our adversaries at other times. Let's go on the
record for clarity.
Looking back in history, at the end of World War II and otherwise, we
are all familiar with the different examples where these techniques--
frighteningly familiar to the series of techniques used in Iraq and
Guantanamo--and are often frequently used against Americans.
I am reminded--I gave illustrations: electric shocks, waterboarding,
hypothermia, heat injury. We all remember the 52 American hostages who
were held in the U.S. Embassy in Iran. They were subjected to the mock
executions.
The PRESIDING OFFICER. The Senator has used 5 minutes.
Mr. KENNEDY. Mr. President, I hope we could accept this amendment. I
yield myself 1 more minute.
It basically incorporates what the Senate did several years ago with
war crimes. It is trying to respond to what the President says. He
wants specificity about what is going to be prohibited and what will
not be.
The Department of Defense has found these areas to be off limits for
the military. All we are saying is if other countries are going to do
that to Americans, they are going to be held accountable.
This is about protecting Americans. That is the least we ought to be
able to do for those who are risking their lives in very difficult
circumstances.
I yield the floor.
Mr. LEVIN. Mr. President, I suggest the absence of a quorum and ask
unanimous consent that the time not be charged to either side.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. CLINTON. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. CLINTON. Mr. President, the Senate is currently debating a bill
on how we treat detainees in our custody, and, more broadly, on how we
treat the principles on which our Nation was founded.
The implications are far reaching for our national security interests
abroad; the rights of Americans at home, our reputation in the world;
and the safety of our troops.
The threat posed by the evil and nihilistic movement that has spawned
terrorist networks is real and gravely serious. We must do all we can
to defeat the enemy with all the tools in our arsenal and every
resource at our disposal. All of us are dedicated to defeating this
enemy.
The challenge before us on this bill, in the final days of session
before the November election, is to rise above partisanship and find a
solution that serves our national security interests. I fear that there
are those who place a strategy for winning elections ahead of a smart
strategy for winning the war on terrorism.
Democrats and Republicans alike believe that terrorists must be
caught,
[[Page S10380]]
captured, and sentenced. I believe that there can be no mercy for those
who perpetrated 9/11 and other crimes against humanity. But in the
process of accomplishing that I believe we must hold on to our values
and set an example we can point to with pride, not shame. Those
captured are going nowhere--they are in jail now--so we should follow
the duty given us by the Supreme Court and carefully craft the right
piece of legislation to try them. The President acted without authority
and it is our duty now to be careful in handing this President just the
right amount of authority to get the job done and no more.
During the Revolutionary War, between the signing of the Declaration
of Independence, which set our founding ideals to paper, and the
writing of our Constitution, which fortified those ideals under the
rule of law, our values--our beliefs as Americans--were already being
tested.
We were at war and victory was hardly assured, in fact the situation
was closer to the opposite. New York City and Long Island had been
captured. General George Washington and the Continental Army retreated
across New Jersey to Pennsylvania, suffering tremendous casualties and
a body blow to the cause of American independence.
It was at this time, among these soldiers at this moment of defeat
and despair, that Thomas Paine would write, ``These are the times that
try men's souls.'' Soon afterward, Washington lead his soldiers across
the Delaware River and onto victory in the Battle of Trenton. There he
captured nearly 1,000 foreign mercenaries and he faced a crucial
choice.
How would General Washington treat these men? The British had already
committed atrocities against Americans, including torture. As David
Hackett Fischer describes in his Pulitzer Prize winning book,
``Washington's Crossing,'' thousands of American prisoners of war were
``treated with extreme cruelty by British captors.'' There are accounts
of injured soldiers who surrendered being murdered instead of
quartered, countless Americans dying in prison hulks in New York
harbor, starvation and other acts of inhumanity perpetrated against
Americans confined to churches in New York City.
Can you imagine.
The light of our ideals shone dimly in those early dark days, years
from an end to the conflict, years before our improbable triumph and
the birth of our democracy.
General Washington wasn't that far from where the Continental
Congress had met and signed the Declaration of Independence. But it is
easy to imagine how far that must have seemed. General Washington
announced a decision unique in human history, sending the following
order for handling prisoners: ``Treat them with humanity, and let them
have no reason to complain of our Copying the brutal example of the
British Army in their treatment of our unfortunate brethren.''
Therefore, George Washington, our commander-in-chief before he was
our President, laid down the indelible marker of our Nation's values
even as we were struggling as a Nation--and his courageous act reminds
us that America was born out of faith in certain basic principles. In
fact, it is these principles that made and still make our
country exceptional and allow us to serve as an example. We are not
bound together as a nation by bloodlines. We are not bound by ancient
history; our Nation is a new nation. Above all, we are bound by our
values.
George Washington understood that how you treat enemy combatants can
reverberate around the world. We must convict and punish the guilty in
a way that reinforces their guilt before the world and does not
undermine our constitutional values.
There is another element to this. I can't go back in history and read
General Washington's mind, of course, but one purpose of the rule of
law is to organize a society's response to violence. Allowing coercion,
coercive treatment, and torturous actions toward prisoners not only
violates the fundamental rule of law and the institutionalization of
justice, but it helps to radicalize those who are tortured.
Zawahiri, bin Laden's second in command, the architect of many of the
attacks on our country, throughout Europe and the world, has said
repeatedly that it is his experience that torture of innocents is
central to radicalization. Zawahiri has said over and over again that
being tortured is at the root of jihad; the experience of being
tortured has a long history of serving radicalized populations; abusing
prisoners is a prime cause of radicalization.
For the safety of our soldiers and the reputation of our Nation, it
is far more important to take the time to do this job right than to do
it quickly and badly. There is no reason we need to rush to judgment.
This broken process and the blatant politics behind it will cost our
Nation dearly. I fear also that it will cost our men and women in
uniform. The Supreme Court laid out what it expected from us.
I ask unanimous consent to have printed in the Record letters and
statements from former military leaders, from 9/11 families, from the
religious community, retired judges, legal scholars, and law
professors. All of them have registered their concerns with this bill
and the possible impact on our effort to win the war against terrorism.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 12, 2006.
Hon. John Warner, Chairman,
Hon. Carl Levin, Ranking Member,
Senate Armed Services Committee,
U.S. Senate, Washington, DC.
Dear Chairman Warner and Senator Levin: As retired military
leaders of the U.S. Armed Forces and former officials of the
Department of Defense, we write to express our profound
concern about a key provision of S. 3861, the Military
Commissions Act of 2006, introduced last week at the behest
of the President. We believe that the language that would
redefine Common Article 3 of the Geneva Conventions as
equivalent to the standards contained in the Detainee
Treatment Act violates the core principles of the Geneva
Conventions and poses a grave threat to American service-
members, now and in future wars.
We supported your efforts last year to clarify that all
detainees in U.S. custody must be treated humanely. That was
particularly important, because the Administration determined
that it was not bound by the basic humane treatment standards
contained in Geneva Common Article 3. Now that the Supreme
Court has made clear that treatment of al Qaeda prisoners is
governed by the Geneva Convention standards, the
Administration is seeking to redefine Common Article 3, so as
to downgrade those standards. We urge you to reject this
effort.
Common Article 3 of the Geneva Conventions provides the
minimum standards for humane treatment and fair justice that
apply to anyone captured in armed conflict. These standards
were specifically designed to ensure that those who fall
outside the other, more extensive, protections of the
Conventions are treated in accordance with the values of
civilized nations. The framers of the Conventions,
including the American representatives, in particular
wanted to ensure that Common Article 3 would apply in
situations where a state party to the treaty, like the
United States, fights an adversary that is not a party,
including irregular forces like al Qaeda. The United
States military has abided by the basic requirements of
Common Article 3 in every conflict since the Conventions
were adopted. In each case, we applied the Geneva
Conventions--including, at a minimum, Common Article 3--
even to enemies that systematically violated the
Conventions themselves.
We have abided by this standard in our own conduct for a
simple reason: the same standard serves to protect American
servicemen and women when they engage in conflicts covered by
Common Article 3. Preserving the integrity of this standard
has become increasingly important in recent years when our
adversaries often are not nation-states. Congress acted in
1997 to further this goal by criminalizing violations of
Common Article 3 in the War Crimes Act, enabling us to hold
accountable those who abuse our captured personnel, no matter
the nature of the armed conflict.
If any agency of the U.S. government is excused from
compliance with these standards, or if we seek to redefine
what Common Article 3 requires, we should not imagine that
our enemies will take notice of the technical distinctions
when they hold U.S. prisoners captive. If degradation,
humiliation, physical and mental brutalization of prisoners
is decriminalized or considered permissible under a
restrictive interpretation of Common Article 3, we will
forfeit all credible objections should such barbaric
practices be inflicted upon American prisoners.
This is not just a theoretical concern. We have people
deployed right now in theaters where Common Article 3 is the
only source of legal protection should they be captured. If
we allow that standard to be eroded, we put their safety at
greater risk.
Last week, the Department of Defense issued a Directive
reaffirming that the military will uphold the requirements of
Common Article 3 with respect to all prisoners in its
custody. We welcome this new policy. Our servicemen and women
have operated for too
[[Page S10381]]
long with unclear and unlawful guidance on detainee
treatment, and some have been left to take the blame when
things went wrong. The guidance is now clear.
But that clarity will be short-lived if the approach taken
by Administration's bill prevails. In contrast to the
Pentagon's new rules on detainee treatment, the bill would
limit our definition of Common Article 3's terms by
introducing a flexible, sliding scale that might allow
certain coercive interrogation techniques under some
circumstances, while forbidding them under others. This would
replace an absolute standard--Common Article 3--with a
relative one. To do so will only create further confusion.
Moreover, were we to take this step, we would be viewed by
the rest of the world as having formally renounced the clear
strictures of the Geneva Conventions. Our enemies would be
encouraged to interpret the Conventions in their own way as
well, placing our troops in jeopardy in future conflicts. And
American moral authority in the war would be further damaged.
All of this is unnecessary. As the senior serving Judge
Advocates General recently testified, our armed forces have
trained to Common Article 3 and can live within its
requirements while waging the war on terror effectively.
As the United States has greater exposure militarily than
any other nation, we have long emphasized the reciprocal
nature of the Geneva Conventions. That is why we believe--and
the United States has always asserted--that a broad
interpretation of Common Article 3 is vital to the safety of
U.S. personnel. But the Administration's bill would put us on
the opposite side of that argument. We urge you to consider
the impact that redefining Common Article 3 would have on
Americans who put their lives at risk in defense of our
Nation. We believe their interests, and their safety and
protection should they become prisoners, should be your
highest priority as you address this issue.
With respect,
General John Shalikashvili, USA (Ret.); General Joseph
Hoar, USMC (Ret.); Admiral Gregory G. Johnson, USN
(Ret.); Admiral Jay L. Johnson, USN (Ret.); General
Paul J. Kern, USA (Ret.); General Merrill A. McPeak,
USAF (Ret.); Admiral Stansfield Turner, USN (Ret.);
General William G.T. Tuttle, Jr., USA (Ret.);
Lieutenant General Daniel W. Christman, USA (Ret.);
Lieutenant General Paul E. Funk, USA (Ret.); Lieutenant
General Robert G. Gard Jr., USA (Ret.); Lieutenant
General Jay M. Garner, USA (Ret.); Vice Admiral Lee F.
Gunn, USN (Ret.); Lieutenant General Arlen D. Jameson,
USAF (Ret.); Lieutenant General Claudia J. Kennedy, USA
(Ret.).
Lieutenant General Donald L. Kerrick, USA (Ret.); Vice
Admiral Albert H. Konetzni Jr., USN (Ret.); Lieutenant
General Charles Otstott, USA (Ret.); Vice Admiral Jack
Shanahan, USN (Ret.); Lieutenant General Harry E.
Soyster, USA (Ret.); Lieutenant General Paul K. Van
Riper, USMC (Ret.); Major General John Batiste, USA
(Ret.); Major General Eugene Fox, USA (Ret.); Major
General John L. Fugh, USA (Ret.); Rear Admiral Don
Guter, USN (Ret.); Major General Fred E. Haynes, USMC
(Ret.); Rear Admiral John D. Hutson, USN (Ret.); Major
General Melvyn Montano, ANG (Ret.); Major General
Gerald T. Sajer, USA (Ret.); Major General Michael J.
Scotti, Jr., USA (Ret.).
Brigadier General David M. Brahms, USMC (Ret.); Brigadier
General James P. Cullen, USA (Ret.); Brigadier General
Evelyn P. Foote, USA (Ret.); Brigadier General David R.
Irvine, USA (Ret.); Brigadier General John H. Johns,
USA (Ret.); Brigadier General Richard O'Meara, USA
(Ret.); Brigadier General Murray G. Sagsveen, USA
(Ret.); Brigadier General John K. Schmitt, USA (Ret.);
Brigadier General Anthony Verrengia, USAF (Ret.);
Brigadier General Stephen N. Xenakis, USA (Ret.);
Ambassador Pete Peterson, USAF (Ret.); Colonel Lawrence
B. Wilkerson, USA (Ret.); Honorable Richard Danzig;
Honorable William H. Taft IV; Frank Kendall III, Esq.
____
The American Jewish Committee,
New York, NY, September 27, 2006.
Dear Senator: We write on behalf of the American Jewish
Committee, a national human relations organization with over
150,000 members and supporters represented by 32 regional
chapters, to urge you to oppose the compromise Military
Commissions Act of 2006, S. 3930, and to vote against
attaching the bill to H.R. 6061, absent correcting
amendments.
To be sure, the compromise that produced the current bill
resulted in the welcome addition of provisions making clear
that the humane treatment standards of Common Article 3 of
the Geneva Conventions provide a floor for the treatment of
detainees as well as specifying that serious violations are
war crimes. Nevertheless, S. 3930 is unacceptable in its
present form for the following reasons:
The bill arguably opens the door to the use of
interrogation techniques prohibited by the Geneva
Conventions.
It opens the door to the admission of evidence in military
commissions obtained by coercive techniques in contravention
of constitutional standards and international treaty.
It permits the prosecution to introduce evidence that has
not been provided to a defendant in a form sufficient to
allow him or her to participate in the preparation of his or
her defense.
It unduly restricts defendants' access to exculpatory
evidence available to the government.
It unduly restricts access to the courts by habeas corpus
and appeal.
It interprets the definition of Common Article 3 violations
to exclude sexual assaults such as those that occurred at Abu
Ghraib.
There is no doubt that the authorities entrusted with our
defense must be afforded the resources and tools necessary to
protect us from the serious threat that terrorists continue
to pose to all Americans, and, indeed, the civilized world.
But the homeland can be secured in a fashion consistent with
the values of due process and fair treatment for which
Americans have fought and for which they continue to fight.
We urge you to revisit and revise this legislation so that it
accords with our highest principles.
Respectfully,
E. Robert Goodkind,
President.
Richard T. Poltin,
Legislative Director and Counsel.
____
The Association of the Bar
of the City of New York,
New York, NY, September 27, 2006.
Re Military Commission Act of 2006.
Hon. Bill Frist,
U.S. Senate Majority Leader,
Washington, DC.
Dear Majority Leader Frist: I am writing on behalf of the
New York City Bar Association to urge you to oppose the
Administration's proposed Military Commissions Act of 2006
(the ``Act''). The Association is an independent non-
governmental organization of more than 22,000 lawyers,
judges, law professors and government officials. Founded in
1870, the Association has a long history of dedication to
human rights and the rule of law, and a particularly deep
historical engagement with the law of armed conflict and
military justice.
The Association has now reviewed the amended version of
this legislation introduced on September 22, 2006, following
the compromise agreement between Senators Warner, McCain and
Graham, on one side, and the Administration on the other. The
compromise addresses two distinct aspects of the
Administration's proposal: first, the operation of the
military commissions which have been envisioned, and second,
aspects of United States enforcement of its treaty
obligations under the Geneva Conventions. We will address our
concerns in this order, keeping in mind particularly the
position of our members who may be called upon to serve as
defense counsel, prosecutors and judges in the commissions
process, and the interests of our members who presently or
may in the future serve their nation in the uniformed
services or in the intelligence services.
The compromise clarifies many of the most important
failings of the prior draft by bringing the military
commissions process far closer to the standards established
by the Uniform Code of Military Justice and the Manual on
Courts-Martial. The Association shares the view presented by
the service judge advocates general that the existing court-
martial system, which in many respects is exemplary, provides
an appropriate process for trial of traditional battlefield
detainees as well as the command and control structures of
terrorist organizations engaged in combat with the United
States, and that the commissions should closely follow that
model. The changes produced here in that regard are therefore
welcome.
However, the bill gives the military judge discretion to
admit coerced testimony if, as will presumably be the case,
the coercion occurred before the enactment of the Detainee
Treatment Act on December 31, 2005. Hearsay can also be
admitted into evidence unless the accused carries a burden
(traditionally accorded to the party offering the evidence,
i.e., the prosecution) to show that the hearsay is not
probative or reliable. This shift of burden is inconsistent
with historical practice and would probably taint the
proceedings themselves, particularly if the accused is not
given access to the facts underlying the evidence. Admission
of evidence in this circumstance would discredit the
proceedings, undermine the appearance of fairness, and might,
if it was critical to a conviction, constitute a grave breach
of Common Article 3. These provisions do not serve the
interests of the United States in demonstrating the heinous
nature of terrorist acts, if such can be established in the
military commissions.
The enforcement provisions raise far more troubling issues.
In particular, we are concerned by the definition of ``cruel
treatment'' which does not correspond to the existing law
interpreting and enforcing Common Article 3's notion of
``cruel treatment.'' The definition incorporates a category
of ``serious physical pain or suffering,'' but defines that
category in a way that does not encompass many types of
serious physical suffering that can be and are commonly the
result of ``cruel treatment'' prohibited by Common Article 3.
The Common Article 3 offense of ``cruel treatment'' will
remain prohibited, even if not specifically criminalized by
this provision. There is really no basis to doubt that Common
Article 3 prohibits techniques such as waterboarding, long-
time
[[Page S10382]]
standing, and hypothermia or cold cell if indeed they are not
precluded as outright torture. However, the language of
the current draft would create a crime defined in terms
different from the accepted Geneva meanings, thereby
introducing ambiguity where none previously existed.
This ambiguity produces risks for United States personnel
since it suggests that those who employ techniques such as
waterboarding, long-time standing and hypothermia on
Americans cannot be charged for war crimes. Moreover, Common
Article 3 contains important protections for United States
personnel who do not qualify for prisoner of war treatment
under the Third Geneva Convention. This may include
reconnaissance personnel, special forces operatives, private
military contractors and intelligence service paramilitary
professionals. Erosion of Common Article 3 standards thus
directly imperils the safety of United States personnel in
future conflicts. We strongly share the perspective of five
former chairs of the Joint Chiefs of Staff in their appeal to
Congress to avoid any erosion of these protections.
The draft also seeks to strike the ability of hundreds of
detainees held as ``enemy combatants'' to seek review of
their cases through petitions of habeas corpus. The Great
Writ has long been viewed as one of the most fundamental
rights under our legal system. It is an essential guarantor
of justice in difficult cases, particularly in a conflict
which the Administration suggests is of indefinite duration,
possibly for generations. Holding individuals without
according them any right to seek review of their status or
conditions of detention raises fundamental questions of
justice. This concern is compounded by the draft's provision
that the Geneva Convention is unenforceable, thus leaving
detainees with no recourse should they receive cruel and
inhuman treatment.
On July 19, 2006, Michael Mernin, the chair of our
Committee on Military Affairs and Justice, testified before
the Senate Armed Services Committee concerning this
legislative initiative. He appealed at that time for caution
and proper deliberation in the legislative process and urged
that a commission of military law experts be convened to
advise Congress on the weighty issues presented. The current
legislative project continues to show severe flaws which are
likely to prove embarrassing to the United States if it is
enacted. We therefore strongly urge that the matter receive
further careful consideration before it is acted upon and
that the advice of prominent military justice and
international humanitarian law experts be secured and
followed in the bill's finalization.
Very truly yours,
Barry Kamins,
President.
____
September 14, 2006.
Dear Senator: As members of families who lost loved ones in
the 9/11 attacks, we are writing to express our deep concern
over the provisions of the Administration's proposed Military
Commissions Act of 2006.
There are those who would like to portray the legislation
as a choice between supporting the rights of terrorists and
keeping the United States safe. We reject this argument. We
believe that adopting policies against terrorism which honor
our values and our international commitments makes us safer
and is the smarter strategy.
We do not believe that the United States should
decriminalize cruel and inhuman interrogations. The Geneva
Convention rules against brutal interrogations have long had
the strong support of the U.S. because they protect our
citizens. We should not be sending a message to the world
that we now believe that torture and cruel treatment is
sometimes acceptable. Moreover, the Administration's own
representatives at the Pentagon have strongly affirmed in
just the last few days that torture and abuse do not produce
reliable information. No legislation should have your support
if it is at all ambiguous on this issue.
Nor do we believe that it is in the interest of the United
States to create a system of military courts that violate
basic notions of due process and lack truly independent
judicial oversight. Not only does this violate our most
cherished values and send the wrong message to the world, it
also runs the risk that the system will again be struck down
resulting in even more delay.
We believe that we must have policies that reflect what is
best in the United States rather than compromising our values
out of fear. As John McCain has said, ``This is not-about who
the terrorists are, this is about who we are.'' We urge you
to reject the Administration's ill-conceived proposals which
will make us both less safe and less proud as a nation.
Sincerely,
Marilynn Rosenthal, Nicholas H. Ruth, Adele Welty, Nissa
Youngren, Terry Greene, John LeBlanc, Andrea LeBlanc,
Ryan Amundson, Barry Amundson, Colleen Kelly, Terry Kay
Rockefeller, John William Harris.
David Potorti, Donna Marsh O'Connor, Kjell Youngren,
Blake Allison, Tia Kminek, Jennifer Glick, Lorie Van
Auken, Mindy Kleinberg, Anthony Aversano, Paula
Shapiro, Valerie Lucznikowska, Lloyd Glick.
James and Patricia Perry, Anne M. Mulderry, Marion
Kminek, Alissa Rosenberg-Torres, Kelly Campbell, Bruce
Wallace, John M. Leinung, Kristen Breitweiser, Patricia
Casazza, Michael A. Casazza, Loretta J. Filipov, Joan
Glick.
____
September 20, 2006.
Re Evangelical religious leaders speak out on cruel, inhuman,
degrading treatment.
Dear Members of Congress: The Congress faces a defining
question of morality in the coming hours: whether it is ever
right for Americans to inflict cruel and degrading treatment
on suspected terrorist detainees. We are writing to express
our strong support for the approach taken on this issue by
Senators McCain, Warner and Graham and a strong, bipartisan
majority of the Senate Armed Services Committee.
We read credible reports--some from FBI agents--that
prisoners have been stripped naked, sexually humiliated,
chained to the floor, and left to defecate on themselves.
These and other practices like ``waterboarding'' (in which a
detainee is made to feel as if he is being drowned) may or
may not meet the technical definition of torture, but no one
denies that these practices are cruel, inhuman, and
degrading.
Today, the question before the Congress is whether it will
support Sen. McCain's efforts to make it clear to the world
that the U.S. has outlawed such abuse or support an
Administration proposal which creates grave ambiguity about
whether prisoners can legally be abused in secret prisons
without Red Cross access.
Evangelicals have often supported the Administration on
public policy questions because they believe that no
practical expediency, however compelling, should determine
fundamental moral issues of marriage, abortion, or bioethics.
Instead, these questions should be resolved with principles
of revealed moral absolutes, granted by a righteous and
loving Creator.
As applied to issues of cruel, inhuman and degrading
treatment, the practical application of this moral outlook is
clear: even if it is expedient to inflict cruelty and
degradation on a prisoner during interrogation (and experts
seem very much divided on this question), the moral teachings
of Christ, the Torah and the Prophets do not permit it for
those who bear the Imago Dei.
It will not do to say that the President's policy on the
treatment of detainees already rules out torture because
serious ambiguities still remain--ambiguities that carry
heavy moral implications and that are intended to preserve
options that some would rather not publicly defend.
The terrorist attacks of September 11 were one of the most
heinous acts ever visited upon this nation. The Commander in
Chief must provide U.S. authorities with the practical tools
and policies to fight a committed, well-resourced, and
immoral terrorist threat. At the same time, the President
must also defend the deepest and best values of our moral
tradition.
As Christians from the evangelical tradition, we support
Senator McCain and his colleagues in their effort to defend
the perennial moral values of this nation which are embodied
in international law and our domestic statutes. The United
States Congress must send an unequivocal message that cruel,
inhuman and degrading treatment has no place in our society
and violates our most cherished moral convictions.
Sincerely,
Rev. Dr. David Gushee, Union University, Jackson, TN.
Gary Haugen, president, International Justice Mission.
Rev. Dr. Roberta Hestenes, teaching pastor, Community
Presbyterian Church, Danville, CA.
Frederica Mathewes-Green, author and commentator.
Dr. Brian D. McLaren, founder, Cedar Ridge Community
Church, Spencerville, MD.
Rev. Dr. Richard Mouw, president, Fuller Theological
Seminary.
Dr. Glen Stassen, professor of Christian Ethics, Fuller
Theological Seminary.
Dr. Nicholas Wolterstorff, professor of Philosophical
Theology, Yale University.
Mrs. CLINTON. Now these values--George Washington's values, the
values of our founding--are at stake. We are debating far-reaching
legislation that would fundamentally alter our Nation's conduct in the
world and the rights of Americans here at home. And we are debating it
too hastily in a debate too steeped in electoral politics.
The Senate, under the authority of the Republican majority and with
the blessing and encouragement of the Bush-Cheney administration, is
doing a great disservice to our history, our principles, our citizens,
and our soldiers.
The deliberative process is being broken under the pressure of
partisanship and the policy that results is a travesty.
Fellow Senators, the process for drafting this legislation to correct
the administration's missteps has not befitted the ``world's greatest
deliberative body.'' Legitimate, serious concerns raised by our senior
military and intelligence community have been marginalized, difficult
issues glossed over, and debates we should have had have been shut off
in order to pass a misconceived bill before Senators return home to
campaign for reelection.
[[Page S10383]]
For the safety of our soldiers and the reputation of our Nation, it
is far more important to take the time to do the job right than to do
it quickly and badly. There is no reason other than partisanship for
not continuing deliberation to find a solution that works to achieve a
true consensus based on American values.
