[Congressional Record Volume 151, Number 167 (Wednesday, December 21, 2005)]
[Senate]
[Pages S14256-S14275]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--CONFERENCE
REPORT
The PRESIDING OFFICER. The clerk will report the conference report.
The assistant legislative clerk read as follows.
A conference report to accompany H.R. 1815 to authorize
appropriations for the 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 military personnel strengths for such
fiscal year, and for other purposes, having met, have agreed
that the House recede from its disagreement to the amendment
of the Senate, and agree to the same with an amendment,
signed by a majority of the conferees on the part of both
Houses.
The PRESIDING OFFICER. The Senate will proceed to the consideration
of the conference report.
(The conference report is printed in the House proceedings of the
Record of December 18, 2005.)
Mr. WARNER. Mr. President, will the Chair advise the Senate with
regard to any time allocation for remarks in connection with the
pending matter?
The PRESIDING OFFICER. There was not a time allocation.
Mr. LEVIN. Mr. President, I congratulate Senator Warner. Without his
leadership we would not be here. We had a record number of amendments
which we had to deal with in a record short period of time. He showed
incredible tenacity and patience and wisdom, as he always does in
bipartisanship. I commend him and particularly our staffs.
Mr. President, I thank our leadership as well for their staying with
us on this one. There was a time earlier this year when we didn't think
we were going to get an authorization bill, and except for the efforts
of our leaders we would not be here either. I want to particularly
thank them.
Mr. LEVIN. Mr. President, I am pleased to join my good friend and
colleague, Senator Warner, the Chairman of the Senate Armed Services
Committee, in urging the adoption of the conference report on H.R.
1815, the National Defense Authorization Act for Fiscal Year 2006.
Getting this conference report to the Senate required the labors of
Hercules, the patience of Job and the magic of Merlin. We would not
have been able to complete conference on this important bill--made so
very urgent by the fact that we are nation at war--without the tireless
efforts of Senator Warner.
First, a word on the extraordinary events of the last few days.
On the Senate side, every one of our conferees--including all 11
Democrats on the Armed Services Committee--signed the conference
report. Each of these Senators signed on the basis of the text of the
conference report that was agreed to between the Senate and House
conferees.
As is our usual practice, we delivered our Senate signature sheets to
the House on Friday afternoon, with the understanding that the
conference report would be filed first in the House and acted upon
first by that body. The Senate stood ready to take up the conference
report as soon as it came over from the House and to pass it after 1
hour of debate.
Unfortunately, the conference report was not filed on either Friday
or Saturday, because the House Republican leadership was considering
adding an extraneous bill to the conference report. This bill was not a
part of our conference, is not in the jurisdiction of our committee,
and was never considered by any of the conferees. The bill was not a
part of the conference report that was agreed to by our conferees on
either side of the aisle.
Senator Warner and I strongly objected to a procedure so totally
destructive of bedrock legislative process. When we learned that such
an attempt might be made, we joined together and retrieved the Senate
signature sheets from the House. Only after we were assured on Sunday
afternoon that the conference report would be voted on in the House of
Representatives as agreed, with no effort to insert additional
material, did we return the Senate signature sheets to the House.
I will ask unanimous consent that a copy of the cover letter that we
sent to the House be inserted in the Record. I would also make
reference to Senator Warner's remarks in the Record on this subject
last Friday, and my remarks last Saturday.
Even before the events of the last weekend, the Armed Services
Committee faced obstacles and hurdles in completing this bill that we
have never faced before. For example:
It took us over 2 months from the time we reported the bill to the
Senate on May 15 to the time debate initially began on July 20.
Then, after only 5 days of debate, our bill was pulled down by the
majority leader on July 26 when the Senate failed to invoke cloture on
the bill. We had to wait over 3 months and negotiate a very complicated
unanimous consent agreement which limited the number of amendments
before we were able to resume debate on the bill on November 4.
We debated the bill for an additional 7 days and finally passed it by
a unanimous 98 to 0 vote on November 15, but not before disposing of a
total of 261 amendments--more amendments ever considered to any Defense
authorization bill since Congress passed the first annual Defense
authorization bill back in 1961.
As far as completing conference this session, there were a lot of
people who doubted it could be done because of the sheer size and
complexity of this legislation, leaving aside some of its very
contentious issues. Over the past 10 years, we have averaged a total of
70 days in conference with the House on this massive bill. Last year
alone, we were in conference with the House for a total of 85 days. We
completed this conference in under 1 month--29 days, to be exact. We
compromised on a lot of issues, but we didn't compromise the quality of
this legislation just for the sake of getting it done quickly. In
short, we did it right and we are very proud of that. This year, we
have produced a true holiday gift for our troops and our Nation.
This conference report contains provisions that provide well-deserved
support for our military personnel and their families. In particular,
the conference report will:
Increase basic pay by 3.1 percent, a half percent higher than
inflation;
Increase the death gratuity for all active duty deaths from $12,400
to $100,000, retroactive to the beginning of Operation Enduring
Freedom;
Authorize a new special pay of $430 a month during hospitalization
for service members while rehabilitating from an injury or disease
incurred in a combat zone;
Authorize a new leave of up to 21 days when adopting a child;
Provide $30 million in impact aid to local school districts,
including a new $10 million authorization for schools that have a large
increase or decrease in students due to rebasing, activation of new
military units, or base realignment and closure;
Increase funding for military child-care services by $50 million, and
for family assistance services by $10 million; and
Create a mental health task force to help military members and
families deal with an increasing number of mental health issues.
The bill also contains several provisions especially designed to
benefit our
[[Page S14257]]
National Guard and Reserve personnel and their families:
Every member of the Selected Reserve will have access to government-
subsidized health care under the military TRICARE Standard medical
program for themselves and their families.
Tier 1 is the TRICARE Reserve Select program that we authorized last
year. National Guard and Reserve personnel who are mobilized can use
this benefit for a year for each period of mobilized service, as long
as they remain in the Selected Reserve. The Government pays 72 percent
of their health care premium--they pay only 28 percent.
Tier II includes members of the Selected Reserve who do not have
access to health insurance through their civilian employment. The
Government pays 50 percent of their premium; and
Tier III includes members of the Selected Reserve who have access to
health insurance through their employer but choose TRICARE. The
Government pays 15 percent of their premium, they pay the remaining 85
percent.
National Guard and Reserve members who suffer an income loss when
mobilized will be paid an income replacement payment after 18 months of
active duty, upon completion of 24 months of active duty in a 5-year
period, or when mobilized within 180 days of an earlier mobilization.
Reservists who are ordered to active duty for more than 30 days will
receive a full housing allowance rather than the current 140 days.
In the bill we authorize the following end strengths for our active-
duty forces: Army--512,400, an increase of 10,000 soldiers from last
year's authorized end strength; Navy--352,700, 13,200 less than last
year, in accordance with the Department's request; Marine Corps--
179,000, an increase of 1,000 Marines; and Air Force--357,400, 2,300
less than last year's authorization, again in accordance with the
Department's request.
We are very concerned about the Army's ability to recruit enough
enlistees to make the end strength that we authorized. This bill gives
the Army new tools to help it meet its recruiting goals:
A new bonus of up to $1000 for soldiers who refer a successful
recruit to the Army;
New authority to experiment with innovative recruiting incentives;
Authorization for matching contributions to the Thrift Savings Plan
during a service member's initial enlistment; and
An increased maximum enlistment bonus of up to $40,000.
This bill does not include everything that I fought for. For example,
I am very disappointed that we were not able to eliminate the
requirement that survivor benefit plan annuity payments be reduced by
the amount of dependency and idemnity compensation received from the
Veterans' Administration. I am also disappointed that we were not able
to immediately repeal the 10-year phase-in of the concurrent receipt of
military retired pay and VA disability compensation for military
retirees with less than a 100 percent disability who are considered
``totally disabled'' because their disability renders them
unemployable.
Before I comment further on a number of other issues in the
conference report relating to support for our men and women in uniform,
weapons systems and nonproliferation programs, I want to comment on
provisions relating to the treatment of detainees and the sense of the
Congress on United States policy on Iraq.
I am pleased that the conference report contains the full text of the
McCain amendment on torture, without change. This language firmly
establishes in law that the United States will not subject any
individual in our custody, regardless of nationality or physical
location, to cruel, inhuman, or degrading treatment or punishment. The
amendment provides a single standard--``cruel, inhuman, or degrading
treatment or punishment''--without regard to what agency holds a
detainee, what the nationality of the detainee is, or where the
detainee is held. With the enactment of this amendment, the United
States will put itself on record as rejecting any effort to claim that
these words have one meaning as they apply to the Department of Defense
and another meaning as they apply to the CIA; one meaning as they apply
to Americans and another meaning as they apply to our enemies; or one
meaning as they apply in the United States and another meaning as they
apply elsewhere in the world.
The McCain amendment is not only an important statement of law, it is
a reaffirmation of one of the core values of our system of government
and a restatement of who we are as Americans. I would not have signed
or supported any conference report that did not include these
provisions.
Despite repeated efforts by administration officials and their allies
in the House of Representatives to amend this language, the conference
report does not allow the President to authorize actions that violate
the standards in the McCain amendment, or to immunize individuals who
engage in such actions from either criminal prosecution or civil suit.
Despite repeated efforts by administration officials and their allies
in the House, the conference report does not authorize the U.S.
government to indemnify individuals who are found to be liable for
violating the standards in the McCain amendment, and it does not make
reckless or wanton behavior a prerequisite to such liability.
The conference report would add a new section establishing a defense
in any legal action against a person who engages in specific
operational detention and interrogation practices that were officially
authorized at the time that they were conducted, if the defendant did
not know that the practices were unlawful and a person of ordinary
sense and understanding would not have known that they were unlawful.
This is not a new defense: it is virtually identical to the defense
already available under the Manual for Courts-Martial for military
members who act in reliance upon lawful orders.
It has never been my understanding that the McCain amendment would,
by itself, create a private right of action. I do not believe that the
amendment was intended either to create such a private right of action,
or to eliminate or undercut any private right of action--such as a
claim under the alien tort satute--that is otherwise available to an
alien detainee. Rather, the McCain amendment would establish a legal
standard applicable to any criminal prosecution or a private right of
action that is otherwise available under law. That would not be changed
in any way by the affirmative defense added in the new section. Nor
would the McCain amendment be undermined in any way by any of the other
detainee provisions in the conference report.
I opposed the initial amendment addressing the legal rights of
Department of Defense detainees at Guantanamo Bay, Cuba when Senator
Graham offered it on the Senate floor, because it would have stripped
federal courts of jurisdiction to hear habeas corpus challenges--
including pending cases--brought by Guantanamo detainees.
Unfortunately, the Senate approved that amendment by a 49-to-42 vote.
Following the Senate vote, I worked with Senator Graham to build back
protection into his amendment. We did so in three ways:
First, the jurisdiction-stripping provision in the initial Graham
amendment would have applied retroactively to all pending cases in
Federal court--stripping the Federal courts of jurisdiction to consider
pending cases, including the Hamdan case now pending in the Supreme
Court. The revised amendment adopted by the Senate--the so-called
Graham-Levin-Kyl amendment--does not apply to or alter any habeas case
pending in the courts at the time of enactment.
Under the Supreme Court's ruling in Lindh v. Murphy, 521 U.S. 320,
the fact that Congress has chosen not to apply the habeas-stripping
provision to pending cases means that the courts retain jurisdiction to
consider these appeals. Again, the Senate voted affirmatively to remove
language from the original Graham amendment that would have applied
this provision to pending cases. The conference report retains the same
effective date as the Senate bill, thereby adopting the Senate position
that this provision will not strip the courts of jurisdiction in
pending cases.
Let me be specific.
The original Graham amendment approved by the Senate contained
language stating that the habeas-stripping provision ``shall apply to
any application or other action that is pending on
[[Page S14258]]
or after the date of the enactment of this Act.'' We objected to this
language and it was not included in the Senate passed bill.
An early draft of the Graham-Levin-Kyl amendment contained language
stating that the habeas-stripping provision ``shall apply to any
application or other action that is pending on or after the date of the
enactment of this Act, except that the Supreme Court of the United
States shall have jurisdiction to determine the lawfulness of the
removal, pursuant to such amendment, of its jurisdiction to hear any
case in which certiorari has been granted as of such date.'' We
objected to this language and it was not included in the Senate-passed
bill.
A House proposal during the conference contained language stating
that the habeas-stripping provision ``shall apply to any application or
other action that is pending on or after the date of enactment of this
Act.'' We objected to this language and it was not included in the
conference report.
Rather, the conference report states that the provision ``shall take
effect on the date of the enactment of this Act.'' These words have
their ordinary meaning--that the provision is prospective in its
application, and does not apply to pending cases. By taking this
position, we preserve comity between the judicial and legislative
branches and avoid repeating the unfortunate precedent in Ex parte
McCardle, in which Congress intervened to strip the Supreme Court of
jurisdiction over a case which was pending before that Court.
Second, the initial Graham amendment would have provided for direct
judicial review only of status determinations by Combat Status Review
Tribunals, CSRTs. By contrast, the revised Graham-Levin-Kyl amendment
adopted by the Senate provided for direct judicial review of both
status determinations by CSRTs and convictions by military commissions.
The amendment does not affirmatively authorize either CSRTs or military
commissions--instead, it establishes a judicial procedure for
determining the constitutionality of such processes.
Again, this improvement is preserved in the conference report, which
retains the Senate language authorizing direct review of both status
determinations by CSRTs and convictions by military commissions.
Third, the initial Graham amendment would have provided only for
review of whether a tribunal complied with the Department's own
standards and procedures. By contrast, the revised amendment adopted by
the Senate would authorize courts to determine whether the standards
and procedures used by CSRTs and military commissions are consistent
with the Constitution and laws of the United States.
This language has been revised in conference only to state what the
intent of the amendment already was--that it was not intended to grant
to an alien detainee any rights under the Constitution and laws of the
United States that the detainee does not already have. Otherwise, the
improved language remains intact in the conference report: The courts
would be expressly authorized to determine whether the standards and
procedures used in a status determination or the trial of an alien
detainee at the Guantanamo are consistent with the Constitution and
laws of the United States, as they apply to that detainee.
We expect that final decisions in both the CSRT process and under the
military order for trials will be reached in an expeditious manner to
ensure judicial review within a reasonable period of time. The
statement of managers makes this point expressly with regard to CSRT
determinations, because the amendment requires that CSRT procedures be
submitted to Congress. The statement of managers does not make this
point with regard to military commissions only because the procedures
for military commissions are not in any way addressed in the conference
report.
The Senate bill also contained a provision that would require the
Secretary of Defense to submit to Congress a report on the procedures
used by combat status review tribunals and administrative review boards
for determining the status of the detainees held at Guantanamo Bay and
the need to continue to hold such detainees. This provision has been
expanded in the conference report to require that the report also
address procedures in operation in Afghanistan and Iraq for a
determination of the status of aliens detained in the custody or under
the physical control of the Department of Defense.
Nothing in the conference report is intended to in any way authorize,
endorse or approve either these procedures or Military Commission Order
No. 1, which establishes Department of Defense procedures for the trial
of detainees. Nor does anything in the conference report authorize,
endorse or approve the administration's position on the President's
authority to treat any alien or category of aliens as ``enemy
combatants'' or ``unlawful combatants''. All that it does is to require
that certain DOD procedures be submitted to the Congress and
establishes an orderly process for the review of those procedures in
the courts to determine whether they are consistent with the
Constitution and laws of the United States. The conference report does
not attempt to prejudge the outcome of that review.
Throughout the conference, we were pressed by administration
officials and their allies in the House to make changes to the Senate
language. We were asked to strip the courts of jurisdiction over
pending cases; to eliminate any review of the constitutionality of
procedures established by the Department of Defense; to expand the
habeas limitations to detainees held anywhere in the world; to expand
these provisions to strip legal rights from detainees held by the CIA
and other agencies; to bar detainees from ever bringing any legal
action challenging any aspect of their detention; to prohibit the
courts from providing legal relief for detainees who are found to be
improperly held; and to grant immunity to individuals engaged in
detention and interrogation operations. We successfully opposed all of
these changes.
The conference report does make two changes to the Senate language
which are more complex.
First, the Senate-passed provision would have established an
exclusionary rule prohibiting CSRTs from considering evidence obtained
through ``undue coercion''. I was troubled by the phrase ``undue
coercion'', because of the implication that there might be such a thing
as ``due''--or appropriate--coercion. I do not believe that coerced
testimony is ever appropriate.
We were able to modify the provision in the conference report to
eliminate the word ``undue'', an improvement over the Senate language.
