[Congressional Record Volume 152, Number 123 (Wednesday, September 27, 2006)]
[House]
[Pages H7522-H7561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MILITARY COMMISSIONS ACT OF 2006

  Mr. HUNTER. Mr. Speaker, pursuant to House Resolution 1042, I call up 
the bill (H.R. 6166) to amend title 10, United States Code, to 
authorize trial by military commission for violations of the law of 
war, and for other purposes, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 1042, the 
amendment printed in House Report 109-688 is adopted and the bill, as 
amended, is considered read.
  The text of the bill, as amended, is as follows:

                               H.R. 6166

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Military 
     Commissions Act of 2006''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military 
              commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to 
              protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status 
              Review Tribunals of propriety of detention.

     SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH 
                   MILITARY COMMISSIONS.

       The authority to establish military commissions under 
     chapter 47A of title 10, United States Code, as added by 
     section 3(a), may not be construed to alter or limit the 
     authority of the President under the Constitution of the 
     United States and laws of the United States to establish 
     military commissions for areas declared to be under martial 
     law or in occupied territories should circumstances so 
     require.

     SEC. 3. MILITARY COMMISSIONS.

       (a) Military Commissions.--
       (1) In general.--Subtitle A of title 10, United States 
     Code, is amended by inserting after chapter 47 the following 
     new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``Subchapter
``I. General Provisions...........................................948a 
``II. Composition of Military Commissions.........................948h 
``III. Pre-Trial Procedure........................................948q 
``IV. Trial Procedure.............................................949a 
``V. Sentences....................................................949s 
``VI. Post-Trial Procedure and Review of Military Commissions.....950a 
``VII. Punitive Matters...........................................950p 

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.

     ``Sec. 948a. Definitions

       ``In this chapter:
       ``(1) Unlawful enemy combatant.--(A) The term `unlawful 
     enemy combatant' means--
       ``(i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States or its co-belligerents who is not a lawful 
     enemy combatant (including a person who is part of the 
     Taliban, al Qaeda, or associated forces); or
       ``(ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal 
     established under the authority of the President or the 
     Secretary of Defense.
       ``(B) Co-belligerent.--In this paragraph, the term `co-
     belligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the 
     United States in hostilities or directly supporting 
     hostilities against a common enemy.
       ``(2) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means a person who is--
       ``(A) a member of the regular forces of a State party 
     engaged in hostilities against the United States;
       ``(B) a member of a militia, volunteer corps, or organized 
     resistance movement belonging to a State party engaged in 
     such hostilities, which are under responsible command, wear a 
     fixed distinctive sign recognizable at a distance, carry 
     their arms openly, and abide by the law of war; or
       ``(C) a member of a regular armed force who professes 
     allegiance to a government engaged in such hostilities, but 
     not recognized by the United States.
       ``(3) Alien.--The term `alien' means a person who is not a 
     citizen of the United States.
       ``(4) Classified information.--The term `classified 
     information' means the following:
       ``(A) Any information or material that has been determined 
     by the United States Government pursuant to statute, 
     Executive order, or regulation to require protection against 
     unauthorized disclosure for reasons of national security.
       ``(B) Any restricted data, as that term is defined in 
     section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2014(y)).
       ``(5) Geneva conventions.--The term `Geneva Conventions' 
     means the international conventions signed at Geneva on 
     August 12, 1949.

     ``Sec. 948b. Military commissions generally

       ``(a) Purpose.--This chapter establishes procedures 
     governing the use of military

[[Page H7523]]

     commissions to try alien unlawful enemy combatants engaged in 
     hostilities against the United States for violations of the 
     law of war and other offenses triable by military commission.
       ``(b) Authority for Military Commissions Under This 
     Chapter.--The President is authorized to establish military 
     commissions under this chapter for offenses triable by 
     military commission as provided in this chapter.
       ``(c) Construction of Provisions.--The procedures for 
     military commissions set forth in this chapter are based upon 
     the procedures for trial by general courts-martial under 
     chapter 47 of this title (the Uniform Code of Military 
     Justice). Chapter 47 of this title does not, by its terms, 
     apply to trial by military commission except as specifically 
     provided in this chapter. The judicial construction and 
     application of that chapter are not binding on military 
     commissions established under this chapter.
       ``(d) Inapplicability of Certain Provisions.--(1) The 
     following provisions of this title shall not apply to trial 
     by military commission under this chapter:
       ``(A) Section 810 (article 10 of the Uniform Code of 
     Military Justice), relating to speedy trial, including any 
     rule of courts-martial relating to speedy trial.
       ``(B) Sections 831(a), (b), and (d) (articles 31(a), (b), 
     and (d) of the Uniform Code of Military Justice), relating to 
     compulsory self-incrimination.
       ``(C) Section 832 (article 32 of the Uniform Code of 
     Military Justice), relating to pretrial investigation.
       ``(2) Other provisions of chapter 47 of this title shall 
     apply to trial by military commission under this chapter only 
     to the extent provided by this chapter.
       ``(e) Treatment of Rulings and Precedents.--The findings, 
     holdings, interpretations, and other precedents of military 
     commissions under this chapter may not be introduced or 
     considered in any hearing, trial, or other proceeding of a 
     court-martial convened under chapter 47 of this title. The 
     findings, holdings, interpretations, and other precedents of 
     military commissions under this chapter may not form the 
     basis of any holding, decision, or other determination of a 
     court-martial convened under that chapter.
       ``(f) Status of Commissions Under Common Article 3.--A 
     military commission established under this chapter is a 
     regularly constituted court, affording all the necessary 
     `judicial guarantees which are recognized as indispensable by 
     civilized peoples' for purposes of common Article 3 of the 
     Geneva Conventions.
       ``(g) Geneva Conventions Not Establishing Source of 
     Rights.--No alien unlawful enemy combatant subject to trial 
     by military commission under this chapter may invoke the 
     Geneva Conventions as a source of rights.

     ``Sec. 948c. Persons subject to military commissions

       ``Any alien unlawful enemy combatant is subject to trial by 
     military commission under this chapter.

     ``Sec. 948d. Jurisdiction of military commissions

       ``(a) Jurisdiction.--A military commission under this 
     chapter shall have jurisdiction to try any offense made 
     punishable by this chapter or the law of war when committed 
     by an alien unlawful enemy combatant before, on, or after 
     September 11, 2001.
       ``(b) Lawful Enemy Combatants.--Military commissions under 
     this chapter shall not have jurisdiction over lawful enemy 
     combatants. Lawful enemy combatants who violate the law of 
     war are subject to chapter 47 of this title. Courts-martial 
     established under that chapter shall have jurisdiction to try 
     a lawful enemy combatant for any offense made punishable 
     under this chapter.
       ``(c) Determination of Unlawful Enemy Combatant Status 
     Dispositive.--A finding, whether before, on, or after the 
     date of the enactment of the Military Commissions Act of 
     2006, by a Combatant Status Review Tribunal or another 
     competent tribunal established under the authority of the 
     President or the Secretary of Defense that a person is an 
     unlawful enemy combatant is dispositive for purposes of 
     jurisdiction for trial by military commission under this 
     chapter.
       ``(d) Punishments.--A military commission under this 
     chapter may, under such limitations as the Secretary of 
     Defense may prescribe, adjudge any punishment not forbidden 
     by this chapter, including the penalty of death when 
     authorized under this chapter or the law of war.

     ``Sec. 948e. Annual report to congressional committees

       ``(a) Annual Report Required.--Not later than December 31 
     each year, the Secretary of Defense shall submit to the 
     Committees on Armed Services of the Senate and the House of 
     Representatives a report on any trials conducted by military 
     commissions under this chapter during such year.
       ``(b) Form.--Each report under this section shall be 
     submitted in unclassified form, but may include a classified 
     annex.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
              members.

     ``Sec. 948h. Who may convene military commissions

       ``Military commissions under this chapter may be convened 
     by the Secretary of Defense or by any officer or official of 
     the United States designated by the Secretary for that 
     purpose.

     ``Sec. 948i. Who may serve on military commissions

       ``(a) In General.--Any commissioned officer of the armed 
     forces on active duty is eligible to serve on a military 
     commission under this chapter.
       ``(b) Detail of Members.--When convening a military 
     commission under this chapter, the convening authority shall 
     detail as members of the commission such members of the armed 
     forces eligible under subsection (a), as in the opinion of 
     the convening authority, are best qualified for the duty by 
     reason of age, education, training, experience, length of 
     service, and judicial temperament. No member of an armed 
     force is eligible to serve as a member of a military 
     commission when such member is the accuser or a witness for 
     the prosecution or has acted as an investigator or counsel in 
     the same case.
       ``(c) Excuse of Members.--Before a military commission 
     under this chapter is assembled for the trial of a case, the 
     convening authority may excuse a member from participating in 
     the case.

     ``Sec. 948j. Military judge of a military commission

       ``(a) Detail of Military Judge.--A military judge shall be 
     detailed to each military commission under this chapter. The 
     Secretary of Defense shall prescribe regulations providing 
     for the manner in which military judges are so detailed to 
     military commissions. The military judge shall preside over 
     each military commission to which he has been detailed.
       ``(b) Qualifications.--A military judge shall be a 
     commissioned officer of the armed forces who is a member of 
     the bar of a Federal court, or a member of the bar of the 
     highest court of a State, and who is certified to be 
     qualified for duty under section 826 of this title (article 
     26 of the Uniform Code of Military Justice) as a military 
     judge in general courts-martial by the Judge Advocate General 
     of the armed force of which such military judge is a member.
       ``(c) Ineligibility of Certain Individuals.--No person is 
     eligible to act as military judge in a case of a military 
     commission under this chapter if he is the accuser or a 
     witness or has acted as investigator or a counsel in the same 
     case.
       ``(d) Consultation With Members; Ineligibility to Vote.--A 
     military judge detailed to a military commission under this 
     chapter may not consult with the members of the commission 
     except in the presence of the accused (except as otherwise 
     provided in section 949d of this title), trial counsel, and 
     defense counsel, nor may he vote with the members of the 
     commission.
       ``(e) Other Duties.--A commissioned officer who is 
     certified to be qualified for duty as a military judge of a 
     military commission under this chapter may perform such other 
     duties as are assigned to him by or with the approval of the 
     Judge Advocate General of the armed force of which such 
     officer is a member or the designee of such Judge Advocate 
     General.
       ``(f) Prohibition on Evaluation of Fitness by Convening 
     Authority.--The convening authority of a military commission 
     under this chapter shall not prepare or review any report 
     concerning the effectiveness, fitness, or efficiency of a 
     military judge detailed to the military commission which 
     relates to his performance of duty as a military judge on the 
     military commission.

     ``Sec. 948k. Detail of trial counsel and defense counsel

       ``(a) Detail of Counsel Generally.--(1) Trial counsel and 
     military defense counsel shall be detailed for each military 
     commission under this chapter.
       ``(2) Assistant trial counsel and assistant and associate 
     defense counsel may be detailed for a military commission 
     under this chapter.
       ``(3) Military defense counsel for a military commission 
     under this chapter shall be detailed as soon as practicable 
     after the swearing of charges against the accused.
       ``(4) The Secretary of Defense shall prescribe regulations 
     providing for the manner in which trial counsel and military 
     defense counsel are detailed for military commissions under 
     this chapter and for the persons who are authorized to detail 
     such counsel for such commissions.
       ``(b) Trial Counsel.--Subject to subsection (e), trial 
     counsel detailed for a military commission under this chapter 
     must be--
       ``(1) a judge advocate (as that term is defined in section 
     801 of this title (article 1 of the Uniform Code of Military 
     Justice) who--
       ``(A) is a graduate of an accredited law school or is a 
     member of the bar of a Federal court or of the highest court 
     of a State; and
       ``(B) is certified as competent to perform duties as trial 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member; or
       ``(2) a civilian who--

[[Page H7524]]

       ``(A) is a member of the bar of a Federal court or of the 
     highest court of a State; and
       ``(B) is otherwise qualified to practice before the 
     military commission pursuant to regulations prescribed by the 
     Secretary of Defense.
       ``(c) Military Defense Counsel.--Subject to subsection (e), 
     military defense counsel detailed for a military commission 
     under this chapter must be a judge advocate (as so defined) 
     who is--
       ``(1) a graduate of an accredited law school or is a member 
     of the bar of a Federal court or of the highest court of a 
     State; and
       ``(2) certified as competent to perform duties as defense 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member.
       ``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The 
     Chief Prosecutor in a military commission under this chapter 
     shall meet the requirements set forth in subsection (b)(1).
       ``(2) The Chief Defense Counsel in a military commission 
     under this chapter shall meet the requirements set forth in 
     subsection (c)(1).
       ``(e) Ineligibility of Certain Individuals.--No person who 
     has acted as an investigator, military judge, or member of a 
     military commission under this chapter in any case may act 
     later as trial counsel or military defense counsel in the 
     same case. No person who has acted for the prosecution before 
     a military commission under this chapter may act later in the 
     same case for the defense, nor may any person who has acted 
     for the defense before a military commission under this 
     chapter act later in the same case for the prosecution.

     ``Sec. 948l. Detail or employment of reporters and 
       interpreters

       ``(a) Court Reporters.--Under such regulations as the 
     Secretary of Defense may prescribe, the convening authority 
     of a military commission under this chapter shall detail to 
     or employ for the commission qualified court reporters, who 
     shall make a verbatim recording of the proceedings of and 
     testimony taken before the commission.
       ``(b) Interpreters.--Under such regulations as the 
     Secretary of Defense may prescribe, the convening authority 
     of a military commission under this chapter may detail to or 
     employ for the military commission interpreters who shall 
     interpret for the commission and, as necessary, for trial 
     counsel and defense counsel and for the accused.
       ``(c) Transcript; Record.--The transcript of a military 
     commission under this chapter shall be under the control of 
     the convening authority of the commission, who shall also be 
     responsible for preparing the record of the proceedings.

     ``Sec. 948m. Number of members; excuse of members; absent and 
       additional members

       ``(a) Number of Members.--(1) A military commission under 
     this chapter shall, except as provided in paragraph (2), have 
     at least five members.
       ``(2) In a case in which the accused before a military 
     commission under this chapter may be sentenced to a penalty 
     of death, the military commission shall have the number of 
     members prescribed by section 949m(c) of this title.
       ``(b) Excuse of Members.--No member of a military 
     commission under this chapter may be absent or excused after 
     the military commission has been assembled for the trial of a 
     case unless excused--
       ``(1) as a result of challenge;
       ``(2) by the military judge for physical disability or 
     other good cause; or
       ``(3) by order of the convening authority for good cause.
       ``(c) Absent and Additional Members.--Whenever a military 
     commission under this chapter is reduced below the number of 
     members required by subsection (a), the trial may not proceed 
     unless the convening authority details new members sufficient 
     to provide not less than such number. The trial may proceed 
     with the new members present after the recorded evidence 
     previously introduced before the members has been read to the 
     military commission in the presence of the military judge, 
     the accused (except as provided in section 949d of this 
     title), and counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of 
              statements obtained by torture and other statements.
``948s. Service of charges.

     ``Sec. 948q. Charges and specifications

       ``(a) Charges and Specifications.--Charges and 
     specifications against an accused in a military commission 
     under this chapter shall be signed by a person subject to 
     chapter 47 of this title under oath before a commissioned 
     officer of the armed forces authorized to administer oaths 
     and shall state--
       ``(1) that the signer has personal knowledge of, or reason 
     to believe, the matters set forth therein; and
       ``(2) that they are true in fact to the best of the 
     signer's knowledge and belief.
       ``(b) Notice to Accused.--Upon the swearing of the charges 
     and specifications in accordance with subsection (a), the 
     accused shall be informed of the charges against him as soon 
     as practicable.

     ``Sec. 948r. Compulsory self-incrimination prohibited; 
       treatment of statements obtained by torture and other 
       statements

       ``(a) In General.--No person shall be required to testify 
     against himself at a proceeding of a military commission 
     under this chapter.
       ``(b) Exclusion of Statements Obtained by Torture.--A 
     statement obtained by use of torture shall not be admissible 
     in a military commission under this chapter, except against a 
     person accused of torture as evidence that the statement was 
     made.
       ``(c) Statements Obtained Before Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained before December 
     30, 2005 (the date of the enactment of the Defense Treatment 
     Act of 2005) in which the degree of coercion is disputed may 
     be admitted only if the military judge finds that--
       ``(1) the totality of the circumstances renders the 
     statement reliable and possessing sufficient probative value; 
     and
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence.
       ``(d) Statements Obtained After Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained on or after 
     December 30, 2005 (the date of the enactment of the Defense 
     Treatment Act of 2005) in which the degree of coercion is 
     disputed may be admitted only if the military judge finds 
     that--
       ``(1) the totality of the circumstances renders the 
     statement reliable and possessing sufficient probative value;
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence; and
       ``(3) the interrogation methods used to obtain the 
     statement do not amount to cruel, inhuman, or degrading 
     treatment prohibited by section 1003 of the Detainee 
     Treatment Act of 2005.

     ``Sec. 948s. Service of charges

       ``The trial counsel assigned to a case before a military 
     commission under this chapter shall cause to be served upon 
     the accused and military defense counsel a copy of the 
     charges upon which trial is to be had. Such charges shall be 
     served in English and, if appropriate, in another language 
     that the accused understands. Such service shall be made 
     sufficiently in advance of trial to prepare a defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.

