[Congressional Record Volume 151, Number 150 (Monday, November 14, 2005)]
[Senate]
[Pages S12727-S12740]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S12727]]
        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 1042, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1042) to authorize appropriations for fiscal 
     year 2006 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Forces, and for other purposes.

  Pending:

       Graham amendment No. 2515, relating to the review of the 
     status of detainees of the United States Government.
       Warner/Frist amendment No. 2518, to clarify and recommend 
     changes to the policy of the United States on Iraq and to 
     require reports on certain matters relating to Iraq.
       Levin amendment No. 2519, to clarify and recommend changes 
     to the policy of the United States on Iraq and to require 
     reports on certain matters relating to Iraq.

  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, before the Senator from Florida leaves the 
floor, I wish to do two things. First, I want to thank him for the 
energy and the perception he has shown in pointing out some of the 
problems with this prescription drug benefit which was voted on.
  He has a lot of seniors in his State, and he is uniquely aware of, 
sensitive to, and determined to see if we cannot make some changes in 
this process which will make what we have done a lot more friendly to 
seniors. I cannot think of anybody in this body who knows more about 
this subject or is more determined to make the changes necessary for 
the benefit of our seniors.
  Because of the confusion out there, the uncertainty is rife. We do 
not have quite as many seniors in our State as they do in Florida, but 
our seniors are telling me pretty generally what the seniors down in 
Florida are saying to the Senator from Florida. I thank him and commend 
him for the leadership he is taking and for the proposed change he is 
proposing.
  Secondly, I thank him for his service on the Armed Services 
Committee. We have a wonderful committee. It is a bipartisan committee. 
The Senator from Florida, Mr. Nelson, makes an important contribution 
to it. He is there all the time with very perceptive questions that are 
intended to support the men and women in our military. I thank him for 
his participation.
  Mr. President, the Senator from New Mexico, I believe, now is ready 
to offer an amendment which is referred to in the unanimous consent 
agreement. I will yield to him 15 minutes, should he so need 15 
minutes, on our side of the debate for that purpose.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Mr. President, I thank my colleague from Michigan for 
yielding.


                Amendment No. 2523 to Amendment No. 2515

  Mr. President, I send an amendment to the desk and I ask for its 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman] proposes an 
     amendment numbered 2523 to amendment No. 2515.

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

                  (Purpose: To improve the amendment)

       Strike subsection (d) and insert the following:
       (d) Judicial Review of Detention of Enemy Combatants.--
       (1) In general.--Except as provided in paragraph (2), the 
     United States Court of Appeals for the District of Columbia 
     Circuit shall have exclusive jurisdiction to consider an 
     application for writ of habeas corpus filed by or on behalf 
     of an alien outside the United States (as that term is 
     defined in section 101(a)(38) of the Immigration and 
     Naturalization Act (8 U.S.C. 1101(a)(38))--
       (A) who is, at the time a request for review by such court 
     is filed, detained by the Department of Defense at Guantanamo 
     Bay, Cuba; and
       (B) for whom a Combatant Status Review Tribunal has been 
     conducted, pursuant to applicable procedures specific by the 
     Department of Defense.
       (2) Exceptions.--This subsection does not apply to the 
     following:
       (A) An individual charged with an offense before a military 
     commission.
       (B) An individual who is not designated as an enemy 
     combatant following a combatant status review, but who 
     continues to be held by the United States Government.
       (3) Venue.--Review under paragraph (1) shall commence in 
     the United States Court of Appeals for the District of 
     Columbia Circuit.
       (4) Claims reviewable.--The United States Court of Appeals 
     for the District of Columbia Circuit may not, in a review 
     under paragraph (1) with respect to an alien, consider claims 
     based on living conditions, but may only hear claims 
     regarding--
       (A) whether the status determination of the Combatant 
     Status Review Tribunal with regard to such alien was 
     consistent with the procedures and standards specified by the 
     Secretary of Defense for Combatant Status Review Tribunals;
       (B) whether such status determination was supported by 
     sufficient evidence and reached in accordance with due 
     process of law, provided that statements obtained through 
     undue coercion, torture, or cruel or inhuman treatment may 
     not be used as a basis for the determination; and
       (C) the lawfulness of the detention of such alien.
       (5) Termination on release from custody.--The jurisdiction 
     of the United States Court of Appeals for the District of 
     Columbia Circuit with respect to the claims of an alien under 
     this subsection shall cease upon the release of such alien 
     from the custody or control of the United States.
       (6) Effective date.--This subsection shall apply to any 
     application or other action that is pending on or after the 
     date of the enactment of this Act.

  Mr. BINGAMAN. Mr. President, before describing the amendment, let me 
talk briefly in opposition to Senator Graham's amendment, the 
underlying amendment that was adopted by the Senate on Thursday, and 
address some of the mistaken claims that were made last week during the 
debate on that amendment.
  There were a lot of statements made last week. It is important to be 
clear about what the Graham amendment does. The amendment, as drafted, 
as voted on last week in the Senate, would overrule a Supreme Court 
case issued earlier this year that recognized the longstanding right to 
file a petition for habeas corpus. This right is absolutely 
fundamental. It is the right of an individual who is being detained by 
the executive branch of our Government to question the legality of that 
person's detention.
  Contrary to what Senator Graham has said, I do not believe we are 
giving prisoners new rights in the amendment that I just sent to the 
desk or in the underlying bill. I believe we need to keep in place the 
rights that have already existed, that currently exist, and that the 
Supreme Court has recognized. We need to prevent the courts from being 
stripped of the authority they have and have always had.
  Let me take a moment to address the notion that we should not care 
about these individuals because these individuals are terrorists. 
Frankly, I have no doubt that some of the individuals being detained at 
Guantanamo are a threat, and it is for this reason I have never 
advocated that we release these prisoners. But we need to recognize 
that not all of these prisoners are necessarily terrorists in the sense 
that we are debating that here.
  There is a January 2005 Wall Street Journal article stating:

       American commanders acknowledge that many of the prisoners 
     shouldn't have been locked up here in the first place because 
     they weren't dangerous and didn't know anything of value.

  The article also quoted BG Jay Hood, the commander at Guantanamo, 
saying:

       Sometimes, we just didn't get the right folks.

  The deputy commander, GEN Martin Lucenti, was also quoted as saying:

       Most of these guys weren't fighting. They were running.

  My point is simple. It is reasonable to insist that when the 
Government deprives a person of his or her liberty--and in this case 
for an indefinite period of time--the individual have a meaningful 
opportunity to challenge the legality of their detention and challenge 
whether they are being wrongfully detained. This is not a radical 
proposition I have enunciated. It is enshrined in our Constitution. It 
was recently reaffirmed by our own Supreme Court in the Rasul decision.
  That brings me to the second point. Last week, Senator Kyl compared 
challenges by Guantanamo prisoners to a frivolous prisoner lawsuit 
filed by an inmate in Arizona who was unhappy

[[Page S12728]]

with the type of peanut butter he was being served at his meals.
  Let's be clear. We are not talking about depriving a person of their 
right to eat a certain type of peanut butter. We are talking about 
individuals challenging their indefinite imprisonment. If a claim is 
filed that is frivolous, a court can simply refuse to hear the claim.
  We are also not talking about suits against U.S. soldiers. There were 
statements made in last week's debate about ``we don't want these 
prisoners going and suing our soldiers.'' There is nothing in what I am 
proposing or what is currently in place that permits that. We are 
talking about suits challenging the legality of a person's imprisonment 
by our own Government. The right to challenge the legality of one's 
detention by the Government is one of the most fundamental human 
rights, the right to be free from being unlawfully detained by the 
Government.
  It was also argued, last week, that by refusing to overrule the Rasul 
decision, which was issued by our Nation's highest Court this last 
year, we are giving Guantanamo prisoners access to rights that even our 
own soldiers do not enjoy.
  Last week, Senator Graham asserted:

       Here is the one thing I can tell you for sure as a military 
     lawyer. A POW or an enemy combatant facing law of armed 
     conflict charges has not been given the right of habeas 
     corpus for 200 years because our own people in our own 
     military facing court-martials, who could be sentenced to 
     death, do not have the right of habeas corpus. It is about 
     military law. I am not changing anything. I am getting us 
     back to what we have done for 200 years.

  Frankly, that statement is completely an incorrect representation of 
what the Graham amendment does. If a U.S. soldier is detained for 
committing a crime, then that soldier is charged, provided an attorney, 
and tried pursuant to the Uniform Code of Military Justice. Military 
personnel can challenge a court-martial conviction by filing a writ 
of habeas corpus in a U.S. district court pursuant to 28 USC 2241. 
Cases such as Dodson v. Zeliz, which is a Tenth Circuit decision in 
1990, demonstrate that they are provided such habeas corpus relief or 
the opportunity to file for habeas corpus.

  One could also look at CPT Dwight Sullivan's article, ``The Last Line 
of Defense: Federal Habeas Review of Military Death Penalty Cases,'' in 
the Military Law Review, from 1994, to see that U.S. servicemen are 
also allowed to seek habeas review in death penalty cases.
  Mr. President, I ask unanimous consent that a letter sent to me by 
the chief defense counsel for the Office of Military Commissions, COL 
Dwight Sullivan, that flushes out these points, be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BINGAMAN. With regard to these Guantanamo prisoners, the 
administration has refused to apply the laws of war, and only a handful 
of the 500 prisoners held at Guantanamo have been charged. None have 
been tried as yet, and it is unreasonable to say that these prisoners 
are being granted more rights than our military personnel.
  I would also like to take a moment to read to you the names of some 
of the many people who oppose the Graham amendment: John Hudson, a 
former Judge Advocate General of the Navy, has written to me indicating 
his strong opposition; John Gibbons, a former Nixon appointee who 
served on the Third Circuit Court of Appeals; Eugene Fidell, the 
president of the National Institute of Military Justice; Dwight 
Sullivan, the chief defense counsel for the Office of Military 
Commissions. And I have a long list of other distinguished former 
officials of our military. They have joined, and I will enter letters 
they have given to me as part of the Record in a moment.
  These leaders have dedicated their lives to fighting for and 
preserving our freedom, democracy, human rights, and respect for the 
rule of law. They oppose the Graham amendment because they see it as 
contrary to the values and rights that the men and women of our armed 
services have fought for.
  I have no doubt that some of my colleagues are concerned that if they 
vote against the Graham amendment, they would face 30-second attack ads 
accusing them of being soft on terrorism. But this is not about our 
resolve to defeat terrorists. This is about our resolve to maintain in 
place the legal protections on which our country was established. These 
are hard decisions. They are tough votes. This is the Senate. We have 
taken an obligation to uphold the Constitution of the United States, 
even in times of war.
  The amendment I offer would maintain the right to seek a meaningful 
judicial review. Specifically, the amendment would allow individuals--
any individual--to seek habeas review but would provide that the U.S. 
Court of Appeals for the District of Columbia Circuit would have 
exclusive jurisdiction to hear these claims. It would also limit the 
ability of a court to consider claims regarding one's living 
conditions, such as whether they were given peanut butter of a 
particular type or access to particular DVDs or whatever other 
frivolous claim might be envisioned. It would, however, allow a person 
to seek review regarding whether he or she is being unlawfully 
imprisoned. If a court determines that the detention is lawful, the 
court can simply deny the petitioner's application.
  There are good provisions in the Graham amendment, but there are also 
some extremely problematic sections. Both the chairman and ranking 
member of the Judiciary Committee argued on the Senate floor, last 
Thursday, that this is an issue that needs careful consideration before 
the Senate Judiciary Committee. Unfortunately, it appears this proposal 
may have the votes to move forward.
  The amendment I am offering will keep in place the necessary 
protections in our Constitution and in our common law, and it will also 
take the necessary steps to ensure there is a proper and expedited 
procedure for these proceedings.
  Mr. President, let me, briefly, before I yield the floor, call my 
colleagues' attention to some of these letters that I think are 
extremely important and make the case extremely well. I have previously 
alluded to the letter I received from COL Dwight Sullivan, U.S. Marine 
Corps Reserve, Chief Defense Counsel for the Office of Military 
Commissions. This is the office that was established in the Department 
of Defense to defend people who are charged by military commissions.
  Colonel Sullivan goes step by step through the various statements 
that have been made in support of the Graham amendment and refutes 
those contentions at every step.
  I also have a letter from the National Institute of Military Justice, 
written by Eugene Fidell. Let me read it to my colleagues:

       On behalf of the National Institute of Military Justice 
     (and as a retired Lieutenant Commander in the U.S. Coast 
     Guard Reserve), I am writing to express NIMJ's strong 
     opposition to Senator Graham's amendment to the Defense 
     Authorization Bill, withdrawing federal court authority to 
     grant writs of habeas corpus on the petition of non-citizens 
     in military custody as enemy combatants.
       The proposed amendment would sanction unreviewable 
     Executive detention that cannot be harmonized with our 
     Nation's longstanding adherence to the rule of law. Military 
     detention without due process is antithetical to our 
     fundamental values, values that our men and women in uniform 
     put their lives on the line to protect.
       The practical effect of the amendment would be to validate 
     actions by non-democratic countries around the world. Some of 
     these countries may try to jail our citizens (including but 
     not limited to GIs) on trumped-up grounds and then deny them 
     access to judicial forums in which they might at least try to 
     gain their freedom or fairer treatment. We should not take a 
     step we would be unwilling to see others apply to our fellow 
     citizens. We disable ourselves from objecting to flagrant 
     lawlessness elsewhere when we shut the doors to our courts, 
     which are the jewel in the crown of our democracy.
       I will only add that oftentimes when NIMJ considers taking 
     a position on a matter of public policy our directors and 
     advisors have a range of views. That is one of our strengths 
     as an organization. On this one, we are emphatically of one 
     mind.

