Congressional Record: February 13, 2007 (Senate)
Page S1918-S1920                        


      By Mr. DODD (for himself, Mr. Leahy, Mr. Feingold, and Mr. 
  S. 576. A bill to provide for the effective prosecution of terrorists 
and guarantee due process rights; to the Committee on Armed Services.
  Mr. DODD. Mr. President, I rise today to introduce the Restoring the 
Constitution Act of 2007--a bill to provide for the effective 
prosecution of terrorists and guarantee due process rights. I am 
pleased to be joined by Senators Leahy, Feingold, and Menendez as 
original cosponsors. This bill would make significant important changes 
to the Military Commissions Act of 2006 which became law last October.
  I have served in this body for more than a quarter-century, but I 
remember few days darker than September 28, 2006, the day the Senate 
passed President Bush's Military Commissions Act. Let me be honest with 
you, I believe this body gave in to fear that day. I believe we looked 
for refuge in the rule of men, when we should have trusted in the rule 
of law.
  Restoring the Constitution Act of 2007 is more than mere tinkering 
with provisions of the Military Commissions Act. This legislation, 
which is similar to the bill that I introduced in the last Congress, 
makes major and important changes to that law in order to ensure we 
have the essential legal tools to achieve a lasting American victory 
without violating American values.
  What does this proposed legislation do?
  It restores the writ of habeas corpus for individuals held in U.S. 
  It narrows the definition of unlawful enemy combatant to individuals 
who directly participate in hostilities against the United States in a 
zone of active combat, who are not lawful combatants.
  It requires that the United States live up to its Geneva Convention 
obligations by deleting a prohibition in the law that bars detainees 
from invoking Geneva Conventions as a source of rights at trial.
  It permits the accused to retain qualified civilian attorneys to 
represent them at trial.
  It prevents the use of evidence in court gained through the 
unreliable and immoral practices of torture and coercion.
  It charges the military judge with the responsibility for ensuring 
that the jury is appropriately informed as to the sources, methods and 
activities associated with developing out of court statements proposed 
to be introduced at trial, or alternatively that the statement is not 
  It empowers military judges to exclude hearsay evidence they deem to 
be unreliable.
  It authorizes the U.S. Court of Appeals for the Armed Forces to 
review decisions by the military commissions.
  It limits the authority of the President to interpret the meaning and 
application of the Geneva Conventions and makes that authority subject 
to congressional and judicial oversight.
  It clarifies the definition of war crimes in statute to include 
certain violations of the Geneva Conventions.
  Finally, it provides for expedited judicial review of the Military 
Commissions Act of 2006 to determine the constitutionally of its 
  To be clear--I absolutely believe that under very clearly proscribed 
circumstances military commissions can be a useful instrument for 
bringing our enemies to justice. But those who ask us to choose between 
national security and moral authority are offering us a false choice, 
and a dangerous one. Our Nation has been defeating tyrants and would-be 
tyrants for more than two centuries. And in all that struggle, we've 
never sold our principles--because if We did, we would be walking in 
the footsteps of those we most despise.
  In times of peril, throwing away due process has been a constant 
temptation--but that is why we honor so highly those who resisted it. 
At Nuremberg, America rejected the certainty of execution for the 
uncertainty of a trial, and gave birth to a half-century of moral 
authority. Today I am asking my colleagues to reclaim that tradition, 
to put the principles of the Constitution above the passion of the 
moment. That reclamation can begin today--if we remedy President Bush's 
repugnant law. We can do it--and keep America Secure at the same time.
  Freedom from torture. The right to counsel. Habeas corpus. To be 
honest, it still amazes me that we have to come to the floor of the 
Senate to debate these protections at all. What would James Madison 
have said if you told him that someday in the future, a Senator from 
Connecticut would be forced to publicly defend habeas corpus, the 
defendant's right to a day in court, the foundation of Our legal system 
dating back to the 13 century? What have we come to that such long-
settled, long-honored rights have been called into question?
  But here we are. And now it is upon us to renew them. I'd like to 
talk in detail about several key components of my legislation. The 
Military Commissions Act eliminated habeas corpus. Habeas corpus allows 
a person held by the government to question the legality of his 
detention. In my view, to deny this right not only undermines the rule 
of law, but damages the very fabric of America. It is not who we are, 
and it is not who we aspire to be. My bill reopens the doors to the 
Court house by restoring the writ of habeas corpus for individuals held 
in U.S. custody.