In the last several days, the bill has undergone countless changes--
all for the worse--and differs significantly from the compromise
brokered between the Bush administration and a few Senate Republicans
last week.
We cannot have a serious debate over a bill that has been hastily
written with little opportunity for serious review. To vote on a
proposal that evolved by the hour, on an issue that is so important, is
an insult to the American people, to the Senate, to our troops, and to
our Nation.
Fellow Senators, we all know we are holding this hugely important
debate in the backdrop of November's elections. There are some in this
body more focused on holding on to their jobs than doing their jobs
right. Some in this chamber plan to use our honest and serious concerns
for protecting our country and our troops as a political wedge issue to
divide us for electoral gain.
How can we in the Senate find a proper answer and reach a consensus
when any matter that does not serve the majority's partisan advantage
is mocked as weakness, and any true concern for our troops and values
dismissed demagogically as coddling the enemy?
This broken process and its blatant politics will cost our Nation
dearly. It allows a discredited policy ruled by the Supreme Court to be
unconstitutional to largely continue and to be made worse. This
spectacle ill-serves our national security interests.
The rule of law cannot be compromised. We must stand for the rule of
law before the world, especially when we are under stress and under
threat. We must show that we uphold our most profound values.
We need a set of rules that will stand up to judicial scrutiny. We in
this Chamber know that a hastily written bill driven by partisanship
will not withstand the scrutiny of judicial oversight.
We need a set of rules that will protect our values, protect our
security, and protect our troops. We need a set of rules that
recognizes how serious and dangerous the threat is, and enhances, not
undermines, our chances to deter and defeat our enemies.
Our Supreme Court in its Hamdan v. Rumsfeld decision ruled that the
Bush administration's previous military commission system had failed to
follow the Constitution and the law in its treatment of detainees.
As the Supreme Court noted, the Bush administration has been
operating under a system that undermines our Nation's commitment to the
rule of law.
The question before us is whether this Congress will follow the
decision of the Supreme Court and create a better system that
withstands judicial examination--or attempt to confound that decision,
a strategy destined to fail again.
The bill before us allows the admission into evidence of statements
derived through cruel, inhuman and degrading interrogation. That sets a
dangerous precedent that will endanger our own men and women in uniform
overseas. Will our enemies be less likely to surrender? Will informants
be less likely to come forward? Will our soldiers be more likely to
face torture if captured? Will the information we obtain be less
reliable? These are the questions we should be asking. And based on
what we know about warfare from listening to those who have fought for
our country, the answers do not support this bill. As Lieutenant John
F. Kimmons, the Army's Deputy Chief of Staff for Intelligence said,
``No good intelligence is going to come from abusive interrogation
practices.''
The bill also makes significant changes to the War Crimes Act. As it
is now written, the War Crimes Act makes it a federal crime for any
soldier or national of the U.S. to violate, among other things, Common
Article 3 of the Geneva Conventions in an armed conflict not of an
international character. The administration has voiced concern that
Common Article--which prohibits ``cruel treatment or torture,''
``outrages against human dignity,'' and ``humiliating and degrading
treatment''--sets out an intolerably vague standard on which to base
criminal liability, and may expose CIA agents to jail sentences for
rough interrogation tactics used in questioning detainees.
But the current bill's changes to the War Crimes Act haven't done
much to clarify the rules for our interrogators. What we are doing with
this bill is passing on an opportunity to clearly state what it is we
stand for and what we will not permit.
This bill undermines the Geneva Conventions by allowing the President
to issue Executive orders to redefine what permissible interrogation
techniques happen to be. Have we fallen so low as to debate how much
torture we are willing to stomach? By allowing this administration to
further stretch the definition of what is and is not torture, we lower
our moral standards to those whom we despise, undermine the values of
our flag wherever it flies, put our troops in danger, and jeopardize
our moral strength in a conflict that cannot be won simply with
military might.
Once again, there are those who are willing to stay a course that is
not working, giving the Bush-Cheney administration a blank check--a
blank check to torture, to create secret courts using secret evidence,
to detain people, including Americans, to be free of judicial oversight
and accountability, to put our troops in greater danger.
The bill has several other flaws as well.
This bill would not only deny detainees habeas corpus rights--a
process that would allow them to challenge the very validity of their
confinement--it would also deny these rights to lawful immigrants
living in the United States. If enacted, this law would give license to
this Administration to pick people up off the streets of the United
States and hold them indefinitely without charges and without legal
recourse.
Americans believe strongly that defendants, no matter who they are,
should be able to hear the evidence against them. The bill we are
considering does away with this right, instead providing the accused
with only the right to respond to the evidence admitted against him.
How can someone respond to evidence they have not seen?
At the very least, this is worth a debate on the merits, not on the
politics. This is worth putting aside our differences--it is too
important.
Our values are central. Our national security interests in the world
are vital. And nothing should be of greater concern to those of us in
this chamber than the young men and women who are, right now, wearing
our Nation's uniform, serving in dangerous territory.
After all, our standing, our morality, our beliefs are tested in this
Chamber and their impact and their consequences are tested under fire,
they are tested when American lives are on the line, they are tested
when our strength and ideals are questioned by our friends and by our
enemies.
When our soldiers face an enemy, when our soldiers are in danger,
that is when our decisions in this Chamber will be felt. Will that
enemy surrender? Or will he continue to fight, with fear for how he
might be treated and with hate directed not at us, but at the patriot
wearing our uniform whose life is on the line?
When our Nation seeks to lead the world in service to our interests
and our values, will we still be able to lead by example?
Our values, our history, our interests, and our military and
intelligence experts all point to one answer. Vladimir Bukovsky, who
spent nearly 12 years in Soviet prisons, labor camps, and psychiatric
hospitals for nonviolent human rights activities had this to say. ``If
Vice President Cheney is right, that some `cruel, inhumane, or
degrading' treatment of captives is a necessary tool for winning the
war on terrorism, then the war is lost already.''
Let's pass a bill that's been honestly and openly debated, not
hastily cobbled together.
Let's pass a bill that unites us, not divides us.
Let's pass a bill that strengthens our moral standing in the world,
that declares clearly that we will not retreat from our values before
the terrorists.
[[Page S10384]]
We will not give up who we are. We will not be shaken by fear and
intimidation. We will not give one inch to the evil and nihilistic
extremists who have set their sights on our way of life.
I say with confidence and without fear that we are the United States
of America, and that we stand now and forever for our enduring values
to people around the world, to our friends, to our enemies, to anyone
and everyone.
Before George Washington crossed the Delaware, before he could
achieve that long-needed victory, before the tide would turn, before he
ordered that prisoners be treated humanely, he ordered that his
soldiers read Thomas Paine's writing. He ordered that they read about
the ideals for which they would fight, the principles at stake, the
importance of this American project.
Now we find ourselves at a moment when we feel threatened, when the
world seems to have grown more dangerous, when our Nation needs to
ready itself for a long and difficult struggle against a new and
dangerous enemy that means us great harm.
Just as Washington faced a hard choice, so do we. It's up to us to
decide how we wage this struggle and not up to the fear fostered by
terrorists. We decide.
This is a moment where we need to remind ourselves of the confidence,
fearlessness, and bravery of George Washington--then we will know that
we cannot, we must not, subvert our ideals--we can and must use them to
win.
Finally, we have a choice before us. I hope we make the right choice.
I fear that we will not; that we will be once again back in the Supreme
Court, and we will be once again held up to the world as failing our
own high standards.
When our soldiers face an enemy, when our soldiers are in danger,
will that enemy surrender if he thinks he will be tortured? Will he
continue to fight? How will our men and women be treated?
I hope we both pass the right kind of legislation and understand that
it may very well determine whether we win this war against terror and
protect or troops who are valiantly fighting for us.
Thank you, Mr. President.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, I suggest the absence of a quorum, and I
ask unanimous consent that it not be charged to either side.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, the Kennedy amendment would require the
Secretary of State to notify other countries around the world that
seven specific categories of actions, each of which is specifically
prohibited by the Army Field Manual, are punishable offenses under
common Article 3 of the Geneva Conventions that would be prosecuted as
war crimes if applied to any United States person. Those seven
categories of actions are: (1) Forcing the detainee to be naked,
perform sexual acts, or pose in a sexual manner; (2) applying beatings,
electric shock, burns, or other forms of physical pain; (3)
``waterboarding''; (4) using military working dogs; (5) inducing
hypothermia or heat injury; (6) conducting mock executions; and (7)
depriving the detainee of necessary food, water, or medical care.
I listened very carefully to what my colleague from Virginia, the
Chairman of the Armed Services Committee, had to say about this
amendment. He stated:
Now Senator Kennedy's amendment, depending on how the votes
come, and I'm of the opinion that this chamber will reject
it, I don't want that rejection to be misconstrued by the
world in any way as asserting that the techniques mentioned
in the amendment are consistent with the Geneva Convention or
that they could legitimately be employed against our troops
or anyone else. . . . We must not leave that impression as a
consequence of the decisions soon to be made by way of vote
on the Kennedy amendment. The types of conduct described in
this amendment, in my opinion, are in the category of grave
breaches of Common Article Three of the Geneva Convention.
These are clearly prohibited by the bill.
I am in complete agreement with Senator Warner that each of these
practices is a grave breach of Common Article 3. I agree that these
practices are unlawful today and that they will continue to be unlawful
if this bill is enacted into law.
However, I am concerned that the administration may have muddied the
record on these issues through its unwillingness to clearly state what
practices are permitted, and what practices are prohibited, under
Common Article 3. While I reach the same conclusion as Senator Warner
as to the lawfulness of the practices listed in the Kennedy amendment,
I am afraid that others around the world may not.
We agree that these practices are prohibited by Common Article 3. We
need to send a clear message to the world that this is the case, so
that the rest of the world will abide by the same standard. That is why
I strongly support the Kennedy amendment.
Mr. KENNEDY. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Ten minutes remain under the Senator's
control.
Mr. KENNEDY. Mr. President, I yield myself 4 minutes.
Mr. President, I want to point out why this is so necessary and so
essential.
In reviewing the underlying legislation, if you look under the
provisions dealing with definitions on page 70 and 71, and then read
on, you will find that it is difficult to read that without having a
sense of the kind of vagueness which I think surrounds prohibited
interrogation techniques. It talks about substantial risks and extreme
physical pain. But the statute does not have specifics to define the
areas which are prohibited. The techniques in my amendment are the same
ones the Department of the Army and, to my best knowledge, our
colleague and friend from Arizona has identified. Voting for my
amendment would provide those specifics.
The President has asked for specificity, but he has refused to say
whether Common Article 3 would prohibit these kinds of acts. That has
left the world doubting our commitment to Common Article 3 and has
endangered our people around the globe--those who are working for the
United States in the war on terror. The administration's obfuscation
comes at a great risk.
This amendment provides the clarity and sends a message to the world
that these techniques are prohibited. They are prohibited from our
military bringing them to bear on any combatants. We interpret the
legislation so that any country in the world that has signed on to the
Geneva Conventions, any of those countries that are going to practice
activities prohibited by the field manual, that I consider to be
torture, are going to be held by the United States interrogation
committing a war crime. This is important. It is essential. It is
necessary.
The general concept was improved without objection a number of years
ago in the wake of the Vietnam situation, regarding the definition of
war crimes. We ought to restate and recommit ourselves to protecting
Americans involved in the war on terror and ensure they will not be
subject to these activities.
At the present time, without this amendment, it will be left open. If
we accept this amendment, it would make it clear it is prohibited. That
is what we should do.
I withhold the remainder of my time.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Virginia.
Mr. WARNER. I suggest the absence of a quorum and that it not be
chargeable to either side.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, I ask unanimous consent the pending
amendment be laid aside so that I may offer an amendment.
Mr. WARNER. Mr. President, reserving the right to object, and I will
not object, I would simply like to make it clear in laying aside the
amendment
[[Page S10385]]
the times remaining under the control of the Senator from Virginia and
the Senator from Michigan remain in place. We will now, to accommodate
our distinguished senior colleague, go off of the Kennedy amendment and
proceed to address his amendment.
The PRESIDING OFFICER. That would be the case.
Without objection, it is so ordered.
The Senator from West Virginia is recognized.
Amendment No. 5104
(Purpose: To prohibit the establishment of new military
commissions after December 31, 2011)
Mr. BYRD. Mr. President, I thank the Chair, and I also thank my very
able and distinguished friend from Virginia.
Mr. President, I shall offer an amendment today that provides a 5-
year sunset to any Presidential authorization of any military
commission enacted under the legislation currently being debated. This
amendment which I shall offer is essential to the ability of the
Congress to retain its power of oversight and as an important check on
future executive actions.
As I stand here now, Members are readying themselves to beat a path
home to their States--I understand that--so they may get in their final
politicking. Unfortunately, though, in the feverish climate of a
looming election, the most important business of the Senate may suffer.
I have seen that happen over the years. This is no surprise. We have
seen before the fever of politics can undermine the serious business of
the Congress once November and the winds of November draw nigh. We have
seen the mistakes that can come when Congress rushes to legislate
without the benefit of thorough vetting by committees, without adequate
debate, without the opportunity to offer amendments.
Likewise, when legislation is pushed as a means of political
showboating--we all know what that is--instead of by a diligent
commitment to our constitutional duties, the results can be disastrous.
In fact, there have been various proposals to bring congressional
oversight to the military tribunals which were first authorized in
November, 2001. Senators Specter, Leahy, and Durbin were instrumental
in attempting to push back against unilateral actions by the President
to establish these commissions. These attempts were to reassert the
power of the Congress--yes, the constitutional duty embodied in Article
I of this Constitution that is vested in the Congress and in the
Congress alone, to make our country's laws and specifically to make
rules concerning captures on land and water.
Let me say that again. I will repeat the verbiage of the
Constitution: to make our country's laws and specifically to ``make
rules concerning captures on land and water.''
Nothing came of these proposals. Since then, the Congress has ignored
its responsibilities and this most important issue has been shoved
aside.
What is this new impetus spurring congressional action and a renewed
interest in the issue? Did Congress find its way back to embracing its
Article I duties? No. Did the executive branch wake up to realize it is
not within its purview to dictate the laws of the land? No. It was the
Supreme Court's decision in the Hamdan case.
While the President grabbed the wheel and the Congress dozed, the
Court stepped in to remind us of the separation of powers and the
constitutional role of each branch, thank God. Yes, thank God for the
separation of powers envisioned by our forefathers. Thank God for the
Supreme Court. Yes, I said this before; I say it again: Thank God for
the Supreme Court.
It is no coincidence that the traditional pathways of legislation
through the committee and amendment process and ample opportunity for
debate are the best recourse against the enactment of bad, bills.
This is the way the Senate was designed to operate and this is how it
separates in the best interests of the people.
Unfortunately, because of the timing of the Supreme Court's decision
and the charged atmosphere of the midterm elections, we are again
confronted with slap-happy legislation that is changing by the minute.
The bill reported by the Senate Committee on Armed Services, which I
supported, was the product of a thorough process, a deliberative
process. Unfortunately, this bill's progress was halted by the
administration's objections, and the product suffered mightily. Then,
in closed-door negotiations with the White House, many of the successes
announced less than a week ago in the previous version were trashed.
When the administration met stiff opposition to its views by former
JAG--judge advocate general--officers and previous members of its own
Cabinet, it realized it must come back to the table. Last Friday's
version of the bill was superseded by Monday's version, and changes are
still forthcoming. In such a frenzied, frenetic, and uncertain state,
who really knows the nature of the beast? This bill could very well be
the most important piece of legislation--certainly one of the most
important pieces of legislation--this Congress enacts, and the adoption
of my amendment, which I shall offer, ensures--ensures--a reasonable
review of the law authorizing military tribunals.
There is nothing more important to scrutinize than the process of
bringing suspected terrorists to justice for their crimes in a fair
proceeding, without the taint--without the taint--of a kangaroo court.
Those are the values of our country. We dare not handle the matter
sloppily. The Supreme Court has once struck down the President's
approach to military commissions, has it not? Do we want the product of
this debate subjected to the same fate? Do we want it stricken also?
The original authorization of the PATRIOT Act is a case study of the
risks we run in legislating from the hip--too much haste--and how, in
our haste, we can place in jeopardy those things we hold most dear.
Apparently, the Senate has not recognized the error of its ways. This
legislation is complex. This legislation defines the processes and the
procedures for bringing enemy combatants to trial for offenses against
our country, and it involves our obligations under the Geneva
Conventions. This bill defines rules of evidence, it determines
defendants' access to secret evidence, and it seeks to clarify what
constitutes torture. We cannot afford to get this wrong.
As with the PATRIOT Act, my amendment offers us an opportunity to
provide a remedy for the unanticipated consequences that may arise as a
result of hasty congressional action. Along with the sweeping changes
made by the PATRIOT Act, the great hope included in it was the review
that was required by the sunset provision. Everyone knows the saying
that hindsight is 20-20, but the use of this type of congressional
review gives us the opportunity both to strengthen the parts of the law
that may be found to be weak, and to right the wrongs of past
transgressions.
So if we will not today legislate in a climate of steady
deliberation, then let us at least prescribe for ourselves an antidote
for any self-inflicted wounds. Let us prescribe for ourselves the
remedy of reason--the remedy of reason. Let this be the age of reason
once more. Sunset provisions have historically been used to repair the
unforeseen consequences of acting in haste. You have heard that haste
makes waste. If ever there were a piece of legislation that cries out
to be reviewed with the benefit of hindsight, it is the current bill.
My amendment, which I hold in my hand, provides that opportunity
through a 5-year sunset provision. Now, what is wrong with that? There
is nothing wrong with that--a 5-year sunset provision. And I thank
Senator Obama and I thank Senator Clinton for their cosponsorship of my
amendment. I urge my colleagues to support it.
Mr. President, I send my amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from West Virginia [Mr. Byrd], for himself and
Mr. Obama, and Mrs. Clinton, proposes an amendment numbered
5104:
On page 5, line 19, add at the end the following: ``The
authority of the President to establish new military
commissions under this section shall expire on December 31,
2011. However, the expiration of that authority shall not be
construed to prohibit the conduct to finality of any
proceedings of a military commission established under this
section before that date.''.
[[Page S10386]]
The PRESIDING OFFICER. Who yields time?
The Senator from Virginia.
Mr. WARNER. Mr. President, we are about to receive a copy of the
amendment. But I listened very carefully to my distinguished
colleague's remarks. As he well knows, in my relatively short 28 years
in the Senate, I have listened to him and I have the highest respect
for his judgment, and particularly as it relates to how the legislative
body should discharge its constitutional responsibilities and how,
also, it should not try to discharge its constitutional
responsibilities. And I guess my opposition falls, most respectfully,
in the latter category because I find this Congress has a very high
degree of vigilance in overseeing the exercise of the executive powers
as it relates to the war against those whom I view as jihadists, those
who have no respect for, indeed, the religion which they have
ostensibly committed their lives to, and those who have no respect for
human life, including their human life.
It is a most unusual period in the history of our great Republic. The
good Senator, having been a part of this Chamber for nearly a half
century, has seen a lot of that history unfold. The Senator and I have
often discussed the World War II period. That is when my grasp of
history began to come into focus. And, indeed, the Senator himself was
engaged in his activities in the war effort, as we all were in this
Nation.
The ensuing conflicts, while they have been not exactly like World
War II, have been basically engaging those individuals acting in what
we refer to as their adhering to a state, an existing government that
has promulgated rules and regulations, such as they may be, for the
orders issued to their troops, most of whom wore uniforms, certainly to
a large degree in the war that followed right after World War II, the
Korean war. Most of those individuals in that conflict had some vestige
of a uniform, conducting their warfare under state-sponsored
regulations. I had a minor part in that conflict and remember it quite
well.
Vietnam came along, and there we saw the beginning of the blurring of
state sponsored. Nevertheless, it was present. The uniforms certainly
lacked the clarity that had been in previous conflicts. And on the
history goes.
But this one is so different, I say to my good friend, the Senator
from West Virginia. And I think our President, given his duty as
Commander in Chief under the Constitution, has to be given the maximum
flexibility as to how he deals with these situations. We see that in a
variety of issues around here. But, nevertheless, it is the exercise of
executive authority, and that exercise of executive authority must also
be subject to the oversight of the Congress of the United States.
But I feel that in the broad powers conferred on the executive branch
to carry out its duty to defend the Nation in the ongoing threat
against what we generally refer to as terrorism--but more specifically
the militant jihadists--we have to fight with every single tool we have
at our disposal, consistent with the law of this Nation and
international law. And, therefore, we are here in this particular time
addressing a bill which provides for meting out justice, a measure of
justice, to certain individuals who have been apprehended in the course
of the war against this militant jihadist terrorist group.
I find it remarkable, as I have worked it through with my other
colleagues, that they are alien, they are unlawful by all international
standards in the manner they conduct the war. Yet this great Nation,
from the passage of this bill, is going to mete out a measure of
justice as we understand it.
Now, the Senator's concern is--and it always should be; it goes back
to the time of George Washington and the Congress at that time--the
fear of the overexercise of the authorities within the executive
branch. But I think to put a clause and restriction, such as the
Senator recommends in his amendment, into this bill would, in a sense,
inhibit the ability of the President to rapidly exercise all the tools
at his disposal.
I say to the Senator, your bill says:
The authority of the President to establish new military
commissions under this section shall expire. . . . However,
the expiration of that authority shall not be construed to
prohibit the conduct to finality of any proceedings of a
military commission established under this section before
that date.
That could be misconstrued. This war we are engaged in, most notably
on the fronts of Afghanistan and Iraq today, we see where it could
spread across our globe and has--not to the degree of the significance
of Iraq or Afghanistan, but it has spread. Other nations have become
the victims, subject to the threats, subject to the overt actions such
as took place in Spain and other places of the world. We should not
have overhanging this important bill any such restriction as you wish
to impose by virtue of what we commonly call a sunset. I think that
would not be correct. It could send the wrong message. We have to rely
upon the integrity of the two branches of the Congress to be ever
watchful in their oversight, ever unrestrained in the authority they
have under the Constitution. As we commonly say around here, what the
Congress does one day, it can undo the next day.
If, in the course of exercising our authority under the doctrine of
the separation of powers--how many times have I heard the distinguished
Senator from West Virginia discuss the doctrine of the separation of
powers? So often. I remember when we were vigilantly trying to protect
those powers reserved unto the Congress from an encroachment by the
executive branch.
So for that reason I most respectfully say that I do not and I urge
other colleagues not to support this amendment but to continue in their
trust in this institution, in the Senate and in the House, to exercise
their constitutional responsibilities in such a way that we will not
let the executive branch at any time transcend what we believe are
certain parameters that we have set forth in this bill regarding the
trials and the conduct of interrogations.
I think an extraordinary legislation that I was privileged to be
involved in, which garnered 90-some votes, was the Detainee Act,
sponsored by our distinguished colleague, Mr. McCain. That was landmark
legislation. From that legislation has come now what we call the Army
Field Manual, in which we published to the world what America will do
in connection with those persons--the unlawful aliens who come into our
custody by virtue of our military operations, and how they will be
dealt with in the course of interrogation. That was an extraordinary
assertion by the Congress, within the parameters of its powers, as to
what they should do, the executive branch.
But a sunset date for the authority to hold military commissions, in
my judgment, is not in the best interests, at this time in this war, of
our country.
I know there are other speakers. How much time do I have remaining?
The PRESIDING OFFICER. Nineteen minutes 20 seconds.
Mr. WARNER. I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. Mr. President, the Senator knows my great respect for him.
It is an abiding respect. When I look at him, I see a man--a Member of
this Senate--who has had vast experience and worn many coats of honor.
I see a man who stands by his word, who keeps his word, and is always
very meticulous in criticizing another Senator or criticizing
legislation. He is most circumspect, most respectful to his colleagues,
and most respectful to the Constitution. But I am abhorrent--I cannot
write very well anymore. I would like to be able to write down words
that other Senators say in a debate. But I cannot write. So I may have
misinterpreted, or I may misstate the words. But I cannot understand
why this legislation would not be in the best interests of my country.
I believe the Senator said--he certainly implied strongly--that this
legislation would not be in the best interests of our country. If I am
wrong, I know the Senator will correct me. Let me read, though, the
amendment:
On page 5, line 19, add at the end the following: ``the
authority of the President to establish new military
commissions under this section shall expire on December 31,
2011. However, the expiration of that authority shall not be
construed to prohibit the conduct to finality of any
proceedings of a military commission established under this
section before that date.''
Mr. President, what is wrong with that language? How would that
language not be in the interest of our country? I think we are all
subject to
[[Page S10387]]
error. Adam and Eve were driven from the Garden of Eden because of
error. So from the very beginning of history, the very history of
mankind, this race of human beings, there has been evidence of errors,
mistakes. People did not foresee the future, and this language is a
protection against that.
What is wrong with providing an expiration date for the authority
given to the President in this bill, after a period of 5 years? Can we
not be mistaken? Might we not see the day when we wish that we had an
automatic opportunity to review this? Five years is a long time. Five
years is ample time.
So I must say that I am somewhat surprised that my friend, the great
Senator from Virginia, would seek to oppose this amendment. Let me read
it once again. This is nothing new, having sunset provisions in bills.
I think they are good. We can always review them, and if mistakes have
not been made, we can renew them. There is that opportunity. But it
does guarantee that there will come a time when this legislation will
be reviewed. Only the word of Almighty God is so perfect that there is
no sunset provision in the Holy Writ. No. But the sunset provision
there is with us, and the time will come when all of us will take a
voyage into the sunset.
Mr. WARNER. May I reply at the appropriate time?
Mr. BYRD. Absolutely. I will yield right now.
Mr. WARNER. Many times, the two of us have stood right here and had
our debates together. It is one of those rich moments in the history of
this institution when two colleagues, without all of the prepared text
and so forth, can draw upon their experience and knowledge and their
own love for the Constitution of the United States and engage.
I say to my good friend, 3 weeks ago, there were headlines that three
Senators were in rebellion against their President, three Senators were
dissidents, and on and on it went. Well, the fact is, the three of us--
and there were others who shared our views, but somehow the three of us
were singled out--believed as a matter of conscience we were concerned
about an issue.
