Congressional Record: September 14, 2006 (Senate)
Page S9586-S9588                       


                          Terrorist Surveillance

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
briefly about two subjects: One, the legislation providing for judicial 
review for the President's terrorist surveillance program; and, second, 
what we are going

[[Page S9587]]

to do to comply with Hamdan v. Rumsfeld.
  The Judiciary Committee reported out three bills yesterday. S. 2453, 
which is my bill, provides that the surveillance program will be 
submitted to the Foreign Intelligence Surveillance Court. There is no 
doubt that the President's program violates the Foreign Intelligence 
Surveillance Act, which purports to be exclusive. But if there is 
constitutional authority under Article 2, that constitutional authority 
trumps the act. The only way there can be a determination on that is to 
have a court weigh the seriousness of the threat as opposed to the 
invasion on privacy.
  This legislation, S. 2453, does not authorize the President's 
program, contrary to the assertions of many people. What it does is 
subject the President's program to judicial review. It does not mandate 
review because, understandably, the President does not want to curtail 
his institutional authority.
  What I have sought to accomplish is to have this program reviewed; 
and the President has made a commitment, confirmed by the White House, 
that this program will be submitted for judicial review.
  There has been a contention raised that there is an inconsistency 
between Senator Feinstein's bill, S. 3001, and my bill, S. 2453, and it 
is not true. The provision in Senator Feinstein's bill says that the 
FISA is the exclusive means for wiretapping. That is true, unless the 
statute is superseded by a constitutional provision.
  My bill, S. 2453, says that nothing in the act limits the President's 
constitutional authority, because a statute cannot limit the 
President's constitutional authority.
  We will be moving ahead, I hope shortly, with the leader calling the 
bill to the floor so that we can make a determination on judicial 
review to see to it that whatever wiretapping is going on is judicially 
approved. It may be that some cases will come up collaterally. There 
are a number of cases in district courts. The one in Portland may have 
standing. I do not propose, in my legislation, to strip any court of 
jurisdiction where a case has been started and has proceeded. I think, 
in the course of business, the matters ought to be referred to the FISA 
court, but not for any jurisdiction stripping where courts have 
proceeded.
  With respect to the activities of the Congress seeking to comply with 
the ruling of the Supreme Court of the United States in Hamdan v. 
Rumsfeld, the primary responsibility goes to the Armed Services 
Committee. The Judiciary Committee does have jurisdiction because title 
18 of the Criminal Code is implicated and we have jurisdiction over the 
interpretation of the Geneva Conventions.
  There have been a number of controversial issues raised on which I 
would like to comment. One provision relates to classified information. 
It is my view that it is indispensable to have witnesses confront their 
accusers and know what the evidence is. Common Article 3 of the Geneva 
Conventions provides that there has to be an affording of all judicial 
guarantees which are recognized as indispensable by civilized people. I 
think that would include telling somebody what the evidence is before 
they have a significant penalty which might include the death penalty.
  We have a Confidential Information Protection Act which sets the 
guidelines that I think ought to be applicable here. The consequence 
is, if you cannot produce the evidence for the defendant to hear, the 
case may have to be dismissed. But that will not prejudice the 
government here because these individuals can be detained as enemy 
combatants for an indefinite period of time.
  So we will not disclose sources and methods; we will not release 
anybody; we may not convict them if we can't produce the evidence, but 
they will be detained and not present a threat.
  There is an issue raised as to coerced confessions. I do not believe 
that we can tolerate that and be consistent with United States law or 