At the same time, however, the provision was modified so that it only
provides for an ``assessment'' of whether the testimony was obtained
through cruel, inhuman or degrading treatment and, if so, requires the
tribunal to decide if there is any probative value to the testimony. We
do not authorize such testimony to be used: a reviewing court will make
that determination.
It is a centuries-old principle of Anglo-American law, enshrined in
the fifth amendment to the Constitution, that no person shall be
compelled to be a witness against himself. Regardless whether this rule
of law is expressly incorporated into CSRT procedures, I hope and
believe that the courts will enforce the generally accepted rule of law
and ensure that evidence obtained through coercion is excluded from any
administrative or judicial proceedings.
Second, while the Senate-passed provision would have eliminated
federal court jurisdiction only for habeas corpus actions, the
conference report would eliminate such jurisdiction for ``any other
action against the United States or its agents'' relating to detention
at Guantanamo Bay, Cuba. This new language is limited to detainees who
either: (1) remain in military custody at Guantanamo; or (2) although
they have been released from Guantanamo, have been determined by the
United States Court of Appeals (subject to Supreme Court review) to
have been properly detained as enemy combatants. This language places a
limitation on legal recourse available to detainees. While we do not
know whether any legal remedies other than habeas corpus actions would
have been available to detainees, I would have preferred not to have
this limitation in the bill.
In sum, administration officials and their allies in the House have
sought at every turn to deny legal rights or recourse to detainees at
Guantanamo and
[[Page S14259]]
elsewhere. I do not believe that we should have gone down the road of
limiting legal remedies for detainees in the manner that we did.
However, once the Senate voted over my objection to eliminate habeas
corpus relief, my effort turned toward: (1) building back access to the
courts on direct appeal of administrative determinations of status or
criminal conduct; (2) avoiding stripping the courts of jurisdiction
over pending cases; and (3) ensuring that the provisions on detainee
rights would not be used to undermine the McCain amendment.
I believe that we succeeded on all three issues. The conference
report preserves a meaningful opportunity for detainees to challenge
the legality of their detention or any criminal conviction in federal
court. It ensures that the provisions eliminating habeas corpus
jurisdiction will be prospective in their application and will not
apply to pending cases. And of course we worked with Senator McCain to
preserve his amendment intact and to shape the Graham-Levin language so
as to avoid undermining the McCain amendment.
The conferees endorsed with minimal change the provision on United
States policy on Iraq which garnered overwhelming bipartisan support
from over three-quarters of the Senate. This provision shows that both
houses of Congress, and both political parties, have come together with
a common message to our troops, to the administration, to the American
people, and, most importantly, to the Iraqi people.
Expressing the heartfelt gratitude of the American people to our
troops and their families for their unwavering devotion to duty,
service to the Nation, and selfless sacrifice, Congress in this
conference report reiterates its support for them and for a successful
conclusion to their mission.
Congress, in the provision in the conference report, notes that
calendar year 2006 should be a period of significant transition to full
Iraqi sovereignty, with Iraqi security forces taking the lead for the
security of a free and sovereign Iraq, thereby creating the conditions
for the phased redeployment of United States forces from Iraq.
Congress expresses its view that the administration should tell the
leaders of all groups and political parties in Iraq that they need to
make the compromises necessary to achieve the broad-based and
sustainable political settlement that is essential for defeating the
insurgency in Iraq, within the schedules they set for themselves.
Congress directs the administration to provide Congress and the
American people specific information on its strategy in Iraq,
principally the diplomatic, political, economic, and military measures
that are being undertaken; whether the Iraqis have made the compromises
necessary to achieve the broad-based and sustainable political
settlement that is essential for defeating the insurgency; and the
conditions that must be met in order to provide for the transition of
additional security responsibility to Iraqi security forces, along with
a plan for meeting such conditions, and an assessment of the extent to
which such conditions have been met.
This provision, which has garnered broad bipartisan support, is a
significant win for the American people, and a large step forward for
policy for Iraq. The messages that it sends are important, and the
information it demands is crucial, for establishing and advancing a
strategy for completing the mission in Iraq successfully, for beginning
the process of redeployment of our military forces, and for doing so in
a manner that will hopefully enhance U.S. national security.
The conference report also authorizes $50 billion in supplemental
funding for fiscal year 2006 to support our troops on the ground in
Iraq and Afghanistan. This is consistent with the budget resolution.
Included in this $50 billion is funding to support increased Army and
Marine Corps personnel, funding to buy additional armor for their
vehicles and to repair or replace the equipment that our troops rely
on. It also includes $1 billion for our No. 1 force protection
priority, the Joint Improvised Explosive Device or IED Task Force.
This bill authorizes military construction and family housing
projects that will improve the quality of life of our men and women in
uniform and their families. It also authorizes $1.5 billion to begin
implementing the decisions of the 2005 base realignment and closure
round. These funding authorizations are consistent with the military
construction appropriations enacted in November and will allow those
projects to proceed.
The conferees agreed to the Army's request to relax the punitive
restrictions on military construction at Fort Buchanan, Puerto Rico
that were enacted 5 years ago in light of the protests over Vieques.
The Army activities at Fort Buchanan are not now and never were related
to the Navy's activities at Vieques, and I am pleased that the
conferees agreed to address these unjust restrictions.
With respect to nonproliferation programs, although I would have
preferred the amendment that Senator Lugar added to the Senate-passed
bill, which would have repealed all of the various conditions that the
Cooperative Threat Reduction, CTR, program must meet before spending
money in any given year, I am pleased that we have included permanent
authority to waive on an annual basis the requirement to certify that
the various conditions have been met by each country recipient of CTR
funds.
The CTR program and the nonproliferation programs at the Department
of Energy are all funded at the budget request. Within the Department
programs we were able to address some urgent requirements by providing
additional funds to accelerate the shutdown of the last plutonium-
producing reactor in Russia and to accelerate the security of nuclear
weapons storage at key Russian sites.
The agreement includes $4.0 million in Air Force accounts that the
Air Force and the Department of Defense have the option to use to study
and improve the performance of conventional, nonnuclear, penetrator
weapons. I hope and urge the Department to use at least the $4.0
million to support conventional, nonnuclear weapons development.
The conference report includes a series of provisions designed to
improve the management of the Department of Defense. These include
provisions that would:
Help protect the Federal employee workforce from unfair competition
by codifying an important set of historic precedents and commonsense
principles for public-private competition;
Improve the management of DOD's major defense acquisition programs by
requiring the Department to establish more realistic and achievable
cost and performance estimates and tighten oversight requirements for
programs that are experiencing problematic cost growth;
Improve the management of $70 billion a year of DOD contracts for
services by requiring the Department to establish a new management
structure for such contracts and requiring strict review of interagency
contracting mechanisms that have been abused in the past;
Reduce the risk of abusive acquisition practices like those seen in
the proposed tanker lease contract by requiring the Secretary of
Defense or the Deputy Secretary of Defense to personally approve any
proposal to purchase a major weapon system as a commercial item; and
Prohibit the Department from wasting hundreds of millions of dollars
on unneeded audits of financial management systems that must be
replaced because they are incapable of producing timely, accurate and
complete financial data for management purposes.
I am particularly pleased that the conference report also includes a
provision for disaster relief for small business concerns damaged by
drought. In the same way that floods, hailstorms, tornadoes, and other
natural phenomena can devastate small businesses, the harm caused by
unusually low water levels on the Great Lakes can be irreparable to
businesses that depend on the waterways. The Small Business Act already
provides disaster assistance to businesses have been victim to a number
of natural disasters, so I am grateful that we have been able to
broaden eligibility for that assistance to include businesses that have
been hurt by below-average water levels on the Great Lakes.
With respect to the Navy's shipbuilding accounts, the conference
agreement incorporates reasonable
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cost caps on Virginia-class attack submarines in the Future Years
Defense Program, the fifth DD(X) land attack destroyer, to be bought in
2010, and the fifth and sixth littoral combat ships, to be bought in
2008 or 2009. The conferees did not include a cost cap on the LHA
because too little is known yet about the final design. The conference
agreement also reflects the fact that the House has agreed to the
Senate provision preventing the Navy from conducting a winner-take-all
competition for the next generation destroyer program called the DD(X).
Finally, the conferees agreed to a provision requiring the Navy to
maintain 12 aircraft carriers and provided funding to overhaul the USS
John F. Kennedy that the Navy had planned to retire.
The conferees dealt with the Navy's program to buy a new presidential
helicopter, called the VXX, by adopting compromise language that would:
(1) allow production of the pilot production helicopters to go forward;
and (2) require that the Secretary of the Navy submit an acquisition
strategy for the full rate production aircraft, Increment Two, by March
15, 2006. This strategy would be required to include one phase of
operational testing before initiation of full rate production for VXX.
The agreement would fence 25 percent of the Fiscal Year 2006 R&D
funding until the Secretary submits that strategy.
The conferees also dealt with the Army's future combat systems by
agreeing that the entire Army future combat systems program, including
the manned ground vehicles project, should remain in system development
and demonstration, rather than having large portions revert to the
technical base. This is a recognition of the importance of the Army's
only modernization program to both the future Army, and to the spinout
of FCS technologies to the current force, as well as a recognition of
the need for the future combat systems to be developed as an integrated
system of systems as quickly as possible.
The bill also demonstrates the conferees continued strong support for
the Department's special operations, counterdrug and humanitarian
operations. In particular the conferees enhanced DOD's ability to
combat terrorism and the production and trafficking of illegal drugs,
including: authorizing and funding five additional National Guard
Chemical, Biological, Radiological, Nuclear and High Yield Explosive
(CBRNE) Enhanced Response Force Package teams, in addition to
sustaining the existing 12 teams--which provide support to civilian
authorities in the aftermath of a WMD incident; directing the
Department to report on the use of DOD aerial reconnaissance assets to
support the Department of Homeland Security; authorizing use of
counterdrug funding for 2 years for joint task forces combating
terrorism and narcotics production and trafficking, and; designating
the Chairman of the Joint Chiefs of Staff as the principal military
advisor to the Homeland Security Council. The conferees also agreed to
authorize increased funding for humanitarian operations, including $40
million in a future supplemental for Pakistan, and expanding the
medical assistance to include related education, training, and
technical assistance.
In science and technology, this year's conference report includes a
number of provisions and funding measures that support the
transformation of our military while improving our ability to rapidly
move new technologies out of the laboratory and onto the battlefield.
The conference report authorizes over $11.3 billion for science and
technology research programs, an increase of $840 million over the
President's budget request. It also makes permanent the SMART, Science,
Math, and Research for Transformation, Scholarship for Service Program
to help the DoD educate, train, and employ the highest quality
technical workforce. In order to better utilize the innovative talents
of our nation's small businesses, the bill establishes a pilot program
to promote the transition of technologies from the Small Business
Innovative Research program into DoD acquisition programs. Finally, the
conference report increases funding for and establishes mechanisms to
accelerate and better coordinate research in a number of priority areas
including robotics, unmanned ground vehicles, IED detection and defeat,
the diagnosis and treatment of blast injuries, semiconductor
microelectronics, and the development and deployment of advanced fuel
cell vehicles.
I ask unanimous consent that the letter I referred to be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on Armed Services,
Washington, DC, December 18, 2005.
Hon. Duncan Hunter,
Chairman, Armed Services Committee, and National Defense
Authorization Act for Fiscal Year 2006 Conference, House
of Representatives, Washington, DC.
Dear Duncan: On Friday, December 16, we joined you and Ike
Skelton in conducting the final meeting of the conferees
along with other Members of the Senate and House.
At the conclusion of the meeting, the ``base bill'' was
agreed upon and signatures of Republican and Democratic
Committee Members were requested and affixed to the
Conference Report with the expectation that the House,
following the customary procedure, would be the first chamber
to file. It was our further understanding that this would be
done Friday evening.
We are returning to you the signatures of the Senate
conferees on the condition that there are no changes made in
the ``base bill'' and Conference Report and that the House
obtain a Rule which precludes any further amendment.
You have shown strong leadership during this very brief and
unusual conference period and we have confidence that you can
achieve passage in the House of the ``base bill''. We believe
it is in the interest of the Nation and the men and women of
the Armed Forces that our Conference Report as agreed to on
December 16 becomes law.
Sincerely,
Carl Levin,
Ranking Member.
John Warner,
Chairman.
Mr. LEVIN. My particular thanks to my staff for their extraordinary
work:
Rick DeBobes, Peter Levine, Jon Clark, Chris Cowart, Dan Cox, Madelyn
Creedon, Brie Eisen, Evelyn Farkas, Richard Fieldhouse, Creighton
Greene, Bridget Higgins, Mike Kuiken, Gary Leeling, Mark McCord, Bill
Monahan, Arun Seraphin.
Also to Charlie Abell and others of Senator Warner's staff.
comments on final passage
Mr. KYL. I would like to say a few words about the now-completed
National Defense Authorization Act for fiscal year 2006, and in
particular about section 1405 of that act, which expels lawsuits
brought by enemy combatants from United States courts. I see that my
colleague, the senior Senator from South Carolina, is also on the
floor.
I would like to begin by commenting on the need for this legislation.
This provision originally was added to the bill in an amendment that
was offered by Senator Graham and of which I was a cosponsor, as well
as Senator Chambliss.
Keeping war-on-terror detainees out of the court system is a
prerequisite for conducting effective and productive interrogation, and
interrogation has proved to be an important source of critical
intelligence that has saved American lives.
In Rasul v. Bush, the U.S. Supreme Court interpreted section 2241 of
title 28 to authorize enemy combatants held outside of the United
States to file habeas-corpus petitions challenging their status in
federal courts. Such a process is both without precedent and is utterly
impractical.
Giving detainees access to federal judicial proceedings threatens to
seriously undermine vital U.S. intelligence-gathering activities. Under
the new Rasul-imposed system, shortly after al-Qaida and Taliban
detainees arrive at Guantanamo Bay, they are informed that they have
the right to challenge their detention in Federal court and the right
to see a lawyer. Detainees overwhelmingly have exercised both rights.
The lawyers inevitably tell detainees not to talk to interrogators.
Also, mere notice of the availability of these proceedings gives
detainees hope that they can win release through adversary litigation--
rather than by cooperating with their captors. Effective interrogation
requires the detainee to develop a relationship of trust and dependency
with his interrogator. The system imposed last year as a result of
Rasul--access to adversary litigation and a lawyer--completely
undermines these preconditions for successful interrogation.
[[Page S14261]]
Navy VADM Lowell Jacoby expounded on the preconditions for effective
interrogation in a declaration attached to the United States' brief in
the Padilla litigation in the Southern District of New York. Vice
Admiral Jacoby at the time was the Director of the Defense Intelligence
Agency. He noted in the Declaration that:
DIA's approach to interrogation is largely dependent upon
creating an atmosphere of dependency and trust between the
subject and the interrogator. Developing the kind of
relationship of trust and dependency necessary for effective
interrogations is a process that can take a significant
amount of time. There are numerous examples of situations
where interrogators have been unable to obtain valuable
intelligence from a subject until months, or, even years,
after the interrogation process began.
Anything that threatens the perceived dependency and trust
between the subject and interrogator directly threatens the
value of interrogation as an intelligence gathering tool.
Even seemingly minor interruptions can have profound
psychological impacts on the delicate subject-interrogator
relationship. Any insertion of counsel into the subject-
interrogator relationship, for example--even if only for a
limited duration or for a specific purpose--can undo months
of work and may permanently shut down the interrogation
process.
Specifically with regard to Jose Padilla, Vice Admiral Jacoby also
noted in his Declaration that:
Providing [Padilla] access to counsel now would create
expectations by Padilla that his ultimate release may be
obtained through an adversarial civil litigation process.
This would break--probably irreparably--the sense of
dependency and trust that the interrogators are attempting to
create.
The system of litigation that Rasul has wrought is unacceptable.
Mr. GRAHAM. I agree entirely. If I could add one thing on this point:
perhaps the best evidence that the current Rasul system undermines
effective interrogation is that even the detainees' lawyers are
bragging about their lawsuits' having that effect. Michael Ratner, a
lawyer who has filed lawsuits on behalf of numerous enemy combatants
held at Guantanamo Bay, boasted in a recent magazine interview about
how he has made it harder for the military to do its job. He
particularly emphasized that the litigation interferes with
interrogation of enemy combatants. Ratner stated:
The litigation is brutal for [the United States]. It's
huge. We have over one hundred lawyers now from big and small
firms working to represent these detainees. Every time an
attorney goes down there, it makes it that much harder [for
the U.S. military] to do what they're doing. You can't run an
interrogation . . . with attorneys. What are they going to do
now that we're getting court orders to get more lawyers down
there?