The concern was that the bill proposed by the administration, in our
judgment, could be construed as in some way--maybe we were wrong--
indicating that America was not going to follow the treaties of 1949--
most particularly, Common Article 3. Common Article 3 means that
article in each of these three treaties. As my good friend knows--and
we draw on our own individual recollections about the horrors of World
War II. I was involved in the foreign battlefield. We certainly knew
about it back here at home and studied it. I was a youngster, a skinny
youngster in my last year in the Navy. So much for that. But we were
very conscious of what was going on, and the frightful treatment of
human beings as a consequence of that war.
The world then came together--and I say the world--after that and
enacted these three treaties. The United States was in the lead of
putting those treaties in. Those treaties were for the purpose of
ensuring that future mankind, generations, hopefully, would not
experience what literally millions of people experienced by death and
maiming--not only soldiers but civilians.
Mr. President, we believed that the administration's approach to this
could be interpreted by the world as somehow we were not behind those
treaties. If we were to put a sunset in here after all of the
deliberation and all of the work on the current bill that is before
this body, it could once again raise the specter that, well, if in fact
the United States was trying to not live up to the treaties that
brought on this debate in the Senate, then at the end of 5 years we go
back to where we were. That could happen. We do not want to send that
message. We want to send a message that this Nation has reconciled,
hopefully, this body, as we vote this afternoon, and will send a strong
bipartisan message that we are reconciled behind this legislation to
ensure that in the eyes of the world we are going to live fully within
the confines of the treaties of 1949.
Mr. BYRD. We are not dealing with the treaties of 1949.
Mr. WARNER. I respectfully say that our bill does, in my judgment.
Clearly, it constitutes an affirmation of the treaties. I would not
want to send a message at this time that there could come a point,
namely, December 31, 2011, that such assurances as we have given about
those treaties might expire. That is what concerns me.
Mr. BYRD. Mr. President, I am almost speechless. I listened to the
words that have just been uttered by my friend. My amendment does not
affect, in any way, the portions of this bill that relate to the Geneva
Conventions.
It sunsets only the authority of the President to convene military
commissions and, of course, the Senate can renew that authority. That
is done in many instances here. I think it is insurance for our country
and the welfare of our country and the welfare of the people who serve
in the military.
We say 5 years. Do we want to make that 6 years? Do we want to make
it 7 years? Fine. It will expire at that time. It simply means that the
Senate and the House take a look at it again and renew it. What is
wrong with that?
Mr. WARNER. I say to my friend, Mr. President, from a technical
standpoint, he is correct. He is going in there and incising out
regarding commissions. But the whole debate has been focused around how
those commissions will conduct themselves in accordance with the common
understanding of Article 3, particularly.
So while the Senator, in his very fine and precise way of dealing
with the legislation, takes out just that, it might not be fully
understood beyond our shores. The headline could go out that there is
going to be an expiration.
I say to my good friend, it is just not wise to go in and try and put
any imprint on this that expiration could occur. It could raise, again,
the debate, and I do not think that is in the interest of the country.
I think this debate, this legislation has been settled, and I don't
think it was ever the President's intention in the course of the
preparation of his legislation, but some fear it could.
Mr. BYRD. Mr. President, it could be a Democratic President, as far
as I am concerned. I think this is wise on the part of the Senate in
conducting its constitutional oversight, to say that we will do it this
far and then we will take another look at it in the light of the new
day, in the light of the new times, the new circumstances; we will take
another look at it. We are not passing any judgment on that legislation
5 years out.
I am flabbergasted--flabbergasted--that my friend would take umbrage
at this legislation.
I only have a few minutes left.
Mr. LEVIN. Will the Senator from West Virginia yield for 3 minutes?
Mr. BYRD. Yes, I yield 3 minutes.
Mr. LEVIN. Mr. President, I think the Senator from West Virginia is,
more than any other person in the history of this body, the custodian
in his person of the Constitution of the United States. The bill that
is before us obviously raises a number of very significant issues
involving our Constitution.
What the amendment of Senator Byrd does very wisely is say that after
5 years, let us double back and doublecheck--double back and
doublecheck--so that we can be confident that what we have done
comports with the Constitution of the United States. This amendment
does it very carefully. It does not disturb any pending proceeding
under the commission. The Senator has written this amendment so
carefully that he says even though it will sunset, forcing us to go
back and doublecheck, to look at our work, that it will not in any way
disturb any existing or pending proceeding.
I believe this is such an important statement of our determination
that we act in a way that is constitutional, not in the heat of a
moment which is obviously critical to us, but that we comport in every
way with this Constitution. We ought to heed the words of Senator Byrd,
who understands the importance of this Constitution and that this body
be the guardian of the Constitution. We are the body that must protect
this Constitution.
Mr. BYRD. Yes.
Mr. LEVIN. And this, as he puts it, is an insurance policy that we
will do just that.
Mr. BYRD. Yes.
Mr. LEVIN. I ask unanimous consent that I be added as a cosponsor to
the Byrd amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S10388]]
Mr. BYRD. Mr. President, I have 4 minutes remaining; do I?
The PRESIDING OFFICER. The Senator has 5 minutes 14 seconds
remaining.
Mr. BYRD. I yield 5 minutes to my friend, the distinguished Senator
from Illinois, Mr. Obama.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. OBAMA. Mr. President, I thank my dear friend and colleague from
West Virginia.
I am proud to be sponsoring this amendment with the senior Senator
from West Virginia. He is absolutely right that Congress has abrogated
its oversight responsibilities, and one way to reverse that troubling
trend is to adopt a sunset provision in this bill. We did it in the
PATRIOT Act, and that allowed us to make important revisions to the
bill that reflected our experience about what worked and what didn't
work during the previous 5 years. We should do that again with this
important piece of legislation.
It is important to note that this is not a conventional war we are
fighting, as has been noted oftentimes by our President and on the
other side of the aisle. We don't know when this war against terrorism
might end. There is no emperor to sign a surrender document. As a
consequence, unless we build into our own processes some mechanism to
oversee what we are doing, then we are going to have an open-ended
situation, not just for this particular President but for every
President for the foreseeable future. And we will not have any formal
mechanism to require us to take a look and to make sure it is being
done right.
This amendment would make a significant improvement to the existing
legislation, and it is one of those amendments that would, in normal
circumstances, I believe, garner strong bipartisan support.
Unfortunately, we are not in normal circumstances.
Let me take a few minutes to speak more broadly about the bill before
us.
I may have only been in this body for a short while, but I am not
naive to the political considerations that go along with many of the
decisions we make here. I realize that soon--perhaps today, perhaps
tomorrow--we will adjourn for the fall. The campaigning will begin in
earnest. There are going to be 30-second attack ads and negative mail
pieces criticizing people who don't vote for this legislation as caring
more about the rights of terrorists than the protection of Americans.
And I know that this vote was specifically designed and timed to add
more fuel to the fire.
Yet, while I know all of this, I am still disappointed because what
we are doing here today, a debate over the fundamental human rights of
the accused, should be bigger than politics. This is serious and this
is somber, as the President noted today.
I have the utmost respect for my colleague from Virginia. It saddens
me to stand and not be foursquare with him. I don't know a more
patriotic individual or anybody I admire more. When the Armed Services
bill that was originally conceived came out, I thought to myself: This
is a proud moment in the Senate. I thought: Here is a bipartisan piece
of work that has been structured and well thought through that we can
all join together and support to make sure we are taking care of
business.
The fact is, although the debate we have been having on this floor
has obviously shown we have some ideological differences, the truth is
we could have settled most of these issues on habeas corpus, on this
sunset provision, on a whole host of issues. The Armed Services
Committee showed us how to do it.
All of us, Democrats and Republicans, want to do whatever it takes to
track down terrorists and bring them to justice as swiftly as possible.
All of us want to give our President every tool necessary to do this,
and all of us were willing to do that in this bill. Anyone who says
otherwise is lying to the American people.
In the 5 years the President's system of military tribunals has
existed, the fact is not one terrorist has been tried, not one has been
convicted, and in the end, the Supreme Court of the United States found
the whole thing unconstitutional because we were rushing through a
process and not overseeing it with sufficient care. Which is why we are
here today.
We could have fixed all this several years ago in a way that allows
us to detain and interrogate and try suspected terrorists while still
protecting the accidentally accused from spending their lives locked
away in Guantanamo Bay. Easily. This was not an either-or question. We
could do that still.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. OBAMA. Mr. President, I ask unanimous consent for 2 more minutes.
The PRESIDING OFFICER. Is there objection?
Mr. WARNER. Mr. President, charged against the allocation under the
proponent of the amendment.
The PRESIDING OFFICER. The proponent has no time remaining.
Mr. WARNER. We are under fairly rigid time control, but I will give
the Senator from Illinois a minute.
Mr. OBAMA. I will conclude, then. I appreciate the Senator from
Virginia.
Instead of allowing this President--or any President--to decide what
does and does not constitute torture, we could have left the definition
up to our own laws and to the Geneva Conventions, as we would have if
we passed the bill that the Armed Services committee originally
offered.
Instead of detainees arriving at Guantanamo and facing a Combatant
Status Review Tribunal that allows them no real chance to prove their
innocence with evidence or a lawyer, we could have developed a real
military system of justice that would sort out the suspected terrorists
from the accidentally accused.
And instead of not just suspending, but eliminating, the right of
habeas corpus--the seven century-old right of individuals to challenge
the terms of their own detention, we could have given the accused one
chance--one single chance--to ask the Government why they are being
held and what they are being charged with.
But politics won today. Politics won. The administration got its
vote, and now it will have its victory lap, and now they will be able
to go out on the campaign trail and tell the American people that they
were the ones who were tough on the terrorists.
And yet, we have a bill that gives the terrorist mastermind of 9/11
his day in court, but not the innocent people we may have accidentally
rounded up and mistaken for terrorists--people who may stay in prison
for the rest of their lives.
And yet, we have a report authored by sixteen of our own Government's
intelligence agencies, a previous draft of which described, and I
quote, ``. . . actions by the United States government that were
determined to have stoked the jihad movement, like the indefinite
detention of prisoners at Guantanamo Bay . . .''
And yet, we have al-Qaida and the Taliban regrouping in Afghanistan
while we look the other way. We have a war in Iraq that our own
Government's intelligence says is serving as al-Qaida's best
recruitment tool. And we have recommendations from the bipartisan 9/11
commission that we still refuse to implement 5 years after the fact.
The problem with this bill is not that it is too tough on terrorists.
The problem with this bill is that it is sloppy. And the reason it is
sloppy is because we rushed it to serve political purposes instead of
taking the time to do the job right.
I have heard, for example, the argument that it should be military
courts, and not Federal judges, who should make decisions on these
detainees. I actually agree with that.
The problem is that the structure of the military proceedings has
been poorly thought through. Indeed, the regulations that are supposed
to be governing administrative hearings for these detainees, which
should have been issued months ago, still haven't been issued. Instead,
we have rushed through a bill that stands a good chance of being
challenged once again in the Supreme Court.
This is not how a serious administration would approach the problem
of terrorism. I know the President came here today and was insisting
that this is supposed to be our primary concern. He is absolutely right
it should be our primary concern--which is why we should be approaching
this with a somberness and seriousness that this administration has not
displayed with this legislation.
Now let me make clear--for those who plot terror against the United
[[Page S10389]]
State, I hope God has mercy on their soul, because I certainly do not.
For those who our Government suspects of terror, I support whatever
tools are necessary to try them and uncover their plot.
We also know that some have been detained who have no connection to
terror whatsoever. We have already had reports from the CIA and various
generals over the last few years saying that many of the detainees at
Guantanamo shouldn't have been there--as one U.S. commander of
Guantanamo told the Wall Street Journal, ``Sometimes, we just didn't
get the right folks.'' And we all know about the recent case of the
Canadian man who was suspected of terrorist connections, detained in
New York, sent to Syria, and tortured, only to find out later that it
was all a case of mistaken identity and poor information. In the
future, people like this may never have a chance to prove their
innocence. They may remain locked away forever.
The sad part about all of this is that this betrayal of American
values is unnecessary.
We could have drafted a bipartisan, well-structured bill that
provided adequate due process through the military courts, had an
effective review process that would've prevented frivolous lawsuits
being filed and kept lawyers from clogging our courts, but upheld the
basic ideals that have made this country great.
Instead, what we have is a flawed document that in fact betrays the
best instincts of some of my colleagues on both sides of the aisle--
those who worked in a bipartisan fashion in the Armed Services
Committee to craft a bill that we could have been proud of. And they
essentially got steamrolled by this administration and by the
imperatives of November 7.
That is not how we should be doing business in the U.S. Senate, and
that is not how we should be prosecuting this war on terrorism. When we
are sloppy and cut corners, we are undermining those very virtues of
America that will lead us to success in winning this war. At bare
minimum, I hope we can at least pass this provision so that cooler
heads can prevail after the silly season of politics is over.
I conclude by saying this: Senator Byrd has spent more time in this
Chamber than many of us combined. He has seen the ebb and flow of
politics in this Nation. He understands that sometimes we get caught up
in the heat of the moment. The design of the Senate has been to cool
those passions and to step back and take a somber look and a careful
look at what we are doing.
Passions never flare up more than during times where we feel
threatened. I strongly urge, despite my great admiration for one of the
sponsors of the underlying bill, that we accept this extraordinarily
modest amendment that would allow us to go back in 5 years' time and
make sure what we are doing serves American ideals, American values,
and ultimately will make us more successful in prosecuting the war on
terror about which all of us are concerned.
Thank you, Mr. President.
Mr. BYRD. Mr. President, I ask the distinguished Senator from
Virginia, may I have 10 seconds?
Mr. WARNER. I am going to give the Senator more than 10 seconds. I
have to do a unanimous consent request on behalf of the leadership.
Order Vitiated--S. 295
I ask unanimous consent that the order with respect to S. 295 be
vitiated.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Reserving the right to object.
No objection.
Mr. WARNER. I understand there is no objection. Will the Chair kindly
rule?
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, I yield such time as Mr. Byrd wishes to
take.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, I thank my friend from Virginia. I merely
wanted to thank the distinguished Senator from Illinois, Mr. Obama, for
his statement. I think it was well said, I think it was wise, and I
thank him for his strong support of this amendment.
I also close by asking that the clerk once again read this amendment.
I will then yield the floor. I thank the Senator from Virginia.
Mr. WARNER. Mr. President, I say to my good friend, I fully
understand what you endeavor to do here, and I respectfully strongly
disagree with it. I think many of us share this. This is going to be a
very long war against those people whom we generically call terrorists.
In the course of that war, this President and his successor must have
the authority to continue to conduct these courts-martial--these trials
under these commissions--and not send out a signal to terrorists: If
you get under the time limit and you don't get caught, this thing may
end.
Mr. WARNER. If you are not caught within this period of time, when
this went into effect, then you are no longer going to be held
accountable. I, and I think every Member of this body, regret that this
Nation or other nations or a consortium of nations have not captured
Osama bin Laden. There is a debate going on about that, and I am not
going to get into that debate, but the fact is he is still at large.
There could be other Osama bin Ladens, and it may take years to
apprehend them, no matter how diligently we pursue them. We cannot send
out a signal that at this definitive time, it is the responsibility of
the President, of the executive branch, to hold those accountable for
crimes against humanity. They would not be held accountable if this
provision went into power.
Need I remind this institution of the most elementary fact that every
Senator understands, that what we do one day can be changed the next.
If there comes a time when we feel this President or a subsequent
President does not exercise authority consistent with this act,
Congress can step in, and with a more powerful action than a sunset, a
very definitive action.
Mr. President, it is my understanding I have a few minutes left under
this amendment.
The PRESIDING OFFICER (Mr. Coleman). The time of the Senator from
Virginia is 9\1/2\ minutes.
Mr. WARNER. I would like to have that time transferred under my time
on the bill as a whole. I hope Senator Cornyn, who has expressed an
interest in this, gets the opportunity to use that time to address this
amendment.
Now, Mr. President, as I look at the number of Senators who are
desiring to speak on my side--and I think perhaps it would be helpful
if you could, I say to my colleague, the ranking member, check on the
other side--we still have some debate, and we are prepared to get into
debate on the Kennedy amendment now. Therefore, I will undertake to do
that just as soon as I finish.
But then we are in that time period where all time has expired or
utilized or otherwise allocated on the several amendments. We will soon
receive an indication from the leadership as to the time to vote on the
stacked votes. But under the time reserved for the bill, I have, of
course, the distinguished Senator from Arizona, Mr. McCain, and Senator
Graham are going to be given by me such time as they desire, and then
subject to the time utilized by those two Senators, I would hope to
have time for Senator Hutchison, Senator Chambliss, and again Senator
Cornyn, Senator Grassley, and Senator McConnell, the distinguished
majority whip.
So I am going to manage that as fairly and as equitably as I can.
That is what we propose to do. I will go into the subject of the
Kennedy amendment right now.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Mr. President, I am afraid that the way this now is set
up, the Senator from Virginia has about six speakers who will have
time, and we have on this side, because of the interest in the
amendment process, used up our time and had to use time on the bill, so
that on our side we only have--how much time left on the bill, if I
could inquire of the Chair?
The PRESIDING OFFICER. The Senator from Michigan has 4 minutes
remaining on the bill. The Senator from Vermont has 12 minutes
remaining on the bill.
Mr. LEVIN. And the Senator from Massachusetts has how many minutes on
his amendment?
The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes
20 seconds.
[[Page S10390]]
Mr. LEVIN. How much time all together on the majority side?
The PRESIDING OFFICER. On the bill, 50 minutes; on the Kennedy
amendment, 30 minutes.
Mr. LEVIN. I think everybody ought to recognize the situation we are
in. I hope we will withhold our comments until those on the other side
who have been indicated as having time allocated to them speak so that
we will have some time to respond to them.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Amendment No. 5088
Mr. WARNER. Mr. President, I would now like to address the amendment
offered by the senior Senator from Massachusetts.
I have read this very carefully and I have studied it, I say to my
good friend. There are certain aspects of this amendment that are well-
intentioned. But I strongly oppose it, and I do encourage colleagues to
oppose it, because the question of the separation of powers is involved
here, and that is the subject on which this Chamber has resonated many
times. But here I find the amendment invades the authority of the
executive branch in the area of the conduct of its foreign affairs by
requiring the Secretary of State to notify other state parties to the
Geneva Conventions of certain U.S. interpretations of the Geneva
Conventions, in particular Common Article 3 and the law of war.
It is up to the executive branch in its discretion to take such
actions in terms of its relations with other several states in this
world--not the Congress directing that they must do so--such
communications with foreign governments. But in the balance of powers,
it is beyond the purview of the Congress to say to the Secretary of
State: You shall do thus and so.
This bill speaks for itself by defining grave breaches of Common
Article 3 that amount to war crimes under U.S. law. Any congressional
listing of specific techniques should be avoided simply because
Congress cannot foresee all of the techniques considered to maybe fall
within the category of cruel and inhuman conduct, and therefore, they
would become violations of Article 3. We can't foresee all of those
situations. Again, it is the responsibility of this body to administer,
to see that this bill becomes law in a manner of oversight.
Senator Kennedy's amendment, depending on how the vote comes--and I
am of the opinion that this Chamber will reject it--I don't want that
rejection to be misconstrued by the world in any way as asserting that
the techniques mentioned in the amendment are consistent with the
Geneva Conventions or that they could legitimately be employed against
our troops or anyone else. We must not leave that impression as a
consequence of the decision soon to be made by way of a vote on the
Kennedy amendment.
The types of conduct described in this amendment, in my opinion, are
in the category of grave breaches of Common Article 3 of the Geneva
Conventions. These are clearly prohibited by our bill. Rather than
listing specific techniques, Congress has exercised its proper
constitutional role by defining such conduct in broad terms as a crime
under the War Crimes Act. The techniques in Senator Kennedy's amendment
are not consistent with the Common Article 3 and would strongly protest
their use against our troops or any others.
So I say with respect to my good friend, this is not an amendment
that I would in any way want to be a part of this bill.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I would like to inquire of the Senator
from Virginia, and I yield myself 3 minutes. As I understand, one of
the reasons this amendment is being rejected is because of the burden
that it is going to place on our State Department to notify the 194
countries that we expect, if these techniques are used against
Americans, they would be considered a war crime. That is a possible
difficulty for us? That is a burden for our State Department? Or,
rather is he objecting because, we can't foresee all of the different
kinds of techniques that might be used against individuals and
therefore we shouldn't list these. We list them in the Army Field
Manual specifically. They are not pulled out of the air; they are
listed specifically in the Army Field Manual. That is where they come
from. And a number of the Members on the other side of the aisle have
said that those techniques are prohibited. So we have taken the
Department of Defense list and incorporated it.
Then the last argument is that: Well, if it is rejected, we don't
want this to be interpreted as a green light for these techniques.
There must be stronger arguments. Maybe I am missing something around
here. With all respect, I have difficulty in understanding why the
Senator from Virginia, the chairman of the Armed Services Committee,
does not address the fundamental issue which is included in this
amendment, and that is this amendment protects Americans who are out on
the front lines of the war on terror, the SEALS, the CIA, others who
are fighting, and it gives warning to any country: You go ahead with
any of these techniques and you are committing a war crime and will be
held accountable.
Now, if I could get a good answer to that, I would welcome it, but I
haven't heard it yet. With all respect, I just haven't heard why the
Senator is refusing and effectively denying--opposition to this
amendment is denying that kind of protection. I read, and it was when
the Senator was here, when we found out that similar kinds of
techniques were used against Americans in World War II, and we
sentenced offenders to 10, 15 years and even executed some. Now we are
saying: Oh, no, we can't list those because it is going to be a bother
to our State Department, notifying these countries. My, goodness.
There has to be a better reason that we are not going to protect our
service men and women from these kinds of techniques. We are saying to
those countries: If you use these techniques, you are a war criminal.
What are those techniques? They are in the Department of Defense
listing. That is what they are. How often are they used? I gave the
illustrations of how they were used repeatedly, whether it has been by
Iran or whether it has been by Japan, or any of our adversaries in any
other war.
The PRESIDING OFFICER. The Senator has consumed 3 minutes.
Mr. KENNEDY. I yield myself 1 minute. I want to put in the Record the
excellent letter from Jack Vessey, who is a distinguished former Joint
Chief of Staff:
I continue to read and hear that we are facing a different
enemy in the war on terror. No matter how true that may be,
inhumanity and cruelty are not new to warfare nor to enemies
we have faced in the past. In my short 46 years in the armed
forces, Americans confronted the horrors of the prison camps
of the Japanese in World War II, the North Koreans in 1950 to
1953, and the North Vietnamese in the long years of the
Vietnam War, as well as knowledge of the Nazi's holocaust
depredations in World War II. Through those years, we held to
our own values. We should continue to do so.
The Kennedy amendment does it. That is what this amendment is about.
I reserve the remainder of my time.
I ask unanimous consent the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 12, 2006.
Hon. John McCain,
U.S. Senate,
Washington, DC.
Dear Senator McCain: Sometimes, the news is a little
garbled by the time it reaches the forests of North-central
Minnesota, but I call your attention to recent reports that
the Congress is considering legislation which might relax the
United States support for adherence to Common Article 3 of
the Geneva Convention. If that is true, it would seem to
weaken the effect of the McCain Amendment on torture of last
year. If such legislation is being considered, I fear that it
may weaken America in two respects. First, it would undermine
the moral basis which has generally guided our conduct in war
throughout our history. Second, it could give opponents a
legal argument for the mistreatment of Americans being held
prisoner in time of war.
In 1950, 3 years after the creation of the Department of
Defense, the then Secretary of Defense, General George C.
Marshall, issued a small book, titled The Armed Forces
Officer. The book summarized the laws and traditions that
governed our Armed Forces through the years. As the Senate
deals with the issue it might consider a short quote from the
last chapter of that book which General Marshall sent to
every American Officer. The last chapter is titled
``Americans in Combat'' and it lists 29 general propositions
which govern the conduct of Americans in war. Number XXV,
which I long ago underlined in my copy, reads as follows:
[[Page S10391]]
``The United States abides by the laws of war. Its Armed
Forces, in their dealing with all other peoples, are expected
to comply with the laws of war, in the spirit and the letter.
In waging war, we do not terrorize helpless non-combatants,
if it is within our power to avoid so doing. Wanton killing,
torture, cruelty or the working of unusual hardship on
enemy prisoners or populations is not justified in any
circumstance. Likewise, respect for the reign of law, as
that term is understood in the United States, is expected
to follow the flag wherever it goes. . . .''
For the long term interest of the United States as a nation
and for the safety of our own forces in battle, we should
continue to maintain those principles. I continue to read and
hear that we are facing a ``different enemy'' in the war on
terror; no matter how true that may be, inhumanity and
cruelty are not new to warfare nor to enemies we have faced
in the past. In my short 46 years in the Armed Forces,
Americans confronted the horrors of the prison camps of the
Japanese in World War II, the North Koreans in 1950-53, and
the North Vietnamese in the long years of the Vietnam War, as
well as knowledge of the Nazi's holocaust depredations in
World War II. Through those years, we held to our own values.
We should continue to do so.
Thank you for your own personal courage in maintaining
those values, both in war and on the floor of the Senate. I
hope that my information about weakening American support for
Common Article 3 of the Geneva Convention is in error, and if
not that the Senate will reject any such proposal.
Very respectfully,
General John W. Vessey, USA (Ret.).
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, my distinguished colleague used two
phrases just now. He said: Burden. He used the word burden. He then
said the word bother. Senator, you walk straight into the
constitutional separation of powers in your language and you say: The
Secretary of State shall--that is a direct order--notify other parties
to the Geneva Conventions. You are putting a direct order to the
executive branch. I say that is a transgression of the long
constitutional history of this country and the doctrine of separation
of powers.
Mr. KENNEDY. Would the Senator support it if we changed it to
``shall,'' that you, the chairman of our committee, will make that
request and the President will go ahead and notify and follow those
instructions?
Mr. WARNER. Senator, I am not in the business of trying to amend your
amendment.
Mr. KENNEDY. I am just trying to accommodate you. You are saying that
this is a constitutional issue. I just offered to try to accommodate
the Chairman so we can ensure we are protecting American servicemen
from torture--from torture. And the response is: Well, it is going to
violate the Constitution. I am interested in getting results.
But I hear the Senator say that it is unconstitutional that my
amendment says Department of State shall notify other countries that if
they are going to torture, they are going to be held accountable, and
we are being defeated on the floor of the U.S. Senate because the
opponents are saying that is unconstitutional and we cannot find a way
to do it. I find this unwillingness to compromise is outrageous.