consistent with the Geneva Conventions. Coerced confessions are unfair 
and they are unreliable.
  With respect to Common Article 3, the Judiciary Committee has 
submitted for consideration and inclusion in the legislation being 
considered by the Armed Services Committee amendments to section 303 on 
war crimes.
  I ask unanimous consent that they be printed in the Record at the 
conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, with respect to the controversy about 
whether there ought to be included the provisions of the Detainee 
Treatment Act, I believe that they should be because they further 
delineate what would constitute a violation of Common Article 3. But I 
do not believe they ought to be exclusive or foreclose other 
considerations under Common Article 3. In addition to the specification 
of the crimes under the War Crimes Act, which I have submitted, it 
would be useful to have the provisions of the Detainee Treatment Act 
included, which are the fifth amendment, the eighth amendment and the 
14th amendment, where there has been considerable judicial 
interpretation as to what are prohibited acts.
  General Hayden, Director of the CIA, thinks that is necessary in 
order to be able to give comprehensive advice.
  I personally do not know that the interrogation has to go beyond what 
is in the Army Field Manual. In a visit to Guantanamo, the chief 
interrogator handling some 32 interrogators and thousands of 
interrogations thinks that the Army Field Manual is sufficient. It may 
or may not be. The CIA wants greater latitude, but there is some 
assurance of congressional oversight because the interrogation tactics 
have to be submitted to the Intelligence Committee. One other point 
that I want to comment on is my concern about the inclusion of habeas 
corpus relief. I believe that it is important to retain jurisdiction of 
the Federal courts on habeas corpus. This was a contested issue under 
the Detainee Treatment Act, but we have seen that the only real firm 
guidance has come from the Supreme Court of the United States.
  In three cases regarding detainees from June of 2005, Jose Padilla, 
Hamdi, and the Hamdan v. Rumsfeld decision, the Congress has been 
unwilling or unable to act. I introduced legislation for military 
commissions shortly after September 11 as did other Senators. We didn't 
act. We punted to the Supreme Court.
  These issues, regrettably, experience has shown, are just too hot to 
handle by the Congress. The Supreme Court of the United States under 
the rule of law has enforced compliance of detainees, and now 
compliance for those who are to be tried for war crimes under the 
Geneva Conventions' terms as well as under title 18.
  It is simply insufficient to limit the great rift which seems 
embodied in our habeas corpus statute.
  I have had some discussion with Senator Levin, who is on the floor at 
the present time, about offering an amendment if in fact the bill comes 
from the Armed Services cutting out habeas corpus.
  It is my hope that we can move reasonably promptly to S. 2453 so that 
there may be set in motion the procedures to have the Federal courts 
rule on the constitutionality of the President's electronic 
surveillance program.
  It would be highly desirable to bring the entire program under the 
Foreign Intelligence Surveillance Act. There are provisions in Senator 
Feinstein's bill, S. 3001, which I have cosponsored, that I believe 
would enable us to bring individual live warrants for causes which 
originated in the United States and go overseas.
  I have been advised that the calls which originate overseas are so 
numerous that it is not possible to have individual live warrants. So 
that under these circumstances the most that can be accomplished is to 
have the program submitted to the Foreign Intelligence Surveillance 
Court.
  In one of the four hearings on this bill, four former judges of the 
FISA Court appeared and testified and commented that the bill was 
practical, that there was sufficient standing, that there were 
litigable issues and that the Foreign Intelligence Surveillance Court 
can handle it. They can handle it as a matter of expertise because of 
their extensive experience, and they can handle it because their 
proceedings are closed so that there is not a public disclosure of 
state secrets.