  I also have letters from the Brennan Center for Justice in opposition 
to the Graham amendment, from the Franklin Pierce Law Center in 
opposition to the amendment, and a letter signed by nine former 
generals and admirals in the military indicating their opposition, also 
signed by Scott Silliman, former U.S. Air Force Judge Advocate, 
indicating their strong opposition to the Graham amendment unless it is 
changed as my amendment would change it.

[[Page S12729]]

  I ask unanimous consent to print those letters in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        Brennan Center for Justice


                                         at NYU School of Law,

                                   New York, NY, November 9, 2005.
     Re: Graham Jurisdiction-Stripping Amendment to Defense 
         Appropriations Bill

       Dear Senator: The Brennan Center for Justice at New York 
     University School of Law strongly urges you to oppose an 
     amendment, sponsored by Senator Lindsey Graham, expected to 
     be offered as early as today, that would strip all courts, 
     including the United States Supreme Court, of jurisdiction to 
     consider habeas corpus petitions or ``any other action 
     challenging any aspect of the detention'' of foreign 
     detainees held at Guantanamo Bay. We urge you to reject the 
     Graham Amendment because it would violate key constitutional 
     principles and would inflict great damage on both the 
     reputation of the United States and our ability to persuade 
     other countries to lend critical cooperation in counter-
     terrorism efforts.
       The Brennan Center, founded in 1995, unites thinkers and 
     advocates in pursuit of a vision of inclusive, effective, and 
     just democracy. Our Liberty & National Security Project, 
     initiated in July 2004, promotes thoughtful and informed 
     debate about how to maximize security and safeguard civil 
     liberties. It has published on the problem of classified 
     evidence in terrorism trials and litigates on matters related 
     to the Graham Amendment. Our scholarship and litigation 
     experience suggest that the amendment neither reflects our 
     long-standing constitutional traditions nor furthers our 
     present counter-terrorism efforts.
       In many ways, the war on terror is new. But it cannot 
     justify shredding our oldest constitutional principles. 
     Constant revelations of how the United States is treating 
     detainees at Guantanamo and elsewhere have damaged our image 
     around the world. It would be ironic indeed if the Congress's 
     response were not to address the underlying problems but 
     instead to make it more difficult for rights to be vindicated 
     and facts to be learned.
       In June 2004, the Supreme Court squarely rejected the 
     federal government's position that Guantanamo Bay is a legal 
     no-man's land, outside the reach of American courts. The rule 
     of law now applies to Guantanamo Bay, and the federal courts 
     have the authority to review government actions there to 
     determine whether they are unconstitutional or otherwise 
     illegal. Just last Friday, the Senate overwhelming and 
     courageously voted to affirm the rule of law by bolstering 
     the prohibition against government torture and cruel, 
     inhuman, and degrading treatment. Yet the Graham Amendment 
     would suspend the rule of law, including the anti-torture 
     rule, for those detained at Guantanamo Bay. Even more 
     troublingly, the amendment may extend to any and all aliens 
     who lawfully reside in the United States.
       Nothing is more emblematic of the rule of law than judicial 
     review and the availability of habeas corpus in the courts. 
     And nothing is a greater marker of the absence of the rule of 
     law than the lack of judicial review of government action, 
     especially the legality of executive detention. Stripping the 
     courts of their historic habeas jurisdiction would violate 
     separation-of-powers principles and undermine the checks-and-
     balances on which our Constitution rests.
       This suspension of the rule of law has clear, long-term 
     costs for our nation's efforts to combat terrorists. The 
     Graham Amendment would terminate ongoing litigation on behalf 
     of detainees at Guantanamo who have never had a fair hearing 
     to prove their innocence. International condemnation of the 
     perceived ``legal black hole'' of Guantanamo has been 
     persistent and wide-ranging. Our allies have expressed broad 
     concerns about the legality and morality of placing 
     individuals beyond the rule of law. The Graham Amendment 
     purports to achieve a short-term goal of minimizing 
     government litigation but, rather, would only create a wave 
     of new litigation. It would do this at the cost of tremendous 
     damage to the United States' reputation overseas by sending 
     the message that we cannot defend the decision to detain 
     those at Guantanamo in a court of law.
       The Brennan Center strongly urges you to reject the Graham 
     Amendment to the Defense Department authorization bill. 
     Please do not hesitate to call us at 212-992-8632 if you have 
     any questions.
           Sincerely,
     Michael Waldman,
       Executive Director.
     Aziz Huq,
       Associate Counsel.
                                  ____



                                   Franklin Pierce Law Center,

                                    Concord, NH, November 9, 2005.
     Senator Arlen Specter,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Specter: As Dean of a law school and as former 
     Judge Advocate General of the Navy, I am writing in strong 
     opposition to the amendment which I understand Senator Graham 
     intends to offer to S. 1042, the Defense Department 
     Authorization Bill. Among other things, the proposed Graham 
     Amendment would strip U.S. courts of jurisdiction to hear 
     habeas corpus petitions from aliens who are detained by the 
     United States or any other action which would challenge any 
     aspect of their detention.
       This amendment, however well-intentioned, is the wrong law 
     at the wrong time. It appears aimed at fixing a problem that 
     doesn't exist, and creates a raft of new problems of its own.
       For generations, the United States has stood firm for the 
     rule of law. It is not the rule of law if you apply it when 
     it is convenient and toss it over the side when it is not. 
     The Great Writ of Habeas Corpus has been at the heart of U.S. 
     law since the first drafts of the Constitution. Indeed, it 
     has been part of Western culture for 1000 years, since the 
     Magna Carta. Creating broad exceptions that would 
     categorically deny the writ to thousands of those subject to 
     the full detention power of the U.S. Government should be 
     done, if at all, only with the utmost care, serious debate 
     and consideration, and attention to the practical effects of 
     such a limit. The restriction on habeas contemplated by the 
     Graham Amendment would be a momentous change. It is certainly 
     not a change in the landscape if U.S. jurisprudence we should 
     tack on to the Defense Department Authorization Bill at the 
     last minute.
       In any case, the practical effects of such a bill would be 
     sweeping and negative. America's great strength isn't our 
     economy or natural resources or the essentially island nature 
     of our geography. It is our mission, and what we stand for. 
     That's why other nations look to us for leadership and follow 
     our lead. Every step we take that dims that bright, shining 
     light undermines our role as a world leader. As we limit the 
     rights of human beings, even those of the enemy, we become 
     more like the enemy. That makes us weaker and imperils our 
     valiant troops. I am proud to be an American. This Amendment, 
     well intentioned as it may be, will diminish us.
       More immediately, the Graham Amendment would be viewed by 
     our allies and enemies alike as just another example of the 
     United States taking a step down the slippery slope from the 
     high road to the low road. It would increase the likelihood 
     that our own troops, who daily face the risk of capture by 
     any number of our enemies abroad, will be subject to ad hoc 
     justice at the hands of those who would seize upon any 
     excuse. I believe it is the duty of those who would put our 
     troops in harm's way to deny our enemies any such an excuse.
       I urge you to insist at the least upon full and forthright 
     consideration of this Amendment by the Judiciary Committee. 
     And I urge you to advocate vigorously for its defeat.
           Sincerely,
                                                   John D. Hutson,
     Dean and President.
                                  ____

                                                November 14, 2005.
     Honorable Senator,
     U.S. Senate,
     Washington, DC.
       Dear Senator: We understand that the Senate may revisit the 
     issue of jurisdiction over habeas corpus petitions brought by 
     aliens who are detained by the United States at Guantanamo 
     Bay. We write to express our opposition to the court-
     stripping provisions of Amendment 2516 to S. 1042, the 
     Defense Department Authorization Bill. We urge you to reject 
     any proposal that would diminish the power of another branch 
     of government and effectively suspend habeas corpus without 
     thoughtful deliberation.
       Amendment 2516 is the wrong law at the wrong time. It 
     appears aimed at fixing a problem that doesn't exist, and 
     creates a raft of new problems of its own.
       For generations, the United States has stood firm for the 
     rule of law. It is not the rule of law if you only apply it 
     when it is convenient and toss it over the side when it is 
     not. The Great Writ of Habeas Corpus has been at the heart of 
     U.S. law since the first drafts of the Constitution. Indeed, 
     it has been part of Western culture for 1000 years, since the 
     Magna Carta. Creating broad exceptions that would 
     categorically deny the writ to thousands of those subject to 
     the full detention power of the U.S. Government should be 
     done, if at all, only with the utmost care, serious debate 
     and consideration, and attention to the practical effects of 
     such a limit. The restriction on habeas contemplated by 
     Amendment 2516 would be a momentous change. It is certainly 
     not a change in the landscape of U.S. jurisprudence we should 
     tack on to the Defense Department Authorization Bill at the 
     last minute.
       In any case, the practical effects of Amendment 2516 would 
     be sweeping and negative. America's great strength isn't our 
     economy or natural resources or the essentially island nature 
     of our geography. It is our mission, and what we stand for. 
     That's why other nations look to us for leadership and follow 
     our lead. Every step we take that dims that bright, shining 
     light diminishes our role as a world leader. As we limit the 
     rights of human beings, even those of the enemy, we become 
     more like the enemy. That makes us weaker and imperils our 
     valiant troops. We are proud to be Americans. This Amendment, 
     well intentioned as it may be, will diminish us.
       More immediately, Amendment 2516 would be viewed by our 
     allies and enemies alike as just another example of the 
     United States taking a step down the slippery slope from the 
     high road to the low road. It would increase the likelihood 
     that our own troops--who daily face the risk of capture by 
     any number of our enemies abroad--will be subject to ad hoc 
     justice at best at the hands of

[[Page S12730]]

     those who would seize upon any excuse. We believe it is the 
     duty of those who would put our troops in harm's way to deny 
     our enemies any such an excuse.
       We urge you to insist at the least upon full and forthright 
     consideration of the issues by the Judiciary Committee before 
     allowing Amendment 2516 to become law and to exercise your 
     role in oversight of the military. We urge you to advocate 
     vigorously for full and fair judicial review.
           Sincerely,
         Lieutenant General Robert G. Gard, Jr., USA (Ret.); 
           Lieutenant General Charles Otstott, USA (Ret.); Major 
           General Fred E. Haynes, USMC (Ret.); Rear Admiral John 
           D. Hutson, USN (Ret.); Brigadier General David M. 
           Brahms, USMC (Ret.); Brigadier General James Cullen, 
           USA (Ret.); Brigadier General Evelyn P. Foote, USA 
           (Ret.); Brigadier General David R. Irvine, USA (Ret.); 
           Scott L. Silliman, former United States Air Force Judge 
           Advocate.
     Lt. General Robert G. Gard, Jr., USA (Ret.)
       General Gard is a retired Lieutenant General who served in 
     the United States Army; his military assignments included 
     combat service in Korea and Vietnam. He is currently a 
     consultant on international security and president emeritus 
     of the Monterey Institute for International Studies.
     Lt. General Charles Otstott, USA (Ret.)
       General Otstott served 32 years in the Army. As an 
     Infantryman, he commanded at every echelon including command 
     of the 25th Infantry Division (Light) from 1988-1990. His 
     service included two combat tours in Vietnam. He completed 
     his service in uniform as Deputy Chairman, NATO Military 
     Committee, 1990-1992.
     Major General Fred Haynes, USMC (Ret.)
       General Haynes is a veteran of World War II, Korea and 
     Vietnam. He was an infantry officer for 35 years and 
     commanded the second Marine division and the third Marine 
     division. He was also the senior member of the U.S. military 
     at the U.N. military armistice at Pat, Mun Jom, Korea.
     Rear Admiral John D. Hutson, USN (Ret.)
       Admiral John D. Hutson served as the Navy's Judge Advocate 
     General from 1997 to 2000. Admiral Hutson now serves as 
     President and Dean of the Franklin Pierce Law Center in 
     Concord, New Hampshire.
     Brigadier General David M. Brahms, USMC (Ret.)
       General Brahms served in the Marine Corps from 1963-1988. 
     He served as the Marine Corps' senior legal adviser from 1983 
     until his retirement in 1988. General Brahms currently 
     practices law in Carlsbad, California and sits on the board 
     of directors of the Judge Advocates Association.
     Brigadier General James Cullen, USA (Ret.)
       General Cullen is a retired Brigadier General in the United 
     States Army Reserve Judge Advocate General's Corps and last 
     served as the Chief Judge (IMA) of the U.S. Army Court of 
     Criminal Appeals. He currently practices law in New York 
     City.
     Brigadier General Evelyn P. Foote, USA (Ret.)
       General Foote was Commanding General of Fort Belvoir in 
     1989. She was recalled to active duty in 1996 to serve as 
     Vice Chair of the Secretary of the Army's Senior Review Panel 
     on Sexual Harassment. She is President of the Alliance for 
     National Defense, a non-profit organization.
     Brigadier General David R. Irvine, USA (Ret.)
       General Irvine is a retired Army Reserve strategic 
     intelligence officer and taught prisoner interrogation and 
     military law for 18 years with the Sixth Army Intelligence 
     School. He last served as Deputy Commander for the 96th 
     Regional Readiness Command, and currently practices law in 
     Salt Lake City, Utah.
     Scott L. Silliman, former United States Air Force Judge 
         Advocate
       Mr. Silliman served as a United States Air Force Judge 
     Advocate for 25 years, from 1968-1993, before joining the 
     faculty of Duke University School of Law as a professor of 
     the Practice of Law. He is also the Executive Director of the 
     Center on Law, Ethics and National Security at Duke 
     University School of Law.