Mr. President, I am prepared to call the roll on this one.
Mr. WARNER. Mr. President, at this point I wish to have such time as
remains under the control of the Senator from Virginia accorded to me
under the control of the time on the bill.
The PRESIDING OFFICER. The time will be so allocated.
Mr. WARNER. Mr. President, I wish to inform the Chamber that we are
at that juncture where we will consider the statements of others, very
important statements to be made. I listed them in a recitation of those
who have indicated their desire to speak. But I also bring to the
attention of the body that I have just been told by the leadership they
are anxious to proceed to the votes.
At this time I would ask--if I can get my colleague's attention--that
there be yeas and nays on all of the pending amendments remaining.
The PRESIDING OFFICER. Without objection, the yeas and nays may be
requested on all pending amendments.
Mr. LEVIN. Will the Senator withhold that request for 2 minutes? Will
the Senator withhold?
Mr. WARNER. Surely.
Mr. President, we will now put in a quorum call to accommodate the
ranking member, such that the time is not charged to either side.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, the managers, together with the guidance
from their respective leaders, are endeavoring to do the following.
There are three amendments to be voted on and then final passage. We
hope to have as much time used on the bill as we can, to be consumed
prior to the initiation of the votes. But then subsequent to the three
votes, there will be a block of time. A Senator on this side has
reserved 12 minutes. I intend to reserve, on my side, time to Senator
McCain. I am trying to work in that category of time following the
votes. But until we are able to reconcile this, I ask that we now
proceed.
Let me allow the Senator from Georgia to proceed. He has indicated a
desire to speak for 5 or so minutes at this time. But I hope Senators
are following what the two managers are saying. Those desiring to speak
on the bill, with the exception of Senator McCain, would they kindly
come down and utilize this time before the amendments start?
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise today in support of the Military
Commissions Act of 2006. This historic legislation is the result of
much work, thought, and debate.
I commend the administration, I commend Senator Warner, Senator
McCain, Senator Graham, and all those who were involved in the ultimate
compromise we have come to on this very sensitive and very complex
issue. I am pleased we were able to find common ground on this critical
issue and ensure that the President can authorize the appropriate
agencies to move forward with an appropriate interrogation program.
There is no question that this program provides essential
intelligence that is vital to America's success in the war on
terrorism. At the same time, it honors our agreement under the Geneva
Conventions and underscores to other nations that America is a nation
of laws. This has been a difficult issue and I am pleased that both
sides worked so diligently to achieve this result. In this new era of
threats, where the stark and sober reality is that America must
confront international terrorists committed to the destruction of our
way of life, this bill is absolutely necessary. Our prior concept of
war has been completely altered, as we learned so tragically on
September 11, 2001. We must address threats in a different way. If we
are going to get at the root of terrorist activity, we need to be able
to get critical information to do so.
There has been much discussion during the course of the drafting of
this bill about the rule of law, and the rule of law relative to
detainees is, indeed, reflected in this bill. It provides for
tribunals, for judges, for counsel, for discovery, and for rules of
evidence.
Most importantly, however, in my view, is that while this bill
provides important rule of law procedures for illegal enemy combatants,
it does not give them the same protections which we afford lawful enemy
combatants or our own military personnel, and that is a critical
distinction. And that is how it ought to be. We have made that
distinction for no other reason than to provide incentive for every
nation across the world to observe international agreements for the
proper treatment of captives. It bears repeating--this bill applies to
the trial of illegal enemy combatants--those who make no pretense
whatsoever of conformity with even minimal standards or international
norms of civilized behavior when it comes to the treatment of those
they capture.
We hear repeatedly that we should be concerned about what we do, for
fear that we encourage others to treat our captured service men and
women in a similar manner. But let's be very clear here and state what
every American knows to be true. The al-Qaida terrorists treat our
captured service men and women by beheading them and by dragging their
bodies through the streets.
[[Page S10392]]
They need no encouragement or excuse for their actions by reference to
our treatment of their captives.
As a result of the Supreme Court's ruling, we are creating military
commissions that provide rule of law protections which are embodied in
this bill--courts, judges, legal counsel, and rules of evidence. So
this bill appropriately meets our international obligations and
America's sense of what is right and it is in keeping with our highest
values.
However, this bill will allow the President to move forward with a
terrorist interrogation program that will ensure that we continue to
get critical information about those who are plotting to carry out
hateful acts against America and against Americans.
I commend the President for his determination to respond to the new
reality confronting us. I commend Chairman Warner and my colleagues on
the Armed Services Committee who worked in good faith to craft a bill
which is the right bill to respond to the challenges we face. And
again, I am pleased we were able to find common ground on this critical
issue and ensure that the President can move forward with an
appropriate interrogation program.
I think it is important that we send a bill to the White House, to
the desk of the President that is exactly the same as the bill that has
already been passed by the House so we can put this program in place
immediately. The way we do that is to continue to defeat all the
amendments that have been put forward, and that we send the President
the same bill that has already been passed by the House so that this
program can be reinitiated immediately.
I yield the floor.
Mr. WARNER. Mr. President, I thank our distinguished colleague from
Georgia, a very valued member of the Armed Services Committee who has
from time to time participated in the extensive deliberations and
consultations with regard to how the original bill which we worked on
should be shaped and finally amended. I thank him.
Again, I call to the attention of colleagues that I shall put in a
quorum for the purpose of trying to accommodate Members on my side who
desire to speak.
I now see the distinguished Senator from South Carolina. We are
prepared to allocate to him such time as he may desire. How much time
does he need?
Mr. GRAHAM. Would 15 minutes be OK?
Mr. WARNER. Yes.
Mr. GRAHAM. I thank the chairman.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, in 15 minutes I will try to explain the
processes as I know it to be in terms of how we arrived at this moment.
No. 1, I am glad we are here. I think the country is better off
having the bill voted on in the current fashion.
I have gotten to know Senator Warner very well over the last 30 days.
I had a high opinion of the Senator before this process started, but I,
quite frankly, am in awe of his ability to stand up for the institution
as a U.S. Senator, who was a former Secretary of the Navy, who tried to
have a balanced approach about what we are trying to do.
It is no secret that Senator McCain is one of my closest friends in
this body, and I respect him in so many ways. But unlike myself and
most of us, Senator McCain paid a heavy price while serving this
country. He and his colleagues in Vietnam were treated very poorly as
prisoners of war. When he speaks about the Geneva Conventions, he does
so as someone who has been in an environment where the Conventions
would not apply. But Senator McCain believes very strongly in the
Geneva Conventions. When it comes to the Vietnam war, he has told me
more than once that if it were not for the insistence of the United
States and the international community that constantly pushed back
against the North Vietnamese, he thought the torture would have
continued and all of them would eventually be killed. But the North
Vietnamese became concerned about international criticism after a point
in time.
While the Geneva Conventions were not applied evenly by any means, it
did have an effect on the North Vietnamese.
I have been a military lawyer for over 20 years. I have had the honor
of wearing the Air Force uniform while serving my country and being
around great men and women in uniform. It has been one of the
highlights of my life. I have never been shot at. The only people who
wanted to kill me were probably some of my clients. But I do appreciate
why the Geneva Conventions exist and the fact that the law of armed
conflict is a body of law unique to itself and has a rich tradition in
our country and throughout the world and it will work to make us safe
and live within our values if we properly apply it.
The reason we are here is because the Supreme Court ruled in the
Hamdan case that the military commissions authorized by the President
were in violation of Common Article 3 of the Geneva Conventions. They
were not regularly constituted courts.
It surprised me greatly that the Supreme Court would find that the
Geneva Conventions applied to the war on terror. It was President
Bush's assumption and mine, quite frankly, that humane treatment would
be the standard. But this enemy doesn't wear a uniform; it operates
outside the Conventions, doesn't represent a nation, and, therefore,
would not be covered. But the Supreme Court came to a different
conclusion. Thus, we are here.
I say to my fellow Americans, it is not a weakness, it is strength
that we have three branches of government. It is not healthy for one
branch of government to dominate the other two at a time of stress.
I have pushed back against the administration when I believed they
were pushing the executive power of the inherent authority of the
President too far. Even though we are in a time of war, there is plenty
of room for the Congress and the courts.
What I tried to do in helping draft this bill, working with the
President and working with our friends on the other side, is come up
with a product that would create a balance that I think would serve us
well.
My basic proposition that I have applied to the problem is we are at
war, that 9/11 was an act of war, and since that moment in time our
Nation has been at war with enemy combatants who do not wear a uniform,
who do not represent a nation but are warriors for their cause, just as
dedicated as Hitler was to his cause, and they are just as vicious and
barbaric as any enemy we have ever fought.
But we don't need to be like them to win. As a matter of fact, we
need to show the world that we are different than them.
When the Geneva Conventions were applied to the war on terror, we had
a problem. We had to renew the Military Commission Tribunal in line
with Common Article 3. Common Article 3 is a mini-human-rights tree
that is common to all four Convention articles. You have one about
lawful combatants and unlawful combatants, civilians and wounded
people. Common Article 3 is throughout all of the treaties regarding
the Geneva Conventions. It says you would have to have a regularly
constituted court to pass judgment or render sentences against those
who are in your charge during time of war; that is, unlawful
combatants.
The problem with the military commission order authorized by the
President was that it deviated from the formal Code of Military
Justice, the court-martial model, without showing a practical reason.
Within our Uniform Code of Military Justice, it says military
commissions are authorized, but they need to be like the court-martial
system to the extent practicable.
What I am proud of is we have created a new military commission based
on the UCMJ and deviations are there because of the practical need. A
court martial is not the right forum to try enemy combatants--non-
citizen terrorists--the military commission is the right forum, but we
are basing what we are doing on UCMJ, and the practical differences, I
think, will be sustained by the Court.
The confrontation rights that were originally posed by the
administration gave me great concern. I do not believe that to win this
war we need to create a trial procedure where the jury can receive
evidence classified in nature, convict the accused, and the accused
never knows what the jury had to render a
[[Page S10393]]
verdict upon, could not answer that accusation, rebut or examine the
evidence.
That was the proposal which I thought went too far and that would
come back to haunt us. As a result of this compromise, it has been
taken out.
We have a national security privilege available to the Government to
protect that prosecutor's file from being given over to the defense or
to the accused so our secrets can be protected. But we will now allow
the prosecutor to give that to the jury and let them bring it out on
the side of the accused and the accused never knowing what he was
convicted upon. That could come back to haunt us if one of our soldiers
falls into enemy hands.
We would not want a future conviction based on evidence that our
soldiers and CIA operative never saw. I think we have a military
commission model that affords due process under the law of war that our
Nation can be proud of, that will work in a way to render justice, and
if a condition is abstained, it will be something we can be proud of as
a nation. I am hopeful that the world would see the condition based on
evidence, not vengeance.
My goal is to render justice to the terrorists, even though they will
not render justice to us. That is a big distinction.
People ask me, Why do you care about the Geneva Conventions? These
people will cut our heads off and they will kill us all. You are
absolutely right. Why do I care?
Because I am an American. And we have led the way for over 50-
something years when it comes to the Geneva Conventions applications.
I am also a military lawyer, and I can tell every Member of this
body--some of them have served in combat unlike myself; some know
better than I. But we have had downed pilots in Somalia. A helicopter
pilot was captured by militia in Somalia. We dropped leaflets all over
the city of Mogadishu. We told the militia leaders, ``If you harm a
helicopter pilot, you will be a war criminal.'' We blared that
throughout town on loudspeakers with helicopters. After a period of
time, they got the message, and he was released.
We had two pilots shot down over Libya when Reagan bombed Qadhafi. I
was on active duty in the Air Force. We told Qadhafi directly and
indirectly, if they harm these two pilots, they will be in violation of
the Geneva Conventions, and we will hunt you down to the ends of the
Earth.
I want to be able to say in future wars that there is no reason to
abandon our Geneva Conventions obligations to render justice to these
terrorists.
So not only do we have a military commission model that is Geneva
Conventions compliant; we have a model that I think we should be proud
of as a nation.
The idea that the changes between the committee bill and the
compromise represents some grave departure, quite frankly, I vehemently
disagree with. I didn't get into this discussion and political fight to
take all the heat that we have taken to turn around and do something
that undercuts the purpose of being involved in it to begin with. The
evidentiary standard that will be used in a military commission trial
of an enemy combatant was adopted from the International Criminal
Court.
I will place into the Record statements from every Judge Advocate
General in all four branches of the services that have certified from
their point of view that the evidentiary standard that the judge will
apply to any statements coming into evidence against an enemy combatant
are legally sufficient, will not harm our standing in the world, and,
in fact, are the model of the International Criminal Court which try
the war criminals on a routine basis.
The provision I added, along with Senator McCain, dealing with the
provisions of the Detainee Treatment Act, 5th, 8th, and 14th amendment
concepts within the Detainee Treatment Act, will also be a standard in
the future designed to reinforce the relevance of the Detainee
Treatment Act in our national policy, in our legal system, not to
undermine anything but to enforce the concept the Detainee Treatment
Act and the judicial standard that our military judges will apply to
terrorists accused is the same that is applied in International
Criminal Court.
I have been a member of the JAG court for over 20 years. I have had
the honor of serving with many men and women who will be in that court-
martial scene. The chief prosecutor, Moe Davis, I met as a captain.
There is no finer officer in the military than Colonel Davis. He is
committed to render justice. I am very proud of the fact that the men
and women who will be doing these military commissions believe in
America just as much as anybody I have ever met, and they want to
render justice.
What else do we try to accomplish?
We reauthorize the military commissions in a way to be Geneva
Conventions-compliant to afford the defendants accused due process in
the way that will not come back to haunt us.
What else did we have to deal with? A CIA program that is classified
in nature that needs to continue. There is a debate in this country:
Should we have a CIA interrogation program classified in nature that
would allow techniques not in the Army Field Manual to get good
intelligence from high value targets? The answer, from my point of
view, is yes, we should, but not because we want to torture anybody,
because we want to be inhumane as a nation. The reason we need a CIA
program classified in nature to get good information is because in this
war information saves lives.
Mutual assured destruction was the concept of the Cold War, where if
the Soviet Union attacked us, they knew with certainty they would be
wiped out. That concept doesn't work when your enemy doesn't mind
killing themselves when they kill you. The only way we will protect
ourselves effectively is to know what they are up to before they act.
The way you find that out is to have good intelligence. But you have to
do it with your value system.
Abu Ghraib was an aberration, but it has hurt this country. Anytime
the world believes America has adopted techniques and tactics that are
not of who we are, we lose our standing. So what we did regarding the
CIA, we redefined the War Crimes Act to meet our Geneva Conventions
obligations. The test for the Congress was, how can you have a
clandestine CIA program and then not run afoul of the Geneva
Conventions? What are the Geneva Conventions requirements of every
country that signs the treaty to outlaw domestically gray areas of the
treaty?
In Article 129 and 130 of the Geneva Conventions, it puts the burden
on each country to do it internally, to create laws to discipline their
own personnel who may violate the treaty in a grave way. It lists six
offenses that would be considered grave breaches of the treaty under
the conventions. Those six offenses were taken out of the treaty and
put in our domestic law, title 18, the War Crimes Act, and anybody in
our Government who violates that War Crimes Act is subject to being
punished as a felon.
We added three other crimes we came up with ourselves.
Torture has always been a crime, so anyone who comes to the Senate
and says the United States engages in torture, condones torture, that
this agreement somehow legitimizes torture, you don't know what you are
talking about. Torture is a crime in America. If someone is engaged in
it, they are subject to being a felon, subject to the penalty of death.
Not only is torture a war crime, serious physical injury, cruel and
inhumane treatment mentally and physically of a detainee is a crime
under title 18 of the war crimes statute.
Every CIA agent, every military member now has the guidance they need
to understand the law. Before we got involved, our title 18 War Crimes
Act was hopelessly confusing. I couldn't understand it. We brought
clarity. We have reined in the program. We have created boundaries
around what we can do. We can aggressively interrogate, but we will not
run afoul of the Geneva Conventions. We are not going to let our people
commit felonies in the name of getting good information, but now they
know what they can and cannot do.
Who complies with that treaty? Who is it within our Government who
would implement our obligations under the treaty? The Congress has
decided what a war crime would be to prohibit grave breaches of the
treaty. The President, this President, like every other President,
implements treaties. So what we
[[Page S10394]]
said in this legislation, when it comes to nongrave breaches, all the
other obligations of the Geneva Conventions, the President will have
the responsibility constitutionally to comply with those obligations,
not to rewrite title 18, not to sanction torture, not to violate the
Detainee Treatment Act, but to fulfill the treaty the way every other
President has in our constitutional history. That is all we have done.
To say otherwise is just political rhetoric. Not only have we allowed
the CIA program to go forward in a way not to violate the Geneva
Conventions, we have delegated to the President what was already our
constitutional responsibility to enforce the treaty--not to rewrite it
but to enforce it and fulfill it.
My concern was that in the process of complying with Hamdan, we would
be seen by the world as redefining the treaty for our own purposes. We
have not redefined the Geneva Conventions. We have, for the first time
in our domestic law, clearly defined what a crime would be against the
Geneva Conventions, and we have told the President, as a Congress: It
is your job to fulfill the other obligations outside of criminal law.
That is the way it should be, and it is something of which I am
extremely proud.
We have been at war for over 5 years. Here we are 5 years later
trying to figure out the basic legal infrastructure. It has been
confusing. It has been contentious. We have had two Supreme Court cases
where the Government's work product was struck down.
My hope is that our homework will be graded by the Supreme Court,
that this bill eventually will go to our Federal courts, as it should,
and the courts will say the following: the military commissions are
Geneva Conventions compliant and meet constitutional standards set out
by our country when it comes to trying people.
I am confident the court will rule that way. I am confident the
Supreme Court will understand that the power we gave the President to
fulfill the treaty is consistent with his role as President and the war
crimes we have written to protect the treaty from a grave breach from
our own people is written in a way to sustain legal scrutiny.
I am also confident that Congress has finally cleared up what has
been a huge problem. What role should a judge have in a time of war?
Who should make the decision regarding enemy combatant status?
In every war we have been in up until now, the military has decided
the battlefield issues. Under the Geneva Conventions, it is a military
decision to consider who an enemy combatant is. The habeas cases that
have existed in our courts from the last 3 or 4 years have led to
tremendous chaos at Guantanamo Bay. Our own troops are being sued by
the people we are fighting. They are bringing every kind of action you
can think of into Federal courts. Over 200 cases have been filed. It is
impeding the war effort.
A judge should not make a military decision during a time of war. The
military is far more capable of determining who an enemy combatant is
than a Federal judge. They are not trained to do that.
We have replaced a system where the judges of this country can take
over military decisions and allow judges to review military decisions,
once made, for legal sufficiency. That is the way every other country
in the world does it. Habeas has no place in this war for enemy
prisoners. The Germans and the Japanese--no prisoner in the history of
the United States has ever been able to go to a Federal court and sue
the people they are fighting who are protecting us against the enemy.
We are allowing the Federal courts to review every military decision
made about an enemy combatant as to whether they made the right
decision based on competent evidence and whether the procedures they
used are constitutional. We have rejected the idea as a Congress of
allowing the courts to run the war when it comes to defining who an
enemy combatant is. That was a decision which needed to be made. It is
not destroying the writ of habeas corpus. It is having a rational,
balanced approach to where the judges can play a meaningful role in
time of war and not play a role they are not equipped to play. This
will mean nothing if it does not withstand court scrutiny.
I hope soon we will have an overwhelming vote for the final product
after the amendments are disposed of. My goal for 2 years has been to
try to find national unity, to have the Congress, the executive branch,
and eventually the courts on the same sheet of music where we can tell
the world at large that we have detention policies, interrogation
policies, and confinement policies that not only are humane and just
but will allow us to protect ourselves from a vicious enemy and live up
to our obligations as a nation. We are very close to that day coming.
I thank every Member of this Senate who has worked to make this
product better. When you cast a vote, please remember, we are at war,
we are not fighting crime.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, we now have an additional speaker, the
Senator from Texas.
As the Senator from South Carolina has just completed his remarks, I
have to say it has been an unusual experience for all of us these past
weeks. Working together with Senator McCain and the Senator from South
Carolina has enabled this Senate to proceed in a way that is consistent
with Senate practices: namely, have a committee go through a bill, have
a markup, and then proceed to work on a product. It brought together
the consensus.
I say to my friend from South Carolina, although I have had some
modest experience as Secretary of the Navy dealing with court-martials,
and, indeed, when I was a young officer in the Marines, I was involved
in court-martials, the Senator brought together in this bill, in this
deliberation, a very special expertise of the years he has had.
Now he is a full colonel in the U.S. Air Force and a Judge Advocate
General recognition. I thank the Senator for his invaluable
contribution to putting the series of bills we have had--putting into
those bills matters which he believed were in the best interests of the
men and women of the Armed Forces and, indeed, his consultation
throughout this process with the Judge Advocate Generals and other past
and present Judge Advocates and some of the younger officers who will
be future Judge Advocate Generals. I thank the Senator from South
Carolina for his strong contribution to this deliberative process in
the Senate.
Now I yield the floor to our last speaker before we proceed to the
votes. As I understand, we will be voting at the conclusion of this
statement?
Mr. LEVIN. I don't know if the unanimous consent agreement has been
finished yet. That is our hope.
Mr. WARNER. We are finishing a unanimous consent request, but I alert
the Senate that it is my strong hope and prediction we will soon be
voting in sequence on three amendments.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I first compliment the distinguished
chairman of the Senate Committee on Armed Services, the Senator from
Virginia, for being the calm and steady hand on the rudder during the
course of the discussions and debates involving this important piece of
legislation. His work and demeanor have always been constructive and
civil, and any disagreements we have had are befitting of the great
traditions of this institution. I thank him for that.
Mr. WARNER. If I may, I thank the Senator from Texas. Several times
we came to the Senator's office in the course of the deliberations on
this bill because the Senator, too, brings to the debate a vast
experience, having risen through the ranks of the legal profession to
become a judge in his State. The Senator is very well equipped and did
provide a very valuable input into this debate.
Mr. CORNYN. My thanks to the Senator from Virginia.
Mr. President, not everyone who has been engaging in this debate has
been as constructive. We have heard some outlandish statements that
bear correction, some suggesting this bill would actually permit the
use of torture. Nothing--nothing--could be further from the truth. In
fact, what this bill does is make sure that the provisions of the
Detainee Treatment Act,
[[Page S10395]]
which were passed in December of 2005 in this same Senate, that ban
torture, cruel, inhuman, and degrading treatment of detainees, that we
comply with those laws which reflect upon our international treaty
obligations as well as our domestic laws and which reflect our American
values.
We are a nation at war. But there is no equivalency with the way this
war is fought and prosecuted by the United States and our allies, no
equivalency with the manner in which the war is prosecuted by our
enemies. We have learned that our enemies have been at war against us
for much longer than just September 11, 2001, and date back many years
before we even realized America was under attack.
We know that this enemy, represented by Islamic extremism, justifies
the use of murder against innocent civilians in order to accomplish its
goals.
America complies with all of its international treaty obligations and
domestic laws. What this bill is about is to try to provide our
intelligence authorities the clear direction they need so they know how
to comply with those laws and, at the same time, preserve an absolutely
critical means of collecting intelligence through the interrogation of
high-value detainees at Guantanamo Bay.
But no civilian employee of the U.S. Government working at the CIA or
elsewhere is going to risk their career, their reputation, and their
assets using some sort of cloudy law or gray law that does not make
clear what is permitted and what is not permitted. This bill we are
prepared to pass in a few minutes provides that kind of clear
direction. What it says is that we in the U.S. Congress are stepping up
to take the responsibility ourselves to provide that kind of clarity
that will allow our intelligence authorities to gain this important
intelligence while at the same time be secure in the knowledge that
what they are doing fully complies with our law, including our
international treaty obligations.
We know the aggressive interrogation techniques that are legal under
the provisions of the McCain amendment in the Detainee Treatment Act
have provided much valuable intelligence that has saved American lives.
We know the CIA's high-value terrorist detainee program works. For
example, detainees have provided the names of approximately 86
individuals whom al-Qaida deemed suitable for Western operations. Half
of these individuals have now been removed from the battlefield and are
no longer a threat to the United States of America or our allies.
This program is effective and has saved American lives and must be
preserved. Yet there are people who would go so far as to intimate that
we are torturing people. But we are not torturing people. But we are
using legal, aggressive interrogations consistent with the U.S.
Constitution, U.S. laws, and our treaty obligations. In doing so, we
are keeping faith with the American people that the Federal Government
will use every legal means available to us to keep the American people
safe.
Now, we may disagree--and we do disagree on the Senate floor--with
the level of rights that an accused terrorist should have. I happen to
believe these individuals, who are high-value detainees at Guantanamo
Bay, do not deserve the same panoply of rights preserved for American
citizens in our legal system. But I would hope that we would all agree
that the CIA interrogation program must continue. We must not allow the
brave patriots who conduct these interrogations to be at risk
unnecessarily by providing a gray zone as opposed to absolute clarity
insofar as it is within our power to give it so that we may interrogate
these captured terrorists to the fullest extent of the law.
To suggest that we are somehow torturing individuals or violating our
own laws that we passed just last year in the Detainee Treatment Act
under the McCain amendment banning torture, cruel and inhuman
treatment, is absolutely untrue and irresponsible. The American people
have a right to believe we will use every legal tool available to us to
help keep them safe against this new and different type of enemy.
Let me just say a word about who that enemy is. We have heard we are
engaged in a global war on terror, and that is absolutely true. But it
does not necessarily tell us who that enemy is. Unfortunately, it is an
enemy that has hijacked one of the world's great religions, Islam, in
pursuit of their extremist goals that justifies the murder of innocent
civilians in order to accomplish those goals.
Some on the Senate floor have said this debate is all about Iraq. It
is not just about Iraq. If it were just about Iraq, how would those
critics explain the attempted terrorist plot that was broken up at
Heathrow Airport just a few short weeks ago, or the attacks in Madrid
or Beslan in Russia or Bali or elsewhere or, for that matter, New York
and Washington, DC?
The fact is, we have prevented another terrorist attack on our own
soil by using this interrogation program to allow us to detect and
deter and disrupt terrorist activity, and the fact we have also taken
the fight on the offensive where the terrorists plot, plan, train, and
try to export their terrorist attacks to the United States and
elsewhere.