When I read that quote, that for me was the last straw. I knew that
something had to be done. On this issue, both the detainees' lawyers
and the Defense Department seem to agree: involving enemy combatants in
adversarial litigation in U.S. courts undermines effective
interrogation of those detainees.
Mr. KYL. I am glad that we have been able to work together on this
issue. I would add that interrogation of these detainees is important.
In his Declaration to the Southern District of New York, DIA Director
Jacoby described how interrogation has proven to be a critical
intelligence tool--indeed, our most important intelligence tool--in
past conflicts and in the current war on terror. Interrogation was our
most valuable source of information in World War II and the gulf war,
and has played a key role in stopping numerous terrorist attacks in the
present conflict. Vice Admiral Jacoby stated in that declaration:
Interrogations are vital in all combat operations,
regardless of the intensity of the conflict. Interrogation
permits the collection of information from sources with
direct knowledge of, among other things, plans, locations,
and persons seeking to do harm to the United States and its
citizens. When done effectively, interrogation provides
information that likely could not be gained from any other
source.
The Department of the Army's Field Manual governing
Intelligence Interrogation, FM 34-52, dated 28 September
1992, provides several examples of the importance of
interrogations in gathering intelligence. The Manual cites,
for example, the United States General Board on Intelligence
survey of nearly 80 intelligence units after World War II.
Based upon those surveys, the Board estimated that 43 percent
of all intelligence produced in the European theater of
operations was from HUMINT, and 84 percent of the HUMINT was
from interrogation. The majority of those surveyed agreed
that interrogation was the most valuable of all collection
operations.
The Army Field Manual also notes that during OPERATION
DESERT STORM, DoD interrogators collected information that,
among other things, helped to: develop a plan to breach Iraqi
defensive belts; confirm Iraqi supply-line interdiction by
coalition air strikes; identify diminishing Iraqi troop
morale; and identify a United States Prisoner of War captured
during the battle of Kafji.
Vice Admiral Jacoby also noted that interrogations of enemy
combatants captured in the War on Terror have played a vital role in
preventing numerous terrorist attacks. Again, quoting from his
declaration in the Padilla litigation, Jacoby noted that interrogations
of combatants such as those held at Guantanamo Bay have:
. . . provided vital information to the President, military
commanders, and others involved in the war on Terrorism. It
is estimated that more than 100 additional attacks on the
United States and its interests have been thwarted since 11
September 2001 by the effective intelligence gathering
efforts of the Intelligence Community and others.
In fact, Padilla's capture and detention were the direct
result of such effective intelligence gathering efforts. The
information leading to Padilla's capture came from a variety
of sources over time, including the interrogation of other
detainees. Knowledge and disruption of Al Qaida's plot to
detonate a `dirty bomb' or arrange for other attacks within
the United States may not have occurred absent the
interrogation techniques described above.
There are other examples of the importance of intelligence obtained
from interrogation. In a recent new release, the Defense Department
described valuable information that was obtained from interrogation of
Mohamed al Kahtani, an enemy combatant being held at Guantanamo Bay.
The Pentagon release noted that interrogation of Kahtani has yielded
information that:
Clarified Jose Padilla's and Richard Reid's relationship
with al-Qaida and their activities in Afghanistan; provided
infiltration routes and methods used by al-Qaida to cross
borders undetected; explained how Osama Bin Laden evaded
capture by U.S. forces, as well as provided important
information on his health; and provided detailed information
about 30 of Osama Bin Laden's bodyguards who are also held at
Guantanamo.
The Pentagon's news release concluded: ``the result of those
interrogations [at Guantanamo Bay] has undoubtedly produced information
that has saved the lives of U.S. and coalition forces in the field.''
Let me cite another example: a June 27, 2004 Washington Post story
notes that on November 11, 2001, Pakistani forces captured Ibn al-
Shaykh al-Libi, a Libyan national who ran the Khaldan paramilitary camp
in Afghanistan. In January 2002, al-Libi was handed over to U.S. forces
and interrogated. According the Post, interrogation of al-Libi:
. . . provided the CIA with intelligence about an alleged
plot to blow up the U.S. Embassy in Yemen with a truck bomb
and pointed officials in the direction of Abu Zubaida, a top
al Qaeda leader know to have been involved in the September
11 plot. In March 2002, Abu Zubaida was captured. . . .
[Interrogation of Zubaida] led to the apprehension of other
al Qaeda members, including Ramzi Binalshibh, also in
Pakistan. The capture of Binalshibh and other al Qaeda
leaders--Omar al-Faruq in Indonesia, Rahim al-Nashiri in
Kuwait, and Muhammad al Darbi in Yemen--were all partly the
result of information gained during interrogations, according
to U.S. intelligence and national security officials.
The bottom line is that keeping detainees out of court makes
effective interrogation possible, and interrogation has proved to be an
invaluable source of intelligence, allowing the United States to
capture important terrorists, prevent future terrorist attacks, and
save the lives of American soldiers in the field.
I should also say a few words about some of the attacks that have
been made against our amendment. For example, some critics have
suggested that our amendment is inconsistent with the McCain
amendment--that it prevents detainees from suing to enforce the McCain
amendment. The response to this criticism is relatively
straightforward: our amendment does not take anything away because the
McCain amendment does not create a private cause of action in the first
place. That amendment directly regulates military officers and is
enforced through the usual mechanisms of military discipline.
Mr. GRAHAM. You are absolutely correct Senator Kyl. I must admit, I'm
[[Page S14262]]
a bit baffled by the assertion that our amendment is somehow internally
inconsistent, that our provisions interfere with the McCain provisions
in some way.
While we must ensure that detainees are treated humanely, and that is
what we addressed so well with the McCain portion of our total package,
directing our departments and agencies to refrain from cruel, inhumane,
or degrading treatment; we also don't want to give these detainees the
right to abuse our courts by going after our soldiers, sailors, airmen
and marines based on how we have decided to treat them. In fact, while
it is true that some physical abuses have occurred, we know that
members of al-Qaida are trained to claim mistreatment to manipulate
public opinion of the war.
I would like to remind all of my colleagues of some of the most
egregious cases that prompted our amendments. For instance, a detainee
who threw a grenade that killed an Army medic, a medic--someone trying
to render medical assistance, and who often treats our enemies on the
battlefield as well as our own troops.
In any event, the detainee who threw the grenade that killed an Army
medic in a firefight, and who comes from a family with longstanding al-
Qaida ties, filed for an injunction forbidding anyone from
interrogating him or engaging in ``cruel, inhuman, or degrading''
treatment of him.
Now clearly, our reaffirmation of America's policy against treating
anyone in a cruel, inhuman, or degrading way tells the world that we
are not like our enemy. We do not allow our departments or agencies to
treat people like that. And if our people do abuse people, we prosecute
them to the fullest extent of the law.
However, to allow a detainee access to our courts to contest every
aspect of his detention, a person who has fought against the very
system he now seeks to make use of, is ludicrous. And for anyone to say
that somehow our provisions undermine the McCain provisions or our
overall amendment is just as wrong.
Senator McCain, due to his service in our Nation's military, is
uniquely qualified to take the lead on these issues. The McCain
provisions are about us. How we behave. How we administer justice. It
is another affirmative statement that the United States of America is
that ``Shining City on the Hill'' President Reagan referred to. I am
very proud to have been part of Senator McCain's effort to retake the
moral high ground in the war on terror.
The Graham-Kyl provisions are about them, the detainees, and what
rights they do and, most importantly, do not have. And I am proud of
the provisions we have made for the detainee's status to be reviewed by
the Federal courts on the one time direct appeal. We allow for a just
process, in the form of military tribunals and boards and commissions,
a process based on Supreme Court precedent, modeled on the tribunals we
have used in the past and created in accordance with Geneva Convention
requirements. That is the process we have established for determining
the status of detainees.
But I have gotten a little far a field here, let's get back to the
lawsuits. Here is another of the crazy lawsuits out there: there's a
suit out there by a detainee accusing military health professionals of
``gross and intentional medical malpractice'' in alleged violation of
the 4th, 5th, 8th, and 14th Amendments, 42 U.S.C. 1981, and other,
unspecified, international agreements. Now I don't know about the rest
of you, but a detainee has no business in our courts suing the
individual doctors and nurses that are making sure that that detainee
is in good health.
Here is another one. There is one guy down there that we are trying
to send home, and he's suing to keep us from sending him home. Imagine
that, he is trying to stay.
One high level al-Qaida detainee lawsuit complains about the base
security procedures, the speed of the mail, and his medical treatment.
He is asking the courts to order the marines to transfer him into the
``least onerous conditions'' at Guantanamo and allow him to keep any
books and reading material sent to him.
I think this one is the one that makes me the maddest. A high level
al-Qaida member, who probably has the blood of 9/11 on his hands,
complaining about the speed of his mail delivery. Complaining about how
onerous the conditions are at Guantanamo.
With the McCain provisions of our amendment, we have, in addition to
the President's order and other regulations already in place, directed
the Department of Defense to treat him humanely. But under our
provisions, he will receive the justice he deserves.
As you can see, these cases have nothing to do with cruel or inhumane
treatment. They are abuses of our courts by the very people who are
trying to kill Americans here and abroad. I don't know about you,
Senator Kyl, but I believe that when you raise arms against the United
States, you should not be surprised when you lose the privilege of our
court system. As the McCain amendment provisions state very clearly, we
are not going to treat people inappropriately. And, Senator Kyl, as our
provisions state very clearly, we are not going to allow them to make a
mockery of our courts, standing beside our own citizens at the
courthouse door.
We have provided a fair alternative judicial process for the
detainees with our provisions. In fact, we have been more than fair. We
have given them more process than our own soldiers and marines would
enjoy under the Geneva Convention. This in no way undermines the McCain
provisions about how we will treat them and I would challenge anyone
who thinks so to come to the Senate floor and debate us on that point.
Mr. KYL. To be clear, neither the CSRT nor the ARB process is
designed to entertain grievance about the conditions of confinement. Is
that your understanding as well?
Mr. GRAHAM. And those are the only channels that have been created
where the detainee himself can pursue a remedy on his own in a semi-
adversarial forum. These complaints about conditions of confinement,
these are for the military itself to enforce through its own procedures
and systems of accountability for monitoring its soldiers. And we have
no reason to believe that those systems are not adequate to investigate
and remedy abuses. For all the attention to cases such as Abu Ghraib,
one thing that deserves emphasis is that it was our own military that
discovered, investigated, and punished those abuses. That is as it
should be. These standards of treatment are important, but they need to
be enforced through the military's internal systems of accountability
and Congressional oversight, not through lawsuits and adversarial
proceedings brought by detainees. The military's own accountability
systems ultimately, I think, will be more effective in monitoring our
detention centers and in remedying abuses. All that litigation would
do--letting these detainees into court--is undermine intelligence
gathering through interrogation.
Mr. BROWNBACK. If I might interrupt, I would like to add that I share
the understanding of my colleagues from Arizona and South Carolina. I
supported the McCain amendments--I think that it is important to ensure
that detainees are treated humanely. But I would not support allowing
those detainees to file lawsuits against our armed forces, and I wasn't
aware that anyone had even suggested that the McCain amendments allow
detainees to file Bivens-type actions.
Mr. KYL. No one really argued that the McCain amendments do create a
private cause of action, except that some groups have suggested that
the Graham/Kyl amendment is somehow inconsistent with the McCain
amendments, the implication being that the Graham amendment wiped out
the forum for bringing some cause of action that otherwise was created.
Obviously, if the McCain amendment did create a private right of
action, our amendment would bar the courts from entertaining that
action. But the fact alone that the same Congress that adopted the
McCain amendment also adopted the Graham/Kyl amendment tends to
confirm, I would think, that the McCain amendments never were intended
to create a private right of action in the first place.
As a matter of fact, the Supreme Court recently has tightened the
standards for spontaneously recognizing such actions in cases where
Congress is silent on the matter--I believe it was in the recent case
of Alexander against Sandoval. The McCain amendments do
[[Page S14263]]
not state that they create a private cause of action. They regulate the
conduct our troops rather than creating rights. And we have alternative
means of their enforcement--as my colleague mentioned, through the
system of military discipline--and thus we do not need a private cause
of action to be implemented. I would be pretty surprised if, under
those circumstances, anyone were to argue that the McCain amendment
created a private right of action. So the senior Senator from South
Carolina is correct, the Graham-Levin-Kyl amendment does not take away
any cause of action created elsewhere in this bill, because the bill
does not create any rights of action. Some members have been arguing
that the McCain amendment will establish a standard that perhaps could
be employed in another cause of action. That is, of course, true. But
if such a cause of action is to exist, Congress will have to create it
in the future. No cause of action currently available could serve as a
vehicle for enforcing the McCain amendment in a private lawsuit, and I
think that all the backers of that amendment consistently agree that
the McCain amendments themselves did not create a private right of
action. Again, it would be strange to construe this Act as intending
such a private action when by the same hand this Congress would take
away any forum for asserting such action.
Mr. GRAHAM. I thank the Senator from Arizona for his comments. I'd
also like to say a word about the timing of this bill because we
drafted this section very carefully and I want our colleagues to know
exactly what they will be agreeing to. While our language does respond
to the Rasul decision by effectively reversing the Supreme Court's
decision in that case, we wanted to respect the courts' role in this by
addressing two different considerations.
First, as we stated before, we wanted the CSRT process to yield
decisions which will be reviewed by the DC Circuit Court of Appeals.
And we wanted to be sensitive to the Rasul court's concerns about a
process for the detainees. So, what we did was make the substantive
provisions governing the CSRTs and ARBs apply to all cases, those
pending on or after the enactment date. This was to ensure that every
detainee was provided with the same protections and review.
Second, regarding the modification of the jurisdiction of those
courts currently hearing individual habeas or other actions that have
been filed by the detainees, we wanted those cases to be recast as
appeals of their CSRT determinations. We believe that is the best way
to balance between allowing the detainees to challenge their status,
and still allowing effective detention and interrogation techniques. As
we all know, a court either has jurisdiction to hear a case or it
doesn't. Jurisdiction doesn't attach for all time when the case is
filed.
This is really no different than transferring a case from one court
to another. But in this case, given the change in the substantive law
as well, we were required to extinguish these habeas and other actions
in order to effect a transfer of jurisdiction over these cases to the
DC Circuit Court and substantive legal change as well.
Mr. KYL. Right. It may not be quite right to characterize this bill's
provisions as transferring jurisdiction. Rather, they extinguish one
type of action--all of the actions now in the courts--and create in
their place a very limited judicial review of certain military
administrative decisions.
Mr. GRAHAM. Yes, that is correct. But we do still allow some types of
judicial review to go forward--those cases asking for review, in
accordance with section 1405, of military commissions or CSRTs. And the
very last paragraph of section 1405--I believe that it is paragraph
(h)(2)--adopts a compromise of sorts. It states that the bill's
authorization for limited DC Circuit review of CSRTs and military
commissions shall apply to pending cases. Obviously, no pending case
seeks judicial review in the DC Circuit pursuant to section 1405. What
this paragraph means is that, at the same time that the courts like the
DC district courts kick these cases out of their courtrooms, they can
also tell them where they should go next. And if, for example, a habeas
action currently is in the DC Circuit, that court can simply construe
that action as a request for review of the detainee's CSRT pursuant to
subsection (e) of 1405, and allow that claim to go forward in that
form.
Mr. KYL. The DC Circuit will have to give the petitioner leave to
amend his claim, I assume?
Mr. GRAHAM. Yes, I assume that they will do so. No sense in kicking
out a detainee's current habeas action in the DC Circuit just so that
he has to refile a section 1405 review request--it would be better to
let the current case go forward as a 1405 review request, as
appropriately amended.
Mr. KYL. We agree on that point. The one thing that critics have said
about this bill that is correct is that it is a jurisdiction stripping
bill. It strips every court of jurisdiction to hear claims from
detainees held in Guantanamo Bay. The courts' rule of construction for
these types of statutes is that legislation ousting the courts of
jurisdiction is applied to pending cases. It has to. We're not just
changing the law governing the action. We are eliminating the forum in
which that action can be heard. And there is no exception anywhere in
this bill for keeping intact part of that forum to hear the case. The
case simply has nowhere to be heard.
I have just been handed a memorandum on this subject. The governing
cases on this question are the Landraf case, as well as Hallowell v.
Commons, 239 U.S. at 506, and Sherman v. Grinnell, 123 U.S. at 679. As
the Landraf court noted, these statutes ``speak to the power of the
court rather than the rights or obligations of the parties.'' These
cases articulate the rule that will govern the detainee habeas actions
and other lawsuits that currently are in the courts: legislation
removing jurisdiction applies to pending cases and removes those cases
from the courts.