                             Exhibit No. 1

         Department of Defense, Office of the Chief Defense 
           Counsel, Office of Military Commissions
                                Washington, DC, November 14, 2005.
     Re Amendment No. 2515 of National Defense Authorization Act 
         for Fiscal Year 2006.

     Hon. Jeff Bingaman,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Bingaman: I am the Chief Defense Counsel for 
     the Office of Military Commissions. Please note that I am 
     writing in my capacity as Chief Defense Counsel for the 
     Office of Military Commissions and I do not purport to speak 
     for the Department of Defense.
       Please accept my congratulations for your arguments in 
     opposition to certain portions of Amendment No. 2515. I also 
     wholeheartedly endorse your proposal to eliminate detainees 
     being tried by military commission from the class of 
     detainees whose access to habeas relief would be abolished. I 
     am writing to provide specific legal support for some of the 
     points you raised in your debate with Senator Graham and to 
     point out some of the specific errors in Senator Graham's 
     arguments.
       In his initial floor speech supporting the Amendment, 
     Senator Graham stated, ``Never in the history of the law of 
     armed conflict has an enemy combatant, irregular component, 
     or POW been given access to civilian court systems to 
     question military authority and control, except here.'' 151 
     Cong. Rec. S12656 (daily ed. Nov. 10, 2005). That claim 
     simply is not true. As discussed in greater detail below, the 
     Supreme Court considered habeas petitions filed on behalf of 
     seven of the eight would-be German saboteurs in Ex parte 
     Quirin, 317 U.S. 1 (1942), and on behalf of a Japanese 
     general who was a prisoner of war in In re Yamashita, 327 
     U.S. 1 (1946). Senator Graham also described Ex parte Quirin 
     by stating, ``We had German POWs who tried to come into 
     Federal court, and our court said: As a member of an armed 
     force, organized against the United States, you are not 
     entitled to a constitutional right of habeas corpus.'' 151 
     Cong. Rec. at S12663. In fact, the Supreme Court said nothing 
     of the sort. Rather, the Court said almost the exact 
     opposite. Again, Senator Graham erred when he stated that 
     ``[i]t has been the history of the law of armed conflict that 
     when you have somebody tried for a violation of law of armed 
     conflict, you don't go to Federal court.'' Id. at S12664.
       Contrary to Senator Graham's arguments, the Supreme Court 
     bas held repeatedly held that enemy combatants can pursue 
     federal habeas litigation to challenge their susceptibility 
     to trial by military commission. In Ex parte Quirin, which 
     dealt with the trial of the would-be German saboteurs who 
     were captured in 1942, the Supreme Court considered the 
     merits of the enemy combatants' habeas petition. Ex parte 
     Quirin, 317 U.S. 1 (1942). While the Court ultimately denied 
     the petitioners' applications for leave to file petitions for 
     habeas corpus, the Court specifically observed that neither 
     President Roosevelt's military order convening the commission 
     ``nor the fact that they are enemy aliens forecloses 
     consideration by the courts of petitioners' contentions that 
     the Constitution and laws of the United States 
     constitutionally enacted forbid their trial by military 
     commission.'' Id. at 25 (emphasis added). Quirin has been 
     celebrated for giving the individuals the right to file such 
     habeas corpus petitions, even though the President had tried 
     to bar it. See. e.g., Louis Fisher, Nazi Saboteurs on Trial 
     173 (2003).
       In re Yamashita similarly involved an application for leave 
     to file a petition for writ of habeas corpus with the Supreme 
     Court. 327 U.S. 1 (1946). General Yamashita, who had 
     commanded the Imperial Japanese Army's Fourteenth Army Group 
     in the Philippines, was tried by a U.S. Army 
     military commission, found guilty, and sentenced to death. 
     Id. at 5. After unsuccessfully seeking a writ of habeas 
     corpus from the Supreme Court of the Philippine Islands, 
     Yamashita sought both a writ of certiorari and an original 
     writ of habeas corpus from the United States Supreme 
     Court. Citing Ex parte Quirin, the Supreme Court 
     reemphasized that in considering such a request for habeas 
     relief arising from trial by military commission, ``[w]e 
     consider . . . only the lawful power of the commission to 
     try the petitioner for the offense charged.'' Id. at 8. 
     So, while the Supreme Court emphasized the limited scope 
     of review, it reemphasized that the federal courts we 
     available to consider habeas petitions filed by enemy 
     combatants challenging trial by military commission. In 
     language specifically relevant to the debate over 
     Amendment No. 2515, the Supreme Court observed, ``The 
     courts may inquire whether the detention complained of is 
     within the authority of those detaining the petitioner.'' 
     Id. The Court added: ``Finally, we held in Ex parte 
     Quirin, [317 U.S. at] 24, 25, as we hold now, that 
     Congress by sanctioning trials of enemy aliens by military 
     commission for offenses against the law of war had 
     recognized the right of the accused to make a defense. Cf 
     Ex: parte Kawato, 317 U.S. 69. It has not foreclosed their 
     right to contend that the Constitution or laws of the 
     United States withhold authority to proceed with the 
     trial. It has not withdrawn, and the Executive branch of 
     the Government could not, unless there was suspension of 
     the writ, withdraw from the courts the duty and power to 
     make such inquiry into the authority of the commission as 
     may be made by habeas corpus.''
       Id. at 9. In fact, in his dissent Justice Murphy went out 
     of his way to praise the majority for doing exactly the 
     opposite of what Senator Graham said--for providing the 
     unlawful combatants the right to habeas corpus: ``This Court 
     fortunately has taken the first and most important step 
     toward insuring the supremacy of law and justice in the 
     treatment of an enemy belligerent accused of violating the 
     laws of war. Jurisdiction properly has been asserted to 
     inquire ``into the cause of restraint of liberty'' of such a 
     person. 28 U.S.C. Sec. 452. Thus the obnoxious doctrine 
     asserted by the Govermnent in this case, to the effect that 
     restraints of liberty resulting trom military trials of war 
     criminals are political matters completely outside the arena 
     of judicial review, has been rejected fully and 
     unquestionably. This does not mean, of course, that the 
     foreign affairs and policies of the nation are proper 
     subjects of judicial inquiry. But when the liberty of any 
     person is restrained by reason of the authority of the United 
     States the writ of habeas corpus is available to test the 
     legality of that restraint, even though direct court review 
     of the restraint is prohibited. The conclusive presumption 
     must be made, in

[[Page S12731]]

     this country at least, that illegal restraints are 
     unauthorized and unjustified by any foreign policy of the 
     Government and that commonly accepted juridical standards are 
     to be recognized and enforced. On that basis judicial inquiry 
     into these matters may proceed within its proper sphere.''
       In re Yamashita, 327 U.S. at 30 (Murphy, J., dissenting).
       Additionally, in response to a point made by Senator Levin, 
     Senator Graham stated: ``Here is the one thing I can tell you 
     for sure as a military lawyer. A POW or an enemy combatant 
     facing law of armed conflict charges has not been given the 
     right to habeas corpus for 200 years because our own people 
     in our own military facing court-martials, who could be 
     sentenced to death, do not have the right of habeas corpus.
       Again, Senator Graham's argument is factually incorrect. 
     U.S. servicemembers do have a right to challenge court-
     martial proceedings through habeas petitions, in addition to 
     the direct appeal rights provided by Articles 66, 67, and 67a 
     of the Uniform Code of Military Justice. In Burns v. Wilson, 
     which was a habeas challenge to an Air Force capital court-
     martial, the Supreme Court observed: ``In this case, we are 
     dealing with habeas corpus applicants who assert--rightly or 
     wrongly--that they have been imprisoned and sentenced to 
     death as a result of proceedings which denied them basic 
     rights guaranteed by the Constitution. The federal civil 
     courts have jurisdiction over such applications.'' Burns v. 
     Wilson, 346 U.S. 137, 139 (1953) (plurality opinion). 
     Interestingly, in reaching this conclusion, the Supreme Court 
     cited In re Yamashita, 327 U.S. 1, 8 (1946), thus drawing a 
     historical parallel to the right of a U.S. servicemember to 
     seek a writ of habeas corpus and the right of an enemy 
     combatant detained by the United States military to do the 
     same. Federal courts continue to review habeas challenges to 
     court-martial convictions and occasionally grant relief. See, 
     e.g., Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990) (ordering 
     petitioner's release from the United States Disciplinary 
     Barracks due to constitutionally-deficient reasonable doubt 
     instruction); Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990) 
     (finding a due process violation where the military judge's 
     sentencing instructions did not require the members to reach 
     a three-fourths majority vote in order to impose life 
     imprisonment).
       An important policy consideration also suggests the need to 
     reassess the amendment. In its current form, Amendment No. 
     2515 would provide detainees seeking review of Combatant 
     Status Review Tribunals (CSRTs) with greater access to 
     federal courts than a detainee who has been sentenced to 
     imprisonment for life, or even death, by a military 
     commission. This result is anomalous for two reasons. First, 
     generally due process protections increase in direct 
     proportion to the magnitude of the interest at stake. Because 
     military commissions are literally empowered to take a life, 
     the recourse to Article III courts for those sentenced by 
     these tribunals should be at least equal to that of 
     individuals who are merely challenging their susceptibility 
     to continued detention. Second, the burden on the federal 
     judiciary is far greater in the case of review of CSRTs than 
     the review of commission proceedings. During the floor 
     debate, Senator Graham noted that there are currently 160 
     habeas petitions filed by or on behalf of Guantanamo 
     detainees pending in federal courts. But only three 
     individuals being tried by military commissions have filed 
     habeas petitions challenging those trials. The total number 
     of individuals with approved charges before military 
     commissions is only nine. There can be little doubt that 
     nowhere near 160 of the Guantanamo detainees will ever face 
     trial by military commission. Accordingly, while the federal 
     courts' burden of resolving habeas challenges to continued 
     detention might be large, the burden of resolving habeas 
     challenges to military commission proceedings will be quite 
     minimal. The resources that will be devoted to the District 
     of Columbia Circuit's review of CSRTs will likely dwarf the 
     resources that would be necessary to litigate every habeas 
     petition that has or will be filed by an accused before a 
     military commission.
       I will be happy to provide any additional information that 
     might be helpful. You can reach me at my office, at home, or 
     by e-mail. Unfortunately, I am currently scheduled to leave 
     for Guantanamo Bay on the morning of Tuesday, November 15. If 
     you or a member of your staff would like to reach me after 
     today, please leave a voice mail on my work phone and I will 
     return your call.
           Very Respectully,
                                               Dwight H. Sullivan,
        Colonel, USMCR, Chief Defense Counsel, Office of Military 
                                                      Commissions.