If we would do what some would apparently want us to do and simply
pull the covers over our head and wish the bad people would go away,
America would be less safe and we would not be able to stand here and
say that due to the vigilance of the American people, due to the
vigilance of the U.S. Congress and the executive branch of Government,
we have been successful, thank goodness, in preventing another
terrorist attack on our own soil, after 5 years from September 11,
2001.
So, Mr. President, I hope our colleagues will vote against these ill-
advised amendments to this bill and will send a clean bill to be
reconciled with the House version and sent to the President right away
so that before too long we can see that some of the war criminals who
sit detained at Guantanamo Bay may be brought to justice, people like
Khalid Shaikh Mohammed, who was the mastermind of the 9/11 plot that
killed nearly 3,000 Americans.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Chafee). The Senator from Virginia.
Mr. WARNER. Mr. President, I thank my distinguished colleague from
Texas. He has been a valuable addition to those who are trying to
structure this piece of legislation.
Momentarily, I will seek a unanimous consent request ordering the
votes and the allocation of such time as remains between Senators.
So at this point in time, I will suggest the absence of a quorum,
unless the Senator from Massachusetts would like to take the additional
3 minutes that he has at this time on his amendment.
Mr. KENNEDY. Yes.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, just quickly, the proceedings we are
going to have--if I can inquire--I use the 3 minutes, and then we are
moving toward a series of votes; is that right?
Mr. WARNER. That is correct, I say to the Senator.
Mr. KENNEDY. Then, I would ask when I have 30 seconds left--Mr.
President, I have 3\1/2\ minutes; am I correct?
The PRESIDING OFFICER. Three minutes.
Mr. KENNEDY. Three minutes.
Mr. WARNER. Mr. President, I may have misunderstood my colleague.
That is the 3 minutes remaining on your amendment held in abeyance.
Mr. KENNEDY. That is correct.
Mr. President, I yield myself the 3 minutes.
Amendment No. 5088
Mr. President, just for the benefit of the membership, in my hand is
the Army manual. In the Army manual are the prohibitions for
instructions to all the interrogators of the United States, that they
cannot use these kinds of harsh tactics which have been recognized by
Members as torture.
This amendment says if any country is going to use those similar
tactics against those who would be representing the United States in
the war on terror--for example, the Central Intelligence Agency; for
example, the SEALs; for example, contractors working for the
intelligence agency--then they will have committed a war crime.
I reviewed earlier in the debate where we have prosecuted Japanese
and other war crimes, giving them 10 or 15 years, and even execution
when they went ahead with this. That is why this is so important.
Now, my good friend, the chairman of the committee, says we cannot do
it
[[Page S10396]]
because it violates the Constitution because it is instructing--
instructing--the President of the United States through the State
Department to notify the 194 countries.
Well, we thought it was not unconstitutional on the Port Security
Act, when we said:
When the Secretary . . . , after conducting an assessment .
. . , decides that an airport does not maintain and carry out
effective security measures, the Secretary . . . shall notify
the appropriate authorities of the government of the foreign
country. . . .
Here is port security.
Here is on the pollution issues:
The Secretary of State shall notify without delay foreign
states concerned. . . .
That is the second one.
And I have the third illustration in terms of foreign carriers.
In 15 minutes we got these cases. And here we are going to say we are
going to refuse to protect Americans who are on the cutting edge of the
war on terror because we will not let our State Department go on an e-
mail and notify the 192 countries because that is unconstitutional? If
the chairman of the Armed Services Committee feels that way, we could
strike that provision and just say it is the policy of the United
States. Then we would not be instructing anyone. Either way, this is
about protecting Americans. It is about protecting Americans.
I believe those Americans who are out there in the hills and in the
mountains of Afghanistan today and tonight, those people who are in the
hills and mountains and deserts of Iraq, those people who are out in
Southeast Asia or all over the world in order to try to deal with the
problems of terrorism ought to know, if they are in danger of getting
captured, if any of their host countries are going to perform this kind
of procedure and torture on them, they will be war criminals.
That is what this amendment is about. I hope it will be accepted. It
should be.
Mr. President, I yield what time I have to my ranking member.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WARNER. Mr. President, at this time we are waiting for clearance
by the leadership of the UC. But I will ask at this time we get the
yeas and nays on all the votes, the amendments and final passage.
Mr. ROCKEFELLER. Mr. President, without objecting, does any unanimous
consent request allow me to close on my amendment for 2 minutes?
Mr. WARNER. Mr. President, the UC, as presently drafted, gives 2
minutes to each side for the purpose of addressing amendments.
Mr. ROCKEFELLER. I thank the Senator.
Mr. WARNER. Mr. President, I once again restate the request for the
yeas and nays on the amendments and final passage. I ask unanimous
consent that it be in order to ask for the yeas and nays on the
amendments and final passage.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I ask for the yeas and nays on the
amendments and final passage.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. WARNER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I ask unanimous consent that any remaining
time be yielded back, other than as noted below, and that the Senate
proceed to votes in relation to the amendments in the following order:
The Rockefeller amendment No. 5095, the Byrd amendment No. 5104, and
the Kennedy amendment No. 5088.
I further ask unanimous consent that there be 4 minutes for debate,
equally divided, prior to each of the above votes.
I further ask unanimous consent that prior to passage of the bill,
Senator Leahy be recognized for his remaining 12 minutes and, as set
forth in the initial unanimous consent request, which was provided for
under the original consent order, Senator Levin be in control of 4
minutes, Senator Warner in control of 16 minutes, to be followed by
closing remarks by the two leaders and, following that time, the Senate
proceed to passage of the bill; further, that there then be 5 minutes
equally divided prior to the vote on invoking cloture on the border
fence legislation; provided further that with respect to the border
fence bill, it be in order to file second degrees at the desk no later
than 5 p.m. today under the provisions of rule XXII.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Mr. President, reserving the right to object, I did not
understand the part about the fence.
Mr. WARNER. Can the Senator repeat that?
Mr. LEAHY. I did not understand the part about the timing of the
fence bill.
Mr. WARNER. I will repeat it.
Mr. LEAHY. Just that part.
Mr. WARNER. It reads as follows: Following that time, the Senate
proceed to passage of the bill; further, there then be 5 minutes
equally divided prior to the vote on invoking cloture on the border
fence legislation; provided further that with respect to the border
fence bill, it be in order to file second degrees at the desk no later
than 5 p.m. today under the provisions of rule XXII.
Mr. LEAHY. Mr. President, even though I believe we have made a
terrible and tragic mistake in the Senate, including major changes in
our constitutional rights willy-nilly to get out to campaign, I realize
they have locked this in and there is not much one can do about it. I
think it is a farce in the Senate.
Mr. WARNER. Mr. President, I renew the unanimous consent request.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Amendment No. 5095
There will now be 4 minutes of debate, equally divided, on the
Rockefeller amendment.
The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, my amendment would require, as I
explained this morning, the CIA to provide the Congressional
Intelligence Committees, which are required by law to be informed of
what is going on in the intelligence world, fully the most basic and
fundamental information it needs to oversee the CIA detention and
interrogation program.
Frankly, for the past 4 years we have not had that information. The
administration has withheld this information from us. I am not saying
that in partisan fashion. It is a fact.
It has been very frustrating as a member of the Intelligence
Committee, much less as a Member of the Senate. We have made repeated
requests and the Intelligence Committee has been prevented from
carefully reviewing the program. The program has operated, as a result,
without any meaningful congressional oversight whatsoever, and that is
our responsibility under the law.
All of my colleagues should be troubled by this fact. We cannot
assure ourselves, we cannot assure the American people, and we cannot
assure our agents overseas that the CIA program is both legally sound
and effective, without the basic information required under my
amendment.
My amendment is simply about oversight and accountability, nothing
more, nothing less. Nothing in the amendment would require the public
disclosure of any classified document or aspect of the CIA program.
Mr. President, I ask unanimous consent that Senator Feinstein be
added as a cosponsor of my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, I spoke in strong opposition to this
amendment. Again, I think it tries to displace the oversight that is
performed by the Intelligence Committee. I would like to add the
following bit of information.
On September 28 of this year, GEN Michael V. Hayden, who is the
current Director of the CIA, wrote a letter to Chairman Pat Roberts of
the Intelligence Committee in the Senate. In it he said:
On September 6, 2006, I briefed the full SSCI membership on
key aspects of the detainee program, providing a level of
detail
[[Page S10397]]
previously not made available to SSCI members. I made clear
to the committee that upon passage of the new detainee
legislation, I would brief the SSCI on how CIA would execute
the future program, and I agreed to promptly notify the
committee when any modifications to the program were
proposed, or when the status of any individual detainee
changed.
I think that is dispositive of a very clear indication by the
executive branch to allow the Senate to perform its oversight through
the properly designated committee, the Senate Committee on
Intelligence.
Mr. ROCKEFELLER. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WARNER. Mr. President, I ask unanimous consent that this letter
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Central Intelligence Agency,
Washington, DC, September 28, 2006.
Hon. Pat Roberts,
Chairman, Select Committee on Intelligence,
United States Senate, Washington, DC.
Dear Mr. Chairman: I write today regarding the Rockefeller
amendment to the military commissions legislation now pending
on the Senate floor. The CIA strongly opposes adoption of the
Rockefeller amendment.
Since the inception of its detention program, the CIA has a
strong and consistent record of keeping its oversight
committees fully and currently informed of critical aspects
of the program. Further, the bipartisan leadership of
Congress has been briefed regularly by the CIA on this
program since its inception, and I personally briefed the
Majority and Minority Leaders of the Senate only weeks ago.
The CIA remains committed to a frank and open dialogue with
the Congress on detailed aspects of the detainee program,
while ensuring the secrecy of this particularly sensitive
activity. Senate adoption of the Rockefeller amendment would
go far beyond traditional CIA reports to Congress by
mandating detailed information about assets, methods,
locations and individuals involved in sensitive operations.
In addition, detailing in public law the amount of sensitive
information that CIA must provide to Congress will chill some
of our counterterrorism partners whose cooperation is fully
conditioned on the absolute secrecy of their support.
Since becoming Director of the CIA, I have made every
effort to keep your committee apprised of the status of the
detainee program. In July, I updated you and SSCI Vice
Chairman Rockefeller on the program, sharing sensitive
aspects, including information about specific detainees,
examples of actionable intelligence gained from the program
and about ways in which the program could continue to be
successful in the future. Following this briefing and despite
its highly sensitive nature, at your request--and that of
Sen. Rockefeller--I fully supported briefing the entire SSCI
membership.
On September 6, 2006, I briefed the full SSCI membership on
key aspects of the detainee program, providing a level of
detail previously not made available to SSCI members. I made
clear to the committee that upon passage of new detainee
legislation, I would brief the SSCI on how CIA would execute
the future program and I agreed to promptly notify the
committee when any modifications to the program were proposed
or when the status of any individual detainee changed.
Upon Senate passage of the military commissions
legislation, I stand ready to again brief your committee and
the bipartisan Senate leadership on the future of the
detainee program.
Sincerely,
Michael V. Hayden,
General, USAF Director.
Mr. WARNER. Mr. President, are we prepared to move to a vote?
The PRESIDING OFFICER. Yes. The question is on agreeing to the
amendment of the Senator from West Virginia.
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Maine (Ms. Snowe).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 46, nays 53, as follows:
[Rollcall Vote No. 256 Leg.]
YEAS--46
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Stabenow
Wyden
NAYS--53
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Roberts
Santorum
Sessions
Shelby
Smith
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Snowe
The amendment (No. 5095) was rejected.
Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 5104
The PRESIDING OFFICER. There will now be 4 minutes equally divided on
the Byrd amendment.
Who yields time?
The Senator from West Virginia is recognized.
Mr. BYRD. Friends, Senators, lend me your ears. Friends, Senators,
lend me your ears. I voted to report a fair and balanced bill from the
Armed Services Committee, but the legislation before the Senate today
bears little resemblance to that legislation. It has been changed so
many times, we don't know the real implications of this ever-changing
bill. The Byrd-Obama-Clinton-Levin amendment sunsets the authority of
the President to convene new military commissions after 5 years. There
is nothing wrong with that.
This amendment ensures that Congress will not simply stand aside and
ignore its oversight responsibilities after this bill is enacted. This
amendment will not stop any trials of suspected terrorists that
commence before the sunset date. It simply forces Congress to revisit--
revisit--the weighty constitutional implications of this bill in 5
years' time and then be in a position, on the basis of new knowledge
and experience, to make a decision again.
It is a very reasonable amendment. I urge my colleagues to support
it.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, I say to our most distinguished senior
colleague that this amendment was well debated on the floor, but I
would bring to the attention of all Senators that we do not have any
estimates of how long the war on terrorism against the jihadists is
going to take place. We may be having those who commit crimes today not
apprehended until after this sunset provision. Then they go free. They
are not subject, unless the Senate at that time somehow restores the
importance of the next President to continue--to continue, Mr.
President--bringing to justice and trial under our rules these
individuals who are committing war crimes. So I urge all Senators to
oppose this amendment.
Mr. BYRD. Mr. President, do I have any time remaining?
The PRESIDING OFFICER. The Senator has 36 seconds.
Mr. BYRD. This amendment will not set any terrorists free. Let
Senators who are here 5 years from now take a new look on the basis of
experience and make a decision in the light of the then circumstances.
That is all I am asking. This is nothing new.
The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the Byrd amendment No. 5104.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Maine (Ms. Snowe).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 47, nays 52, as follows:
[Rollcall Vote No. 257 Leg.]
YEAS--47
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
[[Page S10398]]
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Specter
Stabenow
Wyden
NAYS--52
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Roberts
Santorum
Sessions
Shelby
Smith
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Snowe
The amendment (No. 5104) was rejected.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. McCONNELL. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 5088
The PRESIDING OFFICER. There are 4 minutes equally divided on the
Kennedy amendment.
Mr. KENNEDY. Mr. President, here is the Army Manual of 2006 printed
after the Senate of the United States went on record in accepting the
McCain amendment prohibiting torture. In the printed Army Manual is a
list of the prohibited activities where any person who is a member of
the Defense Department is prohibited to engage in these kinds of
activities because they have made a finding that they are basically and
effectively torture.
Today we have thousands of Americans in the Central Intelligence
Agency, Special Forces, the SEALS, and American contractors working for
the CIA around the world fighting terrorism. All this amendment does is
give notice to each and every country that any country that is going to
practice these kinds of techniques on any American will be guilty
effectively of a war crime.
That is effectively what we have done with the Army Manual, and we
ought to protect our intelligence agency personnel, our SEALS, and all
of those who are all over the world protecting the United States.
Arguments against? It is a violation of the Constitution because it
is an instruction to a member of the Cabinet about what they ought to
do.
Here it is for airports. The Secretary of Transportation shall
conduct an assessment with foreign countries.
Here it is on voting rights. The Attorney General is authorized and
directed to institute suits that are going to be involved in poll
taxes.
The Secretary of State shall notify without delay foreign states that
are involved in pollution. The list goes on. If we can do it for
pollution, we can do it for violation of basic and fundamental rights
of Americans overseas.
This is effectively about what we adopted when we adopted the War
Crimes Act, which was virtually unanimous, with not a single vote in
opposition.
This is basically a restatement. I hope it will be accepted
overwhelmingly.
Mr. WARNER. Mr. President, this is an amendment that requires close
attention by all colleagues.
In the preparation of this bill, we defined in broad terms the
conduct that is regarded as a grave breach of Common Article 3. These
are war crimes. We the Congress should not try to provide a specific
list of techniques. We don't know what the future holds. That is not
the responsibility of the Congress. We are not going to direct. We try
to make a list of techniques, that the United States describe every
technique that violates Common Article 3. We cannot foresee into the
future every technique that might violate Common Article 3. We should
not step on that situation. It is not ours to do.
Under the separation of powers, it is reserved to the executive
branch to work this out. But if at any time it is the judgment of any
Member of this body, or collectively, that we are not abiding by this
law, I am confident that this institution's oversight will correct and
quickly remedy the situation.
I yield the floor.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Maine (Ms. Snowe).
The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 46, nays 53, as follows:
[Rollcall Vote No. 258 Leg.]
YEAS--46
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Specter
Stabenow
Wyden
NAYS--53
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Snowe
The amendment (No. 5088) was rejected.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. I ask the Presiding Officer to read the unanimous consent
that is in place so all Members understand what is to take place.
The PRESIDING OFFICER. Senator Leahy will be recognized for his
remaining 12 minutes. Senator Levin is under the control of 4 minutes,
Senator Warner is under the control of 16 minutes, to be followed by
closing remarks by the two leaders. Following that time, the Senate
will proceed to passage of the bill. Further, that there then be 5
minutes equally divided prior to the vote on the motion to invoke
cloture on border fence legislation.
Mr. WARNER. The Chair will now recognize Senator Leahy?
Mr. LEVIN. Mr. President, my understanding is that was the allocation
of time, not necessarily the order of speaking.
The PRESIDING OFFICER. The agreement does not appear to be in any
particular order.
Mr. WARNER. Mr. President, at the appropriate time, I will allocate
14 minutes to the distinguished Senator from Arizona, Mr. McCain.
At this point in time, I recognize the extraordinary contributions of
the staff persons who worked on this bill, and I shall include the
entire list.
We worked under the direction of Charlie Abell, Scott Stucky, David
Morriss, Rick DeBobes, Peter Levine, Chris Paul, Pablo Chavez, Richard
Fontaine, Jen Olson, Adam Brake, James Galyean, and legislative counsel
Charlie Armstrong.
I assure Members it was a challenge from beginning to end. I cannot
recall seeing a more professional group of staffers serving their
Members in the Senate.
Mr. LEVIN. I suggest the absence of a quorum, and I ask unanimous
consent that the time not be charged to either side or to any party.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
[[Page S10399]]
The assistant legislative clerk proceeded to call the roll.
Mr. INHOFE. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous Consent Request--S. 2781
Mr. INHOFE. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar 625, S. 2781, and I
ask unanimous consent that the committee-reported amendment be, for the
third time, passed and the motion to reconsider be laid upon the table.
Mr. JEFFORDS. I object. I agree that wastewater security is an
important issue. In fact, it is made even more important because the
Homeland Security appropriations conferees have exempted these
facilities from security requirements--a decision that I understand was
due in large part to the Senator's opposition to including these
facilities within the protections of that bill.
Although I would like to have seen stronger chemical security
provisions than those I understand are forthcoming from the Homeland
Security appropriations conference, I anticipate supporting that
measure. I would support including wastewater facilities in that
measure. But I will not support a bill like S. 2781 that provides
weaker protections.
By contrast, I long ago introduced S. 1995, The Wastewater Treatment
Works Security Act of 2005. I feel certain that if I asked unanimous
consent to pass this bill, the Senator would object to my request. I
prefer a more constructive pathway to providing essential protection to
our communities.
We should fill this gap in our Nation's security, and in order to do
so, we need full and fair opportunity to offer amendments to cure the
serious deficiencies in this bill.
Mr. President, I ask unanimous consent to insert a statement in the
Record concerning my objection to consideration of the Wastewater
Security bill.
The PRESIDING OFFICER. The objection is heard.
Mr. INHOFE. Mr. President, I wanted to call the Senate's attention to
the fact we do have wastewater legislation that has passed both the
House and the Senate, in the House by a vote of 413 to 2. It is
something which is desperately needed. We need to attend to that as
soon as possible.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objction, it is so ordered.
COMMON ARTICLE 3 AND WAR CRIMES PROVISIONS OF THE MILITARY COMMISSIONS
ACT
Mr. LEVIN. Senators Warner and McCain, over the last year, you have
played an instrumental role in bringing needed clarity to the rules for
the treatment of detainees in U.S. custody. I understand that you also
played a key role in negotiating the provisions of the military
commissions bill regarding the War Crimes Act and Common Article 3 of
the Geneva Conventions. As you said last year when the Detainee
Treatment Act was adopted, this is not an area in which ambiguity is
helpful. For this reason, I hope that you will help me in providing a
clear record of our intent on these issues.
In particular, section 8(a)(3) of the bill provides that ``the
President has the authority for the United States to interpret the
meaning and application of the Geneva Conventions'', that these
interpretations shall be issued by Executive order, and that such an
Executive order ``shall be authoritative (as to non-grave breach
provisions of Common Article 3) as a matter of United States law, in
the same manner as other administrative regulations.''
Would you agree that nothing in this provision gives the President or
could give the President the authority to modify the Geneva Conventions
or U.S. obligations under those treaties?
Mr. McCAIN. First, I say to my good friend from Michigan that this
legislation clearly defines grave breaches of Common Article 3, which
are criminalized and ultimately punishable by death. It is critical for
the American public to understand that we are criminalizing breaches of
Common Article 3 that rise to the level of a felony. Such acts--
including cruel or inhuman treatment, torture, rape, and murder, among
others--will clearly be considered war crimes.
Where the President may exercise his authority to interpret treaty
obligations is in the area of ``nongrave'' breaches of the Geneva
Conventions--those breaches that do not rise to the level of a war
crime. In interpreting the conventions in this manner, the President is
bounded by the conventions themselves. Nothing in this bill gives the
President the authority to modify the conventions or our obligations
under those treaties. That understanding is at the core of this
legislation.
Mr. WARNER. I concur with the Senator from Arizona.
Mr. LEVIN. Would you agree that nothing in this provision gives the
President, or could give the President, the authority to modify the
requirements of the Detainee Treatment Act?
Mr. WARNER. The purpose of this legislation is to strengthen, not to
weaken or modify, the Detainee Treatment Act. For the first time, this
legislation is required to ``take action to ensure compliance'' with
the DTA's prohibition on cruel, inhuman, or degrading treatment, as
defined in the U.S. reservation to the Convention Against Torture. He
is directed to do so through, among other actions, the establishment of
administrative rules and procedures. Nothing in this legislation
authorizes the President to modify the requirements of the DTA, which
were enshrined in a law passed last December. I would point out as well
to the distinguished ranking member that the President himself never
proposed to weaken the DTA. Rather, he proposed to make compliance with
the DTA tantamount to compliance with Common Article 3 of the Geneva
Conventions. That proposal is not included in this legislation.
Mr. McCAIN. I agree entirely with Senator Warner's comments.
Mr. LEVIN. Would you agree that any interpretation issued by the
President under this section would only be valid if it is consistent
with U.S. obligations under the Geneva Conventions and the Detainee
Treatment Act?
Mr. McCAIN. That is correct.
Mr. WARNER. I agree.
Mr. LEVIN. Section 8(b) of the bill would amend the War Crimes Act to
provide that only ``grave breaches'' of Common Article 3 of the
Geneva Conventions constitute war crimes under U.S. law. The provision
goes on to define those grave breaches to include, among other things,
torture, and ``cruel or inhuman treatment''. The term ``cruel or
inhuman treatment' is defined to include acts ``intended to inflict
severe or serious physical or mental pain or suffering.''
Would you agree that the changes to the War Crimes Act in section
8(b) do not in any way alter U.S. obligations under the Geneva
Conventions or under the Detainee Treatment Act?
Mr. McCAIN. The changes to the War Crimes Act are actually a
responsible modification in order to better comply with America's
obligations under the Geneva Conventions to provide effective penal
sanction for grave breaches of Common Article 3. It is important to
note, as has the Senator from Michigan, that in this section ``cruel or
inhuman treatment'' is defined for purposes of the War Crimes Act only.
It does not infringe, supplant, or in any way alter the definition of
cruel, inhuman, or degrading treatment or punishment prohibited in the
DTA and defined therein with reference to the 5th, 8th, and 14th
amendments to the U.S. Constitution. Nor do the changes to the War
Crimes Act alter U.S. obligations under the Geneva Conventions.
Mr. WARNER. I would associate myself with the comments from the
Senator from Arizona.
Mr. LEVIN. Would you agree that nothing in this section or in this
bill requires or should be interpreted to authorize any modification to
the new Army Field Manual on interrogation techniques, which was issued
last month and provides important guidance to our solders on the field
as to what is and is not permitted to the interrogation of detainees?
Mr. WARNER. The executive branch has the authority to modify the Army
Field Manual on Intelligence Interrogation at any time. I welcomed the
new version of the field manual issued last
[[Page S10400]]
month and agree that it provides critical guidance to our solders in
the field. That said, the content of the field manual is an issue
separate from those at issue in this bill, and it was not my intent to
effect any change in the field manual through this legislation.
Mr. McCAIN. I concur wholeheartedly with the Senator from Virginia.
As the Senator form Virginia is aware, there is a provision in the bill
before the Senate that defines ``cruel and inhuman treatment'' under
the War Crimes Act. I would note first that this definition is limited
to criminal offenses under the War Crimes Act and is distinct from the
broader prohibition contained in the Detainee Treatment Act. That act
defined the term ``cruel, inhuman and degrading treatment'' with
reference to the reservation the United States took to the Convention
Against Torture.
In the war crimes section of this bill, cruel and inhuman treatment
is defined as an act intended to inflict severe or serious physical or
mental pain or suffering. It further makes clear that such mental
suffering need not be prolonged to be prohibited. The mental suffering
need only be more than transitory. It is important to note that the
``nontransitory'' requirement applies to the harm, not to the act
producing the harm. Thus if a U.S. soldier is, for example, subjected
to some terrible technique that lasts for a brief time but that causes
serious and nontransitory mental harm, a criminal act has occurred.
Mr. WARNER. That is my understanding and intent as well, and I agree
with the Senator's other clarifying remarks.
In the same section, the term ``serious physical pain or suffering''
is defined as a bodily injury that involves one of four
characteristics: ``a substantial risk of death,'' ``extreme physical
pain,'' ``a burn or physical disfigurement or a serious nature,'' or
``significant loss or impairment of the function of a bodily member,
organ or mental faculty.'' I do not believe that the term ``bodily
injury'' adds a separate requirement which must be met for an act to
constitute serious physical pain or suffering.
Mr. McCAIN. I am of the same view.
Mr. LEVIN. And would the Senator from Arizona agree with my view that
section 8(a)(3) does not make lawful or give the President the
authority to make lawful any technique that is not permitted by Common
Article 3 or the Detainee Treatment Act?
Mr. McCAIN. I do agree.
Mr. WARNER. I agree with both of my colleagues.
Mr. KENNEDY. Mr. President, in times of war, our obligation is to
protect our Nation and to protect those men and women who risk their
lives to defend us. This bill fails that duty. By failing to renounce
torture, it inflames an already dangerous world and makes new enemies
for America in our war against terror. This puts cause or people and
our troops at greater risk. That is why so many respected military
leaders oppose this bill.