     ``Sec. 949a. Rules

       ``(a) Procedures and Rules of Evidence.--Pretrial, trial, 
     and post-trial procedures, including elements and modes of 
     proof, for cases triable by military commission under this 
     chapter may be prescribed by the Secretary of Defense, in 
     consultation with the Attorney General. Such procedures 
     shall, so far as the Secretary considers practicable or 
     consistent with military or intelligence activities, apply 
     the principles of law and the rules of evidence in trial by 
     general courts-martial. Such procedures and rules of evidence 
     may not be contrary to or inconsistent with this chapter.
       ``(b) Rules for Military Commission.--(1) Notwithstanding 
     any departures from the law and the rules of evidence in 
     trial by general courts-martial authorized by subsection (a), 
     the procedures and rules of evidence in trials by military 
     commission under this chapter shall include the following:
       ``(A) The accused shall be permitted to present evidence in 
     his defense, to cross-examine the witnesses who testify 
     against him, and to examine and respond to evidence admitted 
     against him on the issue of guilt or innocence and for 
     sentencing, as provided for by this chapter.
       ``(B) The accused shall be present at all sessions of the 
     military commission (other than those for deliberations or 
     voting), except when excluded under section 949d of this 
     title.
       ``(C) The accused shall receive the assistance of counsel 
     as provided for by section 948k.
       ``(D) The accused shall be permitted to represent himself, 
     as provided for by paragraph (3).
       ``(2) In establishing procedures and rules of evidence for 
     military commission proceedings, the Secretary of Defense may 
     prescribe the following provisions:
       ``(A) Evidence shall be admissible if the military judge 
     determines that the evidence would have probative value to a 
     reasonable person.
       ``(B) Evidence shall not be excluded from trial by military 
     commission on the grounds that the evidence was not seized 
     pursuant to a search warrant or other authorization.
       ``(C) A statement of the accused that is otherwise 
     admissible shall not be excluded from trial by military 
     commission on grounds of alleged coercion or compulsory self-
     incrimination so long as the evidence

[[Page H7525]]

     complies with the provisions of section 948r of this title.
       ``(D) Evidence shall be admitted as authentic so long as--
       ``(i) the military judge of the military commission 
     determines that there is sufficient basis to find that the 
     evidence is what it is claimed to be; and
       ``(ii) the military judge instructs the members that they 
     may consider any issue as to authentication or identification 
     of evidence in determining the weight, if any, to be given to 
     the evidence.
       ``(E)(i) Except as provided in clause (ii), hearsay 
     evidence not otherwise admissible under the rules of evidence 
     applicable in trial by general courts-martial may be admitted 
     in a trial by military commission if the proponent of the 
     evidence makes known to the adverse party, sufficiently in 
     advance to provide the adverse party with a fair opportunity 
     to meet the evidence, the intention of the proponent to offer 
     the evidence, and the particulars of the evidence (including 
     information on the general circumstances under which the 
     evidence was obtained). The disclosure of evidence under the 
     preceding sentence is subject to the requirements and 
     limitations applicable to the disclosure of classified 
     information in section 949j(c) of this title.
       ``(ii) Hearsay evidence not otherwise admissible under the 
     rules of evidence applicable in trial by general courts-
     martial shall not be admitted in a trial by military 
     commission if the party opposing the admission of the 
     evidence demonstrates that the evidence is unreliable or 
     lacking in probative value.
       ``(F) The military judge shall exclude any evidence the 
     probative value of which is substantially outweighed--
       ``(i) by the danger of unfair prejudice, confusion of the 
     issues, or misleading the commission; or
       ``(ii) by considerations of undue delay, waste of time, or 
     needless presentation of cumulative evidence.
       ``(3)(A) The accused in a military commission under this 
     chapter who exercises the right to self-representation under 
     paragraph (1)(D) shall conform his deportment and the conduct 
     of the defense to the rules of evidence, procedure, and 
     decorum applicable to trials by military commission.
       ``(B) Failure of the accused to conform to the rules 
     described in subparagraph (A) may result in a partial or 
     total revocation by the military judge of the right of self-
     representation under paragraph (1)(D). In such case, the 
     detailed defense counsel of the accused or an appropriately 
     authorized civilian counsel shall perform the functions 
     necessary for the defense.
       ``(c) Delegation of Authority to Prescribe Regulations.--
     The Secretary of Defense may delegate the authority of the 
     Secretary to prescribe regulations under this chapter.
       ``(d) Notification to Congressional Committees of Changes 
     to Procedures.--Not later than 60 days before the date on 
     which any proposed modification of the procedures in effect 
     for military commissions under this chapter goes into effect, 
     the Secretary of Defense shall submit to the Committee on 
     Armed Services of the Senate and the Committee on Armed 
     Services of the House of Representatives a report describing 
     the modification.

     ``Sec. 949b. Unlawfully influencing action of military 
       commission

       ``(a) In General.--(1) No authority convening a military 
     commission under this chapter may censure, reprimand, or 
     admonish the military commission, or any member, military 
     judge, or counsel thereof, with respect to the findings or 
     sentence adjudged by the military commission, or with respect 
     to any other exercises of its or his functions in the conduct 
     of the proceedings.
       ``(2) No person may attempt to coerce or, by any 
     unauthorized means, influence--
       ``(A) the action of a military commission under this 
     chapter, or any member thereof, in reaching the findings or 
     sentence in any case;
       ``(B) the action of any convening, approving, or reviewing 
     authority with respect to his judicial acts; or
       ``(C) the exercise of professional judgment by trial 
     counsel or defense counsel.
       ``(3) Paragraphs (1) and (2) do not apply with respect to--
       ``(A) general instructional or informational courses in 
     military justice if such courses are designed solely for the 
     purpose of instructing members of a command in the 
     substantive and procedural aspects of military commissions; 
     or
       ``(B) statements and instructions given in open proceedings 
     by a military judge or counsel.
       ``(b) Prohibition on Consideration of Actions on Commission 
     in Evaluation of Fitness.--In the preparation of an 
     effectiveness, fitness, or efficiency report or any other 
     report or document used in whole or in part for the purpose 
     of determining whether a commissioned officer of the armed 
     forces is qualified to be advanced in grade, or in 
     determining the assignment or transfer of any such officer or 
     whether any such officer should be retained on active duty, 
     no person may--
       ``(1) consider or evaluate the performance of duty of any 
     member of a military commission under this chapter; or
       ``(2) give a less favorable rating or evaluation to any 
     commissioned officer because of the zeal with which such 
     officer, in acting as counsel, represented any accused before 
     a military commission under this chapter.

     ``Sec. 949c. Duties of trial counsel and defense counsel

       ``(a) Trial Counsel.--The trial counsel of a military 
     commission under this chapter shall prosecute in the name of 
     the United States.
       ``(b) Defense Counsel.--(1) The accused shall be 
     represented in his defense before a military commission under 
     this chapter as provided in this subsection.
       ``(2) The accused shall be represented by military counsel 
     detailed under section 948k of this title.
       ``(3) The accused may be represented by civilian counsel if 
     retained by the accused, but only if such civilian counsel--
       ``(A) is a United States citizen;
       ``(B) is admitted to the practice of law in a State, 
     district, or possession of the United States or before a 
     Federal court;
       ``(C) has not been the subject of any sanction of 
     disciplinary action by any court, bar, or other competent 
     governmental authority for relevant misconduct;
       ``(D) has been determined to be eligible for access to 
     classified information that is classified at the level Secret 
     or higher; and
       ``(E) has signed a written agreement to comply with all 
     applicable regulations or instructions for counsel, including 
     any rules of court for conduct during the proceedings.
       ``(4) Civilian defense counsel shall protect any classified 
     information received during the course of representation of 
     the accused in accordance with all applicable law governing 
     the protection of classified information and may not divulge 
     such information to any person not authorized to receive it.
       ``(5) If the accused is represented by civilian counsel, 
     detailed military counsel shall act as associate counsel.
       ``(6) The accused is not entitled to be represented by more 
     than one military counsel. However, the person authorized 
     under regulations prescribed under section 948k of this title 
     to detail counsel, in that person's sole discretion, may 
     detail additional military counsel to represent the accused.
       ``(7) Defense counsel may cross-examine each witness for 
     the prosecution who testifies before a military commission 
     under this chapter.

     ``Sec. 949d. Sessions

       ``(a) Sessions Without Presence of Members.--(1) At any 
     time after the service of charges which have been referred 
     for trial by military commission under this chapter, the 
     military judge may call the military commission into session 
     without the presence of the members for the purpose of--
       ``(A) hearing and determining motions raising defenses or 
     objections which are capable of determination without trial 
     of the issues raised by a plea of not guilty;
       ``(B) hearing and ruling upon any matter which may be ruled 
     upon by the military judge under this chapter, whether or not 
     the matter is appropriate for later consideration or decision 
     by the members;
       ``(C) if permitted by regulations prescribed by the 
     Secretary of Defense, receiving the pleas of the accused; and
       ``(D) performing any other procedural function which may be 
     performed by the military judge under this chapter or under 
     rules prescribed pursuant to section 949a of this title and 
     which does not require the presence of the members.
       ``(2) Except as provided in subsections (c) and (e), any 
     proceedings under paragraph (1) shall--
       ``(A) be conducted in the presence of the accused, defense 
     counsel, and trial counsel; and
       ``(B) be made part of the record.
       ``(b) Proceedings in Presence of Accused.--Except as 
     provided in subsections (c) and (e), all proceedings of a 
     military commission under this chapter, including any 
     consultation of the members with the military judge or 
     counsel, shall--
       ``(1) be in the presence of the accused, defense counsel, 
     and trial counsel; and
       ``(2) be made a part of the record.
       ``(c) Deliberation or Vote of Members.--When the members of 
     a military commission under this chapter deliberate or vote, 
     only the members may be present.
       ``(d) Closure of Proceedings.--(1) The military judge may 
     close to the public all or part of the proceedings of a 
     military commission under this chapter, but only in 
     accordance with this subsection.
       ``(2) The military judge may close to the public all or a 
     portion of the proceedings under paragraph (1) only upon 
     making a specific finding that such closure is necessary to--
       ``(A) protect information the disclosure of which could 
     reasonably be expected to cause damage to the national 
     security, including intelligence or law enforcement sources, 
     methods, or activities; or
       ``(B) ensure the physical safety of individuals.
       ``(3) A finding under paragraph (2) may be based upon a 
     presentation, including a presentation ex parte or in camera, 
     by either trial counsel or defense counsel.
       ``(e) Exclusion of Accused From Certain Proceedings.--The 
     military judge may exclude the accused from any portion of a 
     proceeding upon a determination that, after being warned by 
     the military judge, the accused persists in conduct that 
     justifies exclusion from the courtroom--
       ``(1) to ensure the physical safety of individuals; or

[[Page H7526]]

       ``(2) to prevent disruption of the proceedings by the 
     accused.
       ``(f) Protection of Classified Information.--
       ``(1) National security privilege.--(A) Classified 
     information shall be protected and is privileged from 
     disclosure if disclosure would be detrimental to the national 
     security. The rule in the preceding sentence applies to all 
     stages of the proceedings of military commissions under this 
     chapter.
       ``(B) The privilege referred to in subparagraph (A) may be 
     claimed by the head of the executive or military department 
     or government agency concerned based on a finding by the head 
     of that department or agency that--
       ``(i) the information is properly classified; and
       ``(ii) disclosure of the information would be detrimental 
     to the national security.
       ``(C) A person who may claim the privilege referred to in 
     subparagraph (A) may authorize a representative, witness, or 
     trial counsel to claim the privilege and make the finding 
     described in subparagraph (B) on behalf of such person. The 
     authority of the representative, witness, or trial counsel to 
     do so is presumed in the absence of evidence to the contrary.
       ``(2) Introduction of classified information.--
       ``(A) Alternatives to disclosure.--To protect classified 
     information from disclosure, the military judge, upon motion 
     of trial counsel, shall authorize, to the extent 
     practicable--
       ``(i) the deletion of specified items of classified 
     information from documents to be introduced as evidence 
     before the military commission;
       ``(ii) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(iii) the substitution of a statement of relevant facts 
     that the classified information would tend to prove.
       ``(B) Protection of sources, methods, or activities.--The 
     military judge, upon motion of trial counsel, shall permit 
     trial counsel to introduce otherwise admissible evidence 
     before the military commission, while protecting from 
     disclosure the sources, methods, or activities by which the 
     United States acquired the evidence if the military judge 
     finds that (i) the sources, methods, or activities by which 
     the United States acquired the evidence are classified, and 
     (ii) the evidence is reliable. The military judge may require 
     trial counsel to present to the military commission and the 
     defense, to the extent practicable and consistent with 
     national security, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     the evidence.
       ``(C) Assertion of national security privilege at trial.--
     During the examination of any witness, trial counsel may 
     object to any question, line of inquiry, or motion to admit 
     evidence that would require the disclosure of classified 
     information. Following such an objection, the military judge 
     shall take suitable action to safeguard such classified 
     information. Such action may include the review of trial 
     counsel's claim of privilege by the military judge in camera 
     and on an ex parte basis, and the delay of proceedings to 
     permit trial counsel to consult with the department or agency 
     concerned as to whether the national security privilege 
     should be asserted.
       ``(3) Consideration of privilege and related materials.--A 
     claim of privilege under this subsection, and any materials 
     submitted in support thereof, shall, upon request of the 
     Government, be considered by the military judge in camera and 
     shall not be disclosed to the accused.
       ``(4) Additional regulations.--The Secretary of Defense may 
     prescribe additional regulations, consistent with this 
     subsection, for the use and protection of classified 
     information during proceedings of military commissions under 
     this chapter. A report on any regulations so prescribed, or 
     modified, shall be submitted to the Committees on Armed 
     Services of the Senate and the House of Representatives not 
     later than 60 days before the date on which such regulations 
     or modifications, as the case may be, go into effect.

     ``Sec. 949e. Continuances

       ``The military judge in a military commission under this 
     chapter may, for reasonable cause, grant a continuance to any 
     party for such time, and as often, as may appear to be just.

     ``Sec. 949f. Challenges

       ``(a) Challenges Authorized.--The military judge and 
     members of a military commission under this chapter may be 
     challenged by the accused or trial counsel for cause stated 
     to the commission. The military judge shall determine the 
     relevance and validity of challenges for cause. The military 
     judge may not receive a challenge to more than one person at 
     a time. Challenges by trial counsel shall ordinarily be 
     presented and decided before those by the accused are 
     offered.
       ``(b) Peremptory Challenges.--Each accused and the trial 
     counsel are entitled to one peremptory challenge. The 
     military judge may not be challenged except for cause.
       ``(c) Challenges Against Additional Members.--Whenever 
     additional members are detailed to a military commission 
     under this chapter, and after any challenges for cause 
     against such additional members are presented and decided, 
     each accused and the trial counsel are entitled to one 
     peremptory challenge against members not previously subject 
     to peremptory challenge.

     ``Sec. 949g. Oaths

       ``(a) In General.--(1) Before performing their respective 
     duties in a military commission under this chapter, military 
     judges, members, trial counsel, defense counsel, reporters, 
     and interpreters shall take an oath to perform their duties 
     faithfully.
       ``(2) The form of the oath required by paragraph (1), the 
     time and place of the taking thereof, the manner of recording 
     the same, and whether the oath shall be taken for all cases 
     in which duties are to be performed or for a particular case, 
     shall be as prescribed in regulations of the Secretary of 
     Defense. Those regulations may provide that--
       ``(A) an oath to perform faithfully duties as a military 
     judge, trial counsel, or defense counsel may be taken at any 
     time by any judge advocate or other person certified to be 
     qualified or competent for the duty; and
       ``(B) if such an oath is taken, such oath need not again be 
     taken at the time the judge advocate or other person is 
     detailed to that duty.
       ``(b) Witnesses.--Each witness before a military commission 
     under this chapter shall be examined on oath.

     ``Sec. 949h. Former jeopardy

       ``(a) In General.--No person may, without his consent, be 
     tried by a military commission under this chapter a second 
     time for the same offense.
       ``(b) Scope of Trial.--No proceeding in which the accused 
     has been found guilty by military commission under this 
     chapter upon any charge or specification is a trial in the 
     sense of this section until the finding of guilty has become 
     final after review of the case has been fully completed.

     ``Sec. 949i. Pleas of the accused

       ``(a) Entry of Plea of Not Guilty.--If an accused in a 
     military commission under this chapter after a plea of guilty 
     sets up matter inconsistent with the plea, or if it appears 
     that the accused has entered the plea of guilty through lack 
     of understanding of its meaning and effect, or if the accused 
     fails or refuses to plead, a plea of not guilty shall be 
     entered in the record, and the military commission shall 
     proceed as though the accused had pleaded not guilty.
       ``(b) Finding of Guilt After Guilty Plea.--With respect to 
     any charge or specification to which a plea of guilty has 
     been made by the accused in a military commission under this 
     chapter and accepted by the military judge, a finding of 
     guilty of the charge or specification may be entered 
     immediately without a vote. The finding shall constitute the 
     finding of the commission unless the plea of guilty is 
     withdrawn prior to announcement of the sentence, in which 
     event the proceedings shall continue as though the accused 
     had pleaded not guilty.

     ``Sec. 949j. Opportunity to obtain witnesses and other 
       evidence

       ``(a) Right of Defense Counsel.--Defense counsel in a 
     military commission under this chapter shall have a 
     reasonable opportunity to obtain witnesses and other evidence 
     as provided in regulations prescribed by the Secretary of 
     Defense.
       ``(b) Process for Compulsion.--Process issued in a military 
     commission under this chapter to compel witnesses to appear 
     and testify and to compel the production of other evidence--
       ``(1) shall be similar to that which courts of the United 
     States having criminal jurisdiction may lawfully issue; and
       ``(2) shall run to any place where the United States shall 
     have jurisdiction thereof.
       ``(c) Protection of Classified Information.--(1) With 
     respect to the discovery obligations of trial counsel under 
     this section, the military judge, upon motion of trial 
     counsel, shall authorize, to the extent practicable--
       ``(A) the deletion of specified items of classified 
     information from documents to be made available to the 
     accused;
       ``(B) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(C) the substitution of a statement admitting relevant 
     facts that the classified information would tend to prove.
       ``(2) The military judge, upon motion of trial counsel, 
     shall authorize trial counsel, in the course of complying 
     with discovery obligations under this section, to protect 
     from disclosure the sources, methods, or activities by which 
     the United States acquired evidence if the military judge 
     finds that the sources, methods, or activities by which the 
     United States acquired such evidence are classified. The 
     military judge may require trial counsel to provide, to the 
     extent practicable, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     such evidence.
       ``(d) Exculpatory Evidence.--(1) As soon as practicable, 
     trial counsel shall disclose to the defense the existence of 
     any evidence known to trial counsel that reasonably tends to 
     exculpate the accused. Where exculpatory evidence is 
     classified, the accused shall be provided with an adequate 
     substitute in accordance with the procedures under subsection 
     (c).
       ``(2) In this subsection, the term `evidence known to trial 
     counsel', in the case of exculpatory evidence, means 
     exculpatory evidence that the prosecution would be required 
     to disclose in a trial by general court-martial under chapter 
     47 of this title.

     ``Sec. 949k. Defense of lack of mental responsibility

       ``(a) Affirmative Defense.--It is an affirmative defense in 
     a trial by military commission under this chapter that, at 
     the time

[[Page H7527]]

     of the commission of the acts constituting the offense, the 
     accused, as a result of a severe mental disease or defect, 
     was unable to appreciate the nature and quality or the 
     wrongfulness of the acts. Mental disease or defect does not 
     otherwise constitute a defense.
       ``(b) Burden of Proof.--The accused in a military 
     commission under this chapter has the burden of proving the 
     defense of lack of mental responsibility by clear and 
     convincing evidence.
       ``(c) Findings Following Assertion of Defense.--Whenever 
     lack of mental responsibility of the accused with respect to 
     an offense is properly at issue in a military commission 
     under this chapter, the military judge shall instruct the 
     members of the commission as to the defense of lack of mental 
     responsibility under this section and shall charge them to 
     find the accused--
       ``(1) guilty;
       ``(2) not guilty; or
       ``(3) subject to subsection (d), not guilty by reason of 
     lack of mental responsibility.
       ``(d) Majority Vote Required for Finding.--The accused 
     shall be found not guilty by reason of lack of mental 
     responsibility under subsection (c)(3) only if a majority of 
     the members present at the time the vote is taken determines 
     that the defense of lack of mental responsibility has been 
     established.