[[Page S9588]]

  It may be, as I said very briefly earlier, that one of the cases 
coming out of Federal courts--there has been a decision from Detroit, 
and there is a case pending in San Francisco--my review of those cases 
suggests to me that the case which is coming out of Portland I think 
would have standing.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SPECTER. Mr. President, I thank the distinguished chairperson of 
the Homeland Security Committee for yielding me the time. I yield the 
floor.

                               Exhibit 1

     SEC. 303. WAR CRIMES ACT AMENDMENT.

       Section 2441 of title 18, United States Code is amended by 
     replacing subsection (c)(3) with the following:
       ``(3) which constitutes any of the following serious 
     violations of common Article 3 of the international 
     conventions signed at Geneva 12 August 1949, when committed 
     in the context of and in association with an armed conflict 
     not of an international character:
       ``(1) Torture.--Any person who commits, or conspires or 
     attempts to commit, an act specifically intended to inflict 
     severe physical or mental pain or suffering (other than pain 
     or suffering incidental to lawful sanctions) upon another 
     person within his custody or physical control for the purpose 
     of obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind, shall be guilty of a violation of this 
     subsection. `Severe mental pain or suffering' has the meaning 
     provided in 18 U.S.C. 2340(2).
       ``(2) Cruel or inhuman treatment.--Any person who commits, 
     or conspires or attempts to commit, an act intended to 
     inflict severe physical or mental pain or suffering (other 
     than pain or suffering incidental to lawful sanctions), 
     including severe physical abuse, upon another person within 
     his custody or physical control shall be guilty of a 
     violation of this subsection. `Severe mental pain or 
     suffering' has the meaning provided in 18 U.S.C. 2340(2).
       ``(3) Performing biological experiments.--Any person who 
     subjects, or conspires or attempts to subject, one or more 
     persons within his custody or physical control to biological 
     experiments without a legitimate medical purpose and in so 
     doing endangers the body or health of such person or persons 
     shall be guilty of a violation of this subsection.
       ``(4) Murder.--Any person who intentionally kills, or 
     conspires or attempts to kill, or kills whether intentionally 
     or unintentionally in the course of committing any other 
     offense under this section, one or more persons taking no 
     active part in the hostilities, including those placed out of 
     active combat by sickness, wounds, detention, or any other 
     cause, shall be guilty of a violation of this subsection. The 
     intent required for this offense precludes its applicability 
     with regard to collateral damage or to death, damage, or 
     injury incident to a lawful attack.
       ``(5) Mutilation or maiming.--Any person who intentionally 
     injures, or conspires or attempts to injure, or injures 
     whether intentionally or unintentionally in the course of 
     committing any other offense under this section, one or more 
     persons taking no active part in the hostilities, including 
     those placed out of active combat by sickness, wounds, 
     detention, or any other cause, by disfiguring the person or 
     persons by any mutilation thereof or by permanently disabling 
     any member, limb, or organ of his body, or burning any 
     individual without any legitimate medical or dental purpose, 
     shall be guilty of a violation of this subsection. The intent 
     required for this offense precludes its applicability with 
     regard to collateral damage or to death, damage, or injury 
     incident to a lawful attack.
       ``(6) Intentionally causing great suffering or serious 
     injury.--Any person who intentionally causes, or conspires or 
     attempts to cause, serious bodily injury to one or more 
     persons taking no active part in the hostilities, including 
     those placed out of active combat by sickness, wounds, 
     detention, or any other cause, shall be guilty of a violation 
     of this subsection. The intent required for this offense 
     precludes its applicability with regard to collateral damage 
     or to death, damage, or injury incident to a lawful attack. 
     `Serious bodily injury' has the meaning provided in 18 U.S.C. 
     113(b)(2).
       ``(6) Rape.--Any person who forcibly or with coercion or 
     threat of force wrongfully invades, or conspires or attempts 
     to invade, the body of a person by penetrating, however 
     slightly, the anal or genital opening of the victim with any 
     part of the body of the accused or with any foreign object 
     shall be guilty of a violation of this subsection.
       ``(7) Sexual assault or abuse.--Any person who forcibly or 
     with coercion or threat of force engages, or conspires or 
     attempts to engage, in sexual contact with one or more 
     persons, or causes, or conspires or attempts to cause, one or 
     more persons to engage in sexual contact, shall be guilty of 
     a violation of this subsection. For purposes of this offense, 
     `sexual contact' has the meaning provided in 18 U.S.C. 
     2246(3). Sexual assault or abuse may also include, but is not 
     limited to forcing any person to engage in simulated sexual 
     acts or to pose in an overtly sexual manner.
       ``(8) Taking hostages.--Any person who, having knowingly 
     seized or detained one or more persons, threatens to kill, 
     injure, or continue to detain such person or persons with the 
     intent of compelling any nation, person other than the 
     hostage, or group of persons to act or refrain from acting as 
     an explicit or implicit condition for the safety or release 
     of such person or persons, shall be guilty of a violation of 
     this subsection. This provision shall not apply to prisoner 
     exchanges during wartime. Any person who attempts to engage 
     or conspires to engage in this offense shall also be guilty 
     under this subsection;''
       Section 2441 of title 18, United States Code is amended by 
     replacing the period at the end of subsection (c)(4) and 
     adding the following new subsections:
       ``(5) involving `genocide' as defined in title 18, United 
     States Code, section 1091;
       ``(6) involving `sabotage' as defined in title 18, United 
     States Code, section 2151 et seq.; or
       ``(7) involving forced oaths, conversions, or renouncements 
     of one's allegiance to a nation or religion.
       Section 2441 of title 18, United States Code is amended in 
     subsection (a) by adding ``attempts to commit a war crime, or 
     conspires to commit a war crime,'' after ``commits a war 
     crime.''
       Section 2441 of title 18, United States Code is amended by 
     adding the following sentence at the end of subsection (b):
       The circumstances referred to in subsection (a) shall also 
     include unprovoked attacks on American citizens on domestic 
     or foreign soil by any private army, terrorist organization, 
     or other ideological combination or alliance where such an 
     attack would otherwise be considered a war crime if committed 
     by a nation state or military force.

 CHAPTER 3--JUDICIAL REVIEW; MISCELLANEOUS. SEC. 301. JUDICIAL REVIEW.

       Combatant Status Review Tribunals.--The United States Court 
     of Appeals for the Armed Forces shall, with the United States 
     Supreme Court upon a petition for certiorari, have exclusive 
     jurisdiction to determine the validity of any final decision 
     of a Combatant Status Review Tribunal. The scope of such 
     review is defined in section 1005(e)(2) of the Detainee 
     Treatment Act of 2005. If the Court grants a detainee's 
     petition for review, the Department of Defense may conduct a 
     new Combatant Status Review Tribunal.
       (1) Military commission.--Review shall be had only of final 
     judgments of military commissions as provided for pursuant to 
     section 247 of the Military Commissions Act of 2006.