Throughout our history, America has led the world in promoting human
rights and decency. We have fought wars against tyranny and oppression.
Our enemies have employed tactics that were rightly and roundly
condemned by the civilized world. We maintained American strength and
honor by refusing to stoop to the level of our enemies. And we should
not stoop to the level of the terrorists in the war on terror.
I rise to express my profound opposition to this bill both in terms
of its substance and the procedure by which it reached the floor. The
Armed Service Committee reported out a bill that I supported. That bill
was not perfect, but it preserved our commitment to the Geneva
Conventions, limited the possibility that detainees would be treated
abusively and set up procedures for military tribunals that generally
respected the fundamental requirements of fairness.
Republican members of the Armed Services Committee then began a
process of secret negotiation with the White House that produced a bill
that is far worse than the committee bill. Indeed, we have continued to
see changes in that bill as it has been moved toward the floor in a
rush to achieve passage before the Senate recesses for the election.
This rush to passage to serve a political agenda is no way to produce
careful and thoughtful legislation on profound issues of national
security and civil liberties. At this point, most Members of this body
hardly know what they are being asked to approve.
The bill as it now appears on the floor works profound and disastrous
changes in our law.
This legislation sets out an overly broad definition of unlawful
enemy combatant. This definition would allow the President to pick up
anyone citizen and legal residents included anywhere around the world,
and throw them into prison in Guantanamo without even charging or
trying them. These people would never get a day in court to prove their
innocence. There is no check whatsoever on the President's ability to
detain people in an arbitrary manner.
We already know that our military has made mistakes in detaining
people. We are currently holding dozens of people at Guanatanamo who we
know based on the military's own records are not guilty of anything.
Yet they have not been let go.
This legislation also makes a distinction between citizens and lawful
permanent residents. Citizens cannot be subject to military commissions
and their flawed procedures. Yet lawful permanent residents, those
green card holders who are on the path to citizenship, could be sent to
military commissions. Green Card holders must obey our laws, pay taxes,
and register for the draft. They are serving our country in Iraq. They
have an obligation to protect our laws, and they deserve the protection
of those same laws.
The Geneva Conventions were adopted in the wake of the horrific
atrocities during World War II. These conventions reflect the
international consensus on how individuals should be treated in times
of war. They set a minimum floor of humane treatment for all prisoners,
military and civilian alike. This floor is known as Common Article 3
because it is common to all of the conventions. Yet this bill also
gives the President authority to decide what conduct violates Common
Article 3 of the Geneva Conventions. Again, the President's authority
to define the meaning of Common Article 3 is virtually unreviewable. He
is required to publish his interpretation in the Federal Register, but
the administration has already made clear that it will not make public
which interrogation tactics are being used. Moreover, the bill
expressly states that the Geneva Conventions cannot be relied upon in
any U.S. court as a source of rights. The President's interpretation
may well likely escape judicial review, as well.
As the final method of concealing its activities, the administration
has stripped the courts of their ability to review the confinement or
treatment of detainees. The administration won a provision that
eliminates the ability of any detainee anywhere in the world to file a
habeas corpus petition challenging the justification for or conditions
of his or her confinement. The provision applies to all existing
petitions and would require their dismissal, including the Hamdan case
itself. There is no justification for stripping courts of jurisdiction
to issue the great writ of habeas corpus, which has been a foundation
of our legal system with roots in the Magna Carta. The availability of
the Great Writ is assured in the Constitution itself, which permits its
suspension only in times of invasion or rebellion. This provision of
the bill is most likely unconstitutional.
The administration has pursued a strategy to defeat accountability
since it first began to take detainees into custody. It chose
Guantanamo and secret prisons abroad because it thought U.S. law would
not apply. It fought hard to prevent detainees from obtaining counsel
and then argued that U.S. Courts lacked jurisdiction to hear detainees'
complaints. It sought the prohibition on habeas corpus petitions
adopted in the Detainee Treatment Act and then urged courts to
misconstrue it to wipe out all pending habeas cases. This new effort to
prohibit habeas petitions is a continuation of this effort to escape
judicial scrutiny.
The bill also for the first time in our history would authorize the
introduction of evidence obtained by torture in a judicial proceeding.
Our courts have always rejected this type of evidence
[[Page S10401]]
because it is inconsistent with fundamental notions of justice, and
also because it is unreliable. We know that detainees were subjected to
harsh interrogation techniques, and made statements as a result. Under
this legislation, if those statements were made before the passage of
the McCain Amendment last winter, then they are admissible. The
Congress is saying for the first time in our nation's history that
statements obtained by torture are admissible. This fact, alone, is a
stunning statement about how far we have strayed from our bedrock
values.
It defines conduct that can be prosecuted as a war crime in a very
narrow way that appears designed to exclude many of the abusive
interrogation practices that this administration has employed. While
some have argued that cruel and inhumane practices such as
waterboarding, induced hypothermia and sleep deprivation would surely
be covered, the White House and the Republican leadership have refused
to commit to this basic interpretation of the bill.
We tried to improve this bill. A number of amendments were offered
and should have been adopted. I offered an amendment that responds to
the lack of clarity about which practices are prohibited by the bill.
Because the administration has refused to commit itself to stop using
specific abusive interrogation procedures, our commitment to the
standards of Common Article 3 of the Geneva Conventions is in doubt.
That puts our own people at risk. As military leaders have repeatedly
stated, our adherence to the Geneva Conventions is essential to protect
our own people around the world. America has thousands of people across
the globe who do not wear uniforms, but put their lives on the line to
protect this country every day. CIA agents, Special Forces members,
contractors, journalists and others will all be less safe if we turn
our backs on the standards of Common Article 3.
The bill as it has reached the floor would diminish the security and
safety of Americans everywhere and further erode our civil liberties. I
strongly oppose this bill.
Mr. GRASSLEY. Mr. President, we hear on a daily basis about the war
we are currently engaged in, the war on terror, but I don't think most
of us stop to think about what that actually means.
As citizens of the greatest country in the world, we have become so
accustomed to all the rights afforded us by our Constitution that we
now take them for granted. We are incredibly fortunate to live in a
nation where our freedom and safety is our Government's first priority.
We aren't living in the world I grew up in. Our Nation was rocked to
its core 5 years ago when we were attacked on our own soil. Thousands
of innocent Americans were murdered simply because they lived in the
one country that, above all others, embodies freedom and democracy. The
mastermind behind those attacks was Khalid Shaikh Mohammed, who is now
in custody and soon will be brought to justice.
In the aftermath of these attacks, Congress authorized our President
to ``use all necessary force against those nations, organizations, or
persons he determines planned, authorized, committed or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such
organizations or persons.'' President Bush used this authorization,
combined with his constitutional powers to make these sorts of
judgments during times of war, to try enemy combatants in military
commissions.
Earlier this month, we observed the 5-year anniversary of the
horrific attacks on America. I cannot imagine the reaction that would
have come if, 5 years ago, Members of Congress had stood on this floor
and suggested that we wouldn't do all we could to prevent another
attack on our country. Five years ago, with the images of the
collapsing Twin Towers and the burning Pentagon and the smoldering
Pennsylvania field seared into our memories, we stood united in the
proposition that we intended to protect Americans first.
In Hamdan v. Rumsfeld, which the Supreme Court decided earlier this
year, the Court ruled that the administration's use of military
commissions to try unlawful enemy combatants violated international
law. This decision forced our interrogators, key in defending America
from terrorist attack, to curtail their investigations. Without a
clarification of the vague requirements, these interrogators might be
subject to prosecution for war crimes. It also brought to an end the
prosecution of unlawful enemy combatants through the military
commissions.
It is key to point out that military commissions have been used
throughout American history to bring enemy combatants to justice since
before the United States was even officially formed. George Washington
used them during the American Revolution, and since our Constitution
was ratified, Presidents have used military commissions to try those
who seek to harm Americans during every major conflict. Some of our
most popular Presidents from history have taken this route, including
Abraham Lincoln and Franklin Roosevelt. Whenever the leaders of this
great Nation have seen threats posed by those who refuse to abide by
the rules of war, they have taken the necessary steps to protect us.
Our President has come to us and asked for help in trying these
terrorists whose sole goal is to kill those who love freedom. He has
asked for our help in ensuring that those investigating potential
terrorist plots against our Nation and our citizens are secure from
arbitrary prosecution for undefined war crimes. These people are part
of our first line of defense in securing the safety of our country--we
owe it to them to protect them. Because of the Supreme Court's decision
in Hamdan, the only way these terrorists will be brought to justice and
our interrogators will be protected for doing their jobs is for
Congress to write a new law codifying procedures for military
commissions and clarifying our obligations under the Geneva
Conventions.
I firmly believe that enemy combatants in our custody enjoyed ample
due process in the military commissions established by the
administration, which were brought to a halt by the Supreme Court. The
compromise that we are considering here today gives more rights to
terrorists who were caught trying to harm America and our allies than
our own servicemembers would receive elsewhere, more than is required
by the Geneva Conventions--yet some are still demanding more.
Mr. President, it is essential that we protect human dignity at every
opportunity, but we have gone well beyond that with this legislation.
The legislation before us responds to the Supreme Court's decision in
Hamdan and seeks to protect national security while ensuring that the
terrorists who seek to destroy America are properly dealt with. This
bill affords these unlawful enemy combatants rights that they
themselves would never consider granting American soldiers. It is
beyond reasonable, beyond fair, and beyond time for Congress to act. We
must pass this bill and reinstate the programs that, I believe, have
been a crucial part of our Nation's security over the last 5 years.
Mr. WARNER. Mr. President, I ask unanimous consent to have printed in
the Record a joint statement regarding alleged violations of the Geneva
Conventions.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Joint Statement of Senators McCain, Warner, and Graham on Individual
Rights Under the Geneva Conventions, September 28, 2006
Mr. President, we are submitting this statement into the
record because it has been suggested by some that this
legislation would prohibit litigants from raising alleged
violations of the Geneva Conventions. This suggestion is
misleading on three counts.
First, it presumes that individuals currently have a
private right of action under Geneva. Secondly, it implies
that the Congress is restricting individuals from raising
claims that the Geneva Conventions have been violated as a
collateral matter once they have an independent cause of
action. Finally, this legislation would not stop in any way a
court from exercising any power it has to consider the United
States' obligations under the Geneva Conventions, regardless
of what litigants say or do not say in the documents that
they file with the court.
The Supreme Court's decision in Hamdan left untouched the
widely-held view that the Geneva Conventions provide no
private rights of action to individuals. And, in fact, the
majority in Hamdan suggested that the Geneva Conventions do
not afford individuals private rights of action, although it
did not need to reach that question in its decision. This
view has been underscored by judicial precedent--and even
Salim Hamdan
[[Page S10402]]
himself did not claim in his court filings that he had a
private right of action under Geneva.
Still, this legislation would not bar individuals from
raising to our Federal courts in their pleadings any
allegation that a provision of the Geneva Conventions--or,
for that matter, any other treaty obligation that has the
force of law--has been violated. It is not the intent of
Congress to dictate what can or cannot be said by litigants
in any case.
By the same token, this legislation explicitly reserves
untouched the constitutional functions and responsibilities
of the judicial branch of the United States. Accordingly,
when Congress says that the President can interpret the
meaning of Geneva, it is merely reasserting a longstanding
constitutional principle. Congress does not intend with this
legislation to prohibit the Federal courts from considering
whether the obligations of the United States under any treaty
have been met. To paraphrase an opinion written by Chief
Justice Roberts recently, if treaties are to be given effect
as Federal law under our legal system, determining their
meaning as a matter of Federal law is the province and duty
of the judiciary headed by the Supreme Court. So, though the
President certainly has the constitutional authority to
interpret our Nation's treaty obligations, such
interpretation is subject to judicial review. It is not the
intent of Congress to infringe on any constitutional power of
the Federal bench, a co-equal branch of government.
Most importantly, the lack of judicial enforceability
through a private right of action has absolutely no bearing
on whether Geneva is binding on the executive branch. Even if
the Geneva Conventions are not enforceable by individuals in
our Nation's courts, the President and his subordinates are
bound to comply with Geneva, a set of treaty obligations that
forms part of our American jurisprudence. That is clear to us
and to all who have negotiated this legislation in good
faith.
Mrs. BOXER. Mr. President, I view this bill as a weak plan that will
lead to delay after delay in convicting terrorists, endanger our troops
on the field, and surrender one of the bedrock constitutional
principles of our justice system--habeas corpus.
We had a chance to improve this bill with amendments, but this rubber
stamp Senate defeated them one after another, leaving us with a flawed
plan that will face a serious court challenge, and that makes us less
safe.
The Republicans even voted against a bipartisan bill that came out of
the Senate Armed Services Committee.
Mr. McCONNELL. Mr. President, I rise today in support of the Military
Commissions Act of 2006. I support this legislation, first and
foremost, because this bill recognizes that we are a Nation at war. We
are a Nation at war, and we are at war with Islamic extremists. We are
not conducting a law enforcement operation against a checkwriting scam
or trying to foil a bank heist. We are at war against extremists who
want to kill our citizens, cripple our economy, and discredit the
principles we hold dear--freedom and democracy.
Once you accept the premise that we are at war, the most important
consideration should be, Does this bill protect the American people? I
submit that this bill does just that. It does so by permitting the
President's CIA interrogation program to continue. This is of profound
importance.
If the attacks of September 11, 2001, taught us anything, it is that
self-imposed limitations on our intelligence-gathering efforts can have
devastating consequences. For instance, the wall of separation between
the intelligence community and the law enforcement community that
existed prior to 2001 proved to be an imposing hurdle to foiling the
September 11 attacks. According to the report of the 9/11 Commission,
in late summer 2001, the U.S. Government, in effect, conducted its
search for 9/11 hijacker Khalid Mihdhar with one hand tied behind its
back. As we all know, that search was unsuccessful. Comparable pre-9/11
efforts with respect to Zacarias Moussaoui were similarly frustrated in
large part due to this wall.
Thankfully, with the PATRIOT Act, we removed this wall of separation,
and now the intelligence and law enforcement arms of our Government can
share information and more effectively protect us here at home.
Another lesson of September 11 was the premium that should be placed
on human intelligence. Prior to September 11, we were woefully
deficient in our human intelligence regarding al-Qaida. Al-Qaida is an
extremely difficult organization to infiltrate. You can't just pay dues
and become a member. But interrogation offers a rare and valuable
opportunity to gather vital intelligence about al-Qaida's capabilities
and plans before they attack us.
The CIA interrogation program provided crucial human intelligence
that has saved American lives by helping to prevent new attacks. As the
President has explained, 9/11 mastermind Khalid Shaikh Mohammed told
the CIA about planned attacks on U.S. buildings in which al-Qaida
members were under orders to set off explosives high enough in the
building so the victims could not escape through the windows.
As the President also noted, the program has also yielded human
intelligence regarding al-Qaida's efforts to obtain biological weapons
such as anthrax. And it has helped lead to the capture of key al-Qaida
figures, such as KSM and his accomplice, Ramzi bin al Shibh.
Another means of evaluating the importance of this program is by
considering a grim hypothetical. What if al-Qaida or other terrorists
organizations were able to get their hands on nuclear, chemical, or
biological weapons and were trying to attack a major U.S. city?
Thousands or even millions of lives could be at stake. Under such a
chilling scenario, wouldn't we want our intelligence community to have
all possible tools at its disposal? Would we want our intelligence
community to respond with one hand tied behind its back as it did
before September 11?
Unfortunately, that threat is all too real. The potential for al-
Qaida to attack a U.S. city with a device that could kill millions of
people reflects how vital it is to permit the intelligence community to
make full use of the tools it needs to continue protecting American
lives. The compromise preserves this crucial intelligence-gathering
tool and allows the CIA and others on the front lines to continue
protecting America.
In addition, this bill protects classified information from being
released to al-Qaida terrorists. This also is a serious concern. The
identities of U.S. intelligence officials and informants--men and women
who put their lives at risk to defend this Nation--must be protected at
all costs.
If we needed any reminding why terrorists should not be given
sensitive information, we should just look at the prosecution of the
1993 World Trade Center bombers. According to the man who prosecuted
these Islamic extremists, intelligence from U.S. Government files was
supplied to the defendants through the discovery process.
This information was later delivered directly to Osama bin Laden
while he was living in Sudan. Let me repeat that. Information given to
the jihadist defendants, individuals who tried to destroy the World
Trade Center in 1993, was later given directly to bin Laden himself.
Since we are at war, we should not be revealing classified
information to the enemy. That is just common sense. This bill protects
classified information.
Finally, while this bill preserves our ability to continue to protect
America, it also provides detainees with fair procedural rights.
In fact, this legislation provides broader protections for defendants
than did Nuremberg. Liberal law professor Cass Sunstein has written
that the military commissions authorized by the President in 2001
``provide far greater procedural safeguards than any previous military
commission, including Nuremberg.'' Let me say that again: liberal law
professor Cass Sunstein noted that the President's 2001 military order
provided far greater procedural safeguards than any previous military
commission, including Nuremberg. And in this legislation, we provide
defendants with even broader procedural safeguards than the President's
2001 military order.
This system is exceedingly fair since al-Qaida in no way follows the
Geneva Conventions or any other international norm. Al-Qaida respects
no law, no authority, no legitimacy but that of its own twisted strain
of radical Islam.
Al-Qaida grants no procedural rights to Americans they capture. Look
at journalist Daniel Pearl, who was beheaded by al-Qaida in Pakistan in
2002. Al-Qaida simply executes those they capture, even civilians like
Pearl. Not only do they unapologetically kill innocent civilians, they
broadcast these brutal executions on the Internet for all to see.
[[Page S10403]]
Mr. President, I would just conclude by stating that this legislation
is vitally important. It is vitally important because it is wartime
legislation. It is vitally important because this bill protects our
national security, it protects classified information, and it protects
the rights of defendants. Most important, it protects America. For
these reasons, I urge its passage.
Mr. CORNYN. Mr. President, once the Military Commissions Act, MCA, is
signed into law and section 7 is effective, Congress will finally
accomplish what it sought to do through the Detainee Treatment Act--
DTA--last year. It will finally get the lawyers out of Guantanamo Bay.
It will substitute the blizzard of litigation instigated by Rasul v.
Bush with a narrow DC Circuit -only review of the Combatant Status
Review Tribunal--CSRT--hearings.
Perhaps even more important than the narrow standards of review
created by the DTA is the fact that that review is exclusive to the
court of appeals. This is by design. Courts of appeals do not hold
evidentiary hearings or otherwise take in evidence outside of the
administrative record. The DC Circuit will operate no differently under
the CSRT review provisions of the DTA. The circuit court will review
the administrative record of the CSRTs to make sure that the right
standards were applied, the standards that the military itself set for
CSRTs. And it will determine whether the CSRT system as a whole is
consistent with the Constitution and with Federal statutes.
There is no invitation in the DTA or MCA to reconsider the
sufficiency of the evidence. Weighing of the evidence is a function for
the military when the question is whether someone is an enemy
combatant. Courts simply lack the competence--the knowledge of the
battlefield and the nature of our foreign enemies--to judge whether
particular facts show that someone is an enemy combatant. By making
review exclusive to the DC Circuit, the DTA helps to ensure that the
narrow review standards it sets do not somehow grow into something akin
to Federal courts' habeas corpus review of State criminal convictions.
The court's role under the DTA is to simply ensure that the military
applied the right rules to the facts. It is not the court's role to
interpret those facts and decide what they mean.
Because review under the DTA and MCA will be limited to the
administrative record, there is no need for any lawyer to ever again go
to Guantanamo to represent an enemy combatant challenging his
detention. The military, I am certain, will make the paper record
available inside the United States. This is one of the major benefits
of enacting the MCA. As I and others have noted previously, the
hundreds of lawyer visits to Guantanamo sparked by Rasul have seriously
disrupted the operation of the Naval facility there. They have forced
reconfiguration of the facility and consumed enormous resources, and
have led to leaks of information that have made it harder for our
troops there to do their job, to keep order at Guantanamo. Some of
these detainee lawyers have even bragged about what a burden their
activities have been on the military, and how they have disrupted
interrogations at Guantanamo. Putting an end to that was the major
purpose of the DTA. Today, with the MCA, we see to it that this goal is
effectuated.
Another major improvement that the MCA makes to the DTA is that it
tightens the bar on nonhabeas lawsuits contained in 28 U.S.C.
Sec. 2241(e)(2). That paragraph, as enacted by the DTA, barred
postrelease conditions-of-confinement lawsuits, but only if the
detainee had been found to be properly detained as an enemy combatant
by the U.S. Court of Appeals on review of a CSRT hearing. Although
nothing in the DTA or MCA directly requires the military to
conduct CSRTs, this limitation on the bar to non-habeas actions
effectively did compel the military to hold CSRTs--and to somehow get
the detainee to appeal to the DC Circuit. The alternative would have
been to allow the detainee to sue U.S. troops at Guantanamo after his
release.
The MCA revises section 2241(e)(2) by, among other things, adopting a
much narrower exception to the bar on post-release lawsuits. Under the
MCA, 2242(e)(2) will bar nonhabeas lawsuits so long as the detainee
``has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.''
This new language does several things. First, it eliminates the
requirement that the DC Circuit review a CSRT, or that a CSRT even be
held, before nonhabeas actions are barred. This is important because
many detainees were released before CSRTs were even instituted. We do
not want those who were properly detained as enemy combatants to be
able to sue the U.S. military. And we do not want to force the military
to hold CSRT hearings forever, or in all future wars. Instead, under
the new language, the determination that is the precondition to the
litigation bar is purely an executive determination. It is only what
the United States has decided that will matter.
In addition, the language of (e)(2) focuses on the propriety of the
initial detention. There inevitably will be detainees who are captured
by U.S. troops, or who are handed over to us by third parties, who
initially appear to be enemy combatants but who, upon further inquiry,
are found to be unconnected to the armed conflict. The U.S. military
should not be punished with litigation for the fact that they initially
detained such a person. As long as the individual was at least
initially properly detained as an enemy combatant, the nonhabeas
litigation is now barred, even if the U.S. later decides that the
person was not an enemy combatant or no longer poses any threat. The
inquiry created here is not unlike that for reviewing, in the civilian
criminal justice context, the propriety of an arrest. An arrest might
be entirely legal, might be based on sufficient probable cause, even if
the arrestee is later conclusively found to be innocent of committing
any crime. The arresting officer cannot be sued and held liable for
making that initial arrest, so long as the arrest itself was supported
by probable cause, simply because the suspect was not later convicted
of a crime. Similarly, under 2241 (e)(2), detainees will not be able to
sue their captors and custodians if the United States determines that
it was the right decision to take the individual into custody.
Mr. SESSIONS. Mr. President, I would like to make a few comments
about section 7 of the bill that is before us today. This section makes
a number of improvements to the Detainee Treatment Act, which was
passed by the Congress and signed into law on December 30 of last year.
First, section 7 will fulfill one of the original objectives of the
DTA: to get the lawyers out of Guantanamo Bay. As my colleague Senator
Graham has noted, these lawyers have even bragged about the fact that
their presence and activities at Guantanamo have made it harder for the
military to do its job. Mr. Michael Ratner, the director of the Center
for Constitutional Rights, which coordinated much of the detainee
habeas litigation, had this to say about his activities to a magazine:
The litigation is brutal for [the United States.] It's
huge. We have over one hundred lawyers now from big and small
firms working to represent the detainees. Every time an
attorney goes down there, it makes it that much harder [for
the U.S. military] to do what they're doing. You can't run an
interrogation . . . with attorneys. What are they going to do
now that we're getting court orders to get more lawyers down
there?
This is what Congress thought that it was putting an end to when it
enacted the DTA in 2005. That act provided that ``no court, justice, or
judge shall have jurisdiction to hear or consider'' claims filed by
Guantanamo detainees, except under the review standards created by that
Act. The DTA was made effective immediately upon the date of its
enactment. And as Justice Scalia noted in his Hamdan v. Rumsfeld
dissenting opinion, the DTA's jurisdictional removal made no exception
for lawsuits that were pending when the statute was enacted. Justice
Scalia also pointed out that ``[a]n ancient and unbroken line of
authority attests that statutes ousting jurisdiction unambiguously
apply to cases pending at their effective date.'' He also noted that up
until the Hamdan decision, ``one cannot cite a single case in the
history of Anglo-American law . . . in which a jurisdiction-stripping
provision was denied immediate effect in pending cases, absent an
explicit statutory reservation.''
The Hamdan majority, on the other hand, found that the Supreme
Court's
[[Page S10404]]
precedents governing jurisdictional statutes were trumped in that case
by a legislative intent to preserve the pending lawsuits. This
congressional intent, the majority concluded, was manifested in minor
changes that had been made to the language of the bill and, most
expressly, in statements made by Senators regarding the intended effect
of the bill. As Senator Graham has explained in detail in remarks in
the Congressional Record on August 3, at 152 Cong. Rec. S8779, it
appears that the Supreme Court was misled about the legislative history
of the DTA by the lawyers for Hamdan. Those lawyers misrepresented the
nature of the statements made in the Senate and caused the court to
believe that Congress had an intent other than that reflected in the
text of the statute. It certainly was not my intent, when I voted for
the DTA, to exempt all of the pending Guantanamo lawsuits from the
provisions of that act.
Section 7 of the Military Commissions Act fixes this feature of the
DTA and ensures that there is no possibility of confusion in the
future. Subsection (b) provides that the bill's revised litigation bar
``shall take effect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or after the date of
the enactment of this Act which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an alien
detained by the United States since September 11, 2001.'' I don't see
how there could be any confusion as to the effect of this act on the
pending Guantanamo litigation. The MCA's jurisdictional bar applies to
that litigation ``without exception.''
The new bill also bars all litigation by anyone found to have been
properly detained as an enemy combatant, regardless of whether the
detainee has been through the DC Circuit under the DTA or has been
through a Combatant Status Review Tribunal hearing. The previous
version of this bar, in the DTA, allowed detainees to bring conditions-
of-confinement lawsuits after their release if their detention was not
reviewed by the DC Circuit. Obviously, the Government could not force
the detainee to appeal, and there are some who were released before
CSRT hearings were instituted. The new bill states that as long as the
military decides that it was appropriate to take the individual into
custody as an enemy combatant, as a security risk in relation to a war,
that person cannot turn around and sue our military after he is
released. It should not be held against our soldiers that they take
someone into custody, believing in good faith that he appears to be
connected to hostilities against the United States, and then determine
that the individual is not an enemy combatant and release the person.