  Mr. BINGAMAN. How much time remains of the 15 minutes I am allotted?
  The PRESIDING OFFICER. One minute.
  Mr. BINGAMAN. I retain that minute and yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I will be glad to get a letter from the 
prosecutor at the military commission about the procedures. I will bet 
$100 he will say they are great. The point is, we are talking about two 
different things. My amendment is designed to get us back to what we 
have been doing for a couple hundred years. What I am concerned about 
is that an enemy prisoner, not someone charged with a crime, is having 
access to Federal courts to sue our own troops about the food, about 
the mail, about whether they should have Internet access, about whether 
they should get DVDs. There are 160 lawsuits now in Federal court suing 
to stop interrogations unless a Federal judge oversees the 
interrogation.
  Never in the history of the law of armed conflict has a military 
prisoner, an enemy combatant, been granted access to any court system, 
Federal or otherwise, to have a Federal judge come in and start running 
the prison and determining what is in bounds and what is out. The 
military is the proper body to determine who an enemy combatant is and 
how to run a war and how to interrogate people, not Federal judges who 
are not trained in the art of military science.
  Here is what these lawsuits are about. Here is why I am so adamant 
that we stop it. No. 1, what are we stopping? We are not stopping a 
constitutional right that exists under our law for an enemy prisoner in 
our hands to be able to question their detention through Federal court 
action. There is no constitutional right under habeas corpus in 
American jurisprudence for an enemy prisoner to go to Federal court and 
challenge whether they should have Internet access or DVD access, all 
the other things they are suing the people for, medical malpractice. 
That has never been the case. None of the Germans in World War II who 
were housed in the United States, and the Japanese prisoners, were 
allowed to go to Federal court and get a Federal judge to come in and 
oversee their treatment. We don't allow that. That is not part of the 
law of armed conflict.
  Habeas petitions are not coming from the Constitution. They are 
coming from an interpretation of section 2241. The Rasul case was a 
Supreme Court case that said that contrary to the Government's 
argument, Guantanamo Bay, Cuba is in the effective control of the 
United States, even though it is not part of our own territories. 
Because of the lease arrangements and because the Department of Defense 
is an agency covered by the jurisdiction of the Federal courts, the 
argument that it is outside the jurisdiction of Federal courts because 
of its location was defeated. That led to the decision that since you 
are within the control of our jurisdiction at Guantanamo Bay, section 
2241 applies unless Congress says otherwise.
  Here is the question I will ask every Member of this body: Does the 
Senate want enemy terrorists, al-Qaida members being detained at 
Guantanamo Bay, to have unlimited access to our Federal courts to sue 
our troops about the following:
  A Canadian detainee, who threw a grenade that killed an American Army 
medic in a firefight and who comes from a family of longstanding al-
Qaida ties, moves for preliminary injunction forbidding interrogation 
of him or engaging in cruel, inhumane, or degrading treatment of him. 
That was a lawsuit brought in a Federal court by a person who blew up 
one of our medics, who wanted a Federal judge to supervise his military 
interrogation. If we start doing that, we might as well close 
Guantanamo Bay down.
  These are not people being charged. They are being kept off the 
battlefield because they have been captured on the battlefield, and 
they have been labeled enemy combatants. The procedures I am trying to 
get in place will comply with the law of armed conflict. Twelve of the 
people have been let go at Guantanamo Bay. Over 200 in total have been 
let go. They have been found no longer to have intelligence value or to 
be a threat to the United States. Once those two determinations are 
made, they are let go, even if they are an enemy combatant. Twelve of 
them have been recaptured. A couple of them have been killed. They have 
gone back to the fight.
  The people at Guantanamo Bay are captured as part of the war on 
terror, and some of them may be running. The point is, when you join 
al-Qaida, whether you stand or fight or run, you have lost your rights 
to be considered anything other than what you are--an enemy combatant 
taking up arms against the United States.

[[Page S12732]]

  Here is my message to the terrorists: If you join a terrorist 
organization taking up arms against the United States and you get 
involved in combat, you are likely to get killed. If you get captured, 
you will be taken off the battlefield as long as necessary to make sure 
our country is protected from you.
  Under the law of armed conflict, there is no right to try them or let 
them go. Shaikh Mohammed, the mastermind of 9/11, is in U.S. control 
right now. He is not a criminal, but you have to charge within 90 days 
or let go. He is an enemy combatant, the mastermind of 9/11, and 9/11 
was an act of war. It was not a crime. The law of war needs to 
apply. Anybody who suggests that Shaikh Mohammed should have unlimited 
access to the Federal courts to get a Federal judge to supervise his 
interrogation is fundamentally changing the law of war and making us 
less safe. He will not be let go. If you don't want to be captured and 
detained for a long time, don't join al-Qaida.

  Listen to this: 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 of the right to 
counsel. A motion by a high-level al-Qaida 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, and 
worship. A man captured on the battlefield, engaged in a war against 
the United States, because of 2241's interpretation where Congress 
hasn't spoken, is petitioning a court to supervise his opportunity to 
exercise, communicate, recreate, and worship, and where he should be 
housed.
  In other words, Federal judges are going to determine how we run the 
war, not the people fighting the war. Never in the history of warfare 
has an enemy prisoner been allowed to do such things. It didn't happen 
in World War II. Why? Because we have a right, as a country capturing 
enemy prisoners, to take them off the battlefield. They are not common 
criminals. We have an obligation to treat them humanely under the law 
of armed conflict.
  An emergency motion seeking a court order requiring GTMO to set aside 
its normal security policies and show detainees DVDs that are purported 
to be family videos. One hundred sixty of these cases, another 40 or 50 
suing our own people, one for $100 million, suing the doctor who 
treated the guy. This is an absurd result.
  I proudly stand before the Senate asking the Senate to fix this 
absurd result. The court in Rasul is asking the Senate and the House, 
do you intend for al-Qaida terrorists, enemy combatants, to have access 
to Federal courts under habeas rights to challenge their detention as 
if they were American citizens? The answer should be, no, we never 
intended that. That is what my amendment does. It says to the courts 
and to the world that an enemy combatant is not going to have the 
rights of an American citizen, and we are going to stop all these 
lawsuits undermining our ability to protect ourselves.
  What have I done in place? I have stopped a procedure that has never 
been granted before because it is totally out of bounds of what we need 
to be doing and have done. I allow Federal courts to review each enemy 
combatant's determination at the Circuit Court of Appeals for the 
District of Columbia to look at whether the combat status review 
tribunal, the group deciding whether you are an enemy combatant, 
followed the procedures and standards we set up.
  What do the Geneva Conventions give our own troops, if our own troops 
fall into enemy hands under the Geneva Conventions? If there is a 
question about their status, it says a competent tribunal has the 
ability to challenge. The combat status review tribunal that we have 
set up at Guantanamo Bay since August of 2004 is Geneva Conventions 
protection on steroids. They have a full-blown hearing, a right every 
year to have their status redetermined. And what do you look at? Were 
they an enemy combatant engaged in armed conflict against the United 
States? Do they present intelligence value or a continuing threat to 
the United States? That determination is made every year, a full-blown 
adversarial process way beyond what the Geneva Conventions require in 
such situations.
  We have added to that Federal court oversight to see if the people at 
Guantanamo Bay are following the rules and procedures set up in 
accordance with the law of armed conflict.
  Senator Bingaman is a very fine man, a fine Senator. I deeply 
disagree with him. And any letter that anybody writes, I have my own 
letters from JAGs.
  It is a simple proposition. His amendment allows unlimited habeas 
petitions regarding detention to come to the Circuit Court of Appeals 
for the District of Columbia. The type lawsuits that we see now will 
continue: A motion by Kuwaiti detainees unsatisfied with the Koran they 
are provided and want another version, a filing by a detainee 
requesting a stay of litigation pending related appeals, an emergency 
motion by a detainee accusing military health professionals of gross 
and intentional malpractice.

  They are swamping the system. Americans are losing their day in court 
because somehow we have allowed enemy combatants, people who have 
signed up to kill us all, to take us into Federal court and sue us 
about everything.
  That is not part of the law of armed conflict. Our troops are not 
going to get that right if they are in the hands of someone else. What 
I am asking for is for us to treat enemy combatants humanely and in 
accordance with the law of armed conflict. I am asking for us to 
provide due process in accordance with the Geneva Conventions and then 
some. I am even allowing a Federal court review of the process down 
there. But I will not now or ever sit on the sidelines and give rights 
to enemy combatants who have been caught on the battlefield in the war 
of terror the unending, endless right to think of every reason in the 
world to take our own troops into court. We will keep having this 
debate and we will keep having this argument until the cows come home 
because I am not going to sit on the sidelines and watch that happen.
  There has never been a constitutional right for that to happen. 
Section 2241 is what we are talking about here. Congress wrote it. 
Congress has restricted habeas rights for illegal immigrants. Congress 
has restricted habeas rights of its own citizens numerous times because 
these petitions can get out of control and take over a courtroom.
  The question for this Congress is whether you, after 9/11, want to 
give enemy combatants detained at Guantanamo Bay who have been captured 
on the battlefield the unlimited right to go into any Federal court in 
this land and to sue over everything they can think of. If you do, then 
we have made a huge mistake in the war on terror. I suggest that you 
say no to Senator Bingaman's amendment and get us back to where we have 
been for 200 years. Apply the law of armed conflict. Once you have been 
determined to be an enemy combatant, you get the due process of the 
Geneva Conventions. We have done that and then some to allow a limited 
Federal court review, more than anybody has ever gotten in history. We 
get back on track. And when it comes to military commissions and those 
who will be charged with the law of armed conflict violations, I am 
working with Senator Levin and others to try to find a way to get a 
Federal court appeal right.
  How much time do I have, Mr. President?
  The PRESIDING OFFICER. The Senator has 2 minutes remaining.
  Mr. GRAHAM. I will try to retain 1 minute.
  Let it be said that the people who attacked us on 9/11 committed an 
act of war, not a crime, and they are going to be tried under military 
commissions, not in our Federal courts, because they are engaged in a 
war and they are violating the law of armed conflict. They will get 
their day in court and we will come up with a fair process to make sure 
they have their day in court, but we are not going to take a war and 
turn it into a crime.
  I reserve the remainder of my time.

[[Page S12733]]

  The PRESIDING OFFICER. Who yields time?
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, let me use the remaining 1 minute I have 
and then I will ask permission to speak for another 4 minutes, if 
possible.
  Let me say that I think the Senator obviously hasn't read the 
amendment I have offered. The amendment I have offered makes it very 
clear that the Federal court is available only to hear claims regarding 
whether the determination of the combat status review tribunal is 
consistent with the procedures and standards specified by the 
Department of Defense, whether the status determination was supported 
by sufficient evidence, and to determine the lawfulness of the 
detention of the alien. They are not permitted under my amendment to 
consider whether the DVDs are the ones that the prisoner would like. 
They are not permitted to consider whether the peanut butter is the 
peanut butter the prisoner would like, or anything else.
  To try to trivialize this debate by suggesting that is what we are 
talking about I think does a disservice to the issue.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BINGAMAN. Mr. President, I ask unanimous consent to speak for an 
additional 4 minutes as if in morning business.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAHAM. I don't mind if the Senator wants 4 more minutes to speak 
on his amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. I appreciate my colleague's courtesy.
  Mr. President, first let me say we have a real difference of opinion 
here as to what has been the law of this land for the last couple 
hundred years.
  The Senator from South Carolina continues to say we have never 
recognized a right for people in conflict, armed conflict, to petition 
for habeas corpus. The truth is we have. The truth is the Supreme Court 
has--in the Ex parte Quirin case, the In re Yamashita case. There are a 
variety of cases where this has been the case. The Supreme Court has 
repeatedly held that enemy combatants can pursue Federal habeas 
litigation to challenge that you are susceptible to trial by military 
commission. It is very clear that that right has been there.
  All I am trying to do is to be sure we do not strip the courts of the 
right to consider these types of petitions. If we strip the courts of 
the right to consider petitions in these cases, how many other areas 
can we find where we will deny people within the jurisdiction of our 
Federal court system the right to proceed with a petition for habeas 
corpus in the Federal judiciary?
  This is the most fundamental right any of us can conceive of. When 
you start talking about imprisoning a person and not allowing that 
person any opportunity to have a court review of the legality of that 
imprisonment, you are talking about the most fundamental of rights.
  Unfortunately, that is what the amendment by Senator Graham would do. 
It would deny that right. It would be an unfortunate act by this 
Congress. It would be an extraordinary act by this Congress to do that, 
and I believe would be very contrary to the traditions this country was 
built on. I strongly urge my colleagues to support the amendment I have 
offered which maintains the right to petition for habeas corpus on the 
part of everybody because there is nothing in our Constitution, there 
is nothing in the history and tradition of this country that says this 
is only available for citizens. It is available for all individuals who 
become imprisoned within the confines of the United States and within 
the jurisdiction of the Federal courts. Our Department of Defense tried 
to locate these prisoners outside the jurisdiction of Federal courts 
and put them in Guantanamo and it argued to the Federal court they are 
now outside your jurisdiction, and the Federal court said, no, they are 
not. The United States Government is the sovereign in Guantanamo. We 
have a 100-year lease on that property, we operate that facility, and 
we are responsible for the treatment of those individuals.