     ``Sec. 949l. Voting and rulings

       ``(a) Vote by Secret Written Ballot.--Voting by members of 
     a military commission under this chapter on the findings and 
     on the sentence shall be by secret written ballot.
       ``(b) Rulings.--(1) The military judge in a military 
     commission under this chapter shall rule upon all questions 
     of law, including the admissibility of evidence and all 
     interlocutory questions arising during the proceedings.
       ``(2) Any ruling made by the military judge upon a question 
     of law or an interlocutory question (other than the factual 
     issue of mental responsibility of the accused) is conclusive 
     and constitutes the ruling of the military commission. 
     However, a military judge may change his ruling at any time 
     during the trial.
       ``(c) Instructions Prior to Vote.--Before a vote is taken 
     of the findings of a military commission under this chapter, 
     the military judge shall, in the presence of the accused and 
     counsel, instruct the members as to the elements of the 
     offense and charge the members--
       ``(1) that the accused must be presumed to be innocent 
     until his guilt is established by legal and competent 
     evidence beyond a reasonable doubt;
       ``(2) that in the case being considered, if there is a 
     reasonable doubt as to the guilt of the accused, the doubt 
     must be resolved in favor of the accused and he must be 
     acquitted;
       ``(3) that, if there is reasonable doubt as to the degree 
     of guilt, the finding must be in a lower degree as to which 
     there is no reasonable doubt; and
       ``(4) that the burden of proof to establish the guilt of 
     the accused beyond a reasonable doubt is upon the United 
     States.

     ``Sec. 949m. Number of votes required

       ``(a) Conviction.--No person may be convicted by a military 
     commission under this chapter of any offense, except as 
     provided in section 949i(b) of this title or by concurrence 
     of two-thirds of the members present at the time the vote is 
     taken.
       ``(b) Sentences.--(1) No person may be sentenced by a 
     military commission to suffer death, except insofar as--
       ``(A) the penalty of death is expressly authorized under 
     this chapter or the law of war for an offense of which the 
     accused has been found guilty;
       ``(B) trial counsel expressly sought the penalty of death 
     by filing an appropriate notice in advance of trial;
       ``(C) the accused is convicted of the offense by the 
     concurrence of all the members present at the time the vote 
     is taken; and
       ``(D) all the members present at the time the vote is taken 
     concur in the sentence of death.
       ``(2) No person may be sentenced to life imprisonment, or 
     to confinement for more than 10 years, by a military 
     commission under this chapter except by the concurrence of 
     three-fourths of the members present at the time the vote is 
     taken.
       ``(3) All other sentences shall be determined by a military 
     commission by the concurrence of two-thirds of the members 
     present at the time the vote is taken.
       ``(c) Number of Members Required for Penalty of Death.--(1) 
     Except as provided in paragraph (2), in a case in which the 
     penalty of death is sought, the number of members of the 
     military commission under this chapter shall be not less than 
     12.
       ``(2) In any case described in paragraph (1) in which 12 
     members are not reasonably available because of physical 
     conditions or military exigencies, the convening authority 
     shall specify a lesser number of members for the military 
     commission (but not fewer than 9 members), and the military 
     commission may be assembled, and the trial held, with not 
     fewer than the number of members so specified. In such a 
     case, the convening authority shall make a detailed written 
     statement, to be appended to the record, stating why a 
     greater number of members were not reasonably available.

     ``Sec. 949n. Military commission to announce action

       ``A military commission under this chapter shall announce 
     its findings and sentence to the parties as soon as 
     determined.

     ``Sec. 949o. Record of trial

       ``(a) Record; Authentication.--Each military commission 
     under this chapter shall keep a separate, verbatim, record of 
     the proceedings in each case brought before it, and the 
     record shall be authenticated by the signature of the 
     military judge. If the record cannot be authenticated by the 
     military judge by reason of his death, disability, or 
     absence, it shall be authenticated by the signature of the 
     trial counsel or by a member of the commission if the trial 
     counsel is unable to authenticate it by reason of his death, 
     disability, or absence. Where appropriate, and as provided in 
     regulations prescribed by the Secretary of Defense, the 
     record of a military commission under this chapter may 
     contain a classified annex.
       ``(b) Complete Record Required.--A complete record of the 
     proceedings and testimony shall be prepared in every military 
     commission under this chapter.
       ``(c) Provision of Copy to Accused.--A copy of the record 
     of the proceedings of the military commission under this 
     chapter shall be given the accused as soon as it is 
     authenticated. If the record contains classified information, 
     or a classified annex, the accused shall be given a redacted 
     version of the record consistent with the requirements of 
     section 949d of this title. Defense counsel shall have access 
     to the unredacted record, as provided in regulations 
     prescribed by the Secretary of Defense.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.

     ``Sec. 949s. Cruel or unusual punishments prohibited

       ``Punishment by flogging, or by branding, marking, or 
     tattooing on the body, or any other cruel or unusual 
     punishment, may not be adjudged by a military commission 
     under this chapter or inflicted under this chapter upon any 
     person subject to this chapter. The use of irons, single or 
     double, except for the purpose of safe custody, is prohibited 
     under this chapter.

     ``Sec. 949t. Maximum limits

       ``The punishment which a military commission under this 
     chapter may direct for an offense may not exceed such limits 
     as the President or Secretary of Defense may prescribe for 
     that offense.

     ``Sec. 949u. Execution of confinement

       ``(a) In General.--Under such regulations as the Secretary 
     of Defense may prescribe, a sentence of confinement adjudged 
     by a military commission under this chapter may be carried 
     into execution by confinement--
       ``(1) in any place of confinement under the control of any 
     of the armed forces; or
       ``(2) in any penal or correctional institution under the 
     control of the United States or its allies, or which the 
     United States may be allowed to use.
       ``(b) Treatment During Confinement by Other Than the Armed 
     Forces.--Persons confined under subsection (a)(2) in a penal 
     or correctional institution not under the control of an armed 
     force are subject to the same discipline and treatment as 
     persons confined or committed by the courts of the United 
     States or of the State, District of Columbia, or place in 
     which the institution is situated.

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
              of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; procedures for execution of sentence of 
              death.
``950j. Finality or proceedings, findings, and sentences.

     ``Sec. 950a. Error of law; lesser included offense

       ``(a) Error of Law.--A finding or sentence of a military 
     commission under this chapter may not be held incorrect on 
     the ground of an error of law unless the error materially 
     prejudices the substantial rights of the accused.
       ``(b) Lesser Included Offense.--Any reviewing authority 
     with the power to approve or affirm a finding of guilty by a 
     military commission under this chapter may approve or affirm, 
     instead, so much of the finding as includes a lesser included 
     offense.

     ``Sec. 950b. Review by the convening authority

       ``(a) Notice to Convening Authority of Findings and 
     Sentence.--The findings and sentence of a military commission 
     under this chapter shall be reported in writing promptly to 
     the convening authority after the announcement of the 
     sentence.
       ``(b) Submittal of Matters by Accused to Convening 
     Authority.--(1) The accused may submit to the convening 
     authority matters for consideration by the convening 
     authority with respect to the findings and the sentence

[[Page H7528]]

     of the military commission under this chapter.
       ``(2)(A) Except as provided in subparagraph (B), a 
     submittal under paragraph (1) shall be made in writing within 
     20 days after the accused has been given an authenticated 
     record of trial under section 949o(c) of this title.
       ``(B) If the accused shows that additional time is required 
     for the accused to make a submittal under paragraph (1), the 
     convening authority may, for good cause, extend the 
     applicable period under subparagraph (A) for not more than an 
     additional 20 days.
       ``(3) The accused may waive his right to make a submittal 
     to the convening authority under paragraph (1). Such a waiver 
     shall be made in writing and may not be revoked. For the 
     purposes of subsection (c)(2), the time within which the 
     accused may make a submittal under this subsection shall be 
     deemed to have expired upon the submittal of a waiver under 
     this paragraph to the convening authority.
       ``(c) Action by Convening Authority.--(1) The authority 
     under this subsection to modify the findings and sentence of 
     a military commission under this chapter is a matter of the 
     sole discretion and prerogative of the convening authority.
       ``(2)(A) The convening authority shall take action on the 
     sentence of a military commission under this chapter.
       ``(B) Subject to regulations prescribed by the Secretary of 
     Defense, action on the sentence under this paragraph may be 
     taken only after consideration of any matters submitted by 
     the accused under subsection (b) or after the time for 
     submitting such matters expires, whichever is earlier.
       ``(C) In taking action under this paragraph, the convening 
     authority may, in his sole discretion, approve, disapprove, 
     commute, or suspend the sentence in whole or in part. The 
     convening authority may not increase a sentence beyond that 
     which is found by the military commission.
       ``(3) The convening authority is not required to take 
     action on the findings of a military commission under this 
     chapter. If the convening authority takes action on the 
     findings, the convening authority may, in his sole 
     discretion, may--
       ``(A) dismiss any charge or specification by setting aside 
     a finding of guilty thereto; or
       ``(B) change a finding of guilty to a charge to a finding 
     of guilty to an offense that is a lesser included offense of 
     the offense stated in the charge.
       ``(4) The convening authority shall serve on the accused or 
     on defense counsel notice of any action taken by the 
     convening authority under this subsection.
       ``(d) Order of Revision or Rehearing.--(1) Subject to 
     paragraphs (2) and (3), the convening authority of a military 
     commission under this chapter may, in his sole discretion, 
     order a proceeding in revision or a rehearing.
       ``(2)(A) Except as provided in subparagraph (B), a 
     proceeding in revision may be ordered by the convening 
     authority if--
       ``(i) there is an apparent error or omission in the record; 
     or
       ``(ii) the record shows improper or inconsistent action by 
     the military commission with respect to the findings or 
     sentence that can be rectified without material prejudice to 
     the substantial rights of the accused.
       ``(B) In no case may a proceeding in revision--
       ``(i) reconsider a finding of not guilty of a specification 
     or a ruling which amounts to a finding of not guilty;
       ``(ii) reconsider a finding of not guilty of any charge, 
     unless there has been a finding of guilty under a 
     specification laid under that charge, which sufficiently 
     alleges a violation; or
       ``(iii) increase the severity of the sentence unless the 
     sentence prescribed for the offense is mandatory.
       ``(3) A rehearing may be ordered by the convening authority 
     if the convening authority disapproves the findings and 
     sentence and states the reasons for disapproval of the 
     findings. If the convening authority disapproves the finding 
     and sentence and does not order a rehearing, the convening 
     authority shall dismiss the charges. A rehearing as to the 
     findings may not be ordered by the convening authority when 
     there is a lack of sufficient evidence in the record to 
     support the findings. A rehearing as to the sentence may be 
     ordered by the convening authority if the convening authority 
     disapproves the sentence.

     ``Sec. 950c. Appellate referral; waiver or withdrawal of 
       appeal

       ``(a) Automatic Referral for Appellate Review.--Except as 
     provided under subsection (b), in each case in which the 
     final decision of a military commission (as approved by the 
     convening authority) includes a finding of guilty, the 
     convening authority shall refer the case to the Court of 
     Military Commission Review. Any such referral shall be made 
     in accordance with procedures prescribed under regulations of 
     the Secretary.
       ``(b) Waiver of Right of Review.--(1) In each case subject 
     to appellate review under section 950f of this title, except 
     a case in which the sentence as approved under section 950b 
     of this title extends to death, the accused may file with the 
     convening authority a statement expressly waiving the right 
     of the accused to such review.
       ``(2) A waiver under paragraph (1) shall be signed by both 
     the accused and a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at 
     all, within 10 days after notice on the action is served on 
     the accused or on defense counsel under section 950b(c)(4) of 
     this title. The convening authority, for good cause, may 
     extend the period for such filing by not more than 30 days.
       ``(c) Withdrawal of Appeal.--Except in a case in which the 
     sentence as approved under section 950b of this title extends 
     to death, the accused may withdraw an appeal at any time.
       ``(d) Effect of Waiver or Withdrawal.--A waiver of the 
     right to appellate review or the withdrawal of an appeal 
     under this section bars review under section 950f of this 
     title.

     ``Sec. 950d. Appeal by the United States

       ``(a) Interlocutory Appeal.--(1) Except as provided in 
     paragraph (2), in a trial by military commission under this 
     chapter, the United States may take an interlocutory appeal 
     to the Court of Military Commission Review of any order or 
     ruling of the military judge that--
       ``(A) terminates proceedings of the military commission 
     with respect to a charge or specification;
       ``(B) excludes evidence that is substantial proof of a fact 
     material in the proceeding; or
       ``(C) relates to a matter under subsection (d), (e), or (f) 
     of section 949d of this title or section 949j(c) of this 
     title.
       ``(2) The United States may not appeal under paragraph (1) 
     an order or ruling that is, or amounts to, a finding of not 
     guilty by the military commission with respect to a charge or 
     specification.
       ``(b) Notice of Appeal.--The United States shall take an 
     appeal of an order or ruling under subsection (a) by filing a 
     notice of appeal with the military judge within five days 
     after the date of such order or ruling.
       ``(c) Appeal.--An appeal under this section shall be 
     forwarded, by means specified in regulations prescribed the 
     Secretary of Defense, directly to the Court of Military 
     Commission Review. In ruling on an appeal under this section, 
     the Court may act only with respect to matters of law.
       ``(d) Appeal From Adverse Ruling.--The United States may 
     appeal an adverse ruling on an appeal under subsection (c) to 
     the United States Court of Appeals for the District of 
     Columbia Circuit by filing a petition for review in the Court 
     of Appeals within 10 days after the date of such ruling. 
     Review under this subsection shall be at the discretion of 
     the Court of Appeals.

     ``Sec. 950e. Rehearings

       ``(a) Composition of Military Commission for Rehearing.--
     Each rehearing under this chapter shall take place before a 
     military commission under this chapter composed of members 
     who were not members of the military commission which first 
     heard the case.
       ``(b) Scope of Rehearing.--(1) Upon a rehearing--
       ``(A) the accused may not be tried for any offense of which 
     he was found not guilty by the first military commission; and
       ``(B) no sentence in excess of or more than the original 
     sentence may be imposed unless--
       ``(i) the sentence is based upon a finding of guilty of an 
     offense not considered upon the merits in the original 
     proceedings; or
       ``(ii) the sentence prescribed for the offense is 
     mandatory.
       ``(2) Upon a rehearing, if the sentence approved after the 
     first military commission was in accordance with a pretrial 
     agreement and the accused at the rehearing changes his plea 
     with respect to the charges or specifications upon which the 
     pretrial agreement was based, or otherwise does not comply 
     with pretrial agreement, the sentence as to those charges or 
     specifications may include any punishment not in excess of 
     that lawfully adjudged at the first military commission.

     ``Sec. 950f. Review by Court of Military Commission Review

       ``(a) Establishment.--The Secretary of Defense shall 
     establish a Court of Military Commission Review which shall 
     be composed of one or more panels, and each such panel shall 
     be composed of not less than three appellate military judges. 
     For the purpose of reviewing military commission decisions 
     under this chapter, the court may sit in panels or as a whole 
     in accordance with rules prescribed by the Secretary.
       ``(b) Appellate Military Judges.--The Secretary shall 
     assign appellate military judges to a Court of Military 
     Commission Review. Each appellate military judge shall meet 
     the qualifications for military judges prescribed by section 
     948j(b) of this title or shall be a civilian with comparable 
     qualifications. No person may be serve as an appellate 
     military judge in any case in which that person acted as a 
     military judge, counsel, or reviewing official.
       ``(c) Cases To Be Reviewed.--The Court of Military 
     Commission Review, in accordance with procedures prescribed 
     under regulations of the Secretary, shall review the record 
     in each case that is referred to the Court by the convening 
     authority under section 950c of this title with respect to 
     any matter of law raised by the accused.
       ``(d) Scope of Review.--In a case reviewed by the Court of 
     Military Commission Review under this section, the Court may 
     act only with respect to matters of law.

     ``Sec. 950g. Review by the United States Court of Appeals for 
       the District of Columbia Circuit and the Supreme Court

       ``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as 
     provided in subparagraph (B), the United States Court of 
     Appeals for the District of Columbia Circuit shall have

[[Page H7529]]

     exclusive jurisdiction to determine the validity of a final 
     judgment rendered by a military commission (as approved by 
     the convening authority) under this chapter.
       ``(B) The Court of Appeals may not review the final 
     judgment until all other appeals under this chapter have been 
     waived or exhausted.
       ``(2) A petition for review must be filed by the accused in 
     the Court of Appeals not later than 20 days after the date on 
     which--
       ``(A) written notice of the final decision of the Court of 
     Military Commission Review is served on the accused or on 
     defense counsel; or
       ``(B) the accused submits, in the form prescribed by 
     section 950c of this title, a written notice waiving the 
     right of the accused to review by the Court of Military 
     Commission Review under section 950f of this title.
       ``(b) Standard for Review.--In a case reviewed by it under 
     this section, the Court of Appeals may act only with respect 
     to matters of law.
       ``(c) Scope of Review.--The jurisdiction of the Court of 
     Appeals on an appeal under subsection (a) shall be limited to 
     the consideration of--
       ``(1) whether the final decision was consistent with the 
     standards and procedures specified in this chapter; and
       ``(2) to the extent applicable, the Constitution and the 
     laws of the United States.
       ``(d) Supreme Court.--The Supreme Court may review by writ 
     of certiorari the final judgment of the Court of Appeals 
     pursuant to section 1257 of title 28.

     ``Sec. 950h. Appellate counsel

       ``(a) Appointment.--The Secretary of Defense shall, by 
     regulation, establish procedures for the appointment of 
     appellate counsel for the United States and for the accused 
     in military commissions under this chapter. Appellate counsel 
     shall meet the qualifications for counsel appearing before 
     military commissions under this chapter.
       ``(b) Representation of United States.--Appellate counsel 
     appointed under subsection (a)--
       ``(1) shall represent the United States in any appeal or 
     review proceeding under this chapter before the Court of 
     Military Commission Review; and
       ``(2) may, when requested to do so by the Attorney General 
     in a case arising under this chapter, represent the United 
     States before the United States Court of Appeals for the 
     District of Columbia Circuit or the Supreme Court.
       ``(c) Representation of Accused.--The accused shall be 
     represented by appellate counsel appointed under subsection 
     (a) before the Court of Military Commission Review, the 
     United States Court of Appeals for the District of Columbia 
     Circuit, and the Supreme Court, and by civilian counsel if 
     retained by the accused. Any such civilian counsel shall meet 
     the qualifications under paragraph (3) of section 949c(b) of 
     this title for civilian counsel appearing before military 
     commissions under this chapter and shall be subject to the 
     requirements of paragraph (4) of that section.