The fact of release should not be an invitation to litigation, so long
as the military finds that it was appropriate to take the individual
into custody in the first place.
The biggest change that the MCA makes to section 2241(e) is that the
new law applies globally, rather than just to Guantanamo detainees. We
are legislating through this law for future generations, creating a
system that will operate not only throughout this war, but for future
wars in which our Nation fights. In the future, we may again find
ourselves involved in an armed conflict in which we capture large
numbers of enemy soldiers. It is not unlikely that the safest and most
secure place to hold those soldiers will be inside the United States.
The fact that we hold those enemy soldiers in this country should not
be an invitation for each of them to sue our Government. We held very
large numbers of enemy soldiers in this country during World War II.
They did not sue our Government seeking release. The Rasul decision
would seem to have required that enemy combatants held in this country
during wartime can sue. If that court allowed enemy combatants held in
Cuba to sue, it is inevitable that those held inside this country would
have been allowed to sue as well. That is simply not acceptable. It
would make it very difficult to fight a major war in the future if
every enemy war prisoner detained inside this country could sue our
military. Through section 7 of the MCA, we not only solve our current
problems with Guantanamo, but we plan for future conflicts as well. We
ensure that, if need be, we can again hold enemy soldiers in prison
camps inside our country if we need to, without becoming embroiled in a
tempest of litigation.
I imagine that, now that Congress has clearly shut off access to
habeas lawsuits, the lawyers suing on behalf of the detainees will
shift their efforts toward arguing for an expansive interpretation of
the judicial review allowed under the DTA. Paragraphs 2 and 3 of
section 1005(e) of the DTA allow the DC Circuit to review a CSRT enemy
combatant determination. The Government has provided a CSRT hearing to
every detainee held at Guantanamo, with the likely exception of those
transferred there this month, so all of those detainees will now be
allowed to seek DTA review in the DC Circuit. Paragraphs 2 and 3 allow
the DC Circuit to ask whether the military applied its own standards
and procedures for CSRTs to the detainee, and they allow the court to
ask whether those standards are constitutional and are consistent with
nontreaty Federal law. I think that those standards speak for
themselves, that they clearly allow only a very limited review. In
particular, they do not allow the courts to second-guess the military's
evidentiary findings. The courts simply are not in a position, they do
not have the expertise, to judge whether particular evidence suggests
that an individual is an enemy combatant.
I would like to note here that this is the consensus view of the DTA
at this time, at least for now. I have no doubt that in the future,
lawyers will argue that these standards invite the court to reweigh the
evidence, to take in evidence outside of the CSRT record, and to decide
if the military was right about its factual judgment. At this time,
however, both proponents and opponents of section 7 of the MCA seem to
agree on what kind of review it will allow. Earlier today, for example,
I heard Senator Specter, who opposes section 7, criticize the paragraph
2 and 3 review standards on the Senate floor. He said, ``the statute
provides that the Combatant Status Review Tribunal may be reviewed by
the Court of Appeals for the District of Columbia only to the extent
that it was--the ruling was consistent with the standards and
procedures specified by the Secretary of Defense. Now, to comply with
the standards and procedures determined by the Secretary of Defense
does not mean--excludes on its face--a factual determination as to what
happens to the detainees.''
I have also come into possession of a so-called fact sheet on the DTA
review standards that is being distributed on Capitol Hill by Human
Rights First, a group that is lobbying Senators to oppose the MCA and
to support the Specter amendment that was defeated earlier today. This
fact sheet is titled, ``The Limited Review Allowed Under the DTA is No
Substitute for Habeas.'' Here is what the Human Rights First fact sheet
says:
The DTA restricts the court to determining whether the
prior CSRTs followed their own procedures.
* * * * *
It has been suggested that the court of appeals, in
reviewing the CSRT decisions, can fix the problem simply by
choosing to review the evidence itself. But that is simply
not the way the statute reads. The government has taken the
firm position in Bismullah that no review even of
``significant exculpatory evidence'' is permitted under the
DTA. If Congress believes that the courts should be allowed
to review the evidence--and they clearly should be--then it
should change the statute to say so. It is no solution to
hope that the courts will ignore the actual statutory
language and rewrite the statute to correct the deficiency.
There you have it. Senators have been told in floor debate by the
chairman of the Judiciary Committee that the DTA ``excludes on its
face'' any factual determination with regard to the Guantanamo
detainees. The groups lobbying Senators with regard to the MCA have
pointed out that having courts make their own factual determinations,
to judge the sufficiency of the evidence behind the military's
findings, ``is simply not the way the statute reads.'' We are informed
that the Justice Department has taken the ``firm position'' that no
evidentiary review is permitted under the DTA. And we are told that if
we disagree with this system, if we think that ``the courts should be
allowed to review the evidence,'' then we ``should change the statute
to say so.'' The Senate is clearly on notice as to how the DTA review
[[Page S10405]]
will work, what the statute says on its face, how the Justice
Department has construed that statute. By rejecting the Specter
amendment earlier today, and by passing the MCA later today, the Senate
makes clear that it does not disagree with the Justice Department and
does not want to change this system.
I will close my remarks by quoting at length from the testimony of
U.S. Attorney General William Barr, who spoke on the matters addressed
by this legislation before the Judiciary Committee on June 15, 2005.
Mr. Barr's testimony informs our understanding of the history, law, and
practical reality underlying the DTA and the MCA. I would commend his
statement to anyone seeking to understand these statutes and the
complex relationship between the President's war-making power and the
judiciary. This relationship is superficially similar to, but is
fundamentally different from, the judiciary's oversight of the civilian
criminal justice system. I particularly found to be true Mr. Barr's
emphasis that the proper role of the courts in this area is not
accurately described as ``deference'' to military decisions because
deference implies that the ultimate decisions still lie with the
courts. As Mr. Barr notes, ``the point here is that the ultimate
substantive decision rests with the President and that the courts have
no authority to substitute their judgments for that of the President.''
Here is an extended excerpt from Attorney General Barr's testimony
regarding the detention of alien enemy combatants:
The determination that a particular foreign person seized
on the battlefield is an enemy combatant has always been
recognized as a matter committed to the sound judgment of the
Commander in Chief and his military forces. There has never
been a requirement that our military engage in evidentiary
proceedings to establish that each individual captured is, in
fact, an enemy combatant. Nevertheless, in the case of the
detainees at Guantanamo, the Deputy Secretary of Defense and
the Secretary of the Navy have established Combatant Status
Review Tribunals (``CSRTs'') to permit each detainee a fact-
based review of whether they are properly classified as enemy
combatants and an opportunity to contest such designation.
As to the detention of enemy combatants, World War II
provides a dramatic example. During that war, we held
hundreds of thousands of German and Italian prisoners in
detention camps within the United States. These foreign
prisoners were not charged with anything; they were not
entitled to lawyers; they were not given access to U.S.
courts; and the American military was not required to
engage in evidentiary proceedings to establish that each
was a combatant. They were held until victory was
achieved, at which time they were repatriated. The
detainees at Guantanamo are being held under the same
principles, except, unlike the Germans and Italians, they
are actually being afforded an opportunity to contest
their designation as enemy combatants.
Second, once hostile forces are captured, the subsidiary
question arises whether they belonged to an armed force
covered by the protections of the Geneva Convention and hence
entitled to POW status? If the answer is yes, then the
captives are held as prisoners of war entitled to be treated
in accord with the various requirements of the Convention. If
the answer is no, then the captives are held under humane
conditions according to the common law of war, though not
covered by the various requirements of the Convention. The
threshold determination in deciding whether the Convention
applies is a ``group'' decision, not an individualized
decision. The question is whether the military formation to
which the detainee belonged was covered by the Convention.
This requires that the military force be that of a signatory
power and that it also comply with the basic requirements of
Article 4 of the Treaty, e.g., the militia must wear
distinguishing uniforms, retain a military command structure,
and so forth. Here, the President determined that neither al-
Qaeda nor Taliban forces qualified under the Treaty.
The third kind of action we are taking goes beyond simply
holding an individual as an enemy combatant. It applies so
far only to a subset of the detainees and is punitive in
nature. In some cases, we are taking the further step of
charging an individual with violations of the laws of war.
This involves individualized findings of guilt. Throughout
our history we have used military tribunals to try enemy
forces accused of engaging in war crimes. Shortly after the
attacks of 9/11, the President established military
commissions to address war crimes committed by members of al-
Qaeda and their Taliban supporters.
Again, our experience in World War II provides a useful
analog. While the vast majority of Axis prisoners were simply
held as enemy combatants, military commissions were convened
at various times during the war, and in its immediate
aftermath, to try particular Axis prisoners for war crimes.
One notorious example was the massacre of American troops at
Malmedy during the Battle of the Bulge. The German troops
responsible for these violations were tried before military
commissions.
Let me turn to address some of the challenges being made to
the way we are proceeding with these al-Qaeda and Taliban
detainees.
I. The Determination That Foreign Persons Are Enemy Combatants
The Guantanamo detainees' status as enemy combatants has
been reviewed and re-reviewed within the Executive Branch and
the military command structure. Nevertheless, the argument is
being advanced that foreign persons captured by American
forces on the battlefield have a Due Process right under the
Fifth Amendment to an evidentiary hearing to fully litigate
whether they are, in fact, enemy combatants. In over 225
years of American military history, there is simply no
precedent for this claim.
The easy and short answer to this claim is that it has
been, as a practical matter, mooted by the military's
voluntary use of the CSRT process, which gives each detainee
the opportunity to contest his status as an enemy combatant.
As discussed below, those procedures are clearly not required
by the Constitution. Rather they were adopted by the military
as a prudential matter.
Nonetheless, those procedures would plainly satisfy any
conceivable due process standard that could be found to
apply. In its recent Hamdi decision, the Supreme Court set
forth the due process standards that would apply to the
detention of an American citizen as an enemy combatant. The
CSRT process was modeled after the Hamdi provisions and thus
provides at least the same level of protection to foreign
detainees as the Supreme Court said would be sufficient to
detain an American citizen as an enemy combatant. Obviously,
if these procedures are sufficient for American citizens,
they are more than enough for foreign detainees who have no
colorable claim to due process rights.
Moreover, most of the guarantees embodied in the CSRT
parallel and even surpass the rights guaranteed to American
citizens who wish to challenge their classification as enemy
combatants. The Supreme Court has indicated that hearings
conducted to determine a detainee's prisoner-of-war status,
pursuant to the Geneva Convention, could satisfy the core
procedural guarantees owed to an American citizen. In certain
respects, the protocols established in the CSRTs closely
resemble a status hearing, as both allow all detainees to
attend open proceedings, to use an interpreter, to call and
question witnesses, and to testify or not testify before the
panel. Furthermore, the United States has voluntarily given
all detainees rights that are not found in any prisoner-of-
war status hearing, including procedures to ensure the
independence of panel members and the right to a personal
representative to help the detainee prepare his case.
Nevertheless, there appear to be courts and critics who
continue to claim that the Due Process Clause applies and
that the CSRT process does not go far enough. I believe these
assertions are frivolous.
I am aware of no legal precedent that supports the
proposition that foreign persons confronted by U.S. troops in
the zone of battle have Fifth Amendment rights that they can
assert against the American troops. On the contrary, there
are at least three reasons why the Fifth Amendment has no
applicability to such a situation. First, as the Supreme
Court has consistently held, the Fifth Amendment does not
have extra-territorial application to foreign persons outside
the United States. As Justice Kennedy has observed, ``[T]he
Constitution does not create, nor do general principles of
law create, any juridical relation between our country and
some undefined, limitless class of non-citizens who are
beyond our territory.'' Moreover, as far as I am aware, prior
to their capture, none of the detainees had taken any
voluntary act to place themselves under the protection of our
laws; their only connection with the United States is that
they confronted U.S. troops on the battlefield. And finally,
the nature of the power being used against these individuals
is not the domestic law enforcement power--we are not seeking
to subject these individuals to the obligations and sanctions
of our domestic laws--rather, we are waging war against them
as foreign enemies, a context in which the concept of Due
Process is inapposite.
In society today, we see a tendency to impose the judicial
model on virtually every field of decision-making. The notion
is that the propriety of any decision can be judged by
determining whether it satisfies some objective standard of
proof and that such a judgment must be made by a ``neutral''
arbiter based on an adversarial evidentiary hearing. What we
are seeing today is an extreme manifestation of this--an
effort to take the judicial rules and standard applicable in
the domestic law enforcement context and extend them to the
fighting of wars. In my view, nothing could be more farcical,
or more dangerous.
These efforts flow from a fundamental error--confusion
between two very distinct constitutional realms. In the
domestic realm of law enforcement, the government's role is
disciplinary--sanctioning an errant member of society for
transgressing the internal
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rules of the body politic. The Framers recognized that in the
name of maintaining domestic tranquility an overzealous
government could oppress the very body politic it is meant to
protect. The government itself could become an oppressor of
``the people.''
Thus our Constitution makes the fundamental decision to
sacrifice efficiency in the realm of law enforcement by
guaranteeing that no punishment can be meted out in the
absence of virtual certainty of individual guilt. Both the
original Constitution and the Bill of Rights contain a number
of specific constraints on the Executive's law enforcement
powers, many of which expressly provide for a judicial role
as a neutral arbiter or ``check'' on executive power. In this
realm, the Executive's subjective judgments are irrelevant;
it must gather and present objective evidence of guilt
satisfying specific constitutional standards at each stage
of a criminal proceeding. The underlying premise in this
realm is that it is better for society to suffer the cost
of the guilty going free than mistakenly to deprive an
innocent person of life or liberty. The situation is
entirely different in armed conflict where the entire
nation faces an external threat. In armed conflict, the
body politic is not using its domestic disciplinary powers
to sanction an errant member, rather it is exercising its
national defense powers to neutralize the external threat
and preserve the very foundation of all our civil
liberties. Here the Constitution is not concerned with
handicapping the government to preserve other values.
Rather it is designed to maximize the government's
efficiency to achieve victory--even at the cost of
``collateral damage'' that would be unacceptable in the
domestic realm.
It seems to me that the kinds of military decisions at
issue here--namely, what and who poses a threat to our
military operations--are quintessentially Executive in
nature. They are not amenable to the type of process we
employ in the domestic law enforcement arena. They cannot be
reduced to neat legal formulas, purely objective tests and
evidentiary standards. They necessarily require the exercise
of prudential judgment and the weighing of risks. This is one
of the reasons why the Constitution vests ultimate military
decision-making in the President as Commander-in-Chief. If
the concept of Commander-in-Chief means anything, it must
mean that the office holds the final authority to direct how,
and against whom, military power is to be applied to achieve
the military and political objectives of the campaign.
I am not speaking here of ``deference'' to Presidential
decisions. In some contexts, courts are fond of saying that
they ``owe deference'' to some Executive decisions. But this
suggests that the court has the ultimate decision-making
authority and is only giving weight to the judgment of the
Executive. This is not a question of deference--the point
here is that the ultimate substantive decision rests with the
President and that courts have no authority to substitute
their judgments for that of the President.
The Constitution's grant of ``Commander-in-Chief'' power
must, at its core, mean the plenary authority to direct
military force against persons the Commander judges as a
threat to the safety of our forces, the safety of our
homeland, or the ultimate military and political objectives
of the conflict. At the heart of these kinds of military
decisions is the judgment of what constitutes a threat or
potential threat and what level of coercive force should be
employed to deal with these dangers. These decisions cannot
be reduced to tidy evidentiary standards, some predicate
threshold, that must be satisfied as a condition of the
President ordering the use of military force against a
particular individual. What would that standard be?
Reasonable suspicion, probable cause, substantial evidence,
preponderance of the evidence, or beyond a reasonable doubt?
Does anyone really believe that the Constitution prohibits
the President from using coercive military force against a
foreign person--detaining him--unless he can satisfy a
particular objective standard of evidentiary proof?
Let me posit a battlefield scenario. American troops are
pinned down by sniper fire from a village. As the troops
advance, they see two men running from a building from which
the troops believe they had received sniper fire. The troops
believe they are probably a sniper team. Is it really being
suggested that the Constitution vests these men with due
process rights as against the American soldiers? When do
these rights arise? If the troops shoot and kill them--i.e.,
deprive them of life--could it be a violation of due process?
Suppose they are wounded and it turns out they were not enemy
forces. Does this give rise to Bivens' Constitutional tort
actions for violation of due process? Alternatively, suppose
the fleeing men are captured and held as enemy combatants.
Does the due process clause really mean that they have to be
released unless the military can prove they were enemy
combatants? Does the Due Process Clause mean that the
American military must divert its energies and resources from
fighting the war and dedicate them to investigating the
claims of innocence of these two men?
This illustrates why military decisions are not susceptible
to judicial administration and supervision. There are simply
no judicially-manageable standards to either govern or
evaluate military operational judgments. Such decisions
inevitably involve the weighing of risks. One can easily
imagine situations in which there is an appreciable risk that
someone is an enemy combatant, but significant uncertainty
and not a preponderance of evidence. Nevertheless, the
circumstances may be such that the President makes a judgment
that prudence dictates treating such a person as hostile in
order to avoid an unacceptable risk to our military
operations. By their nature, these military judgments must
rest upon a broad range of information, opinion, prediction,
and even surmise. The President's assessment may include
reports from his military and diplomatic advisors, field
commanders, intelligence sources, or sometimes just the
opinion of frontline troops. He must decide what weight to
give each of these sources. He must evaluate risks in light
of the present state of the conflict and the overall military
and political objectives of the campaign.
Furthermore, extension of due process concepts from the
domestic prosecutive arena as a basis for judicial
supervision of our military operations in time of war would
not only be wholly unprecedented, but it would be
fundamentally incompatible with the power to wage war itself,
so altering and degrading that capacity as to negate the
Constitution's grant of that power to the President.
First, the imposition of such procedures would
fundamentally alter the character and mission of our combat
troops. To the extent that the decisions to detain persons
as enemy combatants are based in part on the circumstances
of the initial encounter on the battlefield, our frontline
troops will have to concern themselves with developing and
preserving evidence as to each individual they capture, at
the same time as they confront enemy forces in the field.
They would be diverted from their primary mission--the
rapid destruction of the enemy by all means at their
disposal--to taking notes on the conduct of particular
individuals in the field of battle. Like policeman, they
would also face the prospect of removal from the
battlefield to give evidence at post-hoc proceedings.
Nor would the harm stop there. Under this due process
theory, the military would have to take on the further burden
of detailed investigation of detainees' factual claims once
they are taken to the rear. Again, this would radically
change the nature of the military enterprise. To establish
the capacity to conduct individualized investigations and
adversarial hearings as to every detained combatant would
make the conduct of war--especially irregular warfare--vastly
more cumbersome and expensive. For every platoon of combat
troops, the United States would have to field three platoons
of lawyers, investigators, and paralegals. Such a result
would inject legal uncertainty into our military operations,
divert resources from winning the war into demonstrating the
individual ``fault'' of persons confronted in the field of
battle, and thereby uniquely disadvantage our military vis-a-
vis every other fighting force in the world.
Second, the introduction of an ultimate decision maker
outside of the normal chain of command, or altogether outside
the Executive Branch, would disrupt the unitary chain of
command and undermine the confidence of frontline troops in
their superior officers. The impartial tribunals could
literally overrule command decisions regarding battlefield
tactics and set free prisoners of war whom American soldiers
have risked or given their lives to capture. The effect of
such a prospect on military discipline and morale is
impossible to predict.
The Supreme Court's decision in Rasul v. Bush does not
undercut these long-standing principles. In Rasul, the
Supreme Court addressed a far narrower question--whether the
habeas statute applies extraterritorially--and expressly
refrained from addressing these settled constitutional
questions. The Court, in concluding that the habeas statute
reached aliens held at Guantanamo Bay, relied on the peculiar
language of the statute and the `` `extraordinary territorial
ambit' of the writ at common law.'' Of course, the
idiosyncrasies of the habeas statute do not have any impact
on judicial interpretation of the reach of the Fifth
Amendment or other substantive constitutional provisions.
Moreover, the Court's recognition in Rasul that the United
States exercises control, but ``not ultimate sovereignty''
over the leased Guantanamo Bay territory confirms the
inapplicability of the Fifth Amendment to aliens held there.
Nevertheless, even if Guantanamo Bay is somehow deemed
sovereign United States territory, the Fifth Amendment is
still inapplicable. The Supreme Court, in addition to the
requisite detention on sovereign United States territory,
demands that the aliens only ``receive constitutional
protections'' when they have also ``developed substantial
connections with this country.'' Thus, under the Court's
formulation, ``lawful but involuntary'' presence in the
United States ``is not of the sort to indicate any
substantial connection with our country'' sufficient to
trigger constitutional protections. The ``voluntary
connection'' necessary to trigger the Fifth Amendment's due
process guarantee is sorely lacking with respect to enemy
combatants.
Whatever else may be said, there can be no dispute that
these individuals did not arrive at Guantanamo Bay by free
choice. Captured enemy combatants that have been transported
to Guantanamo Bay for detention thus are not entitled to
Fifth Amendment due process rights. It should also be noted
that the Supreme Court's decision in Rasul was a statutory
ruling, not a constitutional
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one. In other words, the Court concluded only that the
federal habeas statute confers jurisdiction on federal
district courts to hear claims brought by aliens detained at
Guantanamo Bay. The Court nowhere suggested that the
Constitution grants such aliens a right of access to American
courts.
An important consequence follows: Congress remains free to
restrict or even to eliminate entirely the ability of enemy
aliens at Guantanamo Bay to file habeas petitions. Congress
could consider enacting legislation that does so--either by
creating special procedural rules for enemy alien detainees,
by requiring any such habeas petitions to be filed in a
particular court, or by prohibiting enemy aliens from haling
military officials into court altogether.''
Mr. President, with the Military Commissions Act, the Senate today
enacts Mr. Barr's third suggestion. We create a system that is
consistent with our treaty obligations but that also is consistent with
military tradition and the needs of our fighting forces in a time of
war. It is a system that will serve this Nation well. I look forward to
the act's passage and enactment.
Mr. HARKIN. Mr. President, since my years as a pilot with the U.S.
Navy, nothing has been more important to me than protecting the
American people and ensuring the security of our country.
Today, we are at war with extremists who want to do grievous harm to
America. We all want to fight these extremists and defeat them. We all
want to ensure that those who committed or supported acts of terror are
brought to justice. The only disagreement is about how best to do that.
What is the smartest, most effective way to fight and defeat our
enemies?
Unfortunately, as the newly declassified National Intelligence
Estimate testifies very clearly, our current course is, in many ways,
playing into the hands of the terrorists. It is stirring up virulent
anti-Americanism around the world, it is drawing new recruits to the
jihadists' cause, and it is making America less safe.
We have to do a better job, and we can do a better job. It is not
good enough to be strong and wrong. We need to be strong and smart.
This is especially true when it comes to our policies on interrogating
and trying suspected terrorists. Again, we all want to extract
information from these suspects. We all want to try them and, if
guilty, punish them. The only disagreement is about how best to do
that. What is the smartest, most effective way to interrogate and to
try these suspected terrorists?
There is plenty of evidence that our current course, which clearly
includes torturing suspects and imprisoning them without trial, is not
working. To take just one case in point, consider the Canadian citizen,
whom we now know to be completely innocent, who was arrested by the
CIA--I use the word ``arrested'' loosely. He was picked up by the CIA,
bound, gagged, blindfolded, and sent to Syria for interrogation under
torture. Not surprisingly, he told his torturers exactly what they
wanted to hear--that he had received terrorist training in Afghanistan.
The truth, of course, is that he was never in Afghanistan, had no
terrorist ties, and is completely innocent.
The cost to the United States for this miscarriage of justice, in
terms of our forfeited reputation and moral standing, has been
disastrous--just as the revelations of torture and abuse at Abu Ghraib.
What is more, it has endangered our troops in the field--now and in the
future--should they fall into the hands of captors who say they have
the right to subject American prisoners to the same torture and abuse.
Again, it is not enough to be strong and wrong. We need to be strong
and smart. We need to be true to 230 years of American jurisprudence,
our Constitution, and the humane values that define us as Americans.
Back during the dark days of McCarthyism in the 1950s, former Senator
Joseph McCarthy went on a rampage. What he was basically saying to the
American people is that we have to become like the Communists in order
to defeat them. Cooler heads prevailed but not until Senator McCarthy
had done a lot of damage in this country, not until a lot of innocent
people were blacklisted, denied employment, many of whom committed
suicide because they had no place to turn. The dark days of Joseph
McCarthy come back to us in the guise of this military tribunal bill.
We do not have to become like the jihadists. We don't have to become
like the terrorists in order to defeat them. The best way to defeat
them is the same way we defeated Joseph McCarthy and the Communists. We
stayed true to our American ideals, our American jurisprudence, and the
humane values we cherish as a free society. Regrettably, the bill
before us fails this test. I cannot, in good conscience, support it.
The bill includes no barrier on the President's reinterpreting our
obligations under the Geneva Conventions as he pleases, allowing
practices such as simulated drowning, induced hypothermia, and extreme
sleep deprivation. The President can allow all of those to continue, in
contravention of the Geneva Conventions.
The bill before us rewrites the War Crimes Act in a way that fails to
give clarity as to interrogation techniques that are allowed or
forbidden, effectively allowing the administration--any
administration--to continue the abusive techniques I just mentioned.
The bill creates a very bizarre double standard, immunizing, on the
one hand, policymakers and the CIA and its contractors for committing
acts of torture--immunizing them--while leaving our military troops
subject to prosecution under the Uniform Code of Military Justice for
the exact same practices. Let me repeat that. The bill creates this
double standard: it immunizes the CIA, for example, and any contractors
with the CIA, for committing acts of torture, while at the same time
those same acts, if committed by a military person, would subject that
military person to prosecution under the Uniform Code of Military
Justice.
What kind of a signal does this send? What kind of signal is this?
The bill completely eliminates the ability of noncitizens to bring a
habeas corpus petition, effectively removing the only remaining check
on the administration's decision regarding torture and other abuses.
Indeed, the habeas provisions in this bill would permit--get this--
the bill would permit a legal permanent resident of the United States--
a legal permanent resident of the United States--to be snatched off the
street in the dark of night, bound, blindfolded, subject to indefinite
detention, even torture, with absolutely no way for that person to
challenge it in court.