  So the Federal courts have authority to look at whether the 
detentions that occur there are legal or illegal. That is the law as it 
has always been in this country. That is the law today. We should not 
change that by allowing the Graham amendment to remain as it is. We 
need to adopt a refinement of that amendment, an improvement of that 
amendment, and that is the second-degree amendment I have offered at 
this point.
  Mr. President, I will yield the floor. I think my colleague wants to 
respond.
  Mr. GRAHAM. If I may have the same courtesy and have 4 minutes.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. No. 1, we have a fundamental difference. I do not want 
everyone to have habeas rights. I do not want the enemy combatant al-
Qaida terrorist to be able to go in our courts and start to sue our own 
troops. I don't want it. I don't think people in this body want it. I 
do not think the American people want it. I want al-Qaida members to be 
detained in armed conflict. They should not have due process rights 
beyond what the Geneva Conventions ever envisioned.
  As to Senator Bingaman's amendment, he talks about they can't base 
claims on living conditions, but listen to this: Whether the status 
determination was supported by sufficient evidence and reached in 
accordance with due process of law, provided that statements obtained 
through undue coercion, torture, or cruel or inhuman treatment may not 
be used as a basis for the determination, and consideration of 
lawfulness of the detention of such alien. You could drive an army of 
trucks through those legal exceptions. What it would do is legitimize 
this request by a Canadian detainee, who threw a grenade and killed an 
American medic, in moving for a preliminary injunction forbidding the 
interrogation of him or engaging in cruel, inhumane, or degrading 
treatment of him. In other words, under this amendment, that claim 
stands. He could come in and ask a Federal judge: I want you sitting 
there while they interrogate me. And we are turning the war away from 
military people to Federal judges. We can't do that. We will compromise 
our own defense, our own freedom.
  As to the people at Guantanamo Bay who are going to be charged with a 
crime, I am working with Senator Levin to come up with a military 
commission model we all can be proud of. There are 490 enemy combatants 
down there who are not going to be charged with crimes, and if we 
allowed them unfettered freedom to have courts, to have judges control 
military interrogation and get into the bowels of running this war--not 
only has it never been done, but I challenge anybody to bring one case 
down here where an enemy prisoner has been able to go into Federal 
court and complain about their detention. Once you have a combatant 
charged with a crime, you are working with 490 of them who are going to 
have unfettered access under 2241 unless Congress acts. If you want to 
stop this kind of litigation and not turn over the war to Federal 
judges, then you need to tell the courts that 2241 does not apply. No 
law in the history of armed conflict has allowed this to happen and it 
needs to not happen now. Twelve people have been released down there 
under the procedures we already have, and they have gone back to try to 
kill us.
  Nothing is perfect. Nothing is perfect. We may let some people go who 
go back to the fight, but what we are going to do is we are going to 
have a process we can be proud of that fairly determines who an enemy 
combatant is and who is not following the Geneva Conventions law of 
armed conflict. We are not going, with my amendment, to turn the al-
Qaida member into an American citizen suing us for anything they can 
think of about due process of law and as to where they have been 
detained.
  This is a fundamental moment in terms of values in the law of armed 
conflict. The American value system is being maintained by due process 
and then some. The American value system that you can allow people who 
are trying to kill you unfettered access to the Federal courts to sue 
your own troops--if that becomes our value, we are going to lose this 
war.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.

[[Page S12734]]

  Mr. LEVIN. Mr. President, I yield 6 minutes to the Senator from 
Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Michigan.
  In March 2003, the brave men and women of our Armed Forces were sent 
into war in Iraq. Now, over 2\1/2\ years later, that war continues and 
those brave men and women are waiting for what they should have gotten 
long ago--a clear, realistic military mission with a flexible timetable 
for achieving that mission. And, of course, that timetable has to 
include a plan for withdrawing our troops from Iraq when their mission 
is done.
  On Tuesday, the Senate can start to put our Iraq policy on the right 
course by demanding a public plan and a flexible timetable for 
achieving our military goals and bringing our troops home. The absence 
of any kind of timetable is not fair to our troops and their families. 
It is making the American people increasingly anxious. And it is 
hurting, not helping, our Iraq policy and our broader national security 
strategy.
  Why is it hurting us? Well, for one thing, the perception that U.S. 
troops will be there indefinitely discourages Iraqi ownership of the 
political process. It also fuels the insurgency, which thrives on 
conspiracy theories about our intentions and presence in Iraq. The 
failure to put forth a timetable is helping the recruitment of foreign 
fighters and unifying elements of the insurgency that might otherwise 
turn on each other. Former Republican Defense Secretary and Wisconsin 
Congressman Melvin Laird recognized that when he said that ``our 
presence is what feeds the insurgency.'' GEN George Casey recognized 
that when he said that the perception of occupation in Iraq ``fuels the 
insurgency.'' So did one of the top military commanders I spoke with in 
Iraq, who told me off the record that nothing would take the wind out 
of the sails of the insurgents more than a public timetable for 
finishing the mission.
  Drawing down our troops in Iraq is also essential if we are going to 
prevent the U.S. army from being hollowed out and ensure our military 
readiness. And it is essential if we are going to make sure that our 
Iraq policy is consistent with our broader national security priority--
going after the global terrorist networks that threaten the U.S. 
Despite the administration's desperate efforts to link them, Iraq has 
been a dangerous and self-defeating diversion from that central fight 
against global terrorism.
  Unfortunately, the President is one of the dwindling group of people 
who don't support a timetable. They argue that a timetable will 
embolden the insurgency. Actually, it will undermine the insurgency. 
They argue that fighting insurgents in Iraq means we won't have to 
fight them elsewhere. That is just wishful thinking, of course--the 
idea that all of our terrorist enemies will be irresistibly drawn to 
Iraq like bees to honey doesn't make a whole lot of sense. They argue 
that the insurgents will wait us out if we have a timetable. Of course, 
the insurgents could do that now if that is what they wanted--lay low 
and wait until we leave. They argue that if we leave prematurely, Iraq 
will fall into chaos. The only problem is that the insurgency isn't 
letting up and there is not much expectation it will, as long as our 
troops remain with no endgoal in sight.
  For months, I have been calling on the President to provide a 
flexible, public timetable for our mission in Iraq. I am not calling 
for a rigid timetable--I mean one that is tied to clear and achievable 
benchmarks, with estimated dates for meeting those benchmarks. Today, I 
am pleased to join with some of my distinguished colleagues in the 
Senate in offering an amendment that demands just that. I hope that the 
Senate will finally tell the administration that ``stay the course'' 
isn't a strategy for success--it is not even a strategy. We need to 
correct the course we are on. To do that, we need openness, we need 
honesty, and we need clarity about our military mission in Iraq. The 
American people, and our troops in Iraq, have been waiting for that for 
far too long. We can't afford to wait any longer.
  I yield the floor.
  Mr. GRAHAM. Mr. President, I ask unanimous consent to have letters in 
support of my amendment printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Birmingham, AL, November 13, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: Congratulations on your success in 
     obtaining Senate adoption of your amendment (Senate Amendment 
     2516 to S. 1042) to restrict the ability of terrorist 
     detainees held at Guantanamo, to gain access to the U.S. 
     Districts Courts through habeas corpus applications.
       I understand that Amendment opponents will make an effort 
     on Monday, November 14, to remove the habeas corpus 
     restrictions in the Amendment so that detainees can continue 
     to contest various issues regarding their detention and the 
     conduct of the Global War on Terror in the U.S. Federal Court 
     System.
       While I strongly support Senator McCain's efforts to 
     prohibit cruel and degrading treatment against detainees in 
     American custody, I am not in favor of granting detainees' 
     access to our civilian court system. There are effective and 
     adequate procedures for detainees to question their status 
     through the Combatant Status Review Tribunal and the 
     Administrative Review Board without granting aliens outside 
     the United States access to our federal civilian courts.
       I urge you to make the strongest effort possible to resist 
     efforts to weaken your amendment. If the habeas restrictions 
     are removed we can expect a logjam of litigation with the 
     attendant adverse effects on our ability to gather 
     intelligence and prosecute the Global War on Terrorism.
           Very Respectfully,
                                                 Robert W. Norris,
     Major General, USAF (Ret.).
                                  ____

                                                November 14, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: I support your efforts to keep Senate 
     Amendment 2516 (the ``Amendment'') in S. 1042, the FY 06 
     National Defense Authorization Act.
       Habeas corpus applications, brought on behalf of 
     terrorist--Guantanamo detainees, to which the Amendment will 
     put a stop, have become a means to advance efforts to 
     frustrate the Global War on Terror. The detainees appear to 
     have become secondary to anti-war efforts.
       On the Senate floor, during last Thursday's debate on the 
     Amendment, you appropriately cited the Michael Ratner 
     interview in Mother Jones Magazine (The Torn Fabric of the 
     Law: An Interview with Michael Ratner, Mother Jones Magazine, 
     March 21, 2005.) I read Mr. Ratner's interview and I note 
     that, to him, the disruptive results of litigation brought 
     against the United States (under the guise of habeas corpus 
     applications) appear to be more important than his detainee--
     clients. ``While we may not be having many victories in 
     freeing people, we're winning heavily in the litigation.'' 
     That litigation, according to Mr. Ratner, as you pointed out,
       ``. . . is brutal for them [the United States]. It's huge. 
     We have over one hundred lawyers now from big and small firms 
     working to represent these detainees. Every time an attorney 
     goes down there, it makes it that much harder to do what 
     they're [the United States] doing. You can't run an 
     interrogation and torture camp with attorneys. What are they 
     [the United States] going to do now that we're getting court 
     orders to get more lawyers down there?''
       Thank you for your strong efforts made in securing adoption 
     of the Amendment and in its preservation.
       Thank you for your time and interest.
           Very respectfully,

                                     Edward F. Rodriguez, Jr.,

                                         Brig. Gen., USAFR (Ret.),
     Air Force Judge Advocate '70-'99.
                                  ____

                                                November 13, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: I write to support Senate Amendment 
     2516 (the ``Amendment'') to S. 1042, the FY 06 National 
     Defense Authorization Act.
       You proposed the Amendment to restrict the ability of 
     Global War on Terror detainees, held at Guantanamo, to gain 
     access to US District Courts through habeas corpus 
     applications, among other things. On Thursday, November 10, 
     you succeeded in persuading the Senate to adopt the Amendment 
     by a vote of 49 to 42.
       I understand that, when the Senate reconvenes on Monday, 
     November 14, the Amendment's opponents will make a strong 
     effort to strip away the habeas restriction. That will enable 
     detainees to continue to contest all manner of issues related 
     to their detention and the conduct of the Global War on 
     Terror in the US civilian court system.
       Detainees have ample opportunity to contest their combatant 
     status through the Combatant Status Review Tribunal 
     (``CSRT'') process, especially now since other provisions of 
     the Amendment provide for the exclusion of statements made 
     under undue coercion and for the appeal of adverse CSRT 
     rulings to the US Court of Appeals for the DC Circuit.
       I urge you to hold fast and to prevent any watering down of 
     the Amendment. If the habeas restriction is struck from the 
     Amendment, then the pending 160 habeas applications will be 
     only the tip of the iceberg. This

[[Page S12735]]

     is a true ``floodgates of litigation'' scenario. This is no 
     way to run a terrorist detention facility and a war against 
     foreign terrorists attacking our security. It would be a 
     significant setback in our resolve to defeat terrorists who 
     do not respect human rights and the rule of law.
       It is ironic that we would knowingly facilitate foreign 
     terrorists to have access to our Constitutional safeguards to 
     condemn and attack them. The Constitutional safeguards and 
     rights that we have and protect should not be a tool for 
     foreign terrorists.
       Thank you for your strong efforts made in securing adoption 
     or the Amendment and in its preservation.
           Very Respectfully,
                                                   Bohdan Danyliw,
        Brig. Gen., USAF (Ret), Former Command Judge Advocate Air 
     Force Systems Command.
                                  ____

                                                November 12, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: Please know I support Senate Amendment 
     2516 (the ``Amendment'') to S. 1042, the FY 06 National 
     Defense Authorization Act. The Amendment restricts the 
     ability of Global War on Terror detainees, held at 
     Guantanamo, to gain access to U.S. District Courts through 
     habeas corpus applications, among other things. Yesterday the 
     Senate adopted the Amendment by a vote of 49 to 42. However. 
     I suspect this is not the end of the matter. The Amendment's 
     opponents will most likely undertake efforts to strip away 
     the habeas restriction so that detainees can continue to 
     contest, in the U.S. civilian court system, every conceivable 
     issue related to their detention and the conduct of the 
     Global War on Terror.
       Detainees have ample opportunity to contest their combatant 
     status through the Combatant Status Review Tribunal 
     (``CSRT'') process. This is especially true now, since other 
     provisions of the Amendment provide for the exclusion of 
     statements made under undue coercion and for tbe appeal of 
     adverse CSRT rulings to the U.S. Court of Appeals for the DC 
     Circuit.
       I urge you to hold fast and to prevent any watering down of 
     the Amendment. If the habeas restriction is struck from the 
     Amendment, then the pending 160 habeas applications will be 
     only the tip of the iceberg--a true ``floodgates of 
     litigation'' scenario. This is no way to run a terror 
     detention facility, much less a war.
       Thank you for your strong efforts in securing adoption of 
     the Amendment and in its preservation.
           Very respectfully,
                                                     Nolan Sklute,
     Major General, USAF (Ret.).
                                  ____

                                                    Law Offices of


                                            Driano & Sorenson,

                                   Seattle, WA, November 11, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: I write to support Senate Amendment 
     2516 (the ``Amendment'') to S. 1042, the FY 06 National 
     Defense Authorization Act.
       You proposed the Amendment to restrict the ability of 
     Global War on Terror detainees, held at Guantanamo, to gain 
     access to U.S. District Courts through habeas corpus 
     applications, among other things.
       Yesterday, you succeeded in persuading the Senate to adopt 
     the Amendment by a vote of 49 to 42.
       I understand that, when the Senate reconvenes on Monday the 
     Amendment's opponents will make a strong effort to strip away 
     the habeas restriction so that detainees can continue to 
     contest all manner of issues related to their detention and 
     the conduct of the Global War on Terror in the U.S. civilian 
     court system.
       Detainees have ample opportunity to contest their combatant 
     status through the Combatant Status Review Tribunal 
     (``CSRT'') process, especially now since other provisions of 
     the Amendment provide for the exclusion of statements made 
     under undue coercion and for the appeal of adverse CSRT 
     rulings to the U.S. Court of Appeals for the DC Circuit.
       I urge you to hold fast and to prevent any watering down of 
     the Amendment. If the habeas restriction is struck from the 
     Amendment, then the pending 160 habeas applications will be 
     only the tip of the iceberg. This is a true ``floodgates of 
     litigation'' scenario. This is no way to run a terror 
     detention facility, much less a war.
       Thank you for your strong efforts made in securing adoption 
     of the Amendment and in its preservation.
           Very respectfully,
                                               Dominick V. Driano,
     Brig. Gen., USAF (Ret.).
                                  ____