  By approving the Military Commissions Act, Congress abdicated its 
constitutionally-mandated authority and responsibility to safeguard 
this principle and serve as a co-equal check on the executive branch. 
This law confers an unprecedented level of power on the president, 
allowing him the sole right to designate any individual as an 
``unlawful enemy combatant'' if he or she engaged in hostilities or 
supported hostilities against the United States. In my view and in the 
view of many legal experts, this definition of ``unlawful enemy 
combatant'' is unmanageably vague. As we have all seen, ``unlawful 
enemy combatants'' are subject to arrest and indefinite detention, in 
many cases without ever being changed with a crime, let alone being 
found guilty. My bill would curtail potential abuse of the unlawful 
enemy combatant designation by narrowing the definition of unlawful 
enemy combatant to individuals who directly participate in hostilities 
against the United States in ``a zone of active combat'', and who are 
not lawful combatants. This correction is desperately needed to restore 
America's standing in the world and to right injustices that have 
recently been documented by international human rights organizations.
  According to the Pentagon, last October, only 70 out of the 435 
detainees housed at U.S. prison camps were expected to face a military 
trial, leaving hundreds of others to be held indefinitely. And while 
the Pentagon acknowledges that at least 110 of these detainees were 
labeled ``ready to release,'' for some reason they have been kept under 
lock and key. Then there are stories such as the one about Asif Iqbal, 
a British humanitarian aid volunteer who, according to a January 10, 
2007 Associated Press story, was mistakenly captured in Afghanistan and 
subjected to isolation, painful positioning, screeching music, strobe

[[Page S1919]]

lights, sleep deprivation, and extreme temperatures. After three 
months, of enduring such treatment, Iqbal was released in 2004 without 
any charges brought against him.
  Such sordid episodes have gravely undermined our apparent commitment 
to the Geneva Conventions and damaged our status both at home and in 
the global community. By failing to reaffirm our obligations under 
these vital treaties, the Military Commissions Act has only 
further eroded America's moral authority and perhaps ceded our nation's 
status as the leading proponent of international law and human rights. 
For this reason, the legislation I am offering today will reaffirm our 
obligations under the Geneva Conventions in several key ways. First, it 
would allow detainees to invoke the Geneva Conventions as a source of 
rights in their trials, overturning a ban put in place by the Military 
Commissions Act. Second, this legislation will limit the authority of 
the President to interpret and redefine the meaning and application of 
the Geneva Conventions by subjecting this authority to Congressional 
and judicial oversight. Lastly, my bill would statutorily define 
certain violations of the Geneva Conventions as war crimes. These 
provisions are all vitally important in allowing the United States to 
effectively wage the war on terror. The war that we are currently 
waging requires increasing international cooperation, but the 
President's plan puts us on a path of increasing isolation from even 
our staunchest allies.

  Furthermore, this path is undermining our government's commitments to 
fundamental tenets of the American legal system. One of these tenets 
entails the right of the accused not only to confront his/her accuser 
but also to retain an attorney to represent him/her at trial. This is a 
basic right afforded to even the most egregious criminals under 
domestic law. And yet, under the administration's plan, this measure is 
being abandoned. In response, my bill sets standards for legal 
representation and allows for civilian legal counsel in military 
commission proceedings.
  Even more importantly, my bill improves on these proceedings by 
prohibiting the use in court of any evidence that was gained through 
the unreliable and immoral practices of coercion. Incredibly, the 
Military Commissions Act lacks this blanket ban on evidence gained 
through torture. This is critically important for two very different 
reasons. Torture has been proven to be ineffective in interrogations, 
yielding highly unreliable information because a detainee, hoping to 
end the pain, will simply say whatever he believes an interrogator 
wants to hear. Second, torture allows foreign militaries to mistreat 
future American prisoners of war and use U.S. actions as an excuse. No 
one has said it with more authority than our colleague, Senator John 
  As he stated last year, ``the intelligence we collect must be 
reliable and acquired humanely, under clear standards understood by all 
our fighting men and women . . . the cruel actions of a few to darken 
the reputation of our country in the eyes of millions,''
  To address these concerns, my bill restores to military judges the 
responsibility of ensuring that information introduced at trial has not 
been obtained through methods defined as cruel, inhuman, or degrading 
treatment by the Detainee Treatment Act of 2005. Sadly, the Military 
Commissions Act shows disrespect for and mistrust of the highly trained 
professionals on our military's bench by stripping them of autonomy and 
authority. The legislation I am proposing today empowers military 
judges to exclude hearsay evidence they deem to be unreliable. In 
addition, this bill will grant military judges discretion in the event 
that classified evidence has a bearing on the innocence of an 
individual but is excluded due to national security concerns and 
declassified alternatives are insufficient. America's military judges 
have been fully trained and prepared to handle classified information. 