     ``Sec. 950i. Execution of sentence; procedures for execution 
       of sentence of death

       ``(a) In General.--The Secretary of Defense is authorized 
     to carry out a sentence imposed by a military commission 
     under this chapter in accordance with such procedures as the 
     Secretary may prescribe.
       ``(b) Execution of Sentence of Death Only Upon Approval by 
     the President.--If the sentence of a military commission 
     under this chapter extends to death, that part of the 
     sentence providing for death may not be executed until 
     approved by the President. In such a case, the President may 
     commute, remit, or suspend the sentence, or any part thereof, 
     as he sees fit.
       ``(c) Execution of Sentence of Death Only Upon Final 
     Judgment of Legality of Proceedings.--(1) If the sentence of 
     a military commission under this chapter extends to death, 
     the sentence may not be executed until there is a final 
     judgment as to the legality of the proceedings (and with 
     respect to death, approval under subsection (b)).
       ``(2) A judgment as to legality of proceedings is final for 
     purposes of paragraph (1) when--
       ``(A) the time for the accused to file a petition for 
     review by the Court of Appeals for the District of Columbia 
     Circuit has expired and the accused has not filed a timely 
     petition for such review and the case is not otherwise under 
     review by that Court; or
       ``(B) review is completed in accordance with the judgment 
     of the United States Court of Appeals for the District of 
     Columbia Circuit and--
       ``(i) a petition for a writ of certiorari is not timely 
     filed;
       ``(ii) such a petition is denied by the Supreme Court; or
       ``(iii) review is otherwise completed in accordance with 
     the judgment of the Supreme Court.
       ``(d) Suspension of Sentence.--The Secretary of the 
     Defense, or the convening authority acting on the case (if 
     other than the Secretary), may suspend the execution of any 
     sentence or part thereof in the case, except a sentence of 
     death.

     ``Sec. 950j. Finality or proceedings, findings, and sentences

       ``(a) Finality.--The appellate review of records of trial 
     provided by this chapter, and the proceedings, findings, and 
     sentences of military commissions as approved, reviewed, or 
     affirmed as required by this chapter, are final and 
     conclusive. Orders publishing the proceedings of military 
     commissions under this chapter are binding upon all 
     departments, courts, agencies, and officers of the United 
     States, except as otherwise provided by the President.
       ``(b) Provisions of Chapter Sole Basis for Review of 
     Military Commission Procedures and Actions.--Except as 
     otherwise provided in this chapter and notwithstanding any 
     other provision of law (including section 2241 of title 28 or 
     any other habeas corpus provision), no court, justice, or 
     judge shall have jurisdiction to hear or consider any claim 
     or cause of action whatsoever, including any action pending 
     on or filed after the date of the enactment of the Military 
     Commissions Act of 2006, relating to the prosecution, trial, 
     or judgment of a military commission under this chapter, 
     including challenges to the lawfulness of procedures of 
     military commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p. Statement of substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser included offense.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commissions.
``950w. Perjury and obstruction of justice; contempt.

     ``Sec. 950p. Statement of substantive offenses

       ``(a) Purpose.--The provisions of this subchapter codify 
     offenses that have traditionally been triable by military 
     commissions. This chapter does not establish new crimes that 
     did not exist before its enactment, but rather codifies those 
     crimes for trial by military commission.
       ``(b) Effect.--Because the provisions of this subchapter 
     (including provisions that incorporate definitions in other 
     provisions of law) are declarative of existing law, they do 
     not preclude trial for crimes that occurred before the date 
     of the enactment of this chapter.

     ``Sec. 950q. Principals

       ``Any person is punishable as a principal under this 
     chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission;
       ``(2) causes an act to be done which if directly performed 
     by him would be punishable by this chapter; or
       ``(3) is a superior commander who, with regard to acts 
     punishable under this chapter, knew, had reason to know, or 
     should have known, that a subordinate was about to commit 
     such acts or had done so and who failed to take the necessary 
     and reasonable measures to prevent such acts or to punish the 
     perpetrators thereof.

     ``Sec. 950r. Accessory after the fact

       ``Any person subject to this chapter who, knowing that an 
     offense punishable by this chapter has been committed, 
     receives, comforts, or assists the offender in order to 
     hinder or prevent his apprehension, trial, or punishment 
     shall be punished as a military commission under this chapter 
     may direct.

     ``Sec. 950s. Conviction of lesser included offense

       ``An accused may be found guilty of an offense necessarily 
     included in the offense charged or of an attempt to commit 
     either the offense charged or an attempt to commit either the 
     offense charged or an offense necessarily included therein.

     ``Sec. 950t. Attempts

       ``(a) In General.--Any person subject to this chapter who 
     attempts to commit any offense punishable by this chapter 
     shall be punished as a military commission under this chapter 
     may direct.
       ``(b) Scope of Offense.--An act, done with specific intent 
     to commit an offense under this chapter, amounting to more 
     than mere preparation and tending, even though failing, to 
     effect its commission, is an attempt to commit that offense.
       ``(c) Effect of Consummation.--Any person subject to this 
     chapter may be convicted of an attempt to commit an offense 
     although it appears on the trial that the offense was 
     consummated.

     ``Sec. 950u. Solicitation

       ``Any person subject to this chapter who solicits or 
     advises another or others to commit one or more substantive 
     offenses triable by military commission under this chapter 
     shall, if the offense solicited or advised is attempted or 
     committed, be punished with the punishment provided for the 
     commission of the offense, but, if the offense solicited or 
     advised is not committed or attempted, he shall be punished 
     as a military commission under this chapter may direct.

     ``Sec. 950v. Crimes triable by military commissions

       ``(a) Definitions and Construction.--In this section:
       ``(1) Military objective.--The term `military objective' 
     means--
       ``(A) combatants; and
       ``(B) those objects during an armed conflict--
       ``(i) which, by their nature, location, purpose, or use, 
     effectively contribute to the opposing force's war-fighting 
     or war-sustaining capability; and
       ``(ii) the total or partial destruction, capture, or 
     neutralization of which would constitute a definite military 
     advantage to the attacker under the circumstances at the time 
     of the attack.
       ``(2) Protected person.--The term `protected person' means 
     any person entitled to

[[Page H7530]]

     protection under one or more of the Geneva Conventions, 
     including--
       ``(A) civilians not taking an active part in hostilities;
       ``(B) military personnel placed hors de combat by sickness, 
     wounds, or detention; and
       ``(C) military medical or religious personnel.
       ``(3) Protected property.--The term `protected property' 
     means property specifically protected by the law of war (such 
     as buildings dedicated to religion, education, art, science 
     or charitable purposes, historic monuments, hospitals, or 
     places where the sick and wounded are collected), if such 
     property is not being used for military purposes or is not 
     otherwise a military objective. Such term includes objects 
     properly identified by one of the distinctive emblems of the 
     Geneva Conventions, but does not include civilian property 
     that is a military objective.
       ``(4) Construction.--The intent specified for an offense 
     under paragraph (1), (2), (3), (4), or (12) of subsection (b) 
     precludes the applicability of such offense with regard to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(b) Offenses.--The following offenses shall be triable by 
     military commission under this chapter at any time without 
     limitation:
       ``(1) Murder of protected persons.--Any person subject to 
     this chapter who intentionally kills one or more protected 
     persons shall be punished by death or such other punishment 
     as a military commission under this chapter may direct.
       ``(2) Attacking civilians.--Any person subject to this 
     chapter who intentionally engages in an attack upon a 
     civilian population as such, or individual civilians not 
     taking active part in hostilities, shall be punished, if 
     death results to one or more of the victims, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to any of the 
     victims, by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(3) Attacking civilian objects.--Any person subject to 
     this chapter who intentionally engages in an attack upon a 
     civilian object that is not a military objective shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(4) Attacking protected property.--Any person subject to 
     this chapter who intentionally engages in an attack upon 
     protected property shall be punished as a military commission 
     under this chapter may direct.
       ``(5) Pillaging.--Any person subject to this chapter who 
     intentionally and in the absence of military necessity 
     appropriates or seizes property for private or personal use, 
     without the consent of a person with authority to permit such 
     appropriation or seizure, shall be punished as a military 
     commission under this chapter may direct.
       ``(6) Denying quarter.--Any person subject to this chapter 
     who, with effective command or control over subordinate 
     groups, declares, orders, or otherwise indicates to those 
     groups that there shall be no survivors or surrender 
     accepted, with the intent to threaten an adversary or to 
     conduct hostilities such that there would be no survivors or 
     surrender accepted, shall be punished as a military 
     commission under this chapter may direct.
       ``(7) Taking hostages.--Any person subject to this chapter 
     who, having knowingly seized or detained one or more persons, 
     threatens to kill, injure, or continue to detain such person 
     or persons with the intent of compelling any nation, person 
     other than the hostage, or group of persons to act or refrain 
     from acting as an explicit or implicit condition for the 
     safety or release of such person or persons, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.
       ``(8) Employing poison or similar weapons.--Any person 
     subject to this chapter who intentionally, as a method of 
     warfare, employs a substance or weapon that releases a 
     substance that causes death or serious and lasting damage to 
     health in the ordinary course of events, through its 
     asphyxiating, bacteriological, or toxic properties, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.
       ``(9) Using protected persons as a shield.--Any person 
     subject to this chapter who positions, or otherwise takes 
     advantage of, a protected person with the intent to shield a 
     military objective from attack, or to shield, favor, or 
     impede military operations, shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of the victims, 
     by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(10) Using protected property as a shield.--Any person 
     subject to this chapter who positions, or otherwise takes 
     advantage of the location of, protected property with the 
     intent to shield a military objective from attack, or to 
     shield, favor, or impede military operations, shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(11) Torture.--
       ``(A) Offense.--Any person subject to this chapter who 
     commits an act specifically intended to inflict severe 
     physical or mental pain or suffering (other than pain or 
     suffering incidental to lawful sanctions) upon another person 
     within his custody or physical control for the purpose of 
     obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind, shall be punished, if death results to one or 
     more of the victims, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(B) Severe mental pain or suffering defined.--In this 
     section, the term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(12) Cruel or inhuman treatment.--
       ``(A) Offense.--Any person subject to this chapter who 
     commits an act intended to inflict severe or serious physical 
     or mental pain or suffering (other than pain or suffering 
     incidental to lawful sanctions), including serious physical 
     abuse, upon another within his custody or control shall be 
     punished, if death results to the victim, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to the victim, by 
     such punishment, other than death, as a military commission 
     under this chapter may direct.
       ``(B) Definitions.--In this paragraph:
       ``(i) The term `serious physical pain or suffering' means 
     bodily injury that involves--

       ``(I) a substantial risk of death;
       ``(II) extreme physical pain;
       ``(III) a burn or physical disfigurement of a serious 
     nature (other than cuts, abrasions, or bruises); or
       ``(IV) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty.

       ``(ii) The term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(iii) The term `serious mental pain or suffering' has the 
     meaning given the term `severe mental pain or suffering' in 
     section 2340(2) of title 18, except that--

       ``(I) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(II) as to conduct occurring after the date of the 
     enactment of the Military Commissions Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.

       ``(13) Intentionally causing serious bodily injury.--
       ``(A) Offense.--Any person subject to this chapter who 
     intentionally causes serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war shall be punished, if death results to one or more of 
     the victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.
       ``(B) Serious bodily injury defined.--In this paragraph, 
     the term `serious bodily injury' means bodily injury which 
     involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) protracted and obvious disfigurement; or
       ``(iv) protracted loss or impairment of the function of a 
     bodily member, organ, or mental faculty.
       ``(14) Mutilating or maiming.--Any person subject to this 
     chapter who intentionally injures one or more protected 
     persons by disfiguring the person or persons by any 
     mutilation of the person or persons, or by permanently 
     disabling any member, limb, or organ of the body of the 
     person or persons, without any legitimate medical or dental 
     purpose, shall be punished, if death results to one or more 
     of the victims, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(15) Murder in violation of the law of war.--Any person 
     subject to this chapter who intentionally kills one or more 
     persons, including lawful combatants, in violation of the law 
     of war shall be punished by death or such other punishment as 
     a military commission under this chapter may direct.
       ``(16) Destruction of property in violation of the law of 
     war.--Any person subject to this chapter who intentionally 
     destroys property belonging to another person in violation of 
     the law of war shall punished as a military commission under 
     this chapter may direct.
       ``(17) Using treachery or perfidy.--Any person subject to 
     this chapter who, after inviting the confidence or belief of 
     one or more persons that they were entitled to, or obliged to 
     accord, protection under the law of war, intentionally makes 
     use of that confidence or belief in killing, injuring, or 
     capturing such person or persons shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of

[[Page H7531]]

     the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.
       ``(18) Improperly using a flag of truce.--Any person 
     subject to this chapter who uses a flag of truce to feign an 
     intention to negotiate, surrender, or otherwise suspend 
     hostilities when there is no such intention shall be punished 
     as a military commission under this chapter may direct.
       ``(19) Improperly using a distinctive emblem.--Any person 
     subject to this chapter who intentionally uses a distinctive 
     emblem recognized by the law of war for combatant purposes in 
     a manner prohibited by the law of war shall be punished as a 
     military commission under this chapter may direct.
       ``(20) Intentionally mistreating a dead body.--Any person 
     subject to this chapter who intentionally mistreats the body 
     of a dead person, without justification by legitimate 
     military necessity, shall be punished as a military 
     commission under this chapter may direct.
       ``(21) Rape.--Any person subject to this chapter who 
     forcibly or with coercion or threat of force wrongfully 
     invades the body of a person by penetrating, however 
     slightly, the anal or genital opening of the victim with any 
     part of the body of the accused, or with any foreign object, 
     shall be punished as a military commission under this chapter 
     may direct.
       ``(22) Sexual assault or abuse.--Any person subject to this 
     chapter who forcibly or with coercion or threat of force 
     engages in sexual contact with one or more persons, or causes 
     one or more persons to engage in sexual contact, shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(23) Hijacking or hazarding a vessel or aircraft.--Any 
     person subject to this chapter who intentionally seizes, 
     exercises unauthorized control over, or endangers the safe 
     navigation of a vessel or aircraft that is not a legitimate 
     military objective shall be punished, if death results to one 
     or more of the victims, by death or such other punishment as 
     a military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(24) Terrorism.--Any person subject to this chapter who 
     intentionally kills or inflicts great bodily harm on one or 
     more protected persons, or intentionally engages in an act 
     that evinces a wanton disregard for human life, in a manner 
     calculated to influence or affect the conduct of government 
     or civilian population by intimidation or coercion, or to 
     retaliate against government conduct, shall be punished, if 
     death results to one or more of the victims, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to any of the 
     victims, by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(25) Providing material support for terrorism.--
       ``(A) Offense.--Any person subject to this chapter who 
     provides material support or resources, knowing or intending 
     that they are to be used in preparation for, or in carrying 
     out, an act of terrorism (as set forth in paragraph (24)), or 
     who intentionally provides material support or resources to 
     an international terrorist organization engaged in 
     hostilities against the United States, knowing that such 
     organization has engaged or engages in terrorism (as so set 
     forth), shall be punished as a military commission under this 
     chapter may direct.
       ``(B) Material support or resources defined.--In this 
     paragraph, the term `material support or resources' has the 
     meaning given that term in section 2339A(b) of title 18.
       ``(26) Wrongfully aiding the enemy.--Any person subject to 
     this chapter who, in breach of an allegiance or duty to the 
     United States, knowingly and intentionally aids an enemy of 
     the United States, or one of the co-belligerents of the 
     enemy, shall be punished as a military commission under this 
     chapter may direct.
       ``(27) Spying.--Any person subject to this chapter who with 
     intent or reason to believe that it is to be used to the 
     injury of the United States or to the advantage of a foreign 
     power, collects or attempts to collect information by 
     clandestine means or while acting under false pretenses, for 
     the purpose of conveying such information to an enemy of the 
     United States, or one of the co-belligerents of the enemy, 
     shall be punished by death or such other punishment as a 
     military commission under this chapter may direct.
       ``(28) Conspiracy.--Any person subject to this chapter who 
     conspires to commit one or more substantive offenses triable 
     by military commission under this chapter, and who knowingly 
     does any overt act to effect the object of the conspiracy, 
     shall be punished, if death results to one or more of the 
     victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.

     ``Sec. 950w. Perjury and obstruction of justice; contempt

       ``(a) Perjury and Obstruction of Justice.--A military 
     commission under this chapter may try offenses and impose 
     such punishment as the military commission may direct for 
     perjury, false testimony, or obstruction of justice related 
     to military commissions under this chapter.
       ``(b) Contempt.--A military commission under this chapter 
     may punish for contempt any person who uses any menacing 
     word, sign, or gesture in its presence, or who disturbs its 
     proceedings by any riot or disorder.''.
       (2) Tables of chapters amendments.--The tables of chapters 
     at the beginning of subtitle A, and at the beginning of part 
     II of subtitle A, of title 10, United States Code, are each 
     amended by inserting after the item relating to chapter 47 
     the following new item:

``47A. Military Commissions....................................948a.''.

       (b) Submittal of Procedures to Congress.--Not later than 90 
     days after the date of the enactment of this Act, the 
     Secretary of Defense shall submit to the Committees on Armed 
     Services of the Senate and the House of Representatives a 
     report setting forth the procedures for military commissions 
     prescribed under chapter 47A of title 10, United States Code 
     (as added by subsection (a)).

     SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

       (a) Conforming Amendments.--Chapter 47 of title 10, United 
     States Code (the Uniform Code of Military Justice), is 
     amended as follows:
       (1) Applicability to lawful enemy combatants.--Section 
     802(a) (article 2(a)) is amended by adding at the end the 
     following new paragraph:
       ``(13) Lawful enemy combatants (as that term is defined in 
     section 948a(2) of this title) who violate the law of war.''.
       (2) Exclusion of applicability to chapter 47a 
     commissions.--Sections 821, 828, 848, 850(a), 904, and 906 
     (articles 21, 28, 48, 50(a), 104, and 106) are amended by 
     adding at the end the following new sentence: ``This section 
     does not apply to a military commission established under 
     chapter 47A of this title.''.
       (3) Inapplicability of requirements relating to 
     regulations.--Section 836 (article 36) is amended--
       (A) in subsection (a), by inserting ``, except as provided 
     in chapter 47A of this title,'' after ``but which may not''; 
     and
       (B) in subsection (b), by inserting before the period at 
     the end ``, except insofar as applicable to military 
     commissions established under chapter 47A of this title''.
       (b) Punitive Article of Conspiracy.--Section 881 of title 
     10, United States Code (article 81 of the Uniform Code of 
     Military Justice), is amended--
       (1) by inserting ``(a)'' before ``Any person''; and
       (2) by adding at the end the following new subsection:
       ``(b) Any person subject to this chapter who conspires with 
     any other person to commit an offense under the law of war, 
     and who knowingly does an overt act to effect the object of 
     the conspiracy, shall be punished, if death results to one or 
     more of the victims, by death or such other punishment as a 
     court-martial or military commission may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a court-martial or military 
     commission may direct.''.

     SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR 
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva 
     Conventions or any protocols thereto in any habeas corpus or 
     other civil action or proceeding to which the United States, 
     or a current or former officer, employee, member of the Armed 
     Forces, or other agent of the United States is a party as a 
     source of rights in any court of the United States or its 
     States or territories.
       (b) Geneva Conventions Defined.--In this section, the term 
     ``Geneva Conventions'' means--
       (1) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3114);
       (2) the Convention for the Amelioration of the Condition of 
     the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (3) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (4) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).

     SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a) Implementation of Treaty Obligations.--
       (1) In general.--The acts enumerated in subsection (d) of 
     section 2441 of title 18, United States Code, as added by 
     subsection (b) of this section, and in subsection (c) of this 
     section, constitute violations of common Article 3 of the 
     Geneva Conventions prohibited by United States law.
       (2) Prohibition on grave breaches.--The provisions of 
     section 2441 of title 18, United States Code, as amended by 
     this section, fully satisfy the obligation under Article 129 
     of the Third Geneva Convention for the United States to 
     provide effective penal sanctions for grave breaches which 
     are encompassed in common Article 3 in the context of an 
     armed conflict not of an international character. No foreign 
     or international source of law shall supply a basis for a 
     rule of decision in the courts of the United States in 
     interpreting the prohibitions enumerated in subsection (d) of 
     such section 2441.

[[Page H7532]]

       (3) Interpretation by the president.--
       (A) As provided by the Constitution and by this section, 
     the President has the authority for the United States to 
     interpret the meaning and application of the Geneva 
     Conventions and to promulgate higher standards and 
     administrative regulations for violations of treaty 
     obligations which are not grave breaches of the Geneva 
     Conventions.
       (B) The President shall issue interpretations described by 
     subparagraph (A) by Executive Order published in the Federal 
     Register.
       (C) Any Executive Order published under this paragraph 
     shall be authoritative (except as to grave breaches of common 
     Article 3) as a matter of United States law, in the same 
     manner as other administrative regulations.
       (D) Nothing in this section shall be construed to affect 
     the constitutional functions and responsibilities of Congress 
     and the judicial branch of the United States.
       (4) Definitions.--In this subsection:
       (A) Geneva conventions.--The term ``Geneva Conventions'' 
     means--
       (i) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3217);
       (ii) the Convention for the Amelioration of the Condition 
     of the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (iii) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (iv) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).
       (B) Third geneva convention.--The term ``Third Geneva 
     Convention'' means the international convention referred to 
     in subparagraph (A)(iii).
       (b) Revision to War Crimes Offense Under Federal Criminal 
     Code.--
       (1) In general.--Section 2441 of title 18, United States 
     Code, is amended--
       (A) in subsection (c), by striking paragraph (3) and 
     inserting the following new paragraph (3):
       ``(3) which constitutes a grave breach of common Article 3 
     (as defined in subsection (d)) when committed in the context 
     of and in association with an armed conflict not of an 
     international character; or''; and
       (B) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Prohibited conduct.--In subsection (c)(3), the term 
     `grave breach of common Article 3' means any conduct (such 
     conduct constituting a grave breach of common Article 3 of 
     the international conventions done at Geneva August 12, 
     1949), as follows:
       ``(A) Torture.--The act of a person who commits, or 
     conspires or attempts to commit, an act specifically intended 
     to inflict severe physical or mental pain or suffering (other 
     than pain or suffering incidental to lawful sanctions) upon 
     another person within his custody or physical control for the 
     purpose of obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind.
       ``(B) Cruel or inhuman treatment.--The act of a person who 
     commits, or conspires or attempts to commit, an act intended 
     to inflict severe or serious physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions), including serious physical abuse, upon another 
     within his custody or control.
       ``(C) Performing biological experiments.--The act of a 
     person who subjects, or conspires or attempts to subject, one 
     or more persons within his custody or physical control to 
     biological experiments without a legitimate medical or dental 
     purpose and in so doing endangers the body or health of such 
     person or persons.
       ``(D) Murder.--The act of a person who intentionally kills, 
     or conspires or attempts to kill, or kills whether 
     intentionally or unintentionally in the course of committing 
     any other offense under this subsection, one or more persons 
     taking no active part in the hostilities, including those 
     placed out of combat by sickness, wounds, detention, or any 
     other cause.
       ``(E) Mutilation or maiming.--The act of a person who 
     intentionally injures, or conspires or attempts to injure, or 
     injures whether intentionally or unintentionally in the 
     course of committing any other offense under this subsection, 
     one or more persons taking no active part in the hostilities, 
     including those placed out of combat by sickness, wounds, 
     detention, or any other cause, by disfiguring the person or 
     persons by any mutilation thereof or by permanently disabling 
     any member, limb, or organ of his body, without any 
     legitimate medical or dental purpose.
       ``(F) Intentionally causing serious bodily injury.--The act 
     of a person who intentionally causes, or conspires or 
     attempts to cause, serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war.
       ``(G) Rape.--The act of a person who forcibly or with 
     coercion or threat of force wrongfully invades, or conspires 
     or attempts to invade, the body of a person by penetrating, 
     however slightly, the anal or genital opening of the victim 
     with any part of the body of the accused, or with any foreign 
     object.
       ``(H) Sexual assault or abuse.--The act of a person who 
     forcibly or with coercion or threat of force engages, or 
     conspires or attempts to engage, in sexual contact with one 
     or more persons, or causes, or conspires or attempts to 
     cause, one or more persons to engage in sexual contact.
       ``(I) Taking hostages.--The act of a person who, having 
     knowingly seized or detained one or more persons, threatens 
     to kill, injure, or continue to detain such person or persons 
     with the intent of compelling any nation, person other than 
     the hostage, or group of persons to act or refrain from 
     acting as an explicit or implicit condition for the safety or 
     release of such person or persons.
       ``(2) Definitions.--In the case of an offense under 
     subsection (a) by reason of subsection (c)(3)--
       ``(A) the term `severe mental pain or suffering' shall be 
     applied for purposes of paragraphs (1)(A) and (1)(B) in 
     accordance with the meaning given that term in section 
     2340(2) of this title;
       ``(B) the term `serious bodily injury' shall be applied for 
     purposes of paragraph (1)(F) in accordance with the meaning 
     given that term in section 113(b)(2) of this title;
       ``(C) the term `sexual contact' shall be applied for 
     purposes of paragraph (1)(G) in accordance with the meaning 
     given that term in section 2246(3) of this title;
       ``(D) the term `serious physical pain or suffering' shall 
     be applied for purposes of paragraph (1)(B) as meaning bodily 
     injury that involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) a burn or physical disfigurement of a serious 
     nature (other than cuts, abrasions, or bruises); or
       ``(iv) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty; and
       ``(E) the term `serious mental pain or suffering' shall be 
     applied for purposes of paragraph (1)(B) in accordance with 
     the meaning given the term `severe mental pain or suffering' 
     (as defined in section 2340(2) of this title), except that--
       ``(i) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(ii) as to conduct occurring after the date of the 
     enactment of the Military Commissions Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.
       ``(3) Inapplicability of certain provisions with respect to 
     collateral damage or incident of lawful attack.--The intent 
     specified for the conduct stated in subparagraphs (D), (E), 
     and (F) or paragraph (1) precludes the applicability of those 
     subparagraphs to an offense under subsection (a) by reasons 
     of subsection (c)(3) with respect to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(4) Inapplicability of taking hostages to prisoner 
     exchange.--Paragraph (1)(I) does not apply to an offense 
     under subsection (a) by reason of subsection (c)(3) in the 
     case of a prisoner exchange during wartime.
       ``(5) definition of grave breaches.--The definitions in 
     this subsection are intended only to define the grave 
     breaches of common article 3 and not the full scope of United 
     States obligations under that Article.''.
       (2) Retroactive applicability.--The amendments made by this 
     subsection, except as specified in subsection (d)(2)(E) of 
     section 2441 of title 18, United States Code, shall take 
     effect as of November 26, 1997, as if enacted immediately 
     after the amendments made by section 583 of Public Law 105-
     118 (as amended by section 4002(e)(7) of Public Law 107-273).
       (c) Additional Prohibition on Cruel, Inhuman, or Degrading 
     Treatment or Punishment.--
       (1) In general.--No individual in the custody or under the 
     physical control of the United States Government, regardless 
     of nationality or physical location, shall be subject to 
     cruel, inhuman, or degrading treatment or punishment.
       (2) Cruel, inhuman, or degrading treatment or punishment 
     defined.--In this subsection, the term ``cruel, inhuman, or 
     degrading treatment or punishment'' means cruel, unusual, and 
     inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and Fourteenth Amendments to the Constitution of the 
     United States, as defined in the United States Reservations, 
     Declarations and Understandings to the United Nations 
     Convention Against Torture and Other Forms of Cruel, Inhuman 
     or Degrading Treatment or Punishment done at New York, 
     December 10, 1984.
       (3) Compliance.--The President shall take action to ensure 
     compliance with this subsection, including through the 
     establishment of administrative rules and procedures.

     SEC. 7. HABEAS CORPUS MATTERS.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking both the subsection (e) added by 
     section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and 
     the subsection (e) added by added by section 1405(e)(1) of 
     Public Law 109-163 (119 Stat. 3477) and inserting the 
     following new subsection (e):
       ``(e)(1) No court, justice, or judge shall have 
     jurisdiction to hear or consider an application for a writ of 
     habeas corpus filed by or on behalf of an alien detained by 
     the United States who has been determined by the United 
     States to have been properly detained as an enemy combatant 
     or is awaiting such determination.
       ``(2) Except as provided in paragraphs (2) and (3) of 
     section 1005(e) of the Detainee

[[Page H7533]]

     Treatment Act of 2005 (10 U.S.C. 801 note), no court, 
     justice, or judge shall have jurisdiction to hear or consider 
     any other action against the United States or its agents 
     relating to any aspect of the detention, transfer, treatment, 
     trial, or conditions of confinement of an alien who is or was 
     detained by the United States and has been determined by the 
     United States to have been properly detained as an enemy 
     combatant or is awaiting such determination.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act, 
     and shall apply to all cases, without exception, pending on 
     or after the date of the enactment of this Act which relate 
     to any aspect of the detention, transfer, treatment, trial, 
     or conditions of detention of an alien detained by the United 
     States since September 11, 2001.

     SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING 
                   TO PROTECTION OF CERTAIN UNITED STATES 
                   GOVERNMENT PERSONNEL.

       (a) Counsel and Investigations.--Section 1004(b) of the 
     Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is 
     amended--
       (1) by striking ``may provide'' and inserting ``shall 
     provide'';
       (2) by inserting ``or investigation'' after ``criminal 
     prosecution''; and
       (3) by inserting ``whether before United States courts or 
     agencies, foreign courts or agencies, or international courts 
     or agencies,'' after ``described in that subsection''.
       (b) Protection of Personnel.--Section 1004 of the Detainee 
     Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with 
     respect to any criminal prosecution that--
       (1) relates to the detention and interrogation of aliens 
     described in such section;
       (2) is grounded in section 2441(c)(3) of title 18, United 
     States Code; and
       (3) relates to actions occurring between September 11, 
     2001, and December 30, 2005.

     SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

       Section 1005(e)(3) of the Detainee Treatment Act of 2005 
     (title X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 
     note) is amended--
       (1) in subparagraph (A), by striking ``pursuant to Military 
     Commission Order No. 1. dated August 31, 2005 (or any 
     successor military order)'' and inserting ``by a military 
     commission under chapter 47A of title 10, United States 
     Code'';
       (2) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(B) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (3) in subparagraph (C)--
       (A) in clause (i)--
       (i) by striking ``pursuant to the military order'' and 
     inserting ``by a military commission''; and
       (ii) by striking ``at Guantanamo Bay, Cuba''; and
       (B) in clause (ii), by striking ``pursuant to such military 
     order'' and inserting ``by the military commission''; and
       (4) in subparagraph (D)(i), by striking ``specified in the 
     military order'' and inserting ``specified for a military 
     commission''.

     SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF 
                   COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY 
                   OF DETENTION.

       Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 
     2005 (title X of Public Law 109-148; 119 Stat. 2742; 10 
     U.S.C. 801 note) is amended by striking ``the Department of 
     Defense at Guantanamo Bay, Cuba'' and inserting ``the United 
     States''.

  The SPEAKER pro tempore. Debate shall not exceed 2 hours, with 80 
minutes equally divided and controlled by the chairman and the ranking 
minority member of the Committee on Armed Services and 40 minutes 
equally divided and controlled by the chairman and ranking minority 
member of the Committee on the Judiciary.
  The gentleman from California (Mr. Hunter) and the gentleman from 
Missouri (Mr. Skelton) each will control 40 minutes, and the gentleman 
from Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr. 
Conyers) each will control 20 minutes.
  The Chair recognizes the gentleman from California.


                             General Leave

  Mr. HUNTER. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
on H.R. 6166.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions 
Act of 2006. I can't think of a better way to honor the fifth 
anniversary of September 11 than by establishing a system to prosecute 
the terrorists who on that day murdered thousands of innocent civilians 
and who continue to seek to kill Americans, both on and off the 
battlefield.
  Our most important consideration in writing this legislation is to 
protect American troops and American citizens from harm. The war 
against terror has produced a new type of battlefield and a new type of 
enemy. How is it different? We are fighting a ruthless enemy who 
doesn't wear a uniform, an enemy who kills civilians, women and 
children, and then boasts about it; a barbaric enemy who beheads 
innocent civilians by sawing their heads off; an uncivilized enemy who 
does not acknowledge or respect the laws of war.
  Justice Thomas put it best in the Hamdan decision. He said, ``We are 
not engaged in a traditional battle with a nation state, but with a 
worldwide hydro-headed enemy who lurks in the shadows conspiring to 
reproduce the atrocities of September 11, 2001, and who has boasted of 
sending suicide bombers into civilian gatherings, has proudly 
distributed videotapes of the beheadings of civilian workers, and has 
tortured and dismembered captured American soldiers.
  So how is the battlefield new? First, it will be a long war. We don't 
know if this enemy will be defeated this decade, the next decade or 
even longer than that. Second, in this new war, where intelligence is 
more vital than ever, we want to interrogate the enemy; not to degrade 
them, but to save the lives of American troops, American civilians and 
our allies. But it is not practical on the battlefield to read the 
enemy their Miranda warnings.
  Finally, this is an ongoing conflict, and sharing sensitive 
intelligence sources, methods and other classified information with 
terrorist detainees could be highly dangerous to national security, and 
we are not prepared to take that risk.
  So what have we done to develop a military commission process that 
will allow for the effective prosecution of enemy combatants during 
this ongoing conflict? Without this action, the United States has no 
effective means to try and punish the perpetrators of September 11, the 
attack on the USS Cole and the embassy bombings. We provide basic 
fairness in our prosecutions, but we also preserve the ability of our 
warfighters to operate effectively on the battlefield.
  I think a fair process has two guiding principles, Mr. Speaker. 
First, the government must be able to present its case fully and 
without compromising its intelligence sources or compromising military 
necessity. Second, the prosecutorial process must be done fairly, 
swiftly, and conclusively.
  Who are we dealing with in military commissions? I have shown the 
picture of Khalid Sheikh Mohammed, who is alleged to have designed the 
attack against the United States that was carried out on 9/11. We are 
dealing with the enemy in war, not defendants in our domestic criminal 
justice system. Some of them have returned to the battlefield after we 
let them out of Guantanamo.
  Our primary purpose is to keep them off the battlefield. In doing so, 
we treat them humanely, and, if we choose to try them as war criminals, 
we will give them due process rights that the world will respect. But 
we have to remember that they are the enemy in an ongoing war.
  In time of war, it is not practical to apply to rules of evidence the 
same rules of evidence that we do in civilian trials or court martials 
for our troops. Commanders and witnesses can't be called from the front 
line to testify in a military commission.
  We need to accommodate rules of evidence, chain of custody and 
authentication to fit what we call the exigencies of the battlefield. 
It is clear, Mr. Speaker, that we don't have crime scenes that can be 
reproduced, that can be taped off, that can be attended to by dozens of 
people looking for forensic evidence. We have in this war against 
terror a battlefield situation.

                              {time}  1330

  If hearsay is reliable, we should use it. And I might add that 
hearsay is utilized and has been utilized in tribunals like the Rwanda 
tribunals and the Kosovo tribunals. If sworn affidavits are reliable, 
we should use them. And, Mr. Speaker, we have not expanded the use of 
hearsay beyond what is being used in those tribunals, Rwanda and 
Yugoslavia.
  The Supreme Court has tasked us with an adjustment, but in doing so

[[Page H7534]]

let's not forget our purpose is to defend the Nation against the enemy. 
We won't lower our standards; we will always treat detainees humanely, 
but we can't be naive either.
  This war started in 1996 with the al Qaeda declaration of jihad 
against our Nation. The Geneva Conventions were written in 1949, and 
the UCMJ was adopted in 1951. In that sense, what we are required to do 
after the Hamdan decision is broader than war crimes trials. It is the 
start of a new legal analysis for the long war. It is time for us to 
think about war crime trials and a process that provides due process 
and protects national security in this new war.
  So what do we do with these new military commissions? We uphold basic 
human rights and state what our compliance with this standard means for 
the treatment of detainees. We do this in a way that is fair and in a 
way that the world will acknowledge is fair.
  First, we provide accused war criminals at least 26 rights if they 
are tried by a commission for a war crime. While I will not read all of 
them, here are some of the essential rights we provide:
  The right to counsel, provided by government at trial and throughout 
appellate proceedings. An impartial judge. A presumption of innocence. 
A standard of proof beyond a reasonable doubt. The right to be informed 
of the charges against him as soon as practicable. The right to service 
of charges sufficiently in advance of trial to prepare a defense.
  And, Mr. Speaker, I am going to insert the balance of those 26 basic 
and fundamental rights in the Record, so I won't read them all at this 
point.
       The right to reasonable continuances;
       Right to peremptory challenge against members of the 
     commission and challenges for cause against members of the 
     commission and the military judge;
       Witness must testify under oath; judges, counsel and 
     members of military commission must take oath;
       Right to enter a plea of not guilty;
       The right to obtain witnesses and other evidence;
       The right to exculpatory evidence as soon as practicable;
       The right to be present at court with the exception of 
     certain classified evidence involving national security, 
     preservation of safety or preventing disruption of 
     proceedings;
       The right to a public trial except for national security 
     issues or physical safety issues;
       The right to have any findings or sentences announced as 
     soon as determined;
       Right against compulsory self-incrimination;
       Right against double jeopardy;
       The defense of lack of mental responsibility;
       Voting by members of the military commission by secret 
     written ballot;
       Prohibitions against unlawful command influence toward 
     members of the commission, counsel or military judges;
       2/3 vote of members required for conviction; 3/4 vote 
     required for sentences of life or over 10 years; unanimous 
     verdict required for death penalty;
       Verbatim authenticated record of trial;
       Cruel or unusual punishments prohibited;
       Treatment and discipline during confinement the same as 
     afford to prisoners in U.S. domestic courts;
       Right to review of full factual record by convening 
     authority; and
       Right to at least two appeals including to a Federal 
     Article III appellate court.