                                                November 11, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: I write to support Senate Amendment 
     2516 (the ``Amendment'') to S. 1042, the FY 06 National 
     Defense Authorization Act.
       You proposed the Amendment to restrict the ability of 
     Global War on Terror detainees, held at Guantanamo, to gain 
     access to U.S. District Courts through habeas corpus 
     applications, among other things.
       Yesterday, you succeeded in persuading the Senate to adopt 
     the Amendment by a vote of 49 to 42.
       I understand that, when the Senate reconvenes on Monday, 
     the Amendment's opponents will make a strong effort to strip 
     away the habeas restriction so that detainees can continue to 
     contest all manner of issues related to their detention and 
     the conduct of the Global War on Terror in the U.S. civilian 
     court system.
       Detainees have ample opportunity to contest their combatant 
     status through the Combatant Status Review Tribunal. 
     (``CSRT'') process, especially now since other provisions of 
     the Amendment provide for the exclusion of statements made 
     under undue coercion and for the appeal of adverse CSRT 
     rulings to the U.S. Court of Appeals for the D.C. Circuit.
       I urge you to hold fast and to prevent any watering down of 
     the Amendment. If the habeas restriction is struck from the 
     Amendment, then the pending 160 habeas applications will be 
     only the tip of the iceberg. This is a true ``floodgates of 
     litigation'' scenario. This is no way to run a terror 
     detention facility, much less a war.
       Thank you for your strong efforts made in securing adoption 
     of the Amendment and in its preservation.
           Very respectfully,

                                               Walter A. Reed,

                                               M. Gen. USAF (Ret),
     AF Judge Advocate General (1977-1980).
                                  ____

                                                November 14, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: A world in which non-state actors 
     engaged in terrorist activities can be our greatest security 
     threat requires legal mechanisms that allow us to deal 
     effectively with these threats while remaining true to our 
     values. I believe Senate Amendment 2516 to S. 1042 
     accomplishes these purposes.
       When I was a Military Judge during the Viet Nam conflict, a 
     defense counsel who regularly appeared before me said that he 
     loved military juries. They always followed orders, and he 
     said that when a judge told a court to acquit if there was 
     reasonable doubt, they did their duty and would acquit 
     regardless of how difficult that decision might be. The CSRT 
     assures that detainee status decisions will be made by 
     persons with both the backbone, and the background, to get it 
     right. Simply stated, the members of the CSRT are in the best 
     position to make the necessary findings, and any review 
     process must take this into account.
       Establishing the D.C. Circuit as the singular court for 
     review of CSRT decisions will promote consistency and 
     fairness. Similarly, the exclusion of statements made under 
     undue coercion promotes the integrity of the decision process 
     and is consistent with our core values.
       I am pleased to offer my support for the Amendment.
           Sincerely,
                                                 Gilbert J. Regan,
     Brig. Gen. USAF (Ret.).
                                  ____

                                                November 11, 2005.
     Hon. Lindsey O. Graham,
     c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Graham: I write to support Senate Amendment 
     2516 (the ``Amendment'') to S. 1042, the FY 06 National 
     Defense Authorization Act.
       You proposed the Amendment to restrict the ability of 
     Global War on Terror detainees, held at Guantanamo, to gain 
     access to U.S. District Courts through habeas corpus 
     applications, among other things.
       Yesterday, you succeeded in persuading the Senate to adopt 
     the Amendment by a vote of 49 to 42.
       I understand that, when the Senate reconvenes on Monday, 
     the Amendment's opponents will make a strong effort to strip 
     away the habeas restriction so that detainees can continue to 
     contest all manner of issues related to their detention and 
     the conduct of the Global War On Terror in the U.S. civilian 
     court system.
       Detainees have ample opportunity to contest their combatant 
     status through the Combatant Status Review Tribunal 
     (``CSRT'') process, especially now since other provisions of 
     the Amendment provide for the exclusion of statements made 
     under undue coercion and for the appeal of adverse CSRT 
     rulings to the U.S. Court of Appeals for the D.C. Circuit.
       I urge you to hold fast and to prevent any watering down of 
     the Amendment. If the habeas restriction is struck from the 
     Amendment, then the pending 160 habeas applications will be 
     only the tip of the iceberg. This is a true ``floodgates of 
     litigation'' scenario. This is no way to run a terror 
     detention facility, much less a war.
       Thank you for your strong efforts made in securing adoption 
     of the Amendment and in its preservation.
           Very respectfully,
                                             Olan G. Waldrop, Jr.,
                                       Brig. Gen., USAF (Retired).

  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that in the absence 
of a speaker on the Republican side, the time between now and 4:30 p.m. 
be divided as follows: the Senator from Massachusetts be recognized for 
30 minutes, then the Senator from Connecticut be recognized for 10 
minutes. If, during that period, the floor manager on the Republican 
side indicates

[[Page S12736]]

time is required on the Republican side, we would then do our best to 
make arrangements for that to happen, perhaps delaying the 4:30 p.m. 
timetable. We are trying to accommodate two Senators, the Senator from 
Massachusetts, who needs a half hour, and the Senator from Connecticut, 
who needs 10 minutes.
  Mr. GRAHAM. So I have to pick whom I like best?
  Mr. LEVIN. We are trying to accommodate colleagues and make sure you 
are protected. I suggest the following: the Senator from Massachusetts 
speak for a half hour; the Senator from Connecticut speak for 10 
minutes, unless the Senator from South Carolina knows of someone on his 
side; and then if our people or a person on their side, Mr. President, 
needs some time, the 4:30 p.m. shift to the appropriations bill be 
delayed by 5 or 10 minutes to accommodate the Republican side. I can't 
think of anything better without knowing exactly who wants to speak.
  Mr. GRAHAM. I agree.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the Senator 
from Massachusetts be recognized for 30 minutes, the Senator from 
Connecticut for 10 minutes, and the remainder of the time between now 
and 4:30 p.m. not be assigned at this time, and we will do our best to 
accommodate the Republican side should there be speakers after the 
Senator from Connecticut speaks.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAHAM. No.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I thank the managers, particularly Senator 
Graham and Senator Levin.
  Veterans Day is a very special day in our country's history. There 
are a lot of veterans who believe Veterans Day is just plain sacred--a 
lot of families, Gold Star mothers, wives for whom it is a day set 
aside to memorialize the unbelievable sacrifice of generations of 
Americans who have given themselves for our country. Veterans Day is 
sacred. It is a day to honor veterans, not a day to play attack 
politics. The President, who is Commander in Chief, should know and 
respect this.
  Veterans Day originally marked the 11th hour of the 11th day of the 
11th month when the guns of World War I, the war to end all wars, 
finally fell silent. Instead of honoring that moment, instead of laying 
a wreath at the Tomb of the Unknown Soldier at Arlington, instead of 
laying out a clear plan for success in Iraq, the President laid into 
his critics with an 11th hour rhetorical assault that I believe 
dishonors that day and does a disservice to veterans and to those 
serving today. He did so even as he continued to distort the truth 
about his war of choice.
  Perhaps most striking of all is that his almost desperate sounding 
Veterans Day attack on those who have told the truth about his 
distortion was itself accompanied by more distortion. Does the 
President really think the many generals, former top administration 
officials, and Senators from his own party who have joined over two-
thirds of the country in questioning the President's handling of the 
war in Iraq--are they all unpatriotic, too? This is America, a place 
where we thrive on healthy debate. That is something we are trying to 
take to Afghanistan and Iraq. It is something we are trying to export 
to the rest of the world. The President does not have a monopoly on 
patriotism, and this is not a country where only those who agree with 
him support the troops or care about defending our country.
  You can care just as much about defending our country and have just 
as much support for the troops by being a critic of policies. No matter 
what the President says, asking tough questions is not pessimism, it is 
patriotism. And fighting for the right policy for our troops sends them 
exactly the right message that all of us here take very seriously the 
decision to put them in harm's way and that our democracy is alive and 
well.
  Ironically, the President even used the solemn occasion of Veterans 
Day to continue his campaign of misrepresenting the facts and throwing 
up smokescreens. His statement that Democrats saw and heard the same 
intelligence he did is just flat-out untrue, unless, of course, the 
President and the administration did not do their job and study the 
additional intelligence given only to them and not the Congress.
  As the Washington Post said on Saturday, Bush and his aides had 
access to much more voluminous intelligence information than lawmakers 
who were dependent on the administration to provide the material. But 
that whole discussion is nothing more than an effort to 
distract attention from the issue that matters most and can be answered 
most simply: Did the administration go beyond what even the flawed 
intelligence would support in making the case for war? Did they use 
obviously inaccurate intelligence, despite being told clearly and 
repeatedly not to? Did they use the claims of known fabricators and 
rely on those claims of known fabricators? The answer to each and every 
one of these questions is yes. The only people who are now trying to 
rewrite that history are the President and his allies.

  There is no greater breach of the public trust than knowingly 
misleading the country into war. In a democracy, we simply cannot 
tolerate the abuse of this trust by the Government.
  To the extent this occurred in the lead-up to the war in Iraq, those 
responsible must be held accountable. That is precisely why Democrats 
have been pushing the Senate Intelligence Committee to complete a 
thorough and balanced investigation into the issue. When the President 
tried to pretend on Friday that the Intelligence Committee had already 
determined that he had not manipulated intelligence and misled the 
American public, he had to have known full well they have not yet 
reported on that very question. That is precisely why Democrats were 
forced to shut down the Senate in secret session and go into that 
secret session in order to make our colleagues on the other side of the 
aisle take this issue seriously.
  When the President said his opponents were throwing out false 
charges, he knew all too well that these charges are anything but 
false. But the President and the Republicans seem far more interested 
in confusing the issue and attacking their opponents than in getting 
honest answers.
  Let's be clear, Mr. President, let's be clear, my fellow Americans: 
There is no question that Americans were misled into the war in Iraq. 
Simply put, they were told that Saddam Hussein had weapons of mass 
destruction when he did not. The issue is whether they were misled 
intentionally.
  Just as there is a distinction between being wrong and being 
dishonest, there is a fundamental difference between relying on 
incorrect intelligence and making statements that you know are not 
supported by the intelligence.
  The bottom line is that the President and his administration did 
mislead America into war. In fact, the war in Iraq was and remains one 
of the great acts of misleading and deception in American history. The 
facts are incontrovertible.
  The act of misleading was pretending to Americans that no decision 
had really been made to go to war and that they would seriously pursue 
inspections when the evidence now strongly suggests that they had 
already decided as a matter of policy to take out Saddam Hussein, were 
anxious to do it for ideological reasons, and hoped that inspections, 
which Vice President Cheney had opposed and tried to prevent, would not 
get in their way.
  The President misled America about his intentions and the manner in 
which he would make his decision. We now know that his speech in 
Cincinnati right before the authorization vote was carefully 
orchestrated window dressing where, again, he misled America by 
promising, ``If we have to act, we will take every precaution that is 
possible, we will plan carefully, and we will go with our allies.'' We 
did not take every precaution possible, we did not plan--that is 
evident for every American to see--and except for Great Britain, we did 
not go in with our allies.
  The act of misleading was just going through the motions of 
inspections while it appears all the time the President just could not 
wait to kick Saddam Hussein out of power. The act of misleading was 
pretending to Americans the real concern was weapons of mass 
destruction when the evidence suggests the real intent was to finish

[[Page S12737]]

the job his father wisely refused and remove Saddam Hussein in order to 
remake the Middle East for modern times.
  The act of misleading was saying in a Cincinnati speech that 
``approving this resolution does not mean that military action is 
imminent or unavoidable,'' when the evidence suggests that all along 
the goal was always to replace Saddam Hussein through an invasion. For 
most of us in Congress, the goal was to destroy the weapons of mass 
destruction. For President Bush, weapons of mass destruction were just 
the first public relations means to the end of removing Saddam Hussein. 
For most of the rest of us, removing Saddam Hussein was incidental to 
the end of removing any weapons of mass destruction. In fact, the 
President was misleading America right up until 2 days before launching 
his war of choice when he told Americans that we had exhausted all 
other avenues.
  The truth is that on the Sunday preceding the Tuesday launch of the 
war, there were offers of Security Council members to pursue an 
alternative to war, but the administration, in its race and rush to go 
to war, rebuffed them, saying the time for diplomacy is over.
  By shortcutting the inspections process and sidestepping his own 
promises about planning, coalition building, and patience, the 
President used WMD as an excuse to rush to war, and that was an act of 
misleading contrary to everything the President told Americans about 
the walkup to war.