The Bush administration's failure to recognize this fact is an insult 
to the men and women of our military's bench and an affront to our 
military's justice system.
  Unlike the current administration, I trust our courts to be able to 
handle the delicate legal and national security issues inherent in the 
cases involving so-called unlawful enemy combatants. This legislation 
therefore provides for appeals of the military commissions' decisions 
to be heard by the U.S. Court of Appeals for the Armed Forces. In my 
view, the right to an appeal is one of the most fundamental rights 
granted to anyone in our justice system. We 3 grant appeals to people 
accused of some of the most heinous crimes imaginable. We do this 
because we know that courts are not infallible. They can err in their 
decisions, and in order for these mistakes to be rectified and to avoid 
punishing innocent men and women, appeals must be allowed.
  All of these provisions are important. But perhaps none is more 
urgent than the final measure in my bill, which requires expedited 
judicial review of the Military Commissions Act of 2006 to determine 
the constitutionally of its provisions. I believe that the United 
States Congress made a crucial mistake--that is why we must ensure that 
each provision of the Administration's Military Commissions Act is 
quickly reviewed by our Nation's courts. I believe that upon such 
review, those best qualified to make these judgments--members of our 
esteemed judiciary--will see to it that the most egregious provisions 
of this act will be overturned.
  All 100 members of this body have been given the gravest of 
responsibilities. The people of this country have entrusted us with 
this Nation's security; and they have entrusted us with this Nation's 
principles. But those who argue that our principles stand in the way of 
our security are sadly, sorely mistaken: They are the source of our 
  Five months ago, we departed from that source. But it is not too late 
to turn back. It is not too late to redeem our error. I implore my 
colleagues to join me.
  Mr. FEINGOLD. Mr. President, I am pleased to cosponsor the Restoring 
the Constitution Act of 2007, which was introduced today by Senator 
Dodd. It amends the deeply flawed Military Commissions Act of 2006 to 
restore basic due process rights and to ensure that no person is 
subject to indefinite detention without charge based on the sole 
discretion of the President.
  Let me be clear: I welcome efforts to bring terrorists to justice. 
This administration has for too long been distracted by the war in Iraq 
from the fight against al Qaeda. We need a renewed focus on the 
terrorist networks that present the greatest threat to this country.
  Last year, the President agreed to consult with Congress on the 
makeup of military commissions only because he was essentially ordered 
to do so by the Supreme Court in the Hamdan decision. Congress should 
have taken that opportunity to pass legislation that would allow these 
trials to proceed in accordance with our laws and our values. That is 
what separates America from our enemies. These trials, conducted 
appropriately, would have had the potential to demonstrate to the world 
that our democratic, constitutional system of government is not a 
hindrance but a source of strength in fighting those who attacked us.
  Instead, we passed the Military Commissions Act, legislation that 
violates the basic principles and values of our constitutional system 
of government. It allows the government to seize individuals on 
American soil and detain them indefinitely with no opportunity for them 
to challenge their detention in court. And the new law would permit an 
individual to be convicted on the basis of coerced testimony and even 
allow someone convicted under these rules to be put to death.
  The checks and balances of our system of government and the 
fundamental fairness of the American people and legal system are among 
our greatest strengths in the fight against terrorism. I was deeply 
disappointed that Congress enacted the Military Commissions Act. The 
day that bill became law was a stain on our Nation's history.
  It is time to undo the harm caused by that legislation.
  The Restoring the Constitution Act amends the Military Commissions 
Act to remedy its most serious flaws, and I am pleased to support it.
  First of all, this legislation would restore the great writ of habeas 
corpus, to ensure that detainees at Guantanamo Bay and elsewhere--
people who have been held for years but have not

[[Page S1920]]

been tried or even charged with any crime--have the ability to 
challenge their detention in court. Senator Dodd's bill would repeal 
the habeas stripping provisions of both the Military Commissions Act 
and the Detainee Treatment Act.
  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.
  Habeas corpus is a longstanding vital part of our American tradition, 
and is enshrined in the U.S. Constitution.