Mr. GRAHAM. Mr. President, if Senator Kyl would be so kind, could he
explain how our amendment will affect ongoing litigation? Specifically,
my understanding is that the Supreme Court granted certiorari recently
in a case.
Mr. KYL. Yes. The Constitution gives Congress the power to make
``exceptions'' and ``regulations'' to the Supreme Court's
jurisdiction--or at least, to its appellate jurisdiction. It was
Marbury v. Madison that held that Congress could not regulate original
jurisdiction, but the court since then has made clear that even habeas
actions filed directly in the Supreme Court are regarded as falling
within a subspecies of the Supreme Court's appellate jurisdiction. This
would be an interesting exam question for a law school class.
The Congress's authority to use this power was affirmed by the
Supreme Court in the case of Ex Parte McCardle. That case involved, I
believe, an even sharper use of this authority than this bill does--I
believe that there the Supreme Court had even heard argument in that
case before Congress stripped the court's jurisdiction over it. The
Supreme Court upheld the statute and dismissed Colonel McCardle's case
for want of jurisdiction.
Mr. GRAHAM. And we are confident that McCardle still is good law?
Mr. KYL. So long as the Constitution still is good law. I am not
aware that the clause in Article III allowing Congress to make
exceptions and regulations to Supreme Court appellate jurisdiction has
been repealed.
I suppose that some might argue that stripping the Supreme Court of
jurisdiction over a pending case is unconstitutional if it is driven by
some impure motive. But I can't imagine that the court would take away
an authority clearly granted to Congress by the Constitution,
regardless of what motive one might attribute to us. I am a member of
this body, and would have great difficulty describing some definitive
motive or intent to every law that we enact. I don't know how the
Supreme Court or any other court could accurately discern such a
motive. The laws that we enact have meanings that can be discerned
through ordinary rules of construction. I think the rule of law is much
more secure when the meaning of legislation is governed by those
universally accessible rules of construction rather than through some
attempt to psychoanalyze Congress's motive. And in any event, as I
recall, this amendment was filed before the Supreme Court even granted
review in the Hamdan case. That makes it a little
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hard to argue that the amendment was motivated by a desire to strip the
court of its jurisdiction in that case. I don't think that the
Constitution gives Hamdan a greater right to have his case go forward
than it did to Colonel McCardle.
Mr. GRAHAM. So once this bill is signed into law, you anticipate that
the Supreme Court will determine whether to maintain their grant of
certiorari?
Mr. KYL. Yes, in my opinion, the court should dismiss Hamdan for want
of jurisdiction. That is what they did in Ex Parte McCardle. I assume
that we may see an unhappy dissent from the court's order from one or
two of the Justices--there may be some members of the court who refuse
to accept McCardle and article III. But I think that a majority of the
court would do the right thing--to send Hamdan back to the military
commission, and then allow him to appeal pursuant to section 1405 of
this bill.
The court also may well request a round of briefing on the effect of
the effect on the Hamdan case. I suppose that a lawyer in the SG's
office can look forward to rereading Ex Parte McCardle and the debates
on the case in Hart & Wechsler's. But again, I don't think that this
will change the result.
As for legislative history, I think it usually is regarded as an
element of the canons of construction. It gives some indication of what
Congress at least understood what it was doing--the context in which a
law was enacted. Although, I understand that Justice Scalia does not
read legislative history. I suppose that for his sake, we will have to
strive to be exceptionally clear in the laws that we write.
Mr. GRAHAM. Let me address another issue. As we worked through this
language in conference, we received a lot of comments from our
colleagues who were concerned not only about the frivolous cases being
filed by al-Qaida terrorists at Guantanamo, but by people detained by
our forces in Iraq.
I believe there are several cases that have been filed by those held
in Iraq challenging their detention by American forces. Our language
does not address these cases, and let me tell you why.
The Rasul v. Bush decision that we have talked so much about worked
two significant changes in prior POW or detainee law. Prior to Rasul,
the Eisentrager line of cases had governed whether foreign combatants
had access to our courts. In 1950, the Eisentrager court held that a
Federal district court lacked authority to hear habeas cases for some
German POWs held by U.S. forces outside the U.S. These Germans had been
tried and convicted of war crimes by an American military commission
headquartered in Nanking, and then put in jail in Germany.
The Court stated six reasons for its decision. The German prisoners
were: (1) Enemy aliens who (2) had never been or resided in the United
States, (3) were captured outside U.S. territory and there held in
military custody, (4) were there tried and convicted by the military
(5) for offenses committed there, and (6) were imprisoned there at all
times.
The Eisentrager line of cases is the reason the Bush administration
chose to locate the al Qaida and Taliban holding facility at
Guantanamo. The Bush administration relied upon the Eisentrager line of
cases so as to prevent exactly what we have seen happen since Rasul:
terrorists with lawyers. Now I'm a lawyer myself, and I think we can
all agree that that is a bad combination.
In fact, if my colleagues will permit me a quick aside, I would
remind them again of the statement by one of the lawyers for some of
these terrorists, Michael Ratner. Mr. Ratner boasts about the fact that
this litigation has undermined intelligence gathering in the war on
terror. In an interview published in May of this year Mr. Ratner
stated:
The litigation is brutal for the United States. It's huge.
We have over one hundred lawyer now from big and small firms
working to represent these detainees. Every time an attorney
goes down there, it makes it that much harder for the U.S.
military to do what they're doing. You can't run an
interrogation with attorneys. What are they going to do now
that we're getting court orders to get more lawyers down
there?
Now that is what we are facing. Terrorists with lawyers. I am pretty
sure the American people expect more from their government than that.
But getting back to what I was saying about Eisentrager. The Bush
administration relied on the Supreme Court's decision in Eisentrager
when they located the detainees at Guantanamo, reasoning sensibly, at
least I think it was sensibly, that since the al-Qaida and Taliban
members were enemy aliens who were being held by U.S. forces outside
the United States after being captured on the battlefield, that they
would not have access to Federal courts.
But then the Supreme Court held in Rasul that the detainees could
have access to our courts to challenge their detention. Would my
colleague from Arizona care to comment on the Rasul decision?
Mr. KYL. Where to even begin? The U.S. has been accused before in its
history of imperialistic behavior, but I think that this is the first
time ever that a portion of a sovereign nation has been annexed to the
United States by the U.S. Supreme Court.
Rasul begins with a discussion of two cases that were irrelevant to
the question before the court, Ahrens v. Clark and the Braden case.
Ahrens had adopted a strict rule that district courts may only hear
cases within their territorial jurisdiction. Braden then softened that
rule for particular circumstances--for cases where a defendant is in
prison in one state but under indictment in another, allowing the
defendant to bring a habeas action to challenge the indictment in the
latter state's courts. Neither of these cases has anything to do with
enemy combatants.
From a discussion of these relatively mundane decisions, the Rasul
majority adopts a rather stunning non-sequitir: that ``because Braden
overruled the statutory predicate to Eisentrager's holding, Eisentrager
plainly does not preclude the exercise of section 2241 jurisdiction
over petitioners' claims.''
It could almost be a rule of construction that when a lawyer says
``plainly'' or ``clearly,'' he usually is identifying the weakest point
in his argument. Braden is a case concerned more with the technical
aspects of judicial administration than with core questions of the
scope of the writ. Eisentrager is different. The Nazi soldiers denied
access to the writ in that case did not simply file in the wrong
forum--Alabama instead of Kentucky--or at the wrong phase of their
sentences. Eisentrager denied review to the Nazi soldiers because they
were Nazi soldiers in the custody of the U.S. military in occupied
Germany. It is not a case about how we administer the writ of habeas
corpus, but about the power and nature of the writ and who may employ
it. I doubt that there was any member of the court who participated in
Braden who believed that the court in that case was destroying the
foundation of Eisentrager.
So according to section III of Rasul, Braden killed the ``statutory
predicate'' for Eisentrager and that's that. No more territorial
jurisdiction requirement for habeas courts. Apparently even the Rasul
court itself was unwilling to buy this argument, however, because
section IV of the opinion goes on to explain that Guantanamo Bay, Cuba
is really part of the territory of the United States--something which
section III just told us irrelevant and unnecessary to the court's
decision.
But territorial jurisdiction does matter--a point that the court
seems to concede by attempting to annex Guantanamo Bay to the United
States. But Cuba is not the United States. Eisentrager should be
restored to its rightful place as the precedent that governs litigation
attempted by enemy combatants outside of our territory--even for the
special case of Guantanamo Bay. Eisentrager was the law of the land for
over 50 years, until Rasul carved a hole into it. Through this act,
Congress patches that hole and restores Eisentrager's role as the
governing standard. We do this not because, or not just because, Rasul
doesn't make sense and is wrong. We do it because Eisentrager's
reasoning is compelling, and the rule that is established wards off
much mischief.
Let me quote two key passages from Eisentrager that explain why enemy
combatants outside the United States should not have access to U.S.
courts. As that court began by noting, there has been:
[[Page S14265]]
. . . no instance where a court, in this or any other country
where the writ is known, has issued it on behalf of an alien
enemy who, at no relevant time and in no stage of his
captivity, has been within its territorial jurisdiction.
Nothing in the text of the Constitution extends such a right,
nor does anything in our statutes.
Not only has this always been the law, but it should remain so.
Eisentrager explains rather clearly and eloquently why we do not let
enemy combatants sue our soldiers in our courts:
A basic consideration in habeas corpus practice is that the
prisoner will be produced before the court. This is the crux
of the statutory scheme established by the Congress; indeed,
it is inherent in the very term ``habeas corpus.'' And though
production of the prisoner may be dispensed with where it
appears on the face of the application that no cause for
granting the writ exists, Walker v. Johnston, we have
consistently adhered to and recognized the general rule.
Ahrens v. Clark. To grant the writ to these prisoners might
mean that our army must transport them across the seas for
hearing. This would require allocation of shipping space,
guarding personnel, billeting and rations. It might also
require transportation for whatever witnesses the prisoners
desired to call as well as transportation for those necessary
to defend legality of the sentence. The writ, since it is
held to be a matter of right, would be equally available to
enemies during active hostilities as in the present twilight
between war and peace. Such trials would hamper the war
effort and bring aid and comfort to the enemy. They would
diminish the prestige of our commanders, not only with
enemies but with wavering neutrals. It would be difficult to
devise more effective fettering of a field commander than to
allow the very enemies he is ordered to reduce to submission
to call him to account in his own civil courts and divert his
efforts and attention from the military offensive abroad to
the legal defensive at home. Nor is it unlikely that the
result of such enemy litigiousness would be a conflict
between judicial and military opinion highly comforting to
enemies of the United States.
Other authorities also have emphasized that the Anglo-American common
law tradition includes no place for habeas petitions filed by enemy
aliens in military custody outside our territory. Law Professor Peter
Lushing, in an internet posting commenting on the Graham amendment
shortly after it passed the Senate, put the matter quite colorfully:
``the guys in the powdered wigs would have flipped over the idea that
habeas extends to foreigners we are in combat with who have been
captured and are being held by us abroad.'' He concludes: ``the Rasul
decision has extended habeas far beyond what anybody alive during the
ratification of the Constitution would have envisioned.''
Former U.S. Attorney General William Barr testified on the subject of
detainees in the war on terror before the Senate Judiciary Committee on
June 15 of this year. His testimony made a considerable impact on
members of the committee--it persuaded several of us that something
needed to be done legislatively to correct the current situation. Here
is what Attorney General Barr had to say about the history of habeas
and detainees:
The determination that a particular foreign person seized
on the battlefield is an enemy combatant has always been
recognized as a matter committed to the sound judgment of the
Commander in Chief and his military forces. There has never
been a requirement that our military engage in evidentiary
proceedings to establish that each individual captured is, in
fact, an enemy combatant.
Attorney General Barr went on to note:
World War II provides a dramatic example. During that war,
we held hundreds of thousands of German and Italian prisoners
in detention camps within the United States. These foreign
prisoners were not charged with anything; they were not
entitled to lawyers; they were not given access to U.S.
courts; and the American military was not required to engage
in evidentiary proceedings to establish that each was a
combatant.
The concerns that were expressed in the passage from Eisentrager that
I quoted earlier also have been expressed by other, more recent
commentators, with the present conflict against Islamic extremism in
mind. For example, in a 2003 article in George Washington Law Review,
law professor John C. Yoo notes the special importance of
``interrogating enemy combatants for information about coming attacks''
in this conflict, and concludes:
. . . de novo judicial review threatens to undermine the very
effectiveness of the military effort against al-Qaeda. A
habeas proceeding could become a forum for recalling
commanders and intelligence operatives from the field into
open court; disrupting overt and covert operations; revealing
successful military tactics and methods; and forcing the
military to shape its activities to the demands of the
judicial process.
Similarly, Andrew McCarthy, a former federal prosecutor who led the
case against Sheik Omar Abdel Rahman, offered a stinging criticism of
Rasual the day after the Supreme Court issued its opinion. He stated
that:
How can it conceivably be appropriate to impose on our
soldiers the burdens of stopping to collect evidence and
write incident reports in the middle of fighting a war? Of
course they do a measure of that now--after all, it is much
in their interest correctly to sort out whom to hold and whom
to release. But, until now, that has certainly not been done
with the rigor anticipation of litigation will doubtless
produce. It is not enough to say, hopefully, that U.S. courts
will be indulgent given what's involved. Empirically,
judicial demands on governmental procedural compliance become
steadily more demanding over time, and government naturally
responds by being even more internally exacting to avoid
problems. In no time flat, what was once thought a trifling
inconvenience becomes a major expenditure--in this case one
that will inevitably detract from the military mission which
is the bedrock of our safety.
McCarthy also summarized why the Rasul decision is at war with the
role and duties of the Federal judiciary in our constitutional
framework:
In the Framers' ingenious construct, the courts of the
United States are supposed to be a bulwark protecting members
of the uniquely American community--i.e., citizens of the
United States and those aliens who, by their lawful
participation in our national life, have immersed themselves
into the fabric of American society--from the excesses of an
oppressive executive or a legislature insufficiently heedful
of their fundamental rights. It is the institution that
ensures the law and order a free people must have in order to
thrive.
Nevertheless, as manifested in Rasul, yesterday's case
involving claims of foreign enemy combatants captured on
faraway battlefields and held by the military in Guantanamo
Bay, Cuba--an installation outside the jurisdiction of any
U.S. court--the judiciary is no longer a neutral arbiter
there to ensure that Americans get a fair shake from their
government and its laws. Instead, it is evolving, or
morphing, into a sort of United Nations with teeth. It has
seized the mantle of international arbiter, ensuring that the
world--including that part of it energetically trying to kill
Americans--has a forum in which to press its case against the
United States.
McCarthy went on to conclude: ``Rasul is a dangerous decision.
Congress should slam the door on al-Qaeda today.''
And again, former Attorney General Barr also commented on this same
question--on the impracticality of applying judicial process and
standards to questions of the detention of enemy combatants. Because of
his authority and the force of his arguments, I quote from his June 15
testimony at length:
There appear to be courts and critics who continue to claim
that the Due Process Clause applies and that the CSRT process
does not go far enough. I believe these assertions are
frivolous.
I am aware of no legal precedent that supports the
proposition that foreign persons confronted by U.S. troops in
the zone of battle have Fifth Amendment rights that they can
assert against the American troops. On the contrary, there
are at least three reasons why the Fifth Amendment has no
applicability to such a situation. First, as the Supreme
Court has consistently held, the Fifth Amendment does not
have extra-territorial application to foreign persons outside
the United States. As Justice Kennedy has observed, ``[T]he
Constitution does not create, nor do general principles of
law create, any juridical relation between our country and
some undefined, limitless class of non-citizens who are
beyond our territory.'' Moreover, as far as I am aware, prior
to their capture, none of the detainees had taken any
voluntary act to place themselves under the protection of our
laws; their only connection with the United States is that
they confronted U.S. troops on the battlefield. And finally,
the nature of the power being used against these individuals
is not the domestic law enforcement power--we are not seeking
to subject these individuals to the obligations and sanctions
of our domestic laws--rather, we are waging war against them
as foreign enemies, a context in which the concept of Due
Process is inapposite.
In society today, we see a tendency to impose the judicial
model on virtually every field of decision-making. The notion
is that the propriety of any decision can be judged by
determining whether it satisfies some objective standard of
proof and that such a judgment must be made by a ``neutral''
arbiter based on an adversarial evidentiary hearing. What we
are seeing today is an extreme manifestation of this--an
effort to take the judicial rules and standard applicable in
the domestic law enforcement context and extend them to the
fighting of wars. In my view, nothing could be more farcical,
or more dangerous.