  We provide all these rights, and we give them an independent judge, 
and the right to at least two appeals, including the U.S. Court of 
Appeals for the District of Columbia and access to the Supreme Court. 
Nobody can say this is not a fair system.
  I know some of my colleagues are concerned about the issue of 
reciprocity. Look at this list of rights. And we are going to put it up 
here, Mr. Speaker, so that all the Members can see this. And also keep 
in mind that these are the rights for terrorists. These are the rights 
for the people who struck us on 9/11 and killed thousands of Americans. 
If we are talking about true reciprocity, then we are only concerned 
about how the enemy will treat American terrorists. These are not our 
rules for POWs; these are how we treat terrorists. We treat the 
legitimate enemy differently, and expect them to treat our troops the 
same.
  How do we try the enemy for war crimes? In this act, Congress 
authorizes the establishment of military commissions for alien unlawful 
enemy combatants, which is the legal term we use to define 
international terrorists and those who aid and support them, in a new 
separate chapter of title 10 of the U.S. Code, chapter 47A. While this 
new chapter is based upon the Uniform Code of Military Justice, it 
creates, Mr. Speaker, an entirely new structure for these trials.
  In this bill we provide standards for the admission of evidence, 
including hearsay evidence and other statements, that are adapted to 
military exigencies and provide the military judge the necessary 
discretion to determine if the evidence is reliable and probative. And 
he must find that it is reliable and probative before he allows it to 
be admitted.
  I want to talk a little bit about how we handle classified evidence. 
We had three hearings on this bill in addition to briefings and 
meetings with experts. I asked every witness the same question: If we 
have an informant, either a CIA informant or an undercover witness of 
some sort, are we going to tell Kalid Sheikh Mohammed who the informant 
is? The legislation does not allow KSM to learn the identity of the 
informant.
  After several twists and turns in the road, after meeting with the 
Senate and the White House in marathon sessions over the weekend, we 
have crafted a solution that does not allow the alleged terrorists to 
learn the identity of the informant, yet provides a fair trial. And, 
Mr. Speaker, that is critically important to all of us in this Chamber, 
because that American agent or informant may have information that 
saves thousands of lives. He may be of enormous value added to the 
security of this country. We can't divulge his identity, and we can't 
divulge it to the alleged terrorist, and doing so would allow that 
information to go back quickly, as it has on two occasions: one coming 
out of the first bombing of the World Trade Center where we now have 
established that Osama bin Laden did come into possession of classified 
evidence that was moved up through those court proceedings, and once in 
Guantanamo. So it is very, very important that we protect classified 
evidence and that we protect the identity of our agents.
  We address this in section 949d, subsection (f) of section 3. 
Classified evidence is protected and is privileged from disclosure to 
the jury and the accused if disclosure would be detrimental to national 
security. The accused is permitted to be present at all phases of the 
trial, and no evidence is presented to the jury that is not also 
provided to the accused. Section 949d(f) makes a clear statement that 
sources, methods, or activities will be protected and privileged and 
not shown to the accused.
  However, and this is how you move the essence of an undisclosed 
agent's testimony to the jury without disclosing the identity of the 
agent, the substantive findings of the sources, methods, or activities 
will be admissible in an unclassified form. This allows the prosecution 
to present its best case while protecting classified information. In 
order to do this, the military judge questions the informant outside 
the presence of the jury and the defendant. In order to give the jury 
and the defendant a redacted version of the informant's statement, the 
judge must find, one, that the sources, methods, or activities by which 
the U.S. acquired the evidence are classified; and, two, that the 
evidence is reliable.
  Once the judge stamps the informant as reliable, the informant's 
redacted statement is given to both the jury and the accused. It 
removes the confrontation issue. And this, again, to my friends who 
said we want to follow the UCMJ and we want to give these people all 
the rights that we give our uniformed servicemen, our analysis is that 
we would not be able to keep from disclosure the identity of our 
special agents if we followed the UCMJ. That is designed to protect 
American uniformed servicemen, and it is not something that we should 
apply in the case of alleged terrorists.
  I think that these rules protect classified evidence and yet preserve 
a fair trial.
  One other point I want to make for the record. As I mentioned 
earlier, we have modified the rules of evidence to adapt to the 
battlefield. One of the principles used by the judiciary in criminal 
prosecutions of our citizens is called the fruit of the poisonous tree

[[Page H7535]]

doctrine. This rule provides that evidence derived from information 
acquired by police officials or the government through unlawful means 
is not admissible in a criminal prosecution.
  I want to make it clear that it is our intent with the legislation 
not to have this doctrine apply to evidence in military commissions. 
While evidence obtained improperly will not be used directly against 
the accused, we will not limit the use of any evidence derived from 
such evidence.
  The deterrent effect of the exclusionary rule is not something that 
our soldiers consider when they are fighting a war. The theory of the 
exclusionary rule is that if the constable blunders, the accused will 
not suffer. However, we are not going to say that if the soldier 
blunders, we are not going to punish a terrorist. Some rights are 
reserved for our citizens; some rights are reserved for civilized 
people.
  Mr. Speaker, this is a complicated piece of legislation. In addition 
to establishing an entire legal process from start to finish, we 
address the application of common article 3 of the Geneva Conventions 
to our current laws.
  Section 5 clarifies that the Geneva Conventions are not an 
enforceable source of rights in any habeas corpus or other civil action 
or proceeding by an individual in U.S. courts. Mr. Speaker, this 
protects American troops.
  Section 6 of the bill amends 18 U.S.C. section 2441, the War Crimes 
Act, to criminalize grave breaches of common article 3 of the Geneva 
Conventions. As amended, the War Crimes Act will fully satisfy our 
treaty obligations under common article 3. This amendment is necessary 
because section C(3) of the War Crimes Act defines a war crime as any 
conduct which constitutes a violation of common article 3. Common 
article 3 prohibits some actions that are universally condemned, such 
as murder and torture, but it also prohibits outrages upon personal 
dignity and what is called humiliating and degrading treatment, phrases 
which are vague and do not provide adequate guidance to our personnel.
  Since violation of common article 3 is a felony under the War Crimes 
Act, it is necessary to amend it to provide clarity and certainty to 
the interpretation of this statute. The surest way to achieve that 
clarity and certainty is to define the list of specific offenses that 
constitute war crimes punishable as grave violations of common article 
3.
  And, Mr. Speaker, this is very important. This protects our troops, 
it gives them certainty, it gives them clarity. You don't want to have 
our troops so paralyzed by what they see as prosecutions arising out of 
common article 3 that you will have a situation where a female officer 
in the U.S. military will not interrogate a Muslim male on the basis 
that she is afraid that that action may be defined or projected as 
being a humiliation of that particular prisoner being interrogated and 
therefore subjecting that female American officer to a war crimes 
accusation.
  So what we have done is we have taken the offenses that are 
considered to be grave offenses under article 3, and then I have 
enumerated several of those, and we define those as the offenses which 
will be applicable upon which prosecutions can be brought, and then we 
give to the President on what I would call infractions of Geneva 
article 3 or lesser violations of Geneva article 3, we give him the 
right to put together regulations that account for and treat actions 
that are defined under those minor offenses.
  Section 6 of the bill also provides that any detainee under the 
custody or physical control of the United States will not be subject to 
cruel, inhumane, or degrading punishment provided by the fifth, eighth, 
and fourteenth amendments to the Constitution as defined by the U.S. 
Reservations to the U.N. Convention Against Torture. This defines our 
obligations under common article 3 by reference to the U.S. 
constitutional standard adopted by the Detainee Treatment Act that we 
passed in 2005. And, Mr. Speaker, all parties, both Houses, decided 
that it was appropriate that we define this type of treatment, 
degrading treatment, especially under the reservations to the 
convention that is mentioned, the U.N. Convention Against Torture. We 
decided that that was good enough for putting together the Detainee 
Treatment Act; it should be good enough for this particular body of 
law.
  Section 7 of the bill addresses the question of judicial review of 
claims by detainees by amending 28 U.S.C. section 2241 to clarify the 
intent of the Detainee Treatment Act of 2005 to limit the right of 
detainees to challenge their detentions. The practical effect of this 
amendment will be to eliminate the hundreds of detainee lawsuits that 
are pending in courts throughout the country and to consolidate all 
detainee treatment cases in the D.C. Circuit Court.
  However, I want to stress that under this provision detainees will 
retain their opportunity to file legitimate charges to their status and 
to challenge convictions by military commissions. Every detainee under 
confinement in Guantanamo Bay will have their detention reviewed by the 
U.S. Court of Appeals for the District of Columbia.

                              {time}  1345

  So what we are doing here is channeling the suits to a particular 
court which has great expertise in this area, rather than let them be 
put in rifle-shot fashion or form-shot fashion to other courts 
throughout the United States.
  Mr. Sensenbrenner and my other colleagues are going to speak on the 
rest of the bill. But, before I finish, I want to make one point very 
clear. This legislation does not condone or authorize torture in any 
way. In fact, we make it a war crime punishable by death for one of our 
interrogators to torture someone to death.
  Let me emphasize that again. In section 6 of this bill, we amend 18 
U.S.C. 2441, the War Crimes Act. In this amendment, we explicitly 
provide that torture inflicted upon a person in custody for the purpose 
of obtaining information is a war crime for which we may prosecute one 
of our own citizens. While most of this legislation deals with how we 
handle the enemy, I want to make it crystal clear that nothing in what 
we are doing condones or allows torture in any way.
  Mr. Speaker, unfortunately, I heard at least one Member on the 
Democrat side say that this gives the President the right to define 
what torture is. That is not accurate. Torture is forbidden, and there 
are specific criminal penalties for torture.
  In summary, I think this legislation is the best way to prosecute 
enemy terrorists and to protect U.S. Government personnel and service 
members who are fighting them.
  Let me make one final statement with respect to the right to Miranda 
warnings and all of the evidentiary rulings that accompany an 
application utilizing the UCMJ, the Uniform Code of Military Justice, 
in battlefield situations if we had done that, which we did not.
  In the hearings we had, we had at least one experienced officer in 
the Judge Advocate Corps state that it was his opinion, having tried 
hundreds of cases, that if you applied the UCMJ, as a number of Members 
on the Democrat side said they would like to do, to constitute the body 
of law under which we are prosecuting terrorists, in this officer's 
opinion once a corporal had captured a terrorist on the battlefield, 
maybe seconds after that terrorist had shot at him, and threw that 
terrorist over the hood of a Humvee, if you used the UCMJ, he would at 
that point have to give him the Miranda rights and then call up a 
lawyer and assign that lawyer to that alleged terrorist, and then all 
of the statements and all of the evidentiary rulings that could flow 
from that activity would then trigger.
  Mr. Speaker, we can't have a battlefield where platoon leaders and 
company commanders are bringing up fire teams and with those fire teams 
they are bringing up teams of lawyers. That is why we needed a new type 
of structure for this new type of battlefield.
  Mr. Speaker, I think we have responded to the mandate of the Supreme 
Court that Congress involve itself in producing this new structure to 
prosecute terrorists. I think we have done a good job. We have worked 
hard with the Senate and White House. We have made dozens and dozens 
and dozens of agreed provisions in here that have been carefully looked 
over by the Senate, the White House, and the House of Representatives. 
I think we have a package that will allow us to leave this

[[Page H7536]]

body in the next several days having put into place a system under 
which we can try individuals who are now waiting at Guantanamo, people 
who are alleged to have designed the attack against the United States 
on 9/11 and which we can now begin the prosecution of those 
individuals.
  I want to thank everybody who has participated in this long and 
arduous procedure. We have had lots of hearings in the Senate and in 
the House. My good colleague, Mr. Skelton, was involved himself in 
these hearings and on the original markup that we did on the bill.
  We have differences of opinions. I think this is a time when we 
should come together and pass what is an excellent body of law that 
will be a very important part of fighting this new war against this new 
type of enemy.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we need to be tough on the terrorists, but we also need 
to be tough with certainty. I oppose this legislation because it lacks 
the certainty that we require.
  As a former prosecuting attorney from yesteryear, Mr. Speaker, I 
remember the specter that hangs over every prosecutor's head after 
successfully prosecuting a criminal, and that specter is that the 
Supreme Court will reverse that hard-won conviction.
  I am terribly concerned that this is not tough enough because it does 
not bring about the certainty of a conviction being upheld and standing 
the scrutiny of our Supreme Court.
  This is a constitutional issue. The debate today will undoubtedly go 
down in the annals of our country as being one that stands out as a 
study in constitutional law and duty thereunder. Our duty as Members of 
Congress is to uphold the Constitution. That is what I intend to do in 
my speech and in my vote.
  But also it is our duty to pass legislation that is constitutional. I 
have serious questions as to whether this is constitutional or not.
  I received a letter from the Chief Counsel of the tribunals that 
exist, Colonel Dwight Sullivan, who said, ``If the new military 
commission system is constitutionally permissible, allow it to proceed 
with the judiciary's imprimatur. If, as I believe, it is 
constitutionally deficient, then allow the judiciary to quickly 
identify its faults so they can be corrected.''
  I offered an amendment to the Rules Committee that would provide for 
expedited review by the court system, and it was turned down.
  What is so bad is that a case goes cold, witnesses disappear, 
witnesses die. It would be an absolute injustice for a despicable 
terrorist, once convicted, to have that conviction overturned, and you 
can't try it again. Some of these people are absolutely the worst of 
the worst. That is why we need certainty in the law, and that is what 
we do not have here.
  There are numerous constitutional challenges regarding this 
legislation. I will mention them:
  The provisions that strip the Federal courts of jurisdiction over 
habeas corpus.
  Second, article I of the Constitution prohibits ex post facto laws. 
That is what this creates.
  Third, it is questionable as to whether under article III of the 
Constitution the Supreme Court would uphold a system that purports to 
make the President the final arbiter of the Geneva Convention.
  Fourth, the provisions regarding coerced testimony may be challenged 
under three amendments to our Constitution.
  Fifth, the right to confront witnesses and evidence. It also, among 
other things, has legislation containing the broadest of hearsay rules.
  Sixth, the violation of the exceptions clause under article III.
  Seventh, the challenges on equal protection and other constitutional 
grounds.
  We want certainty, Mr. Speaker. We want these people, once tried, to 
be convicted and that conviction upheld. If we pass a law full well 
knowing that there are provisions in here that would allow them a get-
out-of-jail-free card or to have a death sentence reversed, we are 
doing wrong. We are doing wrong according to our duty, and we are doing 
wrong in representing the people of our country.
  We need certainty as well as toughness. Without certainty, we will 
not be tough on these terrorists.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HUNTER. Mr. Speaker, I yield 3 minutes to the gentleman from New 
Jersey (Mr. Saxton), the chairman of the Subcommittee on Terrorism.
  Mr. SAXTON. Mr. Speaker, I rise in strong support of H.R. 6166.
  Ladies and gentleman, this is not an ordinary bill. This is an 
urgently needed measure to fill a gaping hole in our legal system, both 
in our ability to bring criminals of 9/11 to justice, the bombings of 
the USS Cole and the American embassies in Kenya and Tanzania to 
justice, and to protect our American troops and agents from frivolous 
prosecutions and lawsuits. It is no exaggeration to say that this is 
the most important measure to come before this body in this Congress.
  Without this bill, the mastermind of 9/11, Khalid Sheik Mohammed, who 
deliberated and cold-bloodedly plotted the death of thousands of 
Americans, would go unpunished for his crimes upon humanity.
  Yes, we are a nation of laws. The Supreme Court has called upon the 
Congress to act, and that is what we will do.
  We have produced an extraordinarily fair criminal process here to 
adjudicate the fate of these terrorists. Those who would find the court 
procedures laid out in this bill wanting will never be satisfied until 
we are reading Miranda rights on the battlefield. We have carefully 
narrowed and crafted the provisions of this bill to enable the United 
States to prosecute the perpetrators of the 1998 bombings of the 
American embassies in Kenya and Tanzania, the 2000 attack on the USS 
Cole, and other crimes that have been committed.
  Yes, these were suicide attacks and the men who delivered the 
explosives were killed, along with innocent victims, but the planner, 
logisticians, and financiers of those operations remain at large.
  Importantly, this bill allows, as all Americans believe it should, 
the criminal prosecutions of those who purposefully and materially 
supported these criminal activities. And, of course, the measure covers 
those responsible for 9/11 as well.
  Mr. Speaker, I can think of no reason that this measure should not 
pass unanimously. It outlaws torture.


                Announcement By the Speaker Pro Tempore

  The SPEAKER pro tempore. The Chair notes a disturbance in the gallery 
in violation of the Rules of the House and directs the Sergeant at Arms 
to restore order.
  The gentleman may proceed.
  Mr. SAXTON. Mr. Speaker, I can think of no reason that this measure 
should not pass unanimously. It outlaws torture, mandates decent 
treatment for unlawful enemy combatants who are in our custody, 
protects Americans from frivolous lawsuits and prosecutions, and, most 
critically, provides a fair, balanced and civilized process by which 
the international war criminals may be held accountable for their 
action.
  The world has waited long enough to bring these men to justice. Vote 
``yes'' on this measure.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from 
Texas (Mr. Ortiz).
  (Mr. ORTIZ asked and was given permission to revise and extend his 
remarks.)
  Mr. ORTIZ. Mr. Speaker, each and every Member of this House is 
equally concerned with bringing terrorists to justice and punishing 
them for attacking the United States because they have committed 
horrible crimes.
  But I have a lot of questions to ask. I want to be sure that I do the 
right thing. Why are we rushing into this? I know we have to comply 
with the law, but we should not be in a hurry. I think we need to do 
what is right.

                              {time}  1400

  You know, I have some questions. When the Geneva Conventions convened 
back in 1949, there were at least 200 countries who agreed in what came 
out of this convention. Are we prepared for other nations' leaders, 
such as Iran, Syria, and others, to selectively interpret the 
Conventions' article 3 in a way that we are comfortable with?

[[Page H7537]]

  I am pretty sure that when they met in 1949, there were agreements 
and disagreements, but we came out with something that everybody 
accepted. Now there are going to be some changes into that. Have we in 
any way contacted those leaders of those countries to see what they 
think about the changes that are being formulated today?
  I think that we are beginning to open up a can of worms. So we are 
going to have to be very careful of what we do. The Navy Judge Advocate 
General, the top lawyer for the Navy, reminded us recently that Geneva 
exists to protect American soldiers. Our protections are only as strong 
as the protections of the Geneva Conventions.
  Mr. Speaker, each and every member of this House is equally concerned 
with bringing terrorists to justice and punishing them for attacking 
the United States.
  Everything about this bill today begs questions.
  Do we know what we are doing in putting our feet on an unsure path, 
one which will certainly change the face of our international 
responsibilities and our international obligations?
  Why are we rushing this? We should not be in such a hurry to overhaul 
our international obligations.
  Nearly 200 nations around the world are signatories to the Geneva 
Conventions. Are we prepared for other nations' leaders--such as Iran, 
Syria and others--to selectively interpret the Convention's Article 3 
in a way that we are comfortable with?
  What can of worms are we opening today?
  The Navy Judge Advocate General, the top lawyer for the Navy, 
reminded us recently that Geneva exists to protect American soldiers. 
Our protections are only as strong as the protections Geneva offers.
  Why are we taking away the Supreme Court's authority--in a historic 
grab of power--to consult international law in interpreting conduct 
associated with the War Crimes Act?
  Are we taking away power from our other Federal courts?
  Do we remember one of the more salient points raised by the 9-11 
Commission that the United States was negligent in staying involved in 
matters around the world?
  The 9-11 Commission encouraged the U.S. to get more involved with 
other nations, to find security in a global environment. Are we doing 
that today?
  My grandson Oscar is almost 4 years old. He may be a soldier someday. 
While his grandfather is in Congress, I will raise my voice to keep our 
soldiers safe.
  When Congress gives away power to the President, it is a permanent 
move. The question each of us must ask is: how wise will this policy 
seem 10 years from now? And when the Congress gives power to the 
President, we must understand that the President today will not be in 
office years down the road.
  To my friends on the other side of the aisle: do you know the test to 
apply for this question? It is this: Think of the person you disagree 
with completely, imagine they are the President, and ask yourself: Do I 
really want that person to have this authority?