Is that what we want to become as a nation? A legal permanent
resident in the United States, of which there are millions in this
country, taken out of his or her home at night, and we don't know what
happens to them? They go into the dark dungeons of who knows where.
Maybe Guantanamo Bay.
Habeas corpus is the only independent remedy available to people
being held in indefinite detention who, in fact, have no connection to
terrorism.
I heard one of my colleagues on the other side of the aisle going on
yesterday about this habeas provision. He went on about how habeas
corpus is to protect U.S. citizens. It is in no way, he went on, aimed
at protecting enemy combatants who are picked up.
Therein lies the problem. How do we know they are enemy combatants?
Is it because the CIA says they are an enemy combatant? Who says they
are an enemy combatant? This is not World War II, folks, where the
Germans are on one side and they have uniforms, and the Japanese are on
the other side and they have uniforms. This is an amorphous terrorist
war where the terrorists don't wear uniforms. They can be dressed like
you or me. They can look just like you or me. So we don't know.
We have instances where people have been thrown into Guantanamo, for
example, and they were fingered by a neighbor who didn't like them and
wanted their property or house or didn't like them because of something
they had done to them in the past. They fingered them and said: Guess
what. They are big terrorists. People were picked up and thrown in
jail.
Habeas is the one provision that allows someone snatched off the
streets here or anywhere else suspected of being a terrorist to at
least come forward and say: What are the charges against me?
We have seen this happen in Guantanamo, people kept for months, for
years, without ever having a charge filed against them, and many of
them we found out were totally innocent.
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What does this say to the rest of the world?
Senator Obama from Illinois told the story the other day about when
he was in Chad in August and heard about an American citizen who was
picked up in Sudan and held by the Sudanese. He made some calls to try
to get this person released. It was an American journalist. After a
while, he was released.
The American journalist came back and said: I was picked up by the
Sudanese officials. I asked for permission to contact the U.S. Embassy
with a phone call so I could talk to our Embassy.
The Sudanese captor said: Why should we let you do that? You don't
let the people in Guantanamo Bay do that.
The use of habeas is not just to protect the people who are suspected
so that we know whether they really are an enemy combatant. It is also
as a protection for our troops, our soldiers, our civilians, our
business people traveling around the world, people traveling on
vacation, journalists, just like this one, who may be snatched, picked
up by a foreign government. We want to be able to say to that
government: Produce the person. What are the charges? If we don't allow
it, we are giving the green light to every other would-be dictator
anywhere in the world to do the same thing--any government anywhere.
If the moral argument against torture does not hold any weight with
this administration, they should just examine the abundant evidence
that torture simply doesn't work. This is not just my opinion, this is
what the experts are saying.
Let me quote from a letter signed by 20 former U.S. Army
interrogators and interrogation technicians:
Prisoner/detainee abuse and torture are to be avoided at
all costs, in part because they can degrade the intelligence
collection effort by interfering with a skilled
interrogator's efforts to establish rapport with the subject.
Simply put, torture does not help gather useful, reliable, actionable
intelligence. In fact, it inhibits the collection of such intelligence.
Earlier this month, the U.S. Army released its new field manual
222.3: ``Human Intelligence Collector Operations,'' which covers
interrogations by the U.S. military in detail. This manual replaces the
previous manual and is to be used by our military personnel around the
world in performing interrogations.
The Army Field Manual explicitly bans, among other things, beating
prisoners, sexually humiliating them, threatening them with dogs,
depriving them of food and water, performing mock executions, shocking
them with electricity, burning them, causing other pain, or subjecting
them to the technique called waterboarding, which simulates drowning.
So if these techniques are explicitly banned in the Army Field
Manual, why shouldn't they be explicitly banned for CIA personnel or
CIA contract personnel? Why do we have a high standard for our military
and effectively no standard for the CIA and its contractors?
For me, this debate about illegal imprisonment and officially
sanctioned torture is not an abstraction. It strikes very close to home
for me.
Thirty-six years ago this summer at the height of the Vietnam war, I
brought back photographs of the so-called tiger cages at Con Son Island
where the Vietcong and North Vietnamese prisoners, as well as civilians
who had committed no crime whatsoever, were being tortured and killed
with the full knowledge and sanction of the U.S. Government. That was
July of 1970 when I was a staff person in the House of Representatives
working with a congressional delegation on a factfinding trip to
Vietnam.
We had all heard reports about the possible existence of these so-
called tiger cages in which people were brutally tortured and killed.
Our State Department and our military officials denied their existence.
They said it was only Communist propaganda.
Through various sources, I thought that the reports about the tiger
cages were at least credible and should be investigated further.
Thanks to the courage of Congressman William Anderson of Tennessee
and Congressman Augustus Hawkins of California and to Don Luce, an
American working for a nongovernmental organization, and because of the
bravery of a young Vietnamese man who gave us the maps on how to find
the prison, we were able to expose the tiger cages on Con Son Island.
This young Vietnamese man about whom I speak was let out of the tiger
cages, but they kept his brother, and they said: If you breathe one
word about this, we are going to kill your brother.
Why did they let him out of the tiger cages? Because he was president
of the student body at Saigon University. What had been his crime? He
had demonstrated against the war. So they picked up he and his brother
and threw them in the tiger cages and tortured them.
The students refused to go back to class--this was a big deal--until
they returned this young man to his university, which they did, but
they kept his brother and said: If you breathe a word of this, we will
kill him.
This young man decided he needed to take a chance, and he took a
chance on me. He drew the maps and gave us the story on how to find
these tiger cages which were well hidden, and without the maps we never
would have found them. Fortunately, I had a camera and a hidden tape
recorder which proved useful when I returned to the United States.
Supporters of the war claim that the tiger cages were not all that
bad. But then Life magazine published my pictures, and the world saw
the horrific conditions where, in clear violation of the Geneva code,
North Vietnamese, Vietcong, as well as civilian opponents of the war--
just civilians--who committed no crimes whatsoever--were all crowded
together in these cages, as I said, in clear violation of the Geneva
Conventions and the most fundamental principles of human rights.
At the same time, the U.S. Government had been insisting that the
North Vietnamese abided by the Geneva Conventions in their treatment of
prisoners in North Vietnam. Yet here we were condoning and even
supervising the torture of civilian Vietnamese, along with Vietnamese
soldiers and others in clear violation of the Geneva Conventions.
We may not have known about it--our public did not know about that--
but the Vietnamese sure knew about it.
I thought we had learned our lesson from that, and then I saw Abu
Ghraib and thought: Wait a minute. Haven't we learned our lesson? And,
Mr. President, just as 37 years ago when the tiger cages were first
talked about, they were denied--and they thought they could deny them
because it was hard to get to the island. You couldn't really get out
there. As far as they knew, no one had ever taken pictures of it and no
one had really ever escaped from there, like a Devil's Island kind of
place. So the military denied it. Our Government denied it year after
year until I was able to take the pictures and bring back the evidence.
Mr. President, I submit to you and everyone here and the American
people that had not that courageous soldier taken the pictures of Abu
Ghraib and kept those pictures, they would have denied that ever
happened. They would have denied to high Heaven that such things took
place at Abu Ghraib. Thankfully, one courageous young soldier decided
this was wrong, it was inhumane, it was not upholding the highest human
standards of America, and it was in violation of the Geneva
Conventions. Had he not taken those pictures, it would be denied
forever that ever happened at Abu Ghraib.
So now, as if we learned nothing from that previous tragedy of the
tiger cages 36 years ago or Abu Ghraib just a couple of years ago, here
we go again denying obvious instances of torture and abuse, effectively
giving the green light to torture by U.S. Government agents and
contractors and watering down the War Crimes Act.
This is a betrayal of our laws. It is a betrayal of our values. It is
a betrayal of everything that makes us unique and proud to be
Americans.
The administration apparently thinks that we will just go along with
this betrayal because there is an election in 6 weeks. Apparently they
think we are afraid of being branded weak on terrorism. Indeed, some
are no doubt hoping that we will vote against this bill so they can use
it as a bludgeon against us in the election. All I can say is: Shame on
them. What is more, it is not going to work. Because opposing
[[Page S10409]]
this bill, which would give the green light to torture, is far, far
bigger than the outcome of the November election.
This is about preserving our core values as Americans. It is about
standing up for our troops and ensuring that they do not become subject
to the same acts of torture and retaliation. It is about standing up
for American citizens, civilians, and others who may be caught up in
some foreign land with false charges filed against them, and yet not
even being able to contact our embassy. It is about protecting
Americans. And it is about changing course and beginning to wage an
effective war against the terrorists who attacked us on September 11,
2001.
It is time to quit being strong and wrong, and it is time to start
being strong and smart. Being strong and wrong has been a disaster. It
has bogged us down in a civil war in Iraq. It has turbocharged the
terrorists. It has made America less safe. So it is time to be strong
and smart. It is time to be true to who we are as Americans. It is time
to say no to indefinite--indefinite--incarceration. It is time to say
no to taking away the right of someone put away to at least have the
charges pressed against them. It is time to say no to torture in all
its forms now and at any time in the future.
Mr. President, I yield the floor.
Mr. BIDEN. Mr. President, I want to start by complimenting Senators
Warner, McCain and Graham and the work that they did to improve this
bill, particularly in two areas.
First, our colleagues did the right thing by rejecting the attempt by
the administration to reinterpret, by statute, Common Article III of
the Geneva Conventions. That would have been an enormous mistake--and
an invitation for other countries to define for themselves what the
Geneva Conventions require.
Second, our colleagues were right to reject the use of secret
evidence in military commissions. Such a proposal is not consistent
with American jurisprudence, and would not have satisfied the
requirements of the Supreme Court decision in Hamdan.
Overall, the bill provides a much better framework for trying
unlawful enemy combatants than under the flawed order issued by the
President. All this is positive, and our three colleagues deserve
credit for their good work.
But the bill contains a significant flaw. It limits the right of
habeas corpus in a manner that is probably unconstitutional. Don't take
my word for it. Listen to the words of a conservative Republican,
Kenneth Starr, who used to sit on this nation's second highest court,
and is now one of the country's leading appellate advocates, in a
letter written to Senator Specter earlier this week:
Article 1, section 9, clause 2 of the United States
Constitution provides that ``[t]he privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.'' The
United States is neither in a state of rebellion nor
invasion. Consequently, it would be problematic for Congress
to modify the constitutionally protected writ of habeas
corpus under current events.
Accordingly, I believe this bill is likely unconstitutional. I hope
that I am wrong. But I fear that I am right, and that we will be back
here in a few years debating this issue again.
We had one chance to get this right--to ensure that we don't end up
back here again after a new round of litigation. There was no reason to
rush. No one challenges our right to detain the high-value prisoners
the President just transferred to Guantanamo. We are not about to
release them--nor should we.
But rush we did. In the last week, there have been two different
versions of the legislation that emerged from closed-door negotiations
with the administration. My colleagues may be willing to trust the
legal judgment and competence of this administration. But I am not.
Since 9/11, several major cases have gone to the Supreme Court that
relate to the laws governing the war on al-Qaida and the President's
powers. And the administration has been wrong too many times--wrong
about whether habeas corpus rights applied to detainees in Guantanamo
Bay, wrong about whether U.S. citizens detained as enemy combatants had
a right to meaningful due process, and wrong about whether the military
commissions the President established by order were legal. Simply put,
I am not willing to trust the administration's legal judgment again.
And it is clear that the administration has put its imprint on this
legislation in several troubling respects, including in the stripping
of habeas rights.
In the struggle in which we are engaged against radical
fundamentalists, we must be both tough and smart. This bill is not
smart because it risks continued litigation about how we detain and try
unlawful enemy combatants.
It is also not smart because it risks continued harm to the image of
the United States. The 9/11 Commission concluded that ``[a]llegations
that the United States abused prisoners in its custody make it harder
to build the diplomatic, political, and military alliances the
government will need.'' The recently released National Intelligence
Estimate made plain that there are several factors fueling the spread
of the jihadist movement, including ``entrenched grievances, such as
corruption, injustice, and fear of Western domination, leading to
anger, humiliation, and a sense of powerlessness.'' The mistreatment of
detainees at Abu Ghraib, and concerns about our policies governing
detainees at Guantanamo Bay, undoubtedly fuel these grievances and
anger against the United States. Our detainee policies have also made
it harder for our allies to support our anti-terrorism policies. We
have to get this right.
Therefore, even though our colleagues achieved significant
improvements, I cannot support this legislation.
Mr. WARNER. Mr. President, at this point in time I yield to the
distinguished Senator from Arizona 14 minutes.
I would say that I have been privileged to be a Member of this
institution for now 28 years, and I first met John McCain through his
father when I was Secretary of the Navy. So that goes back 28 plus
another 5 years that I have known of John McCain.
This Chamber, and indeed all of America, knows full well about the
extraordinary record that this man has in the service of his Nation,
showing unselfishness, showing courage, showing foresight.
I am proud to have worked with him as a partner in these past weeks,
indeed, months now, on this piece of legislation.
I just want to express my gratitude, and I think the gratitude of
many people across this country, for the service he is rendering the
Senate and hopefully will continue to render the Senate in the coming
years.
When I step down under the caucus, it is my hope that John McCain is
elected to succeed me as chairman of the Senate Armed Services
Committee.
But at this point in time, I am proud to yield, as manager, my time
to the Senator from Arizona.
Mr. LEVIN. Mr. President, will the Senator from Arizona yield?
Mr. McCAIN. I would be glad to.
Mr. LEVIN. Mr. President, I heartily join my good friend from
Virginia in his assessment of Senator McCain. I know there has been
some disagreement as to who would go first, but that should not in any
way, I hope, cloud the real affection which I think everybody in this
body holds for Senator McCain and the effort he has made for so long to
try to bring some kind of decency to the approaches we use to people
whom we detain.
I thank the Senator.
The PRESIDING OFFICER. The Senator from Arizona is recognized for 14
minutes.
Mr. McCAIN. Mr. President, I thank both my friends of many years,
Senator Levin and Senator Warner, for the collegiality, the
bipartisanship, and the effort that we all make under their leadership
on the Armed Services Committee for the betterment of the men and women
who serve our country and our Nation's defense. I am honored to serve
under both.
For the record, I believe I just calculated, I say to my dear friend
from Virginia, it has been 33 years since I came home from Vietnam and
found that our distinguished Secretary of the Navy was very concerned
about the welfare of those who had the lack of talent that we were able
to get shot down. So I thank my friend from Virginia especially, and I
thank my friend from Michigan. I believe our committee conducts itself
in a fashion
[[Page S10410]]
which has been handed down to us from other great Members of the
Senate, such as Richard Russell and others.
Mr. President, before I move on to other issues, I have heard some
criticism on the Senate floor today about the way in which the bill
treats admissibility of coerced testimony.
A New York Times editorial today said that in this legislation
``coercion is defined in a way that exempts anything done before the
passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush
chooses'' in their own inimitable style.
This is thoroughly incorrect, and I would like to correct not only
the impression but the facts.
This bill excludes any evidence obtained through illegal
interrogation techniques, including those prohibited by the 2005
Detainee Treatment Act. The goal is to bolster the Detainee Treatment
Act by ensuring that the fruits of any illegal treatment will be per se
inadmissible in the military commissions.
For evidence obtained before passage of the Detainee Treatment Act,
we adopted the approach recommended by the military JAGs. In order to
admit such evidence, the judge--we leave it to the judge--must find
that: it passes the legal reliability test--and, as applied in
practice, the greater the degree of coercion, the more likely the
statement will not be admitted; the evidence possesses sufficient
probative value; and that the interests of justice would best be served
by admission of the statement into evidence.
Mr. President, I ask unanimous consent that three different letters
from three different JAGs--Air Force, Navy, and Marine Corps--be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of the Air Force,
Headquarter U.S. Air Force,
Washington DC, August 28, 2006.
Hon. John McCain,
Russell Senate Office Building,
Washington DC.
Dear Senator McCain: Thank you for your letter of 23 August
2006, in which you requested my written recommendations on
the military commissions legislation Congress is expected to
consider next month. You specifically ask for my personal
views on the most pressing issues involving the legislation.
As of the date of this letter, several bills have been
introduced and I believe the administration is also
considering legislation for congressional consideration. I
appreciate the opportunity to provide my personal perspective
and comments on the general nature of the potential
legislation.
I begin with the premise that legislation is appropriate.
As the Supreme Court noted again in Hamdan v. Rumsfeld. 548
U.S. , 126 S.Ct. 2749 (2006), the President's powers in
wartime are at their greatest when specifically authorized by
Congress. While different approaches are feasible, I believe
the Nation will be best served by a fresh start to the
military commission process. Existing criminal justice
systems, including the process established by Military
Commission Order 1, should be reviewed to develop a system
that will best serve the interests of justice and the United
States. The Uniform Code of Military Justice (10 U.S.C.
Sec. 801 et. seq.) (UCMJ) and the Manual for Courts-Martial
(MCM) provide superb starting points. The processes and
procedures in the UCMJ and MCM have served us well and can be
readily adapted to meet the needs of military conmnssions.
As I have testified, Congress could enact a UCMJ Article
135a to establish the basic substantive requirements for
military commissions, and an executive order could provide
detailed guidance, just as the MCM provides detailed guidance
for the trial of courts-martial. Alternatively, Congress
could create a separate Code of Military Commissions as a new
chapter in Title 10, modeled to an appropriate degree after
the UCMJ, and similarly leave the details to an executive
order. Either approach must address the requirements of the
Geneva Conventions and the concerns articulated in Hamdan.
There will necessarily be differences between current
court-martial procedures and the rules and procedures for
military commissions. However, the processes and procedures
in the UCMJ and MCM can be readily adapted to meet the needs
of military commissions and still meet the requirements of
criminal justice systems established by common Article 3 of
the Geneva Conventions.
The legislation must appropriately address access to
evidence and the accused's presence during the trial.
Specifically, it is my strongly held view that all evidence
admitted against an accused and provided to members of a
military commission must also be provided to the accused and
accused's counsel. Any statute that allows evidence to be
admitted outside the presence of the accused would mean the
military commission could convict (and possibly impose a
sentence of death) without the accused ever fully knowing the
evidence considered against him: Such a procedure is
extremely problematic, both constitutionally and from a
Common Article 3 perspective.
The accused's presence is a critical facet of this
legislation. The United States is more than a nation of laws;
it is a country founded upon strong moral principles of
fairness to all. Moreover, our country--to the delight of our
adversaries--has been heavily criticized because of the
perception that the pre-Hamdan military commission process
was unfair and did not afford ``all the judicial guarantees
which are recognized as indispensable by civilized peoples.''
Now is the time to correct that perception and clearly
establish procedures and rules that meet that standard. These
procedures and rules will do more than merely correct legal
deficiencies; they will help reestablish the United States as
the leading advocate of the rule of law. I firmly believe
doing so is an important facet of winning the global war on
terrorism.
Inextricably tied to that concept is an awareness of
reciprocity. We cannot hold out as acceptable a military
commission process that we would consider to be unfair and
illegal if used by a foreign authority to try captured United
States servicemen and women for alleged offenses.
Additionally, concerns have been raised about other
evidentiary and procedural issues, including the ability of
the accused to represent himself, and the admissibility of
hearsay, classified evidence, and an accused's own
statements.
The right of an accused to represent himself pro se is well
recognized in our jurisprudence. In the context of military
commissions, it presents difficult issues. Current procedures
allow an accused to expressly waive the right to be
represented and conduct his defense personally. That option
should be available if the accused competently demonstrates
to the military judge he understands the potential
disadvantages and consequences of self-representation and he
voluntarily and knowingly waives the right to representation.
The military judge should have the authority to require that
a defense counsel remain present even if the waiver is
granted and to revoke the waiver if the accused is disruptive
or fails to follow basic rules of decorum and procedure. This
right is obviously contingent on the accused's presence
throughout the proceeding as well as access to the evidence.
Again, I recommend that Congress detail the basic
evidentiary requirements in the legislation and then permit
an executive order to flesh out the details, just as the MCM
provides evidentiary details for the UCMJ. Evidence should be
admissible if, in the judgment of an experienced military
judge, there are guarantees of its trustworthiness, the
evidence has probative value, and the interests of justice
are best served by its admission.
There has been some comment that the admission of hearsay
is improper. In my view, such criticisms reflect a
misunderstanding of the rules of evidence used in Federal,
military and state trials today. Under the Military Rules of
Evidence (MRE), hearsay is not admissible except as provided
in the MREs or by statute. The MREs further define statements
that are not hearsay and provide for exceptions conditioned
on the availability of the declarant. Additionally, there is
a residual hearsay rule that permits the introduction of
other statements, having equivalent circumstantial guarantees
of trustworthiness, if the court determines that the
statement is material evidence; has more probative value than
other available evidence; and serves the interests of
justice. The Supreme Court recently narrowed the application
of residual hearsay as it applies to out-of-court statements
that are testimonial in nature. Such statements are now
barred unless there is a showing that the witness is
unavailable and the accused had a prior opportunity to cross-
examine the witness. The overall application of the residual
hearsay rule is functionally very much like that used in
international tribunals and requires a military judge to find
the evidence is probative and reliable. These existing
procedures provide a meaningful starting point for addressing
the hearsay issues arising in military commissions.
As to the use of classified evidence, I believe the
procedures of MRE 505 adequately protect national security.
MRE 505 is based on the Classified Information Procedures Act
(CIP A) (Title 18, U.S.C. App III). CIP A is designed to
prevent unnecessary or inadvertent disclosures of classified
information and advise the government of the national
security implications of going forward with certain evidence.
MRE 505 achieves a reasonable accommodation of the United
States' interest in protecting information and the accused's
need to be able to mount a defense. The rule permits in
camera, ex parte consideration of the Government's concerns
by a judge, the substitution of unclassified summaries or
other alternative forms of evidence, and ensures fairness to
the accused. Under MRE 505, both the prosecution and the
accused rely on and know about the evidence going to the
court. The accused knows all that is to be considered by the
trier-of-fact, has an opportunity to respond, and is able to
assist the defense counsel to respond appropriately.
Concerns about the admissibility of statements made by an
accused primarily involve the current requirement to provide
Miranda warnings (codified more broadly in the UCMJ at
Article 31) and whether the statement is the product of
torture or coercion.
[[Page S10411]]
The military commission process must recognize the
battlefield is not an orderly place. The requirement to warn
an individual before questioning is one area where deviation
from the established UCMJ framework may well be warranted.
Generally, if a military judge concludes the confession or
admission of an accused is involuntary, the statement is not
admissible in a court-martial over the accused's objection.
Commonly, a statement is involuntary if it is obtained in
violation of the self-incrimination privilege or due process
clause of the Fifth Amendment to the Constitution of the
United States; Article 31; or through the use of coercion,
unlawful influence, or unlawful inducement. Each situation is
obviously fact determinative and the military judge decides
whether the statement is voluntary considering the totality
of the circumstances. I trust the judgment of experienced
military judges. Military commissions should not be permitted
to consider evidence that is found to be unlawfully coerced
and thus involuntary.
Finally, appellate jurisdiction over military commission
decisions should be clearly established. That jurisdiction
would be most appropriately vested in the United States Court
of Appeals for the District of Columbia Circuit (consistent
with the Detainee Treatment Act of 2005).
I hope this information is helpful. Please let me know if
additional information or comments from me on this matter are
desired.
Sincerely,
Jack L. Rives,
Major General, USAF,
The Judge Advocate General.
____
Department of the Navy,
Office of the Judge Advocate General, Washington Navy
Yard,
Washington, DC, Aug. 31, 2006.
Hon. John McCain,
Russell Senate Office Building,
Washington, DC.
Dear Senator McCain. Thank you for your letter of August
23, 2006 requesting my personal views on military commission
legislation.
Before proceeding with discussion of specific issues, I
would like to note that I have had the opportunity to provide
comment to the DoD General Counsel and the Department of
Justice regarding draft commission legislation. As of this
writing, I have not seen the final version of the
Administration's draft.
Although existing courts-martial rules are not practical
for the prosecution of unlawful enemy combatants, they
provide a good starting point for the drafting of Commission
legislation. I recommend that legislation establish the
jurisdiction of military commissions, set baseline standards
of structure, procedure, and evidence consistent with U.S.
law and the law of war, and prescribe all substantive
offenses. It also should authorize the President to
promulgate supplemental rules of practice. In this regard, I
believe we should follow the military justice model, whereby
Congress establishes the legal framework (the Uniform Code of
Military Justice, or in this case a Code for Military
Commissions) and the President promulgates supplemental rules
of practice (a Manual for Courts-Martial, or in this case a
Manual for Military Commissions) .
Within that context, I recommend that the jurisdiction of
military commissions be expanded to permit prosecution of all
unlawful enemy combatants who engage in or attempt to engage
in hostilities against the United States. In particular, we
need the ability to prosecute before military commissions
irregular belligerents who violate the laws of war while
acting on behalf of foreign governments as well as terrorists
not associated with al Qaida and/or the Taliban.
With regard to baseline standards of structure, procedure,
and evidence, it is critically important that independent
military judges preside at military commissions and have
authority to make final rulings on all matters of law.
Similarly, defense counsel must have an independent reporting
chain of command, free from both actual and perceived
influence of prosecution and convening authorities.
The introduction of evidence outside the presence of an
accused is, in my view, inconsistent with U.S. law and the
law of war. The Supreme Court held in Hamdan v. Rumsfeld, 126
S.Ct. 2749 (2006), that absent a sufficient practical need to
deviate from existing U.S. laws and criminal trial
procedures, an accused must be present at trial and have
access to all evidence presented against him. A four-justice
plurality also opined that Common Article 3 of the 1949
Geneva Conventions requires, at a minimum, that an accused be
present at trial and have access to the evidence presented
against him. Justice Kennedy, who was not part of the
plurality, further signaled in a separate concurring opinion
that introduction of evidence outside the presence of the
accused would be ``troubling'' and, if done to the prejudice
of the accused would be grounds for reversal. Furthermore, as
a matter of policy, adopting such practice for military
commissions may encourage others to reciprocate in kind
against U.S. service members held in captivity.
I recommend that the legislation adopt Military Rule of
Evidence 505 (M.R.E. 505), which is partly based on the
Classified Information Procedures Act (CIPA). M.R.E. 505
permits a military judge to