  As a group of retired judges wrote to Congress last year, habeas 
corpus ``safeguards the most hallowed judicial role in our 
constitutional democracy--ensuring that no man is imprisoned 
  The Military Commissions Act fundamentally altered that historical 
equation. Faced with an executive branch that has detained hundreds of 
people without trial for years now, it eliminated the right of habeas 
  Under the Military Commissions Act, some individuals, at the 
designation of the executive branch alone, could be picked up, even in 
the United States, and held indefinitely without trial, without due 
process, 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 
  That is unacceptable, and it almost surely violates our Constitution. 
But that determination will take years of protracted litigation. Under 
the Dodd bill, we would not have to wait. We would restore the right to 
habeas corpus now. We can provide a lawful system of military 
commissions so that those who have committed war crimes can be brought 
to justice, without denying one of the most basic rights guaranteed by 
the Constitution to those held in custody by our government.
  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 decision-maker. The alternative is to allow people to 
be detained indefinitely with no ability to argue that they are not, in 
fact, enemy combatants. Unless it can be said with absolute certainty 
that every person detained as an enemy combatant was correctly 
detained--and there is ample evidence to suggest that is not the case--
then we should make sure that people can't simply be locked up forever, 
without court review, based on someone slapping a ``terrorist'' label 
on them.
  We must return to the great writ. We must be true to our Nation's 
proud traditions and principles by restoring the writ of habeas corpus, 
by making clear that we do not permit 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.
  But the Restoring the Constitution Act does far more than restore 
habeas corpus. It also addresses who can be subject to trial by 
military commission.
  The Military Commissions Act was justified as necessary to allow our 
government to prosecute Khalid Sheikh Mohammed and other dangerous men 
transferred to Guantanamo Bay in 2006. Yet if you look at the fine 
print of that legislation, it becomes clear that it is much, much 
broader than that. It would permit trial by military commission not 
just for those accused of planning the September 11 attacks, but also 
individuals, including legal permanent residents of this country, who 
are alleged to have ``purposefully and materially supported 
hostilities'' against the United States or its allies.
  This is extremely broad. And by including hostilities not only 
against the United States but also against its allies, the Military 
Commissions Act allows the U.S. to hold and try by military commission 
individuals who have never engaged, directly or indirectly, in any 
action against the United States.
  Not only that, but the Military Commissions Act would also define as 
an unlawful enemy combatant subject to trial by military commission, 
anyone who ``has been determined to be an unlawful enemy combatant by a 
Combatant Status Review Tribunal or another competent tribunal 
established under the authority of the President or the Secretary of 
Defense.'' This essentially grants a blank check to the executive 
branch to decide entirely on its own who can be tried by military 
  Senator Dodd's bill makes clear that the President cannot 
unilaterally decide who is eligible for trial by military commission. 
Under the Dodd bill, in order to be tried by military commission, an 
individual must have directly participated in hostilities against the 
United States in a zone of active combat, or have been involved in the 
September 11 attacks, and cannot be a lawful enemy combatant.
  Senator Dodd's bill also addresses the structure and process of the 
military commissions themselves. It ensures that these military 
commission procedures hew closely to the long-established military 
system of justice, as recommended by countless witnesses at 
congressional hearings last summer.
  Some examples of the ways in which the Dodd bill improves the 
military commission procedures include: It prevents the use of evidence 
in court gained through torture or coercion. It ensures that any 
evidence seized within the United States without a search warrant 
cannot be introduced as evidence. It empowers military judges to 
exclude hearsay evidence they deem to be unreliable. It authorizes the 
existing U.S. Court of Appeals for the Armed Forces to review decisions 
by military commissions, rather than the newly created ``Court of 
Military Commission Review,'' whose members would be appointed by the 
Secretary of Defense. And it provides for expedited judicial review of 
the Military Commissions Act to determine the constitutionally of its 
provisions before anyone is tried by military commission, so that we 
will not face even more delays in the future.
  Many of these provisions were included in the bill passed by the 
Senate Armed Services Committee in September 2006, but then stripped 
out or altered in backroom negotiations with the Administration. The 
bill also improves changes to the War Crimes Act and emphasizes the 
importance of compliance with the Geneva Conventions.
  In sum, Senator Dodd's legislation addresses many of the most 
troubling and legally suspect provisions of the Military Commissions 
Act. Congress would be wise to make these changes now, rather than wait 
around while the Military Commissions Act is subject to further legal 
challenge, and another 4 or 5 years are squandered while cases work 
their way through the courts again.
  In closing let me quote John Ashcroft. According to the New York 
Times, at a private meeting of high-level officials in 2003 about the 
military commission structure, then-Attorney General Ashcroft 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 Congress passed 
legislation about which the same cannot be said. We can and must undo 
this mistake.