  The very worst that Members of Congress can be accused of is trusting 
the intelligence we were selectively given by this administration and 
taking the President at his word. Imagine that, taking a President of 
the United States at his word. But unlike this administration, there is 
absolutely no suggestion that the Congress intentionally went beyond 
what we were told by the facts. That is the greatest offense by this 
administration. Just look at the most compelling justification for war: 
``Saddam's nuclear program and his connections with al-Qaida.''
  The facts speak for themselves. The White House has admitted that the 
President told Congress and the American public in his State of the 
Union Address that Saddam was attempting to acquire fuel for nuclear 
weapons despite the fact that the CIA specifically told the 
administration three times in writing and verbally not to use this 
intelligence. Obviously, Democrats did not get that memo. In fact, 
similar statements were removed from a prior speech by the President, 
and Colin Powell refused to use it in his presentation to the U.N. This 
is not relying on faulty intelligence as Democrats did, it is knowingly 
and admittedly misleading the American public on a key justification 
for going to war.
  This is what the administration was trying so desperately to hide 
when it attacked Ambassador Wilson and compromised national security by 
outing his wife. It is shameful that to this day, Republicans continue 
to attack Ambassador Wilson rather than condemning the fact that those 
16 words were ever spoken and that so many lies were told to cover it 
up.
  How are the same Republicans who tried to impeach a President over 
whether he misled a nation about an affair going to pretend it does not 
matter if the administration intentionally misled the country into war?
  The State of the Union was hardly an isolated event. In fact, it was 
part of a concerted campaign to twist the intelligence, to justify a 
war that had already been decided was more preferable. Again playing on 
people's fears after 9/11, the administration made statements about the 
relationship between al-Qaida and Iraq that went beyond what the 
intelligence supported. As recently reported by the New York Times in 
the Cincinnati Address, the President said, We have learned that Iraq 
has trained al-Qaida members in bombmaking and poisons and deadly 
gases, despite the fact that the Defense Intelligence Agency had 
previously concluded that the source was a fabricator.
  The President went on to say that Iraq has a growing fleet of 
unmanned and manned aerial vehicles that could be used to disburse 
chemical or biological weapons, despite the fact that the Air Force 
disagreed with that conclusion. As the Wall Street Journal reported: 
The Air Force dissent was kept secret, even as the President publicly 
made the opposite case before a congressional vote on the war 
resolution.
  That is two more memos that the Congress never got. In fact, when 
faced with the intelligence community's consensus conclusion that there 
was no formal relationship between Saddam and al-Qaida, the 
administration then proceeded to set up their own intelligence shop at 
DOD to get some answers that were better suited to their agenda. Again, 
there is a fundamental difference between believing incorrect 
intelligence and forcing or making up your own intelligence.
  Where would the Republicans and the President draw the line? How else 
would 70 percent of the American public be led to conclude that Saddam 
Hussein was involved in 9/11? That was not an accident. In fact, I 
remember correcting the President of the United States at our first 
debate when he said to America it was Saddam Hussein who attacked us.
  Why else did Vice President Cheney cite intelligence about a meeting 
between one of the 9/11 hijackers and Iraqis that the intelligence 
community and the 9/11 Commission concluded never took place? Why else 
make false statements about Saddam's ability to launch a chemical or 
biological weapon attack in under an hour without ever clearing that 
statement with the CIA, which in itself mistrusted the source and 
refused to include it in the National Intelligence Estimate? Why else 
would they say we would be greeted by liberators when their own 
intelligence reports said we could be facing a prolonged and determined 
insurgency? Why else tell Americans that Iraqi oil would pay for the 
invasion when they had to know that the dilapidated oil infrastructure 
would never permit that to happen?
  What about the President's promises to Congress that he would work 
with allies, that he would exhaust all options, that he would not rush 
to war? If the President wants to use quotes of mine from 2002, he 
might just look at the ones that were not the result of relying on 
faulty intelligence and trusting the President's word. As I said in my 
former statement before the authorizing vote--I wish the President had 
read this--if we go it alone without reason, we risk inflaming an 
entire region, breeding a new generation of terrorists, a new cadre of 
anti-American zealots, and we will be less secure, not more secure, at 
the end of the day. Let there be no doubt or confusion about where we 
stand on this. I will support a multilateral effort to disarm him by 
force if we ever exhaust those other options, as the President has 
promised, but I will not support a unilateral U.S. war against Iraq 
unless that threat is imminent and the multilateral effort has proven 
not possible.
  In my speech at Georgetown on the eve of the war, I said: The United 
States should never go to war because it wants to. The United States 
should go to war because we have to. And we do not have to until we 
have exhausted the remedies available, built legitimacy, and earned the 
consent of the American people.
  We need to make certain that we have not unnecessarily twisted so 
many arms, created so many reluctant partners, abused the trust of 
Congress, or strained so many relations that the longer term and more 
immediate vital war on terror is made more difficult. I say to the 
President, show respect for the process of international diplomacy 
because it is not always right but it can make America stronger, and 
show the world some appropriate patience in building a genuine 
coalition. Mr. President, do not rush to war.
  Today, our troops continue to bear the burden of that promise broken 
by this administration. We need to move forward with fixing the mess 
the administration has created in Iraq. I have laid out in detail on 
five or six occasions my views about exactly how we can accomplish that 
and how we can get our troops home within a reasonable period of 
time. But that does not excuse our responsibility to hold the 
administration accountable if they knowingly misled the country when 
American lives were at stake. We need to do both.

  Those colleagues on the other side of the aisle need to stop 
pretending that it does not matter if the administration stretched the 
truth beyond recognition and they need to start working to find out the 
real answers that

[[Page S12738]]

the country deserves and the real leadership that our troops in Iraq 
deserve. They deserve it from a Commander in Chief, not just a 
``campaigner in chief.''
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. I believe the Senator from Rhode Island had an 
inquiry.
  Mr. REED. Parliamentary inquiry: What is the status of the floor?
  The PRESIDING OFFICER. The routine is the Senator from Connecticut is 
due to be recognized for 10 minutes, followed by a Republican.
  Mr. REED. Mr. President, I understand the Senator from Tennessee will 
seek recognition after the Senator from Connecticut. How much time did 
the Senator want?
  Mr. ALEXANDER. Three minutes.
  Mr. REED. I ask unanimous consent that at the conclusion of Senator 
Dodd's time, Senator Alexander be recognized for 3 minutes, and at the 
conclusion of Senator Alexander's time I be recognized for 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAHAM. Reserving the right to object, how does this affect the 
debate on the Energy and Water conference report?
  The PRESIDING OFFICER. If this request is approved, it would delay 
the beginning of consideration of the conference report.
  Mr. GRAHAM. By how long?
  The PRESIDING OFFICER. By approximately 6 minutes.
  Mr. GRAHAM. I have no objection.
  Mr. DODD. Reserving the right to object, what I think might be the 
appropriate way to do it, since I do not want to have my remarks on 
Iraq to necessarily go directly from that to the celebration of the 
year of dealing with premature babies, I suggest that at the conclusion 
of my remarks on the subject matter that I wish to speak on that we 
then turn to the Senator from Tennessee about the issue for 3 minutes, 
which I may ask him to yield for a minute of time just to comment 
because we worked together on this issue, and then turn to my colleague 
from Rhode Island. Is that all right?
  Mr. REED. That is perfectly all right. I think to expedite 
consideration of the Energy bill, I revise my consent rather than 15 
minutes, 10 minutes.
  The PRESIDING OFFICER. As I understand, it is 10 minutes, 3 minutes, 
10 minutes. Is there objection?
  Without objection, it is so ordered.
  The Senator from Connecticut.
  Mr. DODD. Mr. President, in these 10 minutes I will address the issue 
of an amendment offered by my colleague from Michigan, and several 
others including this Senator, which we have worked on over the last 
week or so. This amendment will be voted on tomorrow, and we have tried 
here to come up with some ideas that could build bipartisan support for 
how we go from where we are today in Iraq to a successful conclusion of 
that conflict.
  I think all of us recognize that we have ourselves in a mess in Iraq, 
no matter how one wants to characterize it. I was disappointed that the 
President used Veterans Day last week as an opportunity to attack those 
who have agreed with him at certain points and disagreed with him at 
others. It seems to me that what we need from the administration is far 
more clarity, a greater sense of vision, some concrete ideas on how we 
intend to conclude our involvement in Iraq, and a strategy for 
increasing the likelihood that the Iraqi people can build a stable 
government.
  As we know, from the very beginning, the rationale for going to war 
in Iraq was filled with misrepresentations, deceits, and the 
falsification of many facts. There was no Iraqi purchase of uranium 
from Niger. There were no aluminum tubes being used to construct 
nuclear centrifuges. There were no stockpiles of biological and 
chemical weapons. We now know that allegations linking Iraqi officials 
to al-Qaida were untrue. To make matters worse, in my view, the 
administration's penchant for discarding international norms with 
respect to our missions in Iraq, Afghanistan and elsewhere, has 
unraveled decades of American diplomacy dedicated to enshrining the 
rule of law.
  The course set by this administration has cost America its treasure, 
but it has also cost the lives of more than 2,000 of our service men 
and women. More than 14,000 others have sustained serious injuries. We 
are now spending somewhere around $4-$6 billion every month for U.S. 
military operations alone in that country.
  There have been intangible costs as well most--significantly, the 
cost to America's favorable public image at home and abroad--a cost 
that has seriously impaired our ability to shape global responses to 
global challenges.
  These challenges include North Korea's nuclear weapons, Iran's 
ambitions to develop its own weapons capability, genocide in Sudan's 
Darfur region, political instability in Lebanon and Syria, and a 
festering Arab-Israeli conflict. Anti-American nationalism is spreading 
throughout our own hemisphere as we saw in recent days during the 
summit meetings of the Americas; and the HIV/AIDS epidemic and the 
possibility of an avian flu epidemic all are being held hostage because 
of the missteps we have taken in Iraq.
  These missteps have tarnished America's image, and have allowed the 
disaffected in Iraq and elsewhere to capitalize on these misfortunes 
and to distort our values and intentions, in order to inspire violence 
for their own purposes. We saw it in recent protests in Argentina. We 
are seeing it to a certain extent in the ongoing youth violence in 
France. We saw it several days ago in the tragic bombings in Amman, 
Jordan. We see it every day in Iraq as American and Iraqi soldiers and 
civilians are randomly attacked by angry, nameless, and faceless 
individuals. It is not enough to simply decry past mistakes or 
America's tarnished reputation. We have to do something to correct 
these mistakes and restore America's prestige.
  In short, what we need is a plan for success in Iraq, and what better 
place to start than in that war-torn nation. Last month, while visiting 
Baghdad with my colleague from Rhode Island, Senator Reed, I had the 
opportunity to meet with U.S. commanders on the ground and to visit 
with our men and women in uniform who in some cases are on their second 
or third tours of duty in that nation.
  I cannot say how impressed I was with these heroes who risk their 
lives every single day in the service of our Nation, and with the 
senior military officers who lead them. We owe these brave Americans a 
huge debt of gratitude for their courage, sacrifice, and 
professionalism. But we owe them much more than that. We owe them a 
strategy and a framework for completing this mission. We owe them a 
sense of conviction that this is not going to be an indefinite 
struggle. That is why I joined with Senator Levin and others in 
crafting this amendment, which we hope will be embraced on a bipartisan 
basis. This amendment would require the President to publicly lay out 
for the first time a strategy and framework for our troops to follow so 
that they can successfully complete the mission in Iraq and come home.
  Recently, the President told the American people that Iraq has made 
incredible political progress: from tyranny, to liberation, to national 
elections, to a new constitution in the space of 2\1/2\ years.
  I agree with that assessment, but that is not a strategy for success. 
It is a statement of discrete events that have thus far occurred in 
Iraq, albeit positive events. Our troops and the American people 
deserve more than that, in my view. They certainly deserve more than 
simply being told that the strategy is: When they stand up, we will 
stand down. What our troops are looking for, what I believe the 
American people are looking for, what Iraq and Iraq's neighbors are 
looking for, is a clearly articulated strategy, a timetable which 
culminates in the election of a sovereign, inclusive Iraqi government 
with the expertise and experience to govern effectively. Thus far, the 
administration has failed to articulate such a strategy or such a 
timetable.
  Before success can be a reality, however, competent Iraqi security 
and police forces, respectful of the civilian authority, must be at the 
ready to secure Iraq's borders and provide security within its 
territory.
  And fundamental to achieving success, in my view, is ensuring that 
the vast majority of Iraqi Kurds, Sunnis, and Shi'as have bought into 
whatever political architecture emerges from the upcoming elections. At 
the moment, that is not a given.