                           COMPARISON OF ALTERNATIVES RELATED TO MILITARY COMMISSIONS
----------------------------------------------------------------------------------------------------------------
                     Compromise bill (H.R. 6166)                                McCain-Warner (S. 3901)
----------------------------------------------------------------------------------------------------------------
                          GENEVA CONVENTIONS, TREATY OBLIGATIONS AND INTERNATIONAL LAW
 
Authorizes the President to interpret of meaning and application of   Defines grave breaches to Common Article 3
 the Geneva Conventions.                                               of the Geneva Conventions to include
                                                                       cruel, unusual, inhumane treatment or
                                                                       punishment with reference to the 5th, 8th
                                                                       and 14th Amendments.
Revises War Crimes Act to provide limited immunity for government     Does not retroactively apply the revisions
 officials from prosecution for past acts that degraded and            to the War Crimes Act.
 humiliated detainees.
Asserts that the revised War Crimes Act fully satisfies the U.S.      Does not create a three-tier system of
 obligation under the Geneva Convention to provide penal sanctions     enforcement, with Presidential discretion
 for grave breaches of Common Article 3.                               to define and enforce any offenses below
                                                                       grave breaches of Common Article 3.
Adds a ban on U.S. courts using any international law in              ..........................................
 interpreting conduct prohibited in the War Crimes Act.
Makes the War Crimes Act changes retroactive to the amendments to     ..........................................
 the War Crimes Act in 1997.
For lesser offenses below a grave breach, gives the President         ..........................................
 explicit authority to interpret the meaning and application of the
 Geneva Conventions Common Article 3.
Requires that such interpretations be published, rather than          ..........................................
 described in secret to a restricted number of lawmakers.
Affirms that Congress and the judiciary can play their customary      ..........................................
 roles in reviewing the interpretations.
Prohibits cruel, inhuman, or degrading treatment or punishment and
 relies on the President to ensure compliance.
                                                                      ..........................................
                                          DEFINITION OF ENEMY COMBATANT
 
Expands the definition of an ``unlawful enemy combatant'' to include  Defines ``unlawful enemy combatant'' as an
 an individual who has ``purposefully and materially'' supported       individual engaged in hostilities against
 hostilities against the U.S. or its co-belligerents or a person who   the United States who is not a lawful
 is or was determined to be an unlawful enemy combatant by a           enemy combatant.
 Combatant Status Review Tribunal.
 
                                          DETAINEE HABEAS CORPUS CLAIMS
 
Identical to S. 3901                                                  Extinguishes pending Habeas Corpus claims.
 
                          CLASSIFIED INFORMATION AND ACCESS OF THE ACCUSED TO EVIDENCE.
 
Generally the same as S. 3901 with some additional clarifications to  The accused may not be denied access to
 ensure the accused will not see classified information.               evidence against him that is presented to
                                                                       the panel or jury.
                                                                      The accused will not see classified
                                                                       information.
                                                                      Essentially follows the existing military
                                                                       rules of evidence requiring
                                                                       declassification, redaction and use of
                                                                       substitutes.
                                                                      The prosecution may decide to delete
                                                                       charges, withdraw the case, or defer
                                                                       prosecution.
 
                              EVIDENCE OBTAINED THROUGH COERCION/SELF-INCRIMINATION
 
Allows statements, obtained before passage of the DTA, through        Prohibits use of statements obtained by
 cruel, inhuman and degrading treatment and lesser forms if coercion   cruel, inhuman, and degrading treatment
 of the military judge finds it reliable and probative and in the      not amounting to torture.
 interest of justice.
Allows statements, obtained after passage of the DTA, through         Statements obtained by lesser forms of
 coercion (but not through cruel, unusual, or inhumane treatment or    coercion may be allowed if the military
 punishment) if the judge finds it reliable and probative and in the   judge finds it reliable and probative,
 interest of justice.                                                  and in the interest of justice.
 
                                                HEARSAY EVIDENCE
 
Hearsay is more easily admissible.                                    Hearsay is admissible if the military
                                                                       judge finds the evidence more probative
                                                                       than other evidence the proponent can
                                                                       reasonably obtain.
Hearsay normally inadmissible can be used unless the party it is      ..........................................
 used against demonstrates it is unreliable or lacks probative value
 (burden of proof is on the accused).
Emphasizes the importance of preventing disclosure of classified
 hearsay (no substantive addition).
                                                                      ..........................................
                                                     APPEALS
 
Establishes a Court of Military Commission Review, with appeals to    Appeals would be to the Court of Appeals
 the D.C. Circuit, and by certiorari to the Supreme Court.             for the Armed Forces, and by certiorari
                                                                       to the Supreme Court.
----------------------------------------------------------------------------------------------------------------

  Mr. HUNTER. Mr. Speaker, I would like to yield 3 minutes now to the 
gentleman whose subcommittee oversees the policies for our 2.5 million 
folks in uniform, Mr. McHugh of New York.
  (Mr. McHUGH asked and was given permission to revise and extend his 
remarks.)
  Mr. McHUGH. Mr. Speaker, I thank the gentleman for yielding.
  Let me just make a few comments based off that statement. This is a 
great country when we can have, as we had moments ago, an individual 
come into the people's House and express, perhaps out of order but very 
passionately, their concerns about how we are being unfair.
  Let me be very clear. As someone who has for 14 years visited our 
troops in virtually every combat theater in which they have been 
located, if our troops were to be taken prisoner, they would be well 
served by the enemies of this Nation, such as Sudan, such as North 
Korea, and, as was mentioned, Iran and others, to be treated under the 
provisions of this act.
  We are extending to these terrorists, and make no mistake about it 
that they are terrorists, unlawful combatants, the rights and 
protections that all of us as American citizens enjoy under the fifth, 
the eighth, and the fourteenth amendment.
  I have heard my good colleagues, and they are good Americans, express 
concerns about somehow changing our obligations under the Geneva 
Conventions under common article 3. Make no mistake about this as well. 
The language that we are incorporating into our basic domestic criminal 
law uses the language of the commentaries on

[[Page H7538]]

common article 3 and the Geneva Conventions. We simply harmonize that 
common article 3 with our United States laws, requiring that only grave 
breaches of that common article, as provided in the Geneva Conventions' 
commentaries, are subject to criminal prosecution.
  International law has traditionally provided, time and time again, 
that it is the signatory to an international convention that is 
responsible for making it clear what the violations of law may be, and 
that is what we are doing here today.
  John McCain, Lindsey Graham, Members of the other body who have had 
experience in these matters, either as being prisoners of war or as 
having the opportunity to go through as a Judge Advocate General in 
prosecuting, understand our responsibility is to not throw away the 
conventions that we have committed ourselves to as Americans and to not 
abandon the leadership we have shown for more than 200 years in the 
question of human rights. This bill meets that standard.
  It is not sufficient to say that convictions may be overturned if the 
answer is not to convict at all. We have to recognize that it is our 
responsibility to the American people and to the brave men and women 
that I have visited as a member of the Intelligence Committee who we 
ask to interrogate these people that we will do the right thing by 
them, respect international conventions and respect the basic tenets 
upon which this Nation was built, that of human rights. This bill does 
it, and I would hope all my colleagues would support it.
  Mr. Speaker, I rise today in strong support of H.R. 6166. This bill 
is vitally important for securing America and ensuring that accused 
terrorists are tried for war crimes in an open and transparent court 
that will apply justice swiftly and fairly.
  There is more to this bill than military commissions, however. H.R. 
6166 addresses an issue that Supreme Court created in the Hamdan case. 
The Court in Hamdan decided that Common Article 3 of the Geneva 
Conventions--a article that many assumed only applied to regular 
armies--applies to terrorist organizations, like al Qaeda. As a result 
of this decision, our brave personnel in the military and other 
national security agencies are faced with' an unpredictable legal 
landscape because the meaning of certain elements of Common Article 3 
are vague--the standard? An outrage against personal dignity.
  The question, would a female interrogator of a male Muslim detainee 
be guilty of violating Common Article 3 because the mere scenario 
constitutes an outrage upon personal dignity? That kind of situation is 
untenable. It's unfair to our personnel out in the field trying to 
protect lives here at home. It is Congress' responsibility to draw the 
lines of what conduct will be judged criminal.
  As a result, we need to amend the War Crimes Act to make clear that 
only grave breaches of Common Article 3 constitute a war crime under 
U.S. law. Let me be clear, under international law a party to the 
treaty is responsible for incorporating only grave breaches of Common 
Article 3 in its penal code. My point is simple: Today the Congress is 
complying with our treaty obligations under Geneva Conventions and 
today the Congress is following the guidance of the Supreme Correct in 
Hamdan (even though many believe that the Court's decision was ill 
construed).
  Now, some have suggested that H.R. 6166 condones torture or that this 
bill implicitly permits ``enhanced torture techniques''. These 
suggestions are absolutely false and they fly in the face of the very 
words that appear on the pages of this bill.
  First--it is illegal under U.S. law to torture. This was true before 
H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a 
war crime that can result in the death penalty. This means that under 
the War Crimes Act, any U.S. personnel that engages in torture will be 
subject to prosecution for committing a war crime. Additionally, in the 
context of military commissions, a statement obtained through torture 
is not admissible.

  Second--this bill makes clear that the way we treat our detainees is 
guided by treatment standards set by the Congress--last year--in the 
Detainee Treatment Act, also know as the McCain amendment. This 
standard is based upon the familiar standards of the U.S. Constitution. 
Thus, ``cruel, inhuman, and degrading treatment or punishment'' under 
this section means the cruel, unusual, inhumane treatment or punishment 
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the 
Constitution, as defined by the U.S. reservations to the UN Convention 
Against Torture.
  Don't we all agree that the Constitution, which provides the 
fundamental, underlying protections for the citizens of the United 
States, provides more than sufficient protections for unlawful enemy 
combatants? Why should an accused terrorist enjoy protections that 
exceed what the Constitution provides every to every one of us as 
United States citizens?
  Let me close by saying that this is an important bill for the 
American people--we will bring the masterminds of 9/11 to justice, and 
this is an important bill for the brave men and women fighting this 
battle--they can do their job in theater without the fear of frivolous 
prosecution here at home.
  Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the distinguished 
gentlewoman from California (Ms. Harman), ranking member of the 
Intelligence Committee.
  (Ms. HARMAN asked and was given permission to revise and extend her 
remarks.)
  Ms. HARMAN. Mr. Speaker, I thank the gentleman for yielding and 
commend him for his very impressive service as ranking member of the 
Armed Services Committee.
  Mr. Speaker, I take a back seat to no one in my effort to understand 
the threats against us, find those who would cause us harm, and prevent 
them from harming us. I also believe strongly that Congress must act 
under article I, section 8 of the Constitution to regulate ``captures 
on land and on water.''
  Since this administration started new programs to detain and 
interrogate terror suspects after 9/11, I have offered to help craft a 
new legal framework around those policies. I have called on the Vice 
President, his chief of staff, the National Security Adviser, and the 
Attorney General to help Congress craft such a framework to eliminate 
the fog of law. And I have argued that this new framework would 
empower, not limit, those who must carry out those policies because 
they would know that they were acting legally.
  Today's bill is far from the best we can do. The rule for debate is 
closed, which means that none of us can improve the bill. And as debate 
has made clear, this bill was written by the White House in 
consultation with a few Republican Members. There was no bipartisan 
consultation and possibly none with any of the Republican members of 
the Intelligence Committee.
  Others will address issues with immunity, coerced confession, habeas 
corpus, and court review. I want to address the issue which relates to 
the Intelligence Committee and which I believe is the primary reason 
for rushing the legislation through. There is a carve-out for the CIA. 
The bill would permit the CIA to continue a separate program for 
interrogation that does not comply with the Army Field Manual. If such 
a program is needed, then Congress must impose strict limits and ensure 
that we have the tools to do strict oversight.
  An amendment which Mr. Skelton and I hoped to offer today would have 
required notification in advance to the intelligence committees of any 
alternative set of interrogation procedures; a legal opinion from the 
Attorney General that they comply with Federal and international law; 
assurances that they are applied only to those we believe possess 
reliable, high-value, actionable intelligence; that the Army Field 
Manual techniques would not work; and that the use of the techniques 
would not adversely affect our troops who may be captured. Our 
amendment was not made in order, and I remain very skeptical that 
Congress can assure that any CIA carve-out will be limited and 
carefully monitored.
  Mr. Speaker, we can do better. The bill negotiated by Senators 
McCain, Graham, and Warner was better. Let us wait for the lame duck 
session and do this right. Vote ``no.''
  Mr. HUNTER. Mr. Speaker, at this time I would like to yield 2 minutes 
to the gentleman who sits on both the Armed Services Committee and the 
Intelligence Committee and has put enormous focus on this particular 
bill, the gentleman from Texas (Mr. Thornberry).
  Mr. THORNBERRY. Mr. Speaker, I think it is important to start with 
some important truths to remind ourselves of: one, we are in a struggle 
against a vicious, determined enemy who is determined to kill as many 
of us in as spectacular and as brutal a fashion as possible. Secondly, 
this struggle stretches all around the world and will go on for a long 
time. And, third, the enemy lives in the shadows and does

[[Page H7539]]

not reveal when or where or how they are going to strike. Information 
is the key weapon we have to prevent them from killing us and to 
prevent them from attacking others in the future.
  This debate, as you have heard, has been mostly about what rights 
those few who we are able to capture, what rights, legal rights, they 
have under our system. But I think it is important to also remind 
ourselves about the critical nature of information and in stopping 
future attacks. In the Cold War we worried about missiles and tanks, 
and we could use satellites to count on. Here we are worried about 
three guys in a cave or half a dozen in a compound or four in a flat in 
London. If we don't have credible, specific information to stop those 
individuals and what they plan, then we will not be able to do so.
  I think this is a good bill, but I also believe that it is right up 
to the edge of tying our own hands or, to change my metaphor, of 
putting blinders on ourselves, to make it very, very difficult to stop 
future attacks. I think it is important to do this bill now so that 
there is the certainty that our folks in the field, in uniform and out 
of uniform, desperately need to have. But we need to be careful that 
those of us in this Congress do not take the extra step to make their 
job impossible and then point the fingers at them in the future.
  I think Members should support this bill, and I also believe Members 
should be careful in the future.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the very distinguished 
gentleman from Texas (Mr. Reyes).
  Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, as a member of the House Intelligence Committee and the 
House Armed Services Committee, I understand the critical need to have 
the best possible intelligence both to prevent terrorist attacks 
against our Nation and to protect our troops in the battlefield. But 
those who have tied passage of military commissions legislation to the 
collection of actionable intelligence are simply misleading the 
American people.
  I am deeply disappointed that military commissions legislation 
crafted by the White House and the Republican congressional leadership 
does not create a system that will pass constitutional muster. Like my 
colleagues, I demand that our Nation prosecute those who commit 
terrorist acts against us, but if Congress and the White House create a 
system of military tribunals that will be struck down by the Supreme 
Court as unconstitutional, we will further delay justice for the 
victims of terrorism and for their families.
  The Bush administration has determined that we can legally hold all 
enemy combatants until the end of hostilities in the global war on 
terrorism, and as the National Intelligence Estimate released yesterday 
indicated, we won't be able to declare victory in the fight against 
terror and extremism anytime in the foreseeable future. So I ask, why 
are we in such a hurry to pass legislation that may do more harm than 
good? Why are we putting politics above victims of terrorist acts? Why 
are we endangering our troops?
  Protecting our Nation also includes protecting the men and women who 
are serving in uniform in battlefields around the world. I believe, 
along with other military and legal experts, that the Republican 
military commissions bill will be interpreted by the international 
community as redefining our obligations under the Geneva Conventions. 
Our Nation must act from a position of strength, and we must think 
first of protecting our citizens before weighing how the world will 
view our actions. However, it is very unrealistic to simply ignore the 
impact that the changes included in H.R. 6166 could have on members of 
our military.
  For that reason, Mr. Speaker, in wrapping up, I cannot support H.R. 
6166 as it is written. We can do much better for our troops, the 
victims of terrorism, and the American people.
  Mr. HUNTER. Mr. Speaker, I would like to yield at this time 2 minutes 
to a gentleman who is himself a veteran and a former JAG officer and 
the chairman of the Veterans' Affairs Committee and a gentleman who has 
paid a lot of attention to this important subject, the gentleman from 
Indiana (Mr. Buyer).
  Mr. BUYER. Mr. Speaker, I rise to enter into a colloquy with the 
distinguished chairman of the House Armed Services Committee, Mr. 
Hunter.
  Mr. Hunter, as stated in section 948k of the legislation before us, 
military defense counsel shall be detailed to the accused as soon as 
practicable after the swearing of charges against the accused.
  Section 949a of the legislation permits the accused to represent 
himself. That section also defines how the accused will conduct himself 
and when the military judge, in his discretion, may partially or 
totally revoke this right.

                              {time}  1415

  Of concern to me and some military lawyers is that, should this right 
be revoked, a delay of trial could occur while waiting for the detailed 
defense counsel of the accused or an appropriate authorized civilian 
counsel to get up to speed and to begin to perform the defense.
  It is my understanding that the intent of the legislation allows the 
detailed military counsel to remain as an associate counsel should the 
accused exercise his right of self-representation. This ensures that 
even if the accused's right is revoked by the judge, the trial will 
continue in a timely and efficient manner.
  Mr. HUNTER. Mr. Buyer, that is correct. It is the intent of the 
legislation that the detailed military counsel shall act as an 
associate counsel during the course of self-representation. As you 
stated, should this right be revoked, the military counsel will then 
proceed to represent the accused throughout the rest of the trial.
  Mr. BUYER. Chairman Hunter, I want to thank you for entering into 
this colloquy with me and for your work on this provision and the 
legislation as a whole. I would also like to thank the President. He 
said he would work with the House and the Senate. He has done that. 
Chairman, you have done that. I want to thank Senator Lindsey Graham 
for having done that.
  Let me just share to all of my colleagues that I do believe this is a 
good product, Chairman Hunter; and I want to let everybody know and 
understand that.
  This Code of Military Commissions, it has a good balance. You have 
struck that.
  Mr. HUNTER. Mr. Speaker, I thank the gentleman. I want to thank him 
for his valuable contribution.
  Mr. ANDREWS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman 
from New York (Mr. Israel), my very thoughtful friend.
  Mr. ISRAEL. Mr. Speaker, I rise in opposition to this bill. The 
distinguished chairman of the committee, who I have a very strong 
respect for, opened this debate by saying that in the global war on 
terror we cannot read terrorists their Miranda rights. No one has said 
that. No one has proposed it. No one has suggested it. That is not what 
is being debated here. That is not what we should debate here. It is 
absurd.
  When it comes to terrorists planning mass murder on the American 
people, I want to find them. I want to capture them. I want to kill 
them. I want to try them. If they are found guilty, I want to kill 
them. I believe in capital punishment for terrorists perpetrating 
genocide.
  But because I think that we should fight and kill terrorists, I want 
there to be fewer of them to fight and kill. This bill says to 
potential terrorists, the U.S. is surrendering the moral high ground. 
It is unilaterally relaxing the Geneva Conventions, that we are willing 
to keep people locked up indefinitely without a trial.
  And since I believe in executing people found guilty of perpetrating 
or planning a genocide on the American people, I want to make sure we 
are executing the right terrorists. Government is imperfect. We make 
mistakes. How do I know? Katrina. We lose records. How do I know? The 
long line of veterans at my district office who cannot get their back 
pay because we lost their records.
  When it comes to capital punishment for terrorists, I want to make 
sure that we are giving them the proper trial, that we are getting the 
facts. If I am willing to execute them, I want to make sure it is based 
on fact.
  And because I believe we should fight and kill terrorists, I also 
know that

[[Page H7540]]

Americans in that fight are going to be caught; and I want them treated 
by the same standards that we would treat our enemy's prisoners. I do 
not want any one of our military people to be subject to the whims and 
the arbitrariness of a current interpretation by a foreign enemy.
  Mr. Speaker, I want to close by suggesting and telling my colleagues 
that I recently asked a service member, who received a Bronze Star for 
valor in Fallujah, what he thought about this. He said, Congressman, I 
do not think our enemies really care about the Geneva Conventions, but 
I am fighting for my country because I care about morality, because I 
care about strong values, because this is a good country that leads the 
way, and I want to continue leading the way.
  If I am asking young men and women to die for what we stand for, I 
want to stand for something. If I am asking people to fight to kill 
terrorists, I want to be in the pursuit of our values, not the 
terrorist's values.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from New 
Jersey (Mr. Andrews).
  Mr. ANDREWS. Mr. Speaker, everyone who has spoken in this debate on 
both sides I think shares a deeply held conviction that they want 
terrorists who would threaten this country prosecuted, convicted and 
punished.
  Because I believe the commencement of those prosecutions is 
imperative for the future of the country, I will support this bill. I 
will do so, however, with two severe reservations which I would hope 
would be dealt with by the other body and in conference.
  The first has to do with the issue of habeas corpus, which is a 
complicated word, but in this context, here is what it means: As I read 
this bill there is a risk that a suspected terrorist could be held for 
an indefinite period of time without recourse to any decisionmaker 
outside of the executive branch.
  The constitutionally of this is ambiguous. But the wisdom of it I 
think is clear. It is not very wise. I think revisiting this provision 
as the bill goes forward would assure the constitutionality of the bill 
and its compliance with the Geneva Conventions.
  Secondly, I am concerned about the fact that there has been an 
insufficient procedure for us to consider this bill. There have been 
many good ideas dealing with habeas corpus, dealing with issues of 
retroactive immunity that I think deserve a full and fair airing and 
hearing on this floor. This is an unfortunate procedure in which we 
find ourselves.
  My concern is it will be our sole opportunity, given the way things 
go around here, to voice our opinions on this. I do think that the 
underlying provisions of this bill are consistent with the spirit and 
letter of our obligations under the Geneva Conventions.
  I have concluded that compliance with these conventions is essential 
so we can go forward in prosecuting and trying those who threaten our 
country. I believe this process needs great improvement. I think this 
bill needs one very specific improvement. But to move it forward, I 
will vote ``yes.''
  Mr. SKELTON. Mr. Speaker, I yield 5 minutes to the gentleman from 
Maryland (Mr. Hoyer).
  Mr. HOYER. I thank the gentleman for yielding.
  Mr. Speaker, I wanted nothing more than to come to this floor today 
and vote for a military commissions bill that comports with our 
American values, that the rest of the world would see as fair and 
humane, that honors our international commitments and protects our own 
troops who fall into enemy hands and, as the ranking member has pointed 
out, the Supreme Court would uphold.
  I regret that the chairman and the ranking member are not shoulder to 
shoulder on this issue, as should be the case. Too often have we 
considered these weighty matters of defending our country, defeating 
terrorism, protecting Americans in a partisan fashion. I think that is 
regrettable. I think the American people think it is regrettable.
  Make no mistake. Every single Member of this House wants our 
President to have the intelligence necessary to prevent future 
terrorist acts on our Nation and our allies. Every single one of us 
wants those responsible for 9/11 and other terrorist acts to be tried 
fairly and punished accordingly. And we want those convictions to be 
upheld by the courts, and we want to stop future attacks.
  But, regrettably, the bill before us today, in my opinion, falls far 
short of the high standards that this Congress and the American people 
expect and demand and indeed that the world expects of America. This 
legislation at bottom is really more about who we are as a people than 
it is about those who seek to harm us.
  That is true if it were domestic. It is true internationally. No one 
wants to defend murderers and rapists, those who would harm our people, 
whether they live here or they live abroad. However, defending America 
requires us to marshal the full range of our power, diplomatic and 
military, economic, and, yes, moral. And when our moral standing is 
eroded, our international credibility is diminished as well.
  We must not lightly dismiss the somber warning of our former 
Secretary of State, the leader of our Armed Forces, Chairman of the 
Joint Chiefs of Staff, serving on the administrations of President Bush 
I, and serving as his Secretary of State.
  He said this, and I quote Colin Powell: ``The world is beginning to 
doubt the moral basis of our fight against terrorism. I fear this 
legislation before us will further diminish that credibility.''
  While this bill properly lists as punishable offenses certain grave 
breaches of article 3 of the Geneva Conventions, it leaves almost 
unfettered discretion to the administration to define anything less 
than such grave breaches.
  Why should we be concerned about providing this administration with 
such discretion, one might ask? Because our President and our Attorney 
General have routinely flouted congressional authority with signing 
statements and legal interpretations, which give to them unfettered 
authority.
  As the Washington Post has stated, and again I quote: ``The Bush 
administration's history is one of interpreting limitations on 
interrogation tactics, including Mr. McCain's previous legislation, 
banning cruel, inhuman and degrading treatment, as permitting methods 
most people regard as torture.''
  Furthermore, Mr. Speaker, this bill eliminates the fundamental legal 
right of habeas corpus. What is habeas corpus about? Why should we care 
for terrorists who attack our country? Because we might make a mistake. 
That is why we build in protections, to protect against mistakes 
because we are human.
  The bill would greatly minimize judicial oversight by establishing a 
new appeals process and centralizing consideration of cases in the 
District of Columbia Court of Appeals, thus stripping other appellate 
courts from hearing cases currently pending before them.
  Mr. Speaker, I am absolutely committed to winning the war on 
terrorism and bringing to justice any and all terrorists who would 
threaten us, harm us or cause harm to our country. However, I also 
believe we have an obligation to the Constitution and to our oath to do 
so in a manner that is consistent with our values, that makes us 
different than other nations in the world, that secures just 
convictions and that enhances our international credibility, thereby 
strengthening our national security.
  I end as I started. I regret that I cannot support this legislation, 
and I are regret that it is not being offered in a bipartisan fashion. 
It would have been better for us, for the people, and for our country.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. LaHood). The Chair reminds all persons 
in the gallery that they are here as guests of the House and that any 
manifestation of approval or disapproval of proceedings or other 
audible conversation is in violation of the rules of the House.
  Mr. HUNTER. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, I want to set the gentleman straight who just spoke. 
Every single person held in Guantanamo has the right and will have the 
right under this legislation to contest whether or not they are, in 
fact, combatants and the status of their being swept up on the 
battlefield inadvertently or being, in fact, true enemy combatants. 
They will have that right.

[[Page H7541]]

  That is, in my estimation, an important type of habeas corpus. That 
is preserved in this bill.
  Mr. Speaker, I yield 1 minute to the gentleman from Louisiana (Mr. 
Boustany).
  Mr. BOUSTANY. Mr. Speaker, I rise in strong support of H.R. 6166. I 
want to compliment both Chairman Hunter and Chairman Sensenbrenner for 
bringing forth a very good bill and their prodigious work on this 
issue. I also want to commend Chairman Steve Buyer for his fine 
leadership as well on this issue.
  Mr. Speaker, it is time for the terrorists responsible for planning 
the most horrendous attack on U.S. soil and who continue to plan 
terrorist acts to be brought to justice. We have an obligation to the 
American people to deliver justice upon these criminals, as well as an 
obligation to the international community to uphold our treaty 
obligations.
  I, too, had some concerns about this at the outset, but I think this 
bill addresses the concerns. I am pleased that this bill contains 
provisions that will maintain our commitment to common article 3 of the 
Geneva Conventions, while also providing the necessary protection to 
U.S. personnel. This bill sets forth a fair, effective process 
consistent with our values, our laws and our obligations.
  Mr. Speaker, in closing, I urge swift passage of the Military 
Commission Act of 2006, so that we can continue to prosecute these 
terrorists intent on causing violence to innocent victims.

                              {time}  1430

  Mr. SKELTON. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from New York (Mr. Crowley).
  Mr. CROWLEY. Mr. Speaker, I believe it is my belief my colleagues on 
the other side of the aisle care more about giving the President what 
he wants rather than what is in the best interests of the American 
people, the people that we are sent here to represent.
  I know that these terrorists are vicious murderers. I have 
experienced it firsthand. I always thought I was safe in my warm, 
little comfortable bed in Woodside, Queens, New York. I know it is no 
longer the case, but it is my values as an American and those values 
that I hold dear that keeps that hatred in check.
  We must lead by example on these issues, not be evasive quasi-
participant in the rule of law.
  Our soldiers are abroad fighting a battle that I believe our 
President has not allowed them to win because of his continued 
mismanagement.
  The National Intelligence Estimate says that the war in Iraq has 
actually invigorated the growth of terrorism and worsened its threat 
around the globe.
  Today, we could have had an opportunity to fix one of those mistakes, 
but we are ignoring that opportunity and ignoring the respect for due 
process and denying habeas corpus to detainees.
  I cannot and will not support this legislation.
  Mr. SKELTON. Mr. Speaker, I yield 1 minute to the gentleman from 
Washington (Mr. Inslee).
  (Mr. INSLEE asked and was given permission to revise and extend his 
remarks.)
  Mr. INSLEE. Mr. Speaker, we ought to hold this truth to be self-
evident, that no President should be given the ability to hold people 
in detention indefinitely without review by the judicial branch.
  We should never yield to al Qaeda, not one inch, not one right, not 
one American principle; but, today, in this bill, we yield a 
fundamental American principle, the principle that no executive, no 
President, should have the untrammeled ability to be free of checks and 
balances that have kept our country so free in the last 230 years. That 
principle of writ of habeas corpus has been fundamental, and it is 
destroyed in this bill.
  When we learn that George Bush's policy has kept a man in detention 
for years who was totally innocent without trial, it was not just he 
who suffered. It was we who had a wound as well.
  We do not care about the terrorists' displeasure here, but we do care 
about the principled integrity of our country, about the light of 
liberty that so attracts the world. It is that light that will help us 
win the war on terrorism, not just the light of our bombs. This is the 
principal weapon in our arsenal. It is the light of liberty, may it 
ever shine.
  Reject this bill. Go back to the drawing board.
  Mr. SKELTON. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman 
from New Jersey (Mr. Holt).
  (Mr. HOLT asked and was given permission to revise and extend his 
remarks.)
  Mr. HOLT. Mr. Speaker, I rise in opposition to this measure which 
will not preserve principles of justice upon which this Nation was 
founded. How true we are to our ideals affects the clarity and 
decisiveness with which our soldiers can act, the safety of our troops, 
the motivation of our potential enemies, and the behavior of our actual 
enemies.
  This bill provides protections that are vague, slippery and 
imprecise. It is subject to interpretation by the President, by the 
Secretary of Defense, by our commanders in the theaters of operation, 
by our troops in the field, by our friends and enemies around the 
world.
  We need a bill that does at least two things. It should provide a 
clear set of guidelines consistent with American principles such as in 
our revised Army Field Manual; guidelines that apply to all U.S. 
Government personnel, on how to treat prisoners; guidelines that 
preserve our principles.
  Second, it should include verification mechanisms to monitor how 
prisoners and detainees are treated. One of those mechanisms is already 
in use by police departments and prosecutors across the country: the 
videotaping of interrogations.
  Videotaping has proven to be extremely effective at preventing not 
just abuse of detainees but also false allegations of abuse by 
detainees against their interrogators. The practice aids in 
interrogation, and it protects the enforcers, the prosecutors, the 
defendants and, hence, protects all of us. By not including such a 
provision in the bill, the drafters missed a real opportunity to ensure 
that we prevent serious problems in the future.
  Last night in the Rules Committee, I offered an amendment that would 
have replaced a few critical provisions of H.R. 6166 with text that 
Senators Warner, McCain, and Graham put forward two weeks ago 
emphatically supporting the principle that everyone, even detainees in 
Guantanamo, should be allowed to examine and respond to all evidence 
presented against them at trial. Of course, The Rules Committee denied 
Members the opportunity to vote on this and other amendments on the 
floor today.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from 
Oregon (Mr. Wu).
  (Mr. WU asked and was given permission to revise and extend his 
remarks.)
  Mr. WU. Mr. Speaker, I want to focus like a laser beam on the right 
of habeas corpus and the untoward effect of this legislation on habeas 
corpus. This is an ancient doctrine that has been with us since at 
least the days of Charles I. It has presented difficulties to many 
American Presidents from Jefferson to Lincoln to Grant to Roosevelt.
  We have the power to do much in restricting habeas corpus; but we 
should do so very, very carefully because it is the protection from 
tyranny that our forebears sought in the Revolution.
  Congress here is entering upon dangerous constitutional shoal waters, 
and it is, in my belief, unconstitutionally limiting access to habeas 
corpus. The courts have repeatedly ruled in a restricted fashion 
whenever Congress or the Presidency has restricted access to habeas 
corpus and each of us, not just the Supreme Court, but we in the 
Congress and those in the executive branch, we all take an oath to 
uphold the Constitution of the United States, and this act, by 
restricting habeas corpus, will not serve America well.
  And by so restricting habeas corpus, this bill does not just apply to 
enemy aliens. It applies to all Americans because, while the provision 
on page 93 has the word ``alien'' in it, the provision on page 61 does 
not have the word ``alien'' in it.
  Let us say that my wife, who is here in the gallery with us tonight, 
a sixth generation Oregonian, is walking by the friendly, local 
military base and is picked up as an unlawful enemy combatant. What is 
her recourse? She says,

[[Page H7542]]

I am a U.S. citizen. That is a jurisdictional fact under this statute, 
and she will not have recourse to the courts? She can take it to Donald 
Rumsfeld, but she cannot take it across the street to an article 3 
court.
  This bill applies to every American, regardless of citizenship 
status.
  Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the distinguished 
gentleman from Ohio (Mr. Kucinich).
  Mr. KUCINICH. Mr. Speaker, I want to thank the distinguished 
gentleman from Missouri, and let my colleagues know that I have read 
the bill and what I read here is pretty chilling. Matter of fact, I 
want to quote something from the bill that has not been discussed and 
ask that all of my friends read this bill so that we can see if this 
really reflects what we want to do and the implications this could have 
for Members of Congress because I have stood on this floor time and 
time again to protect this institution, and I want Members of Congress 
to think about this provision.
  You know, we have heard the President make comments that people who 
oppose this bill are really hurting the United States. We have all 
heard him say this.
  Section 26, wrongfully aiding the enemy. Any person subject to this 
chapter, by the way anybody is who in breach of an allegiance or duty 
to the United States knowingly and intentionally aids an enemy of the 
United States or any of the co-belligerents of the enemy shall be 
punished as a military commission under this chapter may direct.
  I want to know, are Members of Congress who challenge this 
administration as to their taking us into illegal wars, is that somehow 
contrary to allegiance to the United States? I mean, we need to think 
about this. What are we doing to this institution here? Are we turning 
us all into mice here, running into a corner because we are afraid to 
challenge the President?
  I mean, my friends who are Republicans, stand up for the Republic, to 
the Republic for which it stands. Stand up for the Republic. Read this 
provision in this bill.
  There is another provision in the bill that I think deserves a 
careful look. Suppose a President sometime in the future declares that 
some country has weapons of mass destruction, and based on those 
claims, the Congress moves quickly to give the President the authority 
to wage war, and then war is waged and hundreds of thousands of 
civilians are killed as collateral damage, and then we find out later 
on they did not have weapons of mass destruction, and then you have all 
these dead people, but they were collateral damage. Under this bill, 
which I have read, collateral damage is precluded from applicability 
with respect to the enforcement of the rule of law, or if there is a 
lawful attack, collateral damage is precluded from being cited.
  Now, suppose that happened in this country. That would be so awful 
that something like that happened, but essentially we are giving a get-
out-of-jail free card to the very officials who could lead this country 
down a path to war and kill innocent people based on lies.
  I do not see this as a Republican or a Democrat argument. I see this 
as a question of whether we stand up for what this country was founded 
upon. What are we about? What do we believe in? That is what we have to 
answer here, and this bill is everything we do not believe in.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. LaHood). The Chair notes a disturbance 
in the gallery in violation of the rules of the House and directs the 
Sergeant at Arms to restore order.
  Mr. SKELTON. Mr. Speaker, I yield 3\1/2\ minutes to the gentleman 
from California (Mr. Schiff).
  Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, it has taken over 5 years since September 11 for the 
administration to finally come to Congress and seek legislation 
establishing military tribunals to try terrorist suspects.
  For over 4 years now, many of my Democratic colleagues and I have 
urged this Congress to act in this area. Four-and-a-half years ago I 
introduced legislation, other of my colleagues did the same, to 
establish military tribunals, and we introduced that legislation for 
two reasons: first, because we should detain people who mean to harm 
our country and mean to injure our citizens; and, second, because the 
administration's unilateral act in establishing these commissions was 
on the most dubious of constitutional grounds and we did not want to be 
where we are today, 5 years hence, with a system that was struck down 
by the Supreme Court, where people have not been brought to justice.
  But here we are. It has taken the majority and the administration 5 
years to get here, but here we are.
  Terrorists who seek to harm this country must be captured. They must 
be tried, detained and punished to protect our country, and there is a 
way to detain them, to gather valuable intelligence from them, to try 
and convict them without sacrificing our ideals as a Nation.
  We are at war with a vicious enemy who seeks to destroy our way of 
life. It is a military fight; but in a broader sense, it is also a war 
of ideas.
  America has always been not only a Nation it has been an idea and 
when we sacrifice that idea, it is a setback in this war of ideas.
  So we have to ask ourselves where does this position us? Where does 
this bill position us in the war of ideas? Are we advancing or are we 
retreating when we are perceived as abandoning the rule of law? When we 
are perceived as defining what it means to be cruel or inhuman or 
degrading?

                              {time}  1445

  When we wonder out loud in the legislative process whether a Nation 
so conceived as ours can long endure without cruel and inhuman 
treatment? When we show to the world that we are questioning the very 
idea of America, whether this Nation can long endure with a respect for 
the rule of law, with respect for the concept that people who are 
detained by America will not be mistreated, that people detained by 
America will have a right to confront evidence against them will have 
the sacred right of habeas corpus?
  When we put forward legislation that says that an American can be 
plucked off the street