[Congressional Record Volume 151, Number 169 (Friday, December 30, 2005)]
[Extensions of Remarks]
[Pages E2654-E2655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




CONFERENCE REPORT ON H.R. 1815, THE NATIONAL DEFENSE AUTHORIZATION ACT 
                          FOR FISCAL YEAR 2006

                                 ______
                                 

                               speech of

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Sunday, December 18, 2005

  Mr. CONYERS. Mr. Speaker, while I am a strong supporter of the brave 
men and women who serve in our armed forces, I am deeply opposed to the 
unnecessary and pernicious last-minute amendment added to this bill by 
Senators Graham, Levin, and Kyl. I am also disappointed that the 
conferees have made further changes to the provision that will only 
further damage our rule of law and compromise the efforts of our 
soldiers around the world.
  Their amendment, which is now Section 1405 of this bill, may severely 
curtail the federal court's review of detainees operations in ways that 
do irreparable damage to our rule of law. The provision also fails 
unequivocally to condemn torture and abuse, or the erratic and 
unreliable information that practice yields. These flaws are contrary 
to the fundamental principles of our legal traditions.
  Let me first focus on the torture issue. Never before in America's 
proud history have we countenanced a system in which there is even a 
possibility that human liberty might be taken away based on evidence 
extracted by torture. And it is this refusal to debase ourselves, by 
resorting to immoral and illegal techniques, that lies at the core of 
our best and most noble traditions.
  We should have made clear beyond doubt in this provision that we do 
not approve of and we are not willing to tolerate a system that rests 
on torture today. Even if it were true that there may be some extreme 
case--say, the infamous ``ticking time-bomb'' scenario--that could 
vindicate the use of abhorrent physical coercion, that exceptional case 
would not warrant the use of that evidence--evidence that our 
intelligence services have told us is very often unreliable--in 
subsequent judicial proceedings. There is simply no excuse or 
justification for this omission.
  As we try to establish new democracies and the rule of law for Iraq 
and Afghanistan in place of sanctuaries for terrorists, Congress's 
failure to condemn and bar abuse is shameful, intolerable, and deeply 
hypocritical: How can we refuse to practice what we preach to other 
countries?
  Congress must return to this issue as soon as possible and make good 
the promise of Senator McCain's wise anti-abuse provision; after all 
standards are important but, as we have learned time and time again, we 
also need accountability and enforcement.
  Time is of the essence because continued torture and abuse hurts our 
efforts in Iraq and beyond against al Qaeda. The persistent wave of 
stories about prisoners detained for the wrong reasons, or subjected to 
inappropriate treatment or abuse while in U.S. custody has inflicted 
terrible harm on our reputation, and on the efforts by our brave men 
and women in Iraq to win the hearts and minds campaign. Establishing a 
meaningful system of accountability for detainee operations is not only 
a matter of restoring America's honor in the eyes in the world, it is a 
vital part of our counterterrorism strategy.

  Accountability, moreover, cannot be achieved without independent 
monitoring mechanisms. The rule of law, as events of the past four 
years have made clear, dies behind closed doors and barbed-wire. 
Cutting off meaningful judicial supervision of the Guantanamo Naval 
Base will not restore the military's honor. And turning the federal 
courts into rubber stamps for decisions generated through the rack and 
the screw would stain our legal traditions.
  As Senator Specter powerfully urged, these difficult issues must be 
assigned to the House and Senate Judiciary Committees for their careful 
and expert consideration. Senator Specter's wise counsel has been 
repeated in letters from senior members of our armed forces, who have 
already retired; a bipartisan group of respected former federal judges; 
the American Bar Association; and a broad cross-section of professors 
from the legal academy. This wide-ranging opposition indicates how 
thorny these issues are, and how unwise it is to move so quickly on 
them.
  I am heartened, however, that we have been able to preserve much that 
is not harmful in this provision. There are some sound ideas embedded 
in these provisions that we should use when we reconsider these issues.
  Central to Congress's aim in this provision is a distinction between 
those detainees who have already been subject to a Combatant Status 
Review Tribunal (CSRT) and new detainees who will be subject to a 
future CSRT procedure that Congress will certify more than six months 
from now. For those who have already been subject to a CSRT and now 
challenge either that procedure or the lawfulness of the military 
commission system, the provision does not affect access to the federal 
courts.
  Through section(h)(2), Congress has crafted a new system of judicial 
review for cases that will be brought under a new system of CSRTs, to 
be designed by the Secretary of Defense and reviewed with care by 
Congress. These appeals from new CSRTs will be heard in the United 
States Court of Appeals for the District of Columbia Circuit. And even 
in these new cases, the provision does not alter the now-established 
ability of attorneys to visit clients at Guantanamo. Attorneys 
litigating their cases in a circuit court need access to and 
communication with their client, as recent filings in the Hamdan v. 
Rumsfeld case show.
  But section (h)(2) also circumscribes the new system of review to new 
cases, which will of necessity arise more than six months from now, 
when the new CSRT procedures have been promulgated. We have preserved 
the existing, expansive review role of the federal courts for the 
habeas petitions filed by those who have already been through a CSRT. 
So detainees who have already had a CSRT hearing, including those who 
have pending habeas petitions, will continue to have traditional habeas 
review.
  We also chose in paragraph 3 of subsection (e) not to legislate an 
abstention rule. For those who have filed challenges to their military 
commissions, we did not take the extraordinary step of requiring 
convictions or other exhaustion before they come into federal court. As 
in Ex Parte Quirin, we have permitted pre-conviction challenge to be 
brought up to the U.S. Supreme Court. Paragraph 3

[[Page E2655]]

simply governs challenges to ``final decisions'' of commissions, and 
does not impact challenges when they are not brought ``under [that] 
paragraph.'' See Section 1405 (e)(3)(c),(d).

  To be sure, a few provisions are singled out to apply to pending 
cases, but these are provisions that give those who have filed cases 
additional rights, instead of taking any rights away. One such 
provision was added in conference with respect to coerced testimony, 
Section 1405(b)(2). But that provision does not in any way alter the 
clear intent of the Congress, which was to grandfather the jurisdiction 
of existing Guantanamo habeas and mandamus lawsuits under Lindh v. 
Murphy.
  As such, nothing in the legislation alters or impacts the 
jurisdiction or merits of Hamdan. And, quite obviously, nothing in the 
legislation constitutes affirmative authorization, or even toleration, 
for the military commissions at issue in that case. That is the 
question that the Supreme Court will decide in the coming months. Our 
mention of commissions simply reflects, but does not endorse, the fact 
that the lower court in Hamdan held them legal.
  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 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 D.C. Circuit Court of Appeals for these future CSRT 
determinations.
  At the same time, 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. 
Accordingly, subsection (h)(1) establishes that generally the 
provisions of this section, including subsection (e)(1), which affects 
the substantive rights of parties, apply only as of the date of 
enactment of this provision in accordance with the Supreme Court's 
decision in Lindh v. Murphy.
  Recognizing the Supreme Court's concerns about judicial independence 
in cases such as City of Boerne v. Flores and United States v. 
Morrison, we have underscored that Congress is not attempting to settle 
any constitutional question that is the proper province of the federal 
courts. Thus in sections (e)(2)(C)(ii), (e)(3)(D)(ii), and (f), we have 
made clear, out of an abundance of caution, that we not purport to 
decide any constitutional question that remains within the proper 
bailiwick of the federal courts pursuant to Article III of the 
Constitution. Thus, this provision does not speak to the 
constitutionality of the military commissions or the old CSRTs. We 
leave it to the courts to decide these questions.