[[Page S14266]]
These efforts flow from a fundamental error--confusion
between two very distinct constitutional realms. In the
domestic realm of law enforcement, the government's role is
disciplinary--sanctioning an errant member of society for
transgressing the internal rules of the body politic. The
Framers recognized that in the name of maintaining domestic
tranquility an overzealous government could oppress the very
body politic it is meant to protect. The government itself
could become an oppressor of ``the people.''
Thus our Constitution makes the fundamental decision to
sacrifice efficiency in the realm of law enforcement by
guaranteeing that no punishment can be meted out in the
absence of virtual certainty of individual guilt. Both the
original Constitution and the Bill of Rights contain a number
of specific constraints on the Executive's law enforcement
powers, many of which expressly provide for a judicial role
as a neutral arbiter or ``check'' on executive power. In this
realm, the Executive's subjective judgments are irrelevant;
it must gather and present objective evidence of guilt
satisfying specific constitutional standards at each stage of
a criminal proceeding. The underlying premise in this realm
is that it is better for society to suffer the cost of the
guilty going free than mistakenly to deprive an innocent
person of life or liberty.
The situation is entirely different in armed conflict where
the entire nation faces an external threat. In armed
conflict, the body politic is not using its domestic
disciplinary powers to sanction an errant member, rather it
is exercising its national defense powers to neutralize the
external threat and preserve the very foundation of all our
civil liberties. Here the Constitution is not concerned with
handicapping the government to preserve other values. Rather
it is designed to maximize the government's efficiency to
achieve victory--even at the cost of ``collateral damage''
that would be unacceptable in the domestic realm.
Attorney General Barr brought these concerns into relief with the
following hypothetical example:
Let me posit a battlefield scenario. American troops are
pinned down by sniper fire from a village. As the troops
advance, they see two men running from a building from which
the troops believe they had received sniper fire. The troops
believe they are probably a sniper team. Is it really being
suggested that the Constitution vests these men with due
process rights as against the American soldiers? When do
these rights arise? If the troops shoot and kill them--i.e.,
deprive them of life--could it be a violation of due process?
Suppose they are wounded and it turns out they were not enemy
forces. Does this give rise to Bivens' Constitutional tort
actions for violation of due process? Alternatively, suppose
the fleeing men are captured and held as enemy combatants.
Does the due process clause really mean that they have to be
released unless the military can prove they were enemy
combatants? Does the Due Process Clause mean that the
American military must divert its energies and resources from
fighting the war and dedicate them to investigating the
claims of innocence of these two men?
This illustrates why military decisions are not susceptible
to judicial administration and supervision. There are simply
no judicially-manageable standards to either govern or
evaluate military operational judgments. Such decisions
inevitably involve the weighing of risks. One can easily
imagine situations in which there is an appreciable risk that
someone is an enemy combatant, but significant uncertainty
and not a preponderance of evidence. Nevertheless, the
circumstances may be such that the President makes a judgment
that prudence dictates treating such a person as hostile in
order to avoid an unacceptable risk to our military
operations. By their nature, these military judgments must
rest upon a broad range of information, opinion, prediction,
and even surmise. The President's assessment may include
reports from his military and diplomatic advisors, field
commanders, intelligence sources, or sometimes just the
opinion of frontline troops. He must decide what weight to
give each of these sources. He must evaluate risks in light
of the present state of the conflict and the overall military
and political objectives of the campaign.
Attorney General Barr goes on to consider the practical consequences
of applying civilian due process concepts in the context of military
detention of enemy combatants:
The imposition of such procedures would fundamentally alter
the character and mission of our combat troops. To the extent
that the decisions to detain persons as enemy combatants are
based in part on the circumstances of the initial encounter
on the battlefield, our frontline troops will have to concern
themselves with developing and preserving evidence as to each
individual they capture, at the same time as they confront
enemy forces in the field. They would be diverted from their
primary mission--the rapid destruction of the enemy by all
means at their disposal--to taking notes on the conduct of
particular individuals in the field of battle. Like
policeman, they would also face the prospect of removal from
the battlefield to give evidence at post-hoc proceedings.
Nor would the harm stop there. Under this due process
theory, the military would have to take on the further burden
of detailed investigation of detainees' factual claims once
they are taken to the rear. Again, this would radically
change the nature of the military enterprise. To establish
the capacity to conduct individualized investigations and
adversarial hearings as to every detained combatant would
make the conduct of war--especially irregular warfare--vastly
more cumbersome and expensive. For every platoon of combat
troops, the United States would have to field three platoons
of lawyers, investigators, and paralegals. Such a result
would inject legal uncertainty into our military operations,
divert resources from winning the war into demonstrating the
individual ``fault'' of persons confronted in the field of
battle, and thereby uniquely disadvantage our military vis-a-
vis every other fighting force in the world.
Second, the introduction of an ultimate decision maker
outside of the normal chain of command, or altogether outside
the Executive Branch, would disrupt the unitary chain of
command and undermine the confidence of frontline troops in
their superior officers. The impartial tribunals could
literally overrule command decisions regarding battlefield
tactics and set free prisoners of war whom American soldiers
have risked or given their lives to capture. The effect of
such a prospect on military discipline and morale is
impossible to predict.
Attorney General Barr also noted that ``Supreme Court's decision in
Rasul was a statutory ruling, not a constitutional one.'' He went on to
point out:
An important consequence follows: Congress remains free to
restrict or even to eliminate entirely the ability of enemy
aliens at Guantanamo Bay to file habeas petitions. Congress
could consider enacting legislation that does so--either by
creating special procedural rules for enemy alien detainees,
by requiring any such habeas petitions to be filed in a
particular court, or by prohibiting enemy aliens from hauling
military officials into court altogether.
Obviously, the Congress has taken the former Attorney General up on
his suggestion, particularly the third variation of it.
I should also say a few words about military commissions. The
Judiciary Committee also heard enlightening testimony on the history of
these commissions. Former Attorney General Barr commented on them as
follows:
Throughout our history we have used military tribunals to
try enemy forces accused of engaging in war crimes. Shortly
after the attacks of 9/11, the President established military
commissions to address war crimes committed by members of al-
Qaeda and their Taliban supporters.
Again, our experience in World War II provides a useful
analog. While the vast majority of Axis prisoners were simply
held as enemy combatants, military commissions were convened
at various times during the war, and in its immediate
aftermath, to try particular Axis prisoners for war crimes.
One notorious example was the massacre of American troops at
Malmedy during the Battle of the Bulge. The German troops
responsible for these violations were tried before military
commissions.
As an aside, those disturbed by the tendency of some in the press and
politics to take the side of the Guantanamo detainees--of those
captured while at war with America--might find it interesting that the
same phenomenon developed with regard to the Malmedy detainees. The
Malmedy German soldiers were tried and convicted of massacring American
POWs near the Belgian village of Malmedy during the Battle of the
Bulge. This crime unquestionably occurred--the bodies of over 80 U.S.
soldiers were recovered in a field, most of them shot in the head.
Members of the German unit responsible for this crime later were
captured and tried by a military commission. Over the years, these Nazi
soldiers, at least some of whom unquestionably massacred American
G.I.s, somehow managed to turn the tables on the U.S. military in the
press and in political circles. Senator Joseph McCarthy took up their
cause, as did other Senators. The most fanciful allegations of abuse
made by these Nazi murderers were indulged by various prominent
Americans, and the whole incident became a public relations
embarrassment for the U.S. military. Eventually, this pressure campaign
succeeded in winning the commutation of all death sentences given to
the Malmedy killers, and all of the German soldiers involved--even
their commander--were released from prison by the mid-1950s. For those
who find it disturbing that the sympathies of the press (especially in
Europe) and of various intellectuals have been misplaced on the side of
the Guantanamo detainees, at least we can take comfort in the fact the
perversions of truth and rank miscarriages of justice that have
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resulted from such misplaced sympathy so far in this war pale in
comparison to those that followed from Malmedy.
Perhaps first among those who would object to any sympathizing with
the Guantanamo detainees would be Andrew McCarthy, the former Federal
antiterror prosecutor. He has written often on this and other war-on-
terror topics. I was pleased to see that shortly after the Graham/Kyl
amendment first passed the Senate, he wrote a column for National
Review Online lauding our efforts. It was titled ``Restoring Law and
Order,'' and McCarthy's only complaint was that ``it has taken our
national legislature nearly a year-and-a-half--during all of which we
have been at war--to stir itself to address this serious national-
security problem.'' So you can imagine my disappointment when, just two
days later, Mr. McCarthy posted another column commenting on the final
Senate language, which include some compromises to ensure bipartisan
support. This column was titled ``Snatching Defeat from the Jaws of
Victory.'' Some of its language I won't recite here. But its specific
complaints bear scrutiny. Mr. McCarthy alleged that ``the senators
resolved Tuesday that the ultimate decision about who is properly
considered an `enemy combatant,' should rest with federal judges, not
our military commanders.'' As he characterized the final Senate
language, ``a panel of robed lawyers will second-guess the
determination of [our soldiers'] commanders on scene that certain
captives warranted detention--that holding them would be beneficial to
the war effort.'' Similarly, with regard to military commissions, Mr.
McCarthy complained that ``everything that happens in the commission
would be reviewed by judges if this measure passes.''
I do not think that these words are an accurate characterization of
the Senate-passed language. I think that Mr. McCarthy probably relied
on inaccurate characterizations of the language that were published in
the press at the time rather than on the language itself. Nevertheless,
Mr. McCarthy's complaints did cause me and others to take another look
at the language, to make sure that it does what we intended.
Limited judicial review of the decisions of the CSRTs and military
commissions is authorized by paragraphs 2 and 3 of subsection 1405(e)
of the conference report. These paragraphs authorize the same two
narrow judicial inquiries into the ``status determinations'' and
``final decisions'' of the CSRTs and military commissions. The
difference in language here is not intended to connote any substantive
difference in the scope of review--it simply attempts to accurately
characterize the work of each entity: ``making status determinations''
for the CSRTs, and ``reaching final decisions'' for the military
commissions.
The review authorized by each of these paragraphs goes only to the
following questions: did the CSRTs and commissions use the standards
and procedures identified by the Secretary of Defense, and is the use
of these systems to either continue the detention of enemy combatants
or try them for war crimes consistent with the Constitution and Federal
law? The first inquiry I think is straightforward: did the military
follow its own rules? This inquiry does not ask whether the military
reached the correct result by applying its rules, or even whether those
rules were properly applied to the facts. The inquiry is simply whether
the right rule was employed.
As to the second inquiry, here the language has been further modified
in order to make clear the narrow scope of the inquiry. The original
Senate language spoke of whether ``subjecting'' an enemy combatant to
the CSRT or commission systems was constitutional and legal. This
formulation was somewhat illogical in that the detainee would not
complain of the fact that he was forced to go through a CSRT--rather,
he would want to challenge its adequacy as a means for justifying his
continued detention. And in any event, our concern was to make clear
that this language in no way invites a re-evaluation of the correctness
of the military's decision, even under a deferential standard of
review. Nor does it invite an as-applied challenge. All that this
language asks is whether using these systems is good enough for the
ends that they serve--to justify continued detention or to try an enemy
combatant for war crimes. The only thing that this provision authorizes
is, in effect, a facial challenge. In fact, we anticipate that once the
District of Columbia Circuit decides these questions in one case, at
least so long as military orders do not substantially change, that
decision will operate as circuit precedent in all future cases, with no
need to relitigate this second inquiry in the future. In effect, the
second inquiry--into the constitutionality and lawfulness of the use of
CSRTs and commissions--need only be decided once by the court.
It bears quoting some of the thinking that undergirds the
establishment of these review standards. Attorney General Barr, in his
June 5 testimony before the Judiciary Committee, describes the
philosophy and approach that paragraph 2's scope of review for CSRTs is
designed to reflect:
It seems to me that the kinds of military decisions at
issue here--namely, what and who poses a threat to our
military operations--are quintessentially Executive in
nature. They are not amenable to the type of process we
employ in the domestic law enforcement arena. They cannot be
reduced to neat legal formulas, purely objective tests and
evidentiary standards. They necessarily require the exercise
of prudential judgment and the weighing of risks. This is one
of the reasons why the Constitution vests ultimate military
decision-making in the President as Commander-in-Chief. If
the concept of Commander-in-Chief means anything, it must
mean that the office holds the final authority to direct how,
and against whom, military power is to be applied to achieve
the military and political objectives of the campaign.
I am not speaking here of ``deference'' to Presidential
decisions. In some contexts, courts are fond of saying that
they ``owe deference'' to some Executive decisions. But this
suggests that the court has the ultimate decision-making
authority and is only giving weight to the judgment of the
Executive. This is not a question of deference--the point
here is that the ultimate substantive decision rests with the
President and that courts have no authority to substitute
their judgments for that of the President.
And the thinking that underlies paragraph 3's scope of review for
military-commission decisions is well articulated in Johnson v.
Eisentrager:
It is not for us to say whether these prisoners were or
were not guilty of a war crime, or whether if we were to
retry the case we would agree to the findings of fact or the
application of the laws of war made by the Military
Commission. The petition shows that these prisoners were
formally accused of violating the laws of war and fully
informed of particulars of these charges. As we observed in
the Yamashita case, ``If the military tribunals have lawful
authority to hear, decide and condemn, their action is not
subject to judicial review merely because they have made a
wrong decision on disputed facts. Correction of their errors
of decision is not for the courts but for the military
authorities which are alone authorized to review their
decisions.'' ``We consider here only the lawful power of the
commission to try the petitioner for the offense charged.
There is another matter that I should mention before I yield the
floor to my colleague from South Carolina. Some have asked why the
jurisdiction-removing language in the bill is limited to Guantanamo.
The answer is that Rasul is only about Guantanamo. Although the opinion
contains the discussion of Ahrens and Braden that undercuts the
``territorial-jurisdiction'' rule for habeas courts, in the end the
decision appears to be based on the unique status of the naval station
at Guantanamo Bay--the permanent nature of the lease, for example,
which can only be terminated by the United States. Justice Kennedy
adopted a similar focus in his concurring opinion. I believe that
Justice Kennedy's concurrence goes so far as to declare that Guantanamo
is in practical respects a U.S. territory.
Some have raised the concern that the logic of Rasul will be extended
to U.S. military and intelligence detention facilities in Iraq or
Afghanistan. I think that such an extension would be very foolish and I
do not think that the court will go there. I do not think that the
Supreme Court is going to declare parts of Afghanistan or Iraq to be
the territory of the United States. If the court does do so, we can of
course legislatively overrule it, as we legislatively overrule Rasul
today. But I do not think that it is either necessary, or respectful of
the court's capacity for common sense, to preemptively overrule such an
outlandish hypothetical decision. Does the Senator from South Carolina
agree?
Mr. GRAHAM. Yes, my friend from Arizona is correct, our language
applies only to Guantanamo just because
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we understand that the Supreme Court only extended the jurisdiction of
the courts over the detainees held at Guantanamo. And since the Rasul
decision was based on the habeas statute in the U.S. Code, I am very
comfortable amending that statute as a proper congressional response to
the Court's decision.
As I stated repeatedly to a number of my colleagues, we did not want
to deprive the courts of jurisdiction to hear cases filed on behalf of
detainees in Iraq because we are confident that, as the law stands now,
those cases are already barred by previous Supreme Court decisions,
which the Rasul decision left in place.
We should always be careful when dealing with our co-equal branches.
Just as we do not appreciate it when they stray into our areas of
constitutional responsibility, we should always be willing to refrain
from straying into theirs unnecessarily. As I read the Rasul decision,
these other cases from other parts of the world are still subject to
the Eisentrager opinion and will not be considered by U.S. courts.
And so, our language is limited to Guantanamo. To my friends who
counseled that we should extend our jurisdiction modification to those
cases being filed on behalf of Iraqis held in accordance with the
Geneva Convention, I would just counsel them to be patient. I cannot
imagine the Court extending its jurisdiction halfway around the world
to involve what is almost exclusively an executive branch function.
However, should that become necessary, I am perfectly willing to modify
our courts' jurisdiction again to ensure that does not happen. But
again, in truth, especially after our very robust action here today, I
cannot even conceive of such a decision by the Supreme Court.
Mr. KYL. Well, that is what I thought before Rasul was decided. But
we can cross that bridge if we get to it.
Mr. GRAHAM. Mr. President, I would also like my esteemed colleague
from Arizona, Senator Kyl, to address the misunderstandings that seem
to have made their way into the press. For instance, when I returned
from Iraq this morning, I was surprised to see the New York Times
editorial page making some fundamental mistakes about what our
legislation does.
Mr. President, I would also request unanimous consent to have the New
York Times editorial entitled Ban Torture. Period. from December 16,
2005 entered in the Record.
The first sentence reads, ``It should have been unmitigated good news
when President Bush finally announced yesterday that he would back
Senator John McCain's proposal to ban torture and ``cruel, inhuman or
degrading'' treatment at United States prison camps. Nothing should be
more obvious for an American president than to support a ban on
torture.'' I agree, nothing should be more obvious. And I'd like to
applaud the New York Times for finally endorsing the actions President
Reagan took when we signed the Convention Against Torture on April 18,
1988, and the Senate ratified the Convention on October 21, 1994.
But since they appear to be laboring under some confusion, I would
like to clarify how and when our antitorture statutes apply. First,
torture has been illegal for quite some time. Indeed, Section 2340A of
Title 18 of the United States Code specifically provides for the
prosecution of people who torture overseas. And most of the techniques
of torture, beatings, improper imprisonment, and threats have long been
part of the criminal code of the United States.
I strongly supported Senator McCain's amendment each and every time
it came up. I am extremely pleased it passed. But, make no mistake, it
does not make torture illegal. Torture has long been illegal. What the
McCain language does is make a very clear statement that we will treat
people humanely while we have them in our custody. The McCain amendment
is a very clear policy statement that is in accord with the best of
American tradition. But it does not ban torture. Accordingly, the
Graham-Levin-Kyl provisions do not equivocate in any way regarding
torture. The Times editors, regrettably, for I appreciate the place the
Times holds in our public discourse, do not appear to understand what
they are talking about.
I would like to address one other statement the Times makes. They
state, and I quote, that ``What is at stake here, and so harmful to
America's reputation, is the routine mistreatment of prisoners swept up
in the so-called war on terror.'' Now I take great exception to this
baseless smear of our soldiers and marines. It is said off-handedly,
almost as if everyone takes it for granted that the fine men and women
of our armed services routinely mistreat our prisoners.
Well I will tell you, I for one don't take it for granted that the
fine people who are putting their lives on the line to protect our
Nation routinely mistreat the prisoners in their care. I believe they
follow the orders that their superiors give them, orders based on such
policy statements as Senator McCain's or the Army Field Manual, and
they follow them to the best of their ability.
Now, are there going to be bad apples? As a former JAG prosecutor and
defense counsel, I can tell you affirmatively, yes, there will be. And
they will be arrested, tried, convicted, and will serve long sentences.
Those few individuals who do not live up to the high standards of the
vast majority of our honorable service members, will be held
accountable for their actions.
Our troops do not deserve such a slander, and I call on the New York
Times to take back the vile assertion they have made against the people
who exemplify the best our Nation has to offer.
Mr. KYL. Mr. President, I see that we are nearing the end of our
allotted time. If I could quickly address a few other minor issues and
summarize briefly. It is important to note that the limited judicial
review authorized by paragraphs 2 and 3 of subsection (e) are not
habeas-corpus review. It is a limited judicial review of its own
nature. All habeas actions are terminated by this bill. I hope that
this change will also put to rest any arguments that extending habeas
to prisoners also extends to them some type of substantive rights. I do
not believe that supposition is correct because habeas is a vehicle for
asserting rights, not a source of rights. The fact that an individual
has access to habeas does not mean that he has any of the rights that
he asserts. But in any event, because this bill leaves no habeas in
place, that debate need not be rejoined.
Also, some have suggested that by vesting exclusive jurisdiction in
the DC circuit for the paragraph 2 and 3 appeals, this bill bars even
Supreme Court appellate review. That was not the drafters' intention,
nor do I believe that it is a correct reading of the legislative
language. Supreme Court review is implicit, or rather, authorized
elsewhere in statute, for all judicial decisions. It is rarely
mentioned expressly. In fact, when it is mentioned, it is sometimes to
preempt Supreme Court review. Far example, the limit on successive
federal habeas petitions for state prisoners in section 2244 bars
petitions for certiorari following a three-judge panel's decision on a
successive-petition application. The clear implication of these
provisions is that Supreme Court review is implicitly allowed except
where expressly barred, and thus since it is not barred here, it is
allowed.
uniform standards of interrogation for detainees
Mr. McCAIN. I would like to thank the chairman and the ranking member
for their untiring work to bring the Defense authorization bill to
closure. In doing so, Congress takes a major step in ensuring that
America stays true to its fundamental values. By establishing uniform
standards for the interrogation of Department of Defense detainees, and
by ensuring that the United States will not subject any individual to
cruel, inhuman or degrading treatment or punishment, we are better able
to wage and win the war on terror. This would not have been possible
without the work of the chairman, the ranking member, and other members
of this committee, including most notably the Senator from South
Carolina.
I would also like to thank the President and the national security
advisor for their efforts in resolving the difficult issues underlying
the amendment. In reaching agreement, we make sure that the world knows
that the United States does not--and by law cannot engage in torture or
cruel, inhuman or degrading treatment. During our talks, the
administration raised legitimate concerns about legal claims
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facing civilian interrogators. Based on these concerns, the bill
includes language that will allow accused civilian interrogators--like
military interrogators--a robust defense if a person of ordinary sense
and understanding would have believed he was following a lawful
directive. It further includes language providing legal counsel to
interrogators. These provisions are modeled on provisions drawn from
the Uniform Code of Military Justice.
With the detainee treatment provisions, Congress has clearly spoken
that the prohibition against torture and other cruel, inhuman or
degrading treatment should be enforced and that anyone engaging in or
authorizing such conduct, whether at home or overseas, is violating the
law. Sections 1402 and 1403 of Title XIV of this bill do not create a
new private right ot action. At the same time, these provisions do not
eliminate or diminish any private right of action otherwise available.
It is our intent not to disable that in any way.
Mr. WARNER. To have worked from the beginning with Senator McCain
then with Senators Graham, Levin and Kyl was a privilege, and, to
achieve legislation which was needed for all our Nation's citizens was
a humble, but very fulfilling, experience. We realized both the
necessity for action in this area and the vital importance of dealing
with the increasing flow of litigation involving Guantanamo detainees.
This legislative history should document that the McCain provisions,
sections 1402 and 1403 of the bill, do not create a private right of
action. Title XIV of the bill does provide a new affirmative defense
that may be applied to civil actions brought under other statutes and
to criminal prosecutions. This is essential to give potential
defendants fair rights to defend themselves. Further, language was
included affording the same right to counsel and to payment of
litigation costs at Government expense for non-military personnel, in
both foreign and domestic courts, that is presently extended to members
of the Armed Forces.
Mr. LEVIN. I am pleased that the conference report contains the full
text of the McCain amendment on torture, without change. This language
firmly establishes in law that the United States will not subject any
individual in our custody, regardless of nationality or physical
location, to cruel, inhuman, or degrading treatment or punishment. The
amendment provides a single standard--for ``cruel, inhuman, or
degrading treatment or punishment''--without regard to what agency
holds a detainee, what the nationality of the detainee is, or where the
detainee is held.
It has never been my understanding that the McCain amendment would,
by itself, create a private right of action. I do not believe that the
amendment was intended either to create such a private right of action,
or to eliminate--or undercut any private right of action such as a
claim under the Alien Tort Statute--that is otherwise available to an
alien detainee. Rather, the McCain amendment would establish a legal
standard applicable to any criminal prosecution or any private right of
action that is otherwise available under law. That would not be changed
in any way by the affirmative defense added in the new section.
Mr. GRAHAM. I was pleased to support this legislation and work toward
its enactment from the beginning. Under section 1402, our troops now
have one standard--the Army Field Manual--for their interrogations. In
section 1403, we close the loophole in the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. As National Security Advisor Stephen Hadley said, ``those
standards, as a technical, legal matter, did not apply abroad. And that
is what Senator McCain, in the second section of his legislation,
wanted to address--wanted to make clear that those would apply abroad.
We applied them abroad as a matter of policy; he wanted to make sure
they applied as a matter of law. And when this legislation is adopted,
it will.'' I agree that these sections do not create a new private
right of action, but that they are binding on the executive and may be
applicable to actions brought under other statutes.
Mr. KENNEDY. Mr. President, I ask unanimous consent to have a letter
from Mr. Ed Tong printed in the Record for the consideration of the
fiscal year 2006 Defense Authorization Act. The letter reflects the
view of a supporter of the minority small business contracting program,
which is reauthorized in this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
ASIAN, Inc.
San Francisco, CA, December 19, 2005.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, DC.
Dear Senator Kennedy: I write to urge you to support the
reauthorization of the Department of Defense 1207 program.
The program has been repeatedly reauthorized since its
original enactment, and it remains necessary today.
Minorities have historically been disadvantaged with regard
to the awarding of federal, state and municipal contracts.
The impact of such discrimination and exclusion has been
especially felt in Northern California--and specifically
within the San Francisco Bay area.
The 1992 Minority Business Census of the U.S. Census Bureau
reported that San Francisco has over 16,353 minority-owned
businesses operating in the area. That statistic makes San
Francisco the fourth largest business locale in the country
for minority-owned businesses. Despite the large number of
minority-owned business, discriminatory and harassing
treatment is commonly experienced.
Specifically, Asian American construction firms in San
Francisco, have encountered discriminatory and harassing
treatment at the hands of the craft unions and city
government through the San Francisco's Office of Labor
Standards Enforcement (OLSE). OLSE was created in 2000, to
enforce the prevailing wages of crafts set by the state's
Department of Industrial Relations. In fact, OLSE has
differentially chosen to conduct its audits and impose higher
penalties against many of San Francisco's minority craft
businesses. At its inception of enforcement, the OLSE
specifically targeted Chinese businesses. The statistics at
that time showed that Chinese businesses had around a 5%
chance of obtaining a prime contract they bid on, but a 50%
probability of their project being inspected and audited by
the OLSE. At present, OLSE still disproportionately targets
minority businesses, whether they are union or non-unionized
construction companies. Left with no avenue through which to
remedy its grievances, many Asian American businesses have
turned to ASIAN, Inc. for assistance
In my role as ASIAN, Inc.'s Program Manager in our Business
& Economic Development Division, I have had personal
experience in speaking with Asian American businesses dealing
with discriminatory treatment. ASIAN, Inc. is a nonprofit
technical assistance and research organization that works to
strengthen the infrastructure of Asian American communities
in Northern California and to assist in their physical,
economic, and social development. ASIAN, Inc. has been in
operation for 34 years. Over the years, the organization has
helped over 500 disadvantaged businesses obtain business
loans through partnerships with the City of San Francisco's
Office of Community Development, the State of California, the
U.S. Department of Commerce Minority Business Development
Agency, the U.S. Small Business Administration, and many
banks and other private lenders. Still, discrimination
continues to pose barriers for many of the businesses with
which we work
Because ASIAN, Inc.'s role has been to provide strategic
information and technical assistance in order to promote the
ability of Asian Americans to compete in mainstream society--
including achieving success for their businesses and
participating in public decision-making--the organization has
been in a position to witness the experiences of Asian
American businesses in the San Francisco Bay Area.
Notably, several Asian American businesses came to ASIAN,
Inc. for assistance after the OLSE imposed significant
penalties upon their businesses, allowed those businesses no
opportunity to rectify any alleged violations prior to making
a finding, or to present their sides of the story. Initially
there was no appeals process built into the Ordinance. To the
presidents and owners of these businesses, it felt as if the
OLSE was targeting them because they were minority owned and
because of the ongoing disputes between Asian businesses and
the trade unions in the area. The targeting of Asian American
firms by OLSE for inspection and audits made obtaining
contracts difficult when it became known that a business was
being inspected by the OLSE.
ASIAN, Inc.'s work with the OLSE is by no means unique but
rather signifies merely one of many types of discrimination
experienced by the Asian American businesses that contact our
organization. In fact, the OLSE situation is quite emblematic
of the larger underlying problems that minority businesses
face. Discrimination is not limited to the local or municipal
level. Asian American businesses have experienced
discrimination in the awarding of local agency contracts, the
issuance of bonds and insurance policies, and the provision
of necessary materials and material quotes by suppliers.
For example, I personally have heard of complaints/
testimonials from minority businesses about:
The use of racial slurs or epithets against minority owners
or employees, One Asian
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firm owner used workers of Mexican ancestry on a job, and
other white subcontractors challenged him and asked ``Why are
your illegal workers on my job site.'' Also, an institution's
administrator might use the phrase ``Your kind are the
majority now.'' For another Asian American owner, when his
workers took items from the trash bins he was told to stop
his workers from doing so. As ``You may be a nice guy, but
you are not one of us.''
The exclusion of minority businesses from informal business
networks such as the Associated General Contractors. Or not
invited to go golfing with them, even when the other group
was looking for a foursome.
The refusal to use minority businesses on private jobs even
when they are used on government jobs where minority business
programs are in place. For example, Nibbi Brothers
Construction will use numerous minority firms when doing
public works projects (and the locale's program encourages
minority participation) but not ask them to bid on their
private works projects. This was also true for a general
contractor (SJ Amoroso) that uses minority firms in their
public works jobs but one white subcontractor almost
exclusively for their roofing work, in their private works
projects.
The existence of the old boys network to justify doing
business with one's own cronies. For example, with Asian
firms that have become prime contractors, white
subcontractors often won't bid for the subcontracting work,
or will hedge their bids and draw out the bidding process in
deciding whether they want to work with a minority prime
contractor
The non-enforcement of nondiscrimination requirements and
disparate treatment by government inspectors. For example,
when as the prime contractor and your project is audited, all
certified payrolls are asked of your minority subs, but your
white sub will not be asked to provide a certified payroll.
In another case with an institution in the City, the
inspector would not approve the work, and make additional
demands that were not put it in writing. For example, he
demand that a electrical panel be explosion proof though it
was not required by the specs. He also demanded that
materials be UL (Underwriters Laboratories) listed although
the specs did not require it. Also, when the Asian prime
contractor reported the error of his white subcontractor to
the engineer, he was told that this was not acceptable.
However, when the white subcontractor reported his error to
the white engineer the error was allowed to stand without
correction.
The bundling of contracts which minority businesses could
bid for if not for bundling. For example, when work is
required for a number of school sites, a number of 3-4
schools may be bundled even when the type of work in each
school is different. This will bring the total project and
bonding requirements to $10 million dollar when without
bundling the individual projects would cost about $2-3
million dollars.
The tendency to pay minority contractors slower or not at
all compared to white contractors. For example, San Francisco
city departments and institutions have a poor reputation for
paying in a timely manner and so the cumulative debt on a
number of projects/contracts owed to Asian businesses has
been in excess of $1 million dollars.
The provision of different quotes from suppliers to
companies depending upon the race of the business owner, or
to provide those supplies at an exorbitant rate to a minority
contractor.
The refusal to provide higher capacity bonds.
Our nation's small businesses are the backbone of this
country's economy and the obstacles that impede the successes
of U.S. businesses have enormous impact on the local
economies these businesses support as well as the nation at
large. This is especially true for minority-owned businesses
that not only contribute to the country's economic base but
have also traditionally provided jobs for minority youth and
adults in ways that majority-owned business have not. As
such, removing obstacles facing minority businesses is
critical not only for our economy but for our nation's
minority youth.
Minority contractors have a right to expect unbiased
treatment in the awarding of contracts. The 1207 Program is a
valuable means by which the federal government demonstrates
fairness and equity in the area of government contracts. It
is vitally important that the federal government recognizes
and rectifies some of the problems faced by minority
businesses across the country. The government's commitment to
equality in the economic marketplace is an ongoing
responsibility of our government, and the reauthorization of
1207 not only is in keeping with the spirit of that
commitment but provides leadership by example to local
government, banks, customers and suppliers that interact with
minority-owned businesses.
Respectfully submitted,
Edmund Y. Tong,
Program Manager, Business &
Economic Development Division.
Mrs. CLINTON. Mr. President, the Senate is considering today the
Department of Defense authorization conference report for the 2006
fiscal year. As a member of the Senate Armed Services Committee, I have
attended numerous hearings and participated in the markup of this
legislation. And I want to commend the Chairman of the Senate Armed
Services Committee, Senator Warner, and the ranking member, Senator
Levin, for the serious, bipartisan approach they took in preparing the
Senate version of the bill.
The DOD authorization bill is critically important, particularly with
our servicemen and women are serving bravely in Iraq, Afghanistan and
around the world. We owe it to our men and women in uniform to do
everything we can to support them.
While what has emerged from conference is not perfect, the bill
contains a wealth of positive provisions in keeping with the
responsibility of Congress to our men and women in uniform.
When we first considered the DOD authorization bill in July, the
Senate accepted an amendment Senator Graham and I offered to make
Tricare available to all National Guard members and reservists during
the House-Senate conference, we reached a compromise which will offer
great opportunities for Guard members and reservists to join the
Tricare Program.
At at time when approximately 40 percent of the men and women serving
in Iraq are members of the National Guard and Reserve, and as Guard
members and reservists are a serving in a new and expanding role in the
global war on terror, we ought to do all we can to ensure that these
men and women have the services and support they need and deserve. This
bill marks further progress in this effort, increasing access to health
benefits for our National Guard and Reserve and their families in New
York and around the country. Providing the Guard and Reserves, as well
as their families, with adequate support and benefits is the least that
a grateful nation can do. Under the provision, all members of the
Selected Reserve are eligible to enroll in the military health care
program.The premiums are based on categories of eligibility:
Category 1: Members of the Selected Reserve who are called to active
duty qualify for TRICARE Reserve Select, TRS. Under this program,
established last year, a reservist would accumulate 1 year of TRS
coverage for every 90 days of Active-Duty service. Monthly premiums
during the years of accumulated eligibility are only 28 percent of the
program cost. The Government picks up the remaining 72 percent. As has
always been the case, coverage is free of charge while on active duty.
This bill now permits accumulation of earned periods of coverage for
frequently deployed personnel. In addition, it authorizes 6 months of
transitional coverage for family members following the death of the
Reserve member, if the member dies while in an inactive status.
Category 2: Members of the Selected Reserve who are not called to
active duty and who otherwise do not qualify for health insurance due
to unemployment or lack of employer-provided coverage are eligible to
enroll in TRICARE for a 50-percent cost-sharing premium. The Government
will pay the remaining 50-percent.
Category 3: Members of the Selected Reserve who do not fit into
either of the above categories but would like to participate in TRICARE
are eligible to do so for an 85-percent cost share. Employers are
allowed and encouraged to contribute to the reservist's share. The
Government contributes 15 percent of the costs.
This compromise is an important step forward in improving health care
access for our Nation's guardsmen and reservists.
It is important to note as well that this expansion was the fruit of
a bipartisan effort by Senator Graham and myself, along with my
colleagues Senator Leahy and Senator DeWine.
The conference report also includes another provision I offered, this
one with Senator Collins, to improve financial education for our
soldiers. It is a problem that has plagued military service men and
women for years: a lack of general knowledge about the insurance and
other financial services available to them.
This provision instructs the Secretary of Defense to carry out a
comprehensive education program for military members regarding public
and private financial services, including life insurance and the
marketing practices of these services, available to them. This
education will be institutionalized in initial and recurring training
for
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members of the military. This is important so that we don't just make
an instantaneous improvement, but a truly lasting benefit to members of
the military.
The legislation also requires that counseling services on these
issues be made available, upon request, to members and their spouses.
It is very important to include the spouses in this program because we
all know that investment decisions should be made as a family. Too many
times, a military spouse has to make these decisions alone, while a
husband or wife is deployed.
This amendment requires that during counseling of members or spouses
regarding life insurance, counselors must include information on the
availability of Servicemembers' Group Life Insurance, SGLI, as well as
other available products.
I am happy that my fellow Senators support this legislation and proud
that the amendment was adopted in conference.
The legislation also includes a provision which will ensure the
availability of special pay for members during rehabilitation from
wounds, injuries, and illnesses incurred in a combat zone. Earlier this
year, I learned of the story of Army SPC Jeffrey Loria, who was
encountering pay problems while recovering at Walter Reed Army Medical
Center. My inquiry to the Army in this matter corrected Specialist
Loria's problems and also led to the discovery of pay problems for at
least 129 other soldiers. I continued to follow up on the plight of
wounded soldiers when I questioned each of the service secretaries
about this topic in early March 2005, asking if they would support
efforts to ensure that wounded Guard members and reservists did not
lose their combat pay allowance while in a military hospital. Their
unanimous answer was yes. I am proud to see the provision incorporated
into the bill.
In addition, I am pleased that the House and Senate have agreed to
provide hundreds of members of the National Guard who served at Ground
Zero after the terrorist attacks the full Federal retirement credit for
their service that they deserve. Many of the soldiers who served at
Ground Zero, often for extended periods, were not officially put on
Federal active duty and so did not receive Federal military retirement
credit. I was proud to fight for this legislation as a House-Senate
conferee, and I want to thank Congresswoman Maloney and Congressman
King for their hard work to see the provision through the House of
Representatives. I applaud Congress for accepting our arguments for
those brave men and women of the National Guard who gave their all
after the September 11 attacks and absolutely deserve this credit.
I am also glad to see that the final conference report includes no
language to restrict the role that women can play in our Armed Forces.
Women have a long history of proud service in our Armed Forces, and
more than 200,000 women currently serve, making up approximately 17
percent of the total force. Thousands of women are currently serving
bravely in Iraq, Afghanistan, and elsewhere. During my own visits to
Iraq--as I am sure that many of my colleagues who have also visited
Iraq can also attest--I witnessed women performing a wide range of
tasks in a dangerous environment.
Our soldiers, both men and women, volunteered to serve their Nation.
They are performing magnificently. There should be no change to
existing policies that would decrease the roles or positions available
to women in the Armed Forces. Earlier this year, I introduced, along
with several of my colleagues, a sense-of-the Senate resolution stating
that there should be no change to existing laws, policies, or
regulations that would decrease the roles or positions available to
women in the Armed forces.
Finally, I want to highlight several other provisions in the
legislation that honor the commitment of this Congress to our men and
women in uniform. The final bill includes a 3.1-percent pay raise for
all military personnel as well as increases to the maximum amount of
assignment incentive pay and hardship duty pay that our servicemen and
servicewomen receive. The bill also calls for an increase of $60
million for childcare and family assistance services to support Active-
Duty and Reserve military families.
Also included were measures to bolster the support and gratitude our
Nation shows for the families of our men and women in uniform who have
lost their lives in service to our country. The bill increases the
survivor benefits to $100,000 for all Active Duty military decedents;
payments would be retroactive, to include all those lost since the
commencement of Operation Enduring Freedom. In addition, the conference
report increases TRICARE benefits for the surviving children of those
who have lost their lives while on active duty and calls for the
establishment of a uniform policy on casualty assistance to improve the
services provided to survivors and next of kin.
I am proud to support these provisions and proud to do all I can for
these families.
Despite the positive sections of the conference report, many of which
I have outlined above, there are also portions of the authorization
bill that are deeply troubling. I fear that included in a bill that
does so much to support our men and women in uniform are provisions
that might also do a disservice to these brave Americans.
One in particular is the Graham-Levin-Kyl amendment, included in the
conference report, governing the treatment of detainees at Guantanamo
Bay.
Like all of my colleagues, I am deeply troubled by the circumstances
that have opened our Federal courts to enemy combatants. Senator Graham
is correct that the present level of accessibility to our courts by
individuals who would do us harm is unprecedented in our Nation's
history.
However, the seeds of this situation were sown when the President
chose our course for the war against terror. Rather than treating our
detainees in accordance with the governing principles of military
engagement, he chose to institute policies that demonstrate disrespect
for the rule of law and have resulted in lowering our country's moral
standing in the world. Had the President chosen instead to respect
international conventions that provide due process protections, we
would not be facing the unprecedented problem of having to make our
courts open to our enemies.
I agree that this is an area long overdue for reform. Although it
left much to be desired, I voted in favor of the Graham-Levin-Kyl
amendment in its original form because it was an improvement over a
harsh measure that would have eliminated almost entirely a detainee's
ability to challenge his or her detention. In conference, however,
House negotiators once again undermined much of the thoughtful
deliberation that went into crafting the Graham-Levin-Kyl compromise,
stripping out important provisions that would have prohibited the
admission of evidence obtained through ``undue coercion'' and further
limiting legal recourse available to detainees.
We must work toward a system that corrects the missteps made by the
President and adopt a well-thought-out set of procedures that respects
the rule of law and restores our Nation to its proper standing in the
world. The system outlined by the Graham-Levin-Kyl amendment as
provided in the DOD Authorization conference report falls short of this
measure.
The Defense authorization conference report contains a great deal
that we in this body can look to with pride. That is why I support the
bill as a whole and why I voted in favor of it. We face real challenges
and threats as a nation, and our men and women in uniform are, every
single day, serving with courage on the front lines in defense of our
values and our way of life. I do not vote without concern, however, in
light of a few troubling provisions which I fear do not serve the
interests of our country or our troops.
Mr. KERRY. Mr. President, the fiscal year 2006 Defense Authorization
Act contains a number of provisions that take an important step towards
the Military Family Bill of Rights I believe we need.
Among the final provisions, the legislation authorizes an increase of
the death gratuity to $100,000 for all active-duty service members. I
was pleased to originally offer this provision as an amendment to the
fiscal year 2005 supplemental appropriations act earlier this year. I
was happy to work with Senator Levin on this bill to bring this
provision into reality.
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I offered another amendment on the supplemental last spring to
increase to 1 year the length of time surviving families of service
members may reside in Government housing or receive the basic allowance
for housing. It was signed into law then, but because it was part of
the supplemental, it expired with the end of the fiscal year. The
fiscal year 2006 National Defense Authorization Act makes this
extension permanent.
I am also pleased that the final bill includes authorization for
increased funding for Project Sheriff--an initiative of the Office of
Force Transformation to provide our soldiers and marines with a full
spectrum of lethal and nonlethal weapons when engaging enemies in an
urban environment.
The Defense authorization bill includes other important provisions
for our country: a 3.1-percent pay raise for military personnel;
increased Army and Marine Corps end strength, and an expansion of
TRICARE benefits for members of the Selected Reserve and their
families.
Taken together, these provisions are important milestones. They are
further testament of this Congress's and this country's determination
to maintain the best trained, best equipped, best prepared, and most
capable military on earth. It is also a recognition of the important
contributions made by military families--families who give so much to
this country.
When I voted for this legislation on the Senate floor, one essential
aspect was that the limitations placed on the review of habeas corpus
claims of Guantanamo Bay detainees were prospective only. I am pleased
to say that the bill's effective date was not altered in conference. As
a result, as the Supreme Court held in Lindh v. Murphy, it still
employs the normal rule that our laws operate prospectively.
Mr. FEINGOLD. Mr. President, I am pleased that the Senate was finally
able to debate and pass the Defense Authorization Act. It is
indefensible that this important legislation was put on the backburner
for so long; held back until the eleventh hour by the majority for
various special interests and political reasons. The American people
and the troops deserve better than that.
I am pleased that this bill includes important provisions for our men
and women in uniform and their families. I am very pleased that we were
able to include a 3.1 percent pay raise for all of our men and women in
uniform as well as a host of bonus and incentive pays to help the
military in its recruiting and retention efforts. The conference report
also contains an important provision that permanently increases the
death gratuity for those killed on active duty. Although the Senate's
strong bipartisan efforts to make TRICARE available for the Guard and
Reserve were again watered down in the conference report, the final
bill still includes significant improvements in TRICARE access for all
of our citizen-soldiers. These are just a few examples of the important
provisions contained in this bill.
I am proud that the Congress has finally, definitively, sent such a
strong message to the administration about the treatment of detainees
by enacting the amendment of the senior Senator from Arizona. The lack
of a clear policy regarding the treatment of detainees has been
confusing and counter-productive. It has left our men and women in
uniform in the lurch with no clear direction about what is and is not
permissible. This failure on the part of the administration has sullied
our reputation as a Nation, and hurt our efforts to promote democracy
and human rights in the Arab and Muslim worlds. I have been proud to
support Senator McCain's amendment on interrogation policy because it
should help to bring back some accountability to the process and
restore our great Nation's reputation as the world's leading advocate
for human rights.
Although I voted for the Department of Defense authorization bill, I
am disappointed with the mixed messages that the Senate continues to
send to the administration and the country on issues related to the
detainees held at Guantanamo Bay. Even as we enact the important McCain
amendment on torture, the conference report also includes the Graham
amendment, which remains deeply troubling because of the restrictions
it places on judicial review of detainees held at Guantanamo. However,
it is important to note that the provision is limited in critical ways.
The provision on judicial review of military commissions covers only
``final decisions'' of military commissions, and only governs
challenges brought under that provision. In addition, the language in
section 1405(e)(2) that prohibits ``any other action against the United
States'' applies only to suits brought relating to an ``aspect of
detention by the Department of Defense.'' Therefore, it is my
understanding that this provision will not affect the ongoing
litigation in Hamdan v. Rumsfeld before the Supreme Court because that
case involves a challenge to trial by military commission, not to an
aspect of a detention, and of course was not brought under this
provision. Furthermore, it is important to make clear that this
provision should not be read to endorse the current system of trial by
military commission for those at Guantanamo Bay. This provision
reflects, but certainly does not endorse, the existing status of those
military commissions, which is that they are currently legal under a
decision of the DC Circuit. However, the Supreme Court has not yet
addressed the legality of such military commissions, and this amendment
should not be read as any indication that Congress is weighing in on
that issue. While I would have strongly preferred that this amendment
not be included in the conference report, I think it is important to
note these limitations on its practical effect.
I am pleased that the conference report contained a number of
provisions I authored, including my amendment to enhance and strengthen
the transition services that are provided to our military personnel by
making a number of improvements to the existing transition and
postdeployment/predischarge health assessment programs. The conference
report also includes my amendment that corrects a flaw in the law that
unintentionally restricted the number of families of injured
servicemembers who qualify for travel assistance. The change in the law
now ensures that families of injured servicemembers evacuated to a U.S.
hospital get at least one trip paid for so that these families can
quickly reunite and begin recovering from the trauma they have
experienced.
The military's high operational tempo over the last 4 years led it to
keep thousands of troops beyond their contractual separation dates
through a policy often referred to as ``stop-loss.'' The Pentagon did a
poor job of clearly disclosing to volunteers that they could be stop-
lossed and so many who thought they had completed their military
service found themselves deployed to a combat zone. It is not difficult
to understand how this policy turned upside down the lives of the
impacted troops and their families. The conference report includes an
amendment I authored requiring the Department of Defense to report on
the steps it is taking to clearly communicate the stop-loss policy to
potential enlistees and re-enlistees. I hope that, by pushing the
Department to report on the actions it is taken to ensure that
potential recruits know the terms of their service, the Department will
take quick action to address this problem.
Despite the unprecedented levels of defense spending, the Government
Accountability Office recently found that the Department of Defense is
not only doing a poor job in replacing equipment that is being rapidly
worn out but is not even tracking its equipment needs. Military
readiness has suffered as a result. I authored an amendment retained in
the conference report requiring DOD to submit a comprehensive report in
conjunction with the President's annual budget request that details
DOD's program strategies and funding plans to ensure that DOD's budget
decisions address these equipment deficiencies. Such a report will make
DOD's equipment needs more transparent and will allow Congress to
provide more effective oversight and hold the Department accountable.
I am disappointed that the conference report did not maintain the
bipartisan amendment I authored establishing the Civilian Linguist
Reserve Corps, CLRC, pilot project. Our Government is in desperate need
of people with critical language skills and the CLRC model, which is
strongly supported by the Defense Department, has
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the potential of addressing this need in a fiscally responsible manner.
It is unfortunate that the conferees chose to go another route.
In conclusion, I must note, as I have in all of the 13 years I have
served in the Senate, my disappointment that we continue the wasteful
trend of spending billions of dollars on Cold War-era weapons systems
while not fully funding our current needs. This enormous bill could
have been better. However, on balance this legislation contains many
good provisions for our men and women in uniform and their families and
that is why I support it.
Mr. CORNYN. Mr. President, I express my concern regarding the
adoption of the McCain amendment as part of the National Defense
Authorization Act. Although I am pleased the legislation now includes
important protections for the brave men and women who are interrogating
terrorists around the world, I am nevertheless concerned that this
legislation may hinder our intelligence collection activities.
Many supporters of the amendment, including the mainstream media,
claim that the legislation ``bans'' torture--leaving the impression
that torture was somehow legal under our current laws. This is
incorrect. Torture is prohibited under current U.S. law and treaty
obligations, and President Bush has unequivocally stated that the
United States will not engage in torture, and we will treat all
detainees in a humane fashion. In fact, this legislation will likely
prohibit current legal interrogation techniques that stop well short of
torture and are providing valuable intelligence information.
We all agree that in order to achieve victory in the war on terror,
the United States must have the very best intelligence we can acquire
through technical means and the interrogation of captured terrorists.
Many of these terrorists are highly trained to resist U.S.
interrogation techniques. Although I adamantly oppose torture, I
believe we must use every legal means--including aggressive
interrogation methods that some may find objectionable--to get
intelligence that will save American lives. I voted against the McCain
amendment out of a deep concern that it would potentially limit certain
interrogation methods that may be necessary to save American lives.
We know that aggressive--yet humane--interrogation techniques were
instrumental in gaining valuable information from Khalid Sheikh
Mohammed, a key architect of the 9/11 attacks, and other terrorists in
U.S. custody. We must not abandon these important and legal questioning
methods for the sake of political correctness. We must send a strong
signal to terrorists everywhere that if they are captured by the United
States, while they will be treated humanely, we will use every legal
method to force them to reveal their designs on the United States.
Torture does not produce good intelligence. People who are tortured
will tell their captors anything they want to hear and not the truth.
More importantly, torture does not represent the values of America and
all that we stand for as a Nation. However, we should not unnecessarily
limit our military and intelligence agencies from aggressively
interrogating those individuals who wish to kill innocent Americans. We
must always remember that the terrorists who attacked America on 9/11
are relentless in their efforts to destroy us.
Finally, some have argued that the passage of the McCain amendment
would have somehow prevented the heinous abuses that we saw at Abu
Ghraib prison. This is patently false. The individuals who committed
the abuses at Abu Ghraib knew their actions were against the law, yet
they violated core American values. The perpetrators of these crimes
are now being prosecuted, and the military has undertaken comprehensive
reforms to prevent future abuses. As noted by the independent
Schlesinger Panel in its report on detainee operations: ``There is no
evidence of a policy of abuse promulgated by senior officials or
military authorities.'' Our military has detained over 80,000
individuals and the instances of detainee abuse are extremely rare and
they are prosecuted when discovered. To imply that our military or
intelligence services are torturing detainees as a matter of policy is
a distortion of reality.
In our efforts to demonstrate to the world that the United States
does not torture terrorists, we must not weaken our ability to
prosecute the war on terror. Our military and intelligence personnel
must have the tools--including aggressive interrogation techniques--to
question captured terrorists. I remain concerned that the McCain
amendment, although admirable in its intent, may hinder our efforts to
collect vital intelligence, and I make no apologies for endorsing all
legal means of obtaining actionable intelligence that will save
American lives.
Mr. GRAHAM. Mr. President, today I rise to comment upon the recently
passed Defense authorization bill. That bill contained a Graham-Levin-
Kyl amendment which dealt with the Combatant Status Review Tribunals
and Military Commissions at Guantanamo Bay. I was very pleased to join
with Senators Levin and Kyl and others to offer this amendment, and I
want to thank them for working so hard on this issue.
In rising today, I address one particular section of our amendment,
the requirement that the tribunals consider whether evidence was
coerced. In drafting this section, we were compelled to recognize three
basic facts.
First, we were compelled to recognize the impracticality of importing
domestic criminal protections into a forum constructed to administer
what are essentially enemy soldiers; combatants for a very unique
enemy, an enemy without uniforms, capitals, or cohesive command
structures, but combatants nonetheless.
Second, we were forced to address the necessity of relying on
evidence without a complete picture of how it was obtained; evidence
that might be obscured by the fog of war, derived from battlefield
intelligence, from classified sources, or even through unknown
circumstances.
Lastly, we were required by our constitutional responsibilities to
err on the side of protecting the American people. In instances where
there is some doubt as to the evidence or the status of the detainee,
the benefit of the doubt must go to the government as it seeks to
discharge its first duty, providing for the common defense of our
people.
In our efforts to balance these interests, we initially included an
exclusionary rule for evidence obtained through ``undue coercion.'' We
felt that the term ``undue coercion'' reflected the reality that, in
the national security context, there is some level of coercive
interrogation that is acceptable. We also understand that, at some
point, the reliability of the information can be questioned as a result
of the methods used to obtain it. I believe Guantanamo Bay serves a
unique and necessary purpose in the war on terror, but we need to
ensure that we are holding the right people.
However, upon reconsideration, we came to believe that the term
``undue coercion,'' being a new term without legal precedent, might not
be as instructive as we required. Furthermore, a number of the military
judge advocates we consulted were concerned that the exclusionary rule
could limit them from considering evidence tainted by only an
allegation of mistreatment.
Therefore, after much consultation with legal professionals, we
decided to eliminate the ``undue'' qualifier. Unfortunately, striking
the qualifier also eliminated the consideration of whether the
information was obtained by acceptable sources and methods.
Accordingly, we decided to refrain from mandating the exclusionary
rule. Instead, our language requires, for the first time, the panels to
consider the source of the information and the information's
reliability. I am very confident our language provides for the proper
consideration.
Now, to be sure, our language also provides for the benefit of the
doubt to go to the government. In granting this benefit, however, we
recognize that we are fundamentally different from our adversaries.
Though we may fail at times, we strive to be fair and just and
honorable. And because our military men and women exemplify those
values, we can trust them to fairly administer this process. In the
end, we must remember that this is a military administrative process,
and, with the proper congressional and judicial oversight provided by
our amendment, we must trust our professional military officers to do
their jobs.
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In our amendment as a whole, we sought to protect our national
security while still striking the proper balance between aggressively
interrogating detainees and providing a competent military
administrative process for their status determination. I am confident
that this new evidentiary standard serves that goal.
Mr. DURBIN. Mr. President, I rise to speak about the Detainee
Treatment Act of 2005, which is included in the Defense authorization
conference report.
The Detainee Treatment Act includes two provisions that were adopted
in the Senate version of the Defense authorization bill: the McCain
antihuman torture amendment and the Graham-Levin Detainee Amendment.
I was an original cosponsor of the McCain Antitorture amendment. I
have spoken at length about the vital importance of this amendment on
several other occasions. At this time, I simply want to reiterate a
couple of points.
Twice in the last year and a half, I have authored amendments to
affirm our Nation's long standing position that torture and cruel,
inhuman, or degrading treatment are illegal. Twice, the Senate
unanimously approved my amendments. Both times, the amendments were
killed behind the closed doors of a conference committee--at the
insistence of the Bush administration.
I am pleased that the administration has changed its position. As a
result, it will now be absolutely clear that under U.S. law all U.S.
personnel are prohibited from subjecting any detainee anywhere in the
world to torture or cruel, inhuman, or degrading treatment.
The amendment defines cruel, inhuman, or degrading treatment as any
conduct that would constitute the cruel, unusual, and inhumane
treatment or punishment prohibited by the U.S. Constitution if the
conduct took place in the United States. Under this standard, abusive
treatment that would be unconstitutional in American prisons will not
be permissible anywhere in the world.
Let me give you some examples of conduct that is clearly prohibited
by the McCain amendment.
``Waterboarding'' or simulated drowning is a technique that was used
during the Spanish Inquisition. It is clearly a form of torture. It
creates an overwhelming sense of imminent death. It amounts to a clear-
cut threat of death akin to a mock execution, which is expressly called
mental torture in the U.S. Army Field Manual.
Sleep deprivation is another classic form of torture which is
explicitly called mental torture in the U.S. Army Field Manual. It has
been banned in the United Kingdom and by a unanimous Israeli Supreme
Court, and the U.S. Supreme Court has repeatedly declared it
unconstitutional, once citing a report that called it ``the most
effective form of torture.''
The amendment also clearly bans so-called stress positions or
painful, prolonged forced standing or shackling. Again, the U.S. Army
Field Manual expressly calls these techniques ``physical torture.''
Moreover, one of the most recent Supreme Court cases on the extent of
the prohibitions on ``cruel and unusual'' punishments expressly
outlawed the use of painful stress positions, denouncing their
``obvious cruelty'' as ``antithetical to human dignity.''
The amendment bans the use of extreme cold, or hypothermia, as an
interrogation tactic. Hypothermia can be deadly. Clearly it is capable
of causing severe and lasting harm, if not death, and consequently is
banned by both the Field Manual and the Constitution.
The amendment bans punching, striking, violently shaking, or beating
detainees. Striking prisoners is a criminal offense and clearly
unconstitutional. Moreover, while assaults like slapping and violent
shaking may not seem as dangerous as beatings, shaking did, in fact,
kill a prisoner in Israel, and the tactic has been banned by the
Israeli Supreme Court. Numerous U.S. Supreme Court cases likewise
prohibited striking prisoners.
The amendment bans the use of dogs in interrogation and the use of
nakedness and sexual humiliation for the purpose of degrading
prisoners.
No reasonable person, given the text of the amendment, the judicial
precedents, and common sense, would consider these techniques to be
permitted. Any U.S. official or employee who receives legal advice to
the contrary should think twice before defying the will of the Congress
on this issue.
The McCain antitorture amendment will make the rules for the
treatment of detainees clear to our troops and will send a signal to
the world about our Nation's commitment to the humane treatment of
detainees.
I want to express again my opposition to the Graham-Levin amendment.
The amendment would essentially eliminate habeas corpus for detainees
at Guantanamo Bay. In so doing, it would apparently overturn the
Supreme Court's landmark decision in Rasul v. Bush.
No one questions the fact that the United States has the power to
hold battlefield combatants for the duration of an armed conflict. That
is a fundamental premise of the law of war.
However, over the objections of then-Secretary of State Colin Powell
and military lawyers, the Bush administration has created a new
detention policy that goes far beyond the traditional law of war. The
administration claims the right to seize anyone, including an American
citizen, anywhere in the world, including in the United States, and to
hold him until the end of the war on terrorism, whenever that may be.
They claim that a person detained in the war on terrorism has no legal
rights. That means no right to a lawyer, no right to see the evidence
against him, and no right to challenge his detention.
In fact, the Government has argued in court that detainees would have
no right to challenge their detentions even if they claimed they were
being tortured or summarily executed.
U.S. military lawyers have called this detention system ``a legal
black hole.''
Defense Secretary Rumsfeld has described the detainees as ``the
hardest of the hard core'' and ``among the most dangerous, best
trained, vicious killers on the face of the Earth.'' However, the
administration now acknowledges that innocent people are held at
Guantanamo Bay. In late 2003, the Pentagon reportedly determined that
15 Chinese Muslims held at Guantanamo are not enemy combatants and were
mistakenly detained. Almost 2 years later, those individuals remain in
Guantanamo Bay.
Last year, in the Rasul decision, the Supreme Court rejected the
administration's detention policy. The Court held that detainees at
Guantanamo have the right to habeas corpus to challenge their
detentions in Federal court. The Court held that the detainees' claims
that they were detained for years without charge and without access to
counsel ``unquestionably describe custody in violation of the
Constitution, or laws or treaties of the United States.''
The Graham amendment would protect the Bush administration's
detention system from legal challenge. It would effectively overturn
the Supreme Court's decision. It would prevent innocent detainees, like
the Chinese Muslims, from challenging their detention.
However, I do want to note some limitations on the scope of the
Graham-Levin Amendment.
A critical feature of this legislation is that it is forward looking.
A law purporting to require a Federal court to give up its jurisdiction
over a case that is submitted and awaiting decision would raise grave
constitutional questions. The amendment's jurisdiction-stripping
provisions clearly do not apply to pending cases, including the Hamdan
v. Rumsfeld case, which is currently pending before the Supreme Court.
In accordance with our traditions, this amendment does not apply
retroactively to revoke the jurisdiction of the courts to consider
pending claims invoking the Great Writ of Habeas Corpus challenging
past enemy combatant determinations reached without the safeguards this
amendment requires for future determinations. The amendment alters the
original language introduced by Senator Graham so that those pending
cases are not affected by this provision.
The amendment also does not legislate an exhaustion requirement for
those who have already filed military commission challenges. As such,
nothing in the legislation alters or impacts the jurisdiction or merits
of the Hamdan case.
Nothing in the legislation affirmatively authorizes, or even
recognizes,
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the legal status of the military commissions at issue in Hamdan. That
is the precise question that the Supreme Court will decide in the next
months. Right now, the military commissions are legal under a decision
of the DC Circuit, and this amendment reflects but in no way endorses
that present status. It would be a grave mistake for our allies around
the world to think that we are endorsing this system at Guantanamo
Bay--a system that has produced not a single conviction in the 4 years
since the horrible attacks of September 11, 2001.
This provision attempts to address problems that have occurred in the
determinations of the status of people detained by the military at
Guantanamo Bay and elsewhere. It recognizes that the Combatant Status
Review Tribunal, CSRT, procedures applied in the past were inadequate
and must be changed going forward. As the former chief judge of the
U.S. Foreign Intelligence Surveillance Court found, in In Re Guantanamo
Detainee Cases, the past CSRT procedures ``deprive[d] the detainees of
sufficient notice of the factual bases for their detention and den[ied]
them a fair opportunity to challenge their incarceration,'' and allowed
``reliance on statements possibly obtained through torture or other
coercion.'' Her review ``call[ed] into serious question the nature and
thoroughness'' of the past CSRT process. The former CSRT procedures
were not issued by the Secretary of Defense, were not reported to or
approved by Congress, did not provide for final determinations by a
civilian official answerable to Congress, did not provide for the
consideration of new evidence, and did not address the use of
statements possibly obtained through coercion.
To address these problems, this provision requires the Secretary of
Defense to issue new CSRT procedures and report those procedures to the
appropriate committees of Congress; it requires that going forward, the
determinations be made by a Designated Civilian Official who is
answerable to Congress; it provides for the periodic review of new
evidence; it provides for future CSRTs to assess whether statements
were derived from coercion and their probative value; and it provides
for review in the DC Circuit Court of Appeals for these future CSRT
determinations.
Mr. REID. In a statement on November 15 of this year, I explained my
vote on amendments offered by Senators Graham, Levin, and Bingaman
regarding access to the Federal courts for detainees at Guantanamo Bay.
Now that a conference report containing a revised version of these
provisions is before us, I want to reiterate a few points.
I voted in favor of the Graham-Levin amendment because I believed it
was better than the original Graham amendment. Similarly, I will vote
in favor of this conference report because I favor the bill as a whole.
But I have mixed views on the detainee provisions of the conference
report, now in title X as the ``Detainee Treatment Act of 2005.''
On the one hand, I oppose stripping the courts of jurisdiction to
hear habeas corpus petitions. The writ of habeas corpus is one of the
pillars of the Anglo-American legal system, and limiting the Great Writ
interferes with the independence of the judiciary and violates
principles of separation of powers. The action we take today fails to
address adequately the Bush administration's flawed policy of detaining
suspects indefinitely, in secret, and without access to meaningful
judicial oversight.
On the other hand, I support provisions in this bill that require
improvements in the procedures and oversight of the Combatant Status
Review Tribunals. It is important to ensure that status determinations
of those detained at Guantanamo Bay and elsewhere are conducted in
accordance with basic requirements of due process and fairness. The
Defense Department must address the serious problems identified earlier
this year by Judge Green, the former chief judge of the U.S. Foreign
Intelligence Surveillance Court.
I am also pleased that the final law would allow courts to consider
whether the standards and procedures used by the Combatant Status
Review Tribunals are consistent with the Constitution and U.S. laws,
that it does not apply retroactively to pending habeas claims that
challenge past enemy combatant determinations reached without the
safeguards this amendment requires, and that it would allow for court
review of the actions of military commissions. I commend Senator Levin
for his work on these issues.
On balance, I support the final detainee provisions with the
following understandings:
First, I am pleased that Senator Graham's original language was
altered so that the Supreme Court would not be divested of jurisdiction
to hear the pending case of Hamdan v. Rumsfeld. In fact, subsection (h)
of section 1005 makes clear that the DC Circuit and other courts will
maintain jurisdiction to hear all pending habeas cases, in accordance
with the Supreme Court's decision in Lindh v. Murphy.
Second, on a related but distinct point, I believe this act has no
impact on the Supreme Court's ability to consider Hamdan's challenge at
this pre-conviction stage of the military commission proceedings. As
the DC Circuit held in Hamdan earlier this year, Ex Parte Quirin is a
compelling historical precedent for the power of civilian courts to
entertain challenges that are raised during a military commission
process. Nothing in these sections requires the courts to abstain at
this point in the litigation. Paragraph 3 of subsection 1005(e) governs
challenges to ``final decisions'' of the military commissions and does
not impact challenges like Hamdan's other cases not brought under that
paragraph.
Third, this legislation does not represent congressional acquiescence
in or authorization of the military commissions unilaterally
established by the executive branch at Guantanamo Bay. Whether these
commissions are legal is precisely the question the Supreme Court will
soon decide in the Hamdan case. Rather, this legislation reflects the
fact that the military commissions are currently legal under the DC
Circuit's decision in Hamdan. We legislate against this backdrop in
setting up a procedure to challenge the commissions, but we do not
necessarily endorse the use of such commissions in this manner.
I hope that the Judiciary Committee soon considers legislation to
define the rights of the detainees at Guantanamo with greater care and
to develop sensible procedures for enforcing those rights. Congress
should be guided by principles of human rights and the rule of law upon
which this Nation was founded.
The PRESIDING OFFICER. The question is on agreeing to the conference
report.
The conference report was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________