[[Page S12739]]

  Some but not all Iraqis have decided that the road to reconciliation 
and inclusion is the right road. Others remain mistrustful and 
uncertain. Although the latter may be a minority, it is painfully 
evident that they have the capacity to derail progress for all Iraqis.
  With more than 160,000 American servicemen in Iraq, our presence and 
our policies are going to be pivotal in helping to shape Iraq's future. 
But the United States, despite all of its military strength, cannot, 
through force alone, remake Iraq. Moreover, the longer U.S. troops 
remain an occupying force there, the greater the hatred and 
disaffection among Iraqis and the larger attraction for foreign 
jihadists.
  That is why it is especially important that the administration 
proceed with some sense of urgency in setting forth its strategy for 
involving Iraq's neighbors in addressing the political, ethnic, and 
tribal divisions that exist in Iraq and fuel instability, particularly 
so in light of the size of the ``no'' vote cast by Sunni voters against 
the new constitution.
  The Levin amendment imbues the administration with that urgency. It 
states that U.S. forces should not remain in Iraq indefinitely. It 
establishes expectations that calendar year 2006 should be a period of 
significant transition to full Iraqi sovereignty, thereby creating the 
conditions for the phased redeployment of U.S. forces from Iraq. It 
stresses the need for compromise among Iraqis to achieve a sustainable 
sovereign government. And most important, it calls upon the President 
no later than 30 days after enactment of this bill to tell the American 
people his campaign plan and estimated dates for the redeployment of 
U.S. forces.
  The pending amendment provides concrete ideas for completing our 
mission in Iraq successfully, for phased redeployment of U.S. combat 
forces, for reassuring Iraq and its neighbors that we have no ulterior 
motives with respect to Iraq's future, and for restoring America's 
influence and prestige.
  A successful strategy for Iraq will free-up critical resources and 
personnel to enable America to address urgent homeland security 
priorities: protecting schools and hospitals, water and power stations, 
and other vital locations; equipping our firefighters and other first 
responders who are the first line of defense in our communities against 
acts of terror; and fortifying our Nation's transportation 
infrastructure.
  Today, America is less secure than it was 5 years ago, as resources 
have been diverted from programs to maintain the readiness of our Armed 
Forces, and to strengthen our homeland security, in order to pay for 
the continuing occupation of Iraq. It is time for the Bush 
administration to make a major course correction in our policy in Iraq 
if we are going to be successful, one that will bring our military 
involvement nearer to a close. It is time for the administration to 
refocus attention and resources on our Nation's real priorities--
keeping America strong, secure, and prosperous for the 21 century.
  I urge my colleagues to take a good look at the Levin amendment. It 
has been worked on for the last week by a number of us who have tried 
to come up with a plan for success, recognizing the achievements that 
have occurred but also laying out a strategy of how to succeed in the 
coming months. We cannot continue on the path we are on indefinitely. 
It will not work. It has cost us dearly at home and abroad.
  I think that this amendment is one that many of my colleagues could 
be drawn to. It doesn't lay out timetables definitely, but it does lay 
out a framework, a strategy for success. I urge my colleagues to vote 
to adopt this amendment when it comes to a vote tomorrow.
  I yield the floor.


                   National Prematurity Awareness Day

  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. While my friend, the Senator from Connecticut, is on 
the floor, I would like to change the subject for just 2 or 3 minutes 
and talk about the issue of babies born prematurely, an area he and I 
have been working on together. Premature infants are 14 times more 
likely to die in the first year of their lives. This is Prematurity 
Awareness Month. Tomorrow is Prematurity Awareness Day. It is the No. 1 
cause of infant death in the first month of life in the United States. 
Premature babies who survive may suffer lifelong consequences, 
including cerebral palsy, mental retardation, chronic lung disease, 
vision and hearing loss. Half the cases of premature birth have no 
known cause, and any pregnant woman is at risk.
  That is why the Senator from Connecticut and I have introduced the 
Prematurity Research Expansion and Education for Mothers Who Deliver 
Infants Early Act, which we call the PREEMIE Act. It expands research 
into the causes and prevention of prematurity and increases education 
and support services related to prematurity.
  I ask unanimous consent that the following Senators be added to our 
legislation in honor of Prematurity Awareness Day, which is tomorrow: 
Senators Bennett, Bingaman, Clinton, Bond, Cochran, Collins, Hagel, 
Inouye, Lieberman, Lugar, Obama, Lautenberg, Lincoln, and Talent.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. The March of Dimes is our partner, a strong advocate 
for the PREEMIE bill. It is leading the prematurity campaign. It will 
sponsor a symposium on prematurity research here in Washington, DC, on 
November 21 and 22.
  Mr. GRAHAM. Would the Senator add my name, please?
  Mr. ALEXANDER. I ask unanimous consent to add the name of the Senator 
from South Carolina.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. It calls for a Federal research plan. I thank our 
colleagues for joining us in this effort. We hope the legislation will 
pass Congress this year.
  With the permission of the Senator from Rhode Island, I ask unanimous 
consent that the Senator from Connecticut have a minute to make his 
comments on the legislation.
  Mr. REED. I have no objection.
  Mr. DODD. I thank my colleague. I am pleased to join with my 
colleague from Tennessee in this effort. I commend our colleagues from 
around the country who joined us, including our friend from South 
Carolina, the most recent cosponsor of this legislation.
  One out of every eight babies in our country is born prematurely--
that is 1,300 infants every day and over 470,000 every year. The 
problems associated with prematurity are legion. We are making 
incredible advances in how we treat these children, but we need to do a 
lot more. I am not going to go to great length here except to commend 
my colleague from Tennessee and tell him how much I have enjoyed 
working with him on this issue.
  This is a critically important issue. It is the kind of issue that 
deserves more attention. We hope to get that attention with these 
efforts. I commend him for his leadership. I am pleased to be a partner 
in this effort, and I am grateful to my colleagues for joining us in 
this endeavor.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise to express my strong support for the 
amendment offered by Senator Levin from Michigan. I was pleased to work 
with a number of my colleagues on this amendment, including Senator 
Levin, Senator Biden, Senator Harry Reid, Senator Kerry, Senator 
Feingold, Senator Kennedy, Senator Durbin, and particularly Senator 
Dodd. Senator Dodd and I had the privilege of traveling together 
through Iraq just about 3 weeks ago. Our trip was very illuminating. 
His participation is one I deeply appreciated.
  We all understand that there are over 160,000 American troops in 
Iraq. They are serving magnificently, and they have paid a difficult 
price for their service. We have lost soldiers and sailors and airmen 
and marines. We know how important it is to succeed in Iraq.
  But the American people are concerned. A Pew Research poll conducted 
last week found that those polled believed that Iraq was the most 
important problem facing the country today. A second poll conducted by 
NBC News and the Wall Street Journal, however, found that 64 percent of 
those polled disapproved of the way President Bush is handling this 
situation in Iraq.
  At the heart of that, I believe, is a sense that there is no plan. 
There are slogans--``Stay the course.'' There are

[[Page S12740]]

slogans--``When the Iraqis stand up, we stand down.'' But a slogan is 
not a plan, and the American people and this Congress should demand a 
plan.
  That is the essence of the Levin amendment. We are not collectively a 
Commander in Chief. We should not presume to think so. He is 
responsible for such a plan, and he has to provide, not just to us but 
to the American people, a sense that there is a plan that is leading to 
an outcome which is successful in a timeframe which is feasible. What 
the American people are seeing, however, is chaos without a plan.

  I did not vote to authorize the use of force in Iraq. At that time, 
my concerns were, after the initial decisive military victory, that we 
would be swept up in a difficult situation. That is what has come to 
pass. I thought the cost would be huge then, but I did not expect that 
we would enter the phase after military operations, the conventional 
attack, with essentially no plan. That was a surprise to me and a 
surprise to so many others.
  According to an article in the Philadelphia Inquirer, when a 
lieutenant colonel briefed war planners and intelligence officers in 
March 2003 on the administration's plans in Iraq, the slide for the 
rebuilding operations or phase 4-C, as it is known in the military, was 
simply this: ``To be provided.'' We are still waiting. We are still 
waiting for a plan that works, that is measurable, and that will give 
the American public the confidence that our course ahead will lead to 
success.
  We all know in February of 2003 when General Shinseki was asked about 
the troop strength we needed there, he said several hundred thousand 
soldiers. He was dismissed--and that is a kind word for the treatment 
he received. Secretary Rumsfeld said the estimate was `` . . . far from 
the mark.'' Secretary Wolfowitz called it ``outlandish.'' In fact, it 
was very accurate, very perceptive--prophetic, indeed, because after 
our initial entry into Iraq, after the first days of fighting, it 
became more and more obvious we needed more troops to, among other 
things, secure ammo dumps that were prolific throughout the country. 
Perhaps we have lost that window where more troops will make a 
difference, but we certainly have not gone past the point where a good 
plan will make a difference, and we need that good plan.
  The Congressional Research Service has summarized dozens of reports 
and articles, cataloging mistake after mistake. In their words:

       The lack of reconstruction plan; the failure to adequately 
     fund reconstruction early on; unrealistic application of U.S. 
     views to Iraqi conditions by, for example, emphasizing 
     privatization policy; the organizational incompetence of the 
     CPA; changing deadlines . . .

  Et cetera, et cetera, et cetera.
  I could add, a very unwise de-Baathification process and the 
disestablishment of the Iraqi army. But the litany goes on and on. It 
was ad hoc, off the cuff. It was not a plan that worked and it is not 
working today.
  We need this plan. That is what the Levin amendment calls for. Give 
us a plan. Not just us, but give the American people a plan. We have 
made progress in Iraq. We have had elections. But that progress is 
fragile and reversible. We have to have a coherent way ahead. And 
again, hope is not a plan.
  This amendment is not, as some would characterize it, cut and run. It 
asks the President to lay out conditions. It asks to define a mission. 
It asks to catalog the resources necessary. Then it anticipates--and I 
think this is prudent--that we would have a phased redeployment of 
troops.
  Just today, in London, Prime Minister Blair talked about British 
troops coming out next year, 2006. Jalal Talabani, the Iraqi President, 
said the troops are coming out in 2006. British Defense Secretary John 
Reid--no relation--said that we are likely to see troops come out next 
year if conditions allow. So the idea of looking ahead with a good plan 
and making a good-faith estimate as to troop levels seems to me the 
appropriate thing to do. It is a campaign plan. It is a campaign plan 
which will give us an idea of how long we will be there.
  We need not simply to reflect what is happening on the ground in 
Iraq. We cannot sustain indefinitely 160,000 American troops in Iraq.
  It will bring our land forces, our Army, our Marines to their knees. 
They are overstretched. They have a billion dollars of built-up 
maintenance on helicopters and vehicles. And the personnel turmoil is 
excruciating. We owe it to them to have a plan. And we must be able to 
show how we are paying for this plan.
  This plan would also ask the President to talk about a definition of 
``success,'' talk about the conditions, talk about situations which 
would cause those conditions to be reevaluated. The Levin amendment is 
asking for the obvious. Show us the way ahead, not in a slogan but in 
concrete, measurable elements that will constitute a good plan. We have 
been waiting for 2\1/2\ years for such a plan.
  What is the mission? It has changed. One of the initial missions was 
to deny the Iraqi Government weapons of mass destruction. We find they 
had none.
  Then, of course, the mission was to root out terrorist insurgents 
that might be collaborating with Saddam Hussein's regime. The evidence 
strongly suggests there was no such material collaboration. But today 
there are thousands of hardened terrorists that we are in the process 
of rooting out--after the attack, not before.
  Then, of course, there was the mission of creating a democratic oasis 
in Iraq that would be transformative of the entire region.
  Is that still the mission? If it is the mission, we are going to need 
many decades, billions of dollars, and to mobilize the strength of this 
country, not just militarily but for technical and political 
assistance, and we haven't done that.
  The President doesn't suggest--from everything I have heard and from 
everything I have seen--that he intended to do that.
  What is the mission? What are the resources? We are spending about $4 
billion to $6 billion a month in Iraq and Afghanistan. How long will we 
spend that much money, and when we finish how much will we have to 
spend to reconstitute our equipment, to reorganize our troops? Tell us. 
It is important because we make decisions on this floor that are based 
upon assumptions about how much we will be spending years ahead in 
Iraq, and we have to have those numbers. We need the conditions. More 
than that, we need all this tied into our troop strength in Iraq.
  That is essentially what the American people are looking at very 
consciously.
  How long will their sons and daughters be committed to this struggle?
  I believe we have to succeed, and I am here because we can't succeed 
without a coherent plan, not one that is made up of slogans and good 
intentions but one that is premised on real conditions, hardnosed, and 
something that will help us and help the American people to understand 
our commitment and help us to succeed in that commitment.
  I hope very strongly that the Levin amendment is agreed to. The 
Republican counterpart makes a few changes, but the critical change is 
it essentially takes out the notion of a plan.
  The opposing amendment would strip out something vital in the Levin 
amendment; that is, a campaign plan that would help show, project, the 
phased redeployment of American troops. I think that is essential.
  If Tony Blair can speak off the cuff in London today about the phased 
withdrawal of British troops, and Talabani, the Iraqi President can do 
it, and John Reid, the Defense Secretary of Great Britain can do it, 
then certainly the President of United States can do it. And we ask him 
to do it. In fact, if we agree to this amendment, it will require him 
to do it.
  I yield the floor.

                          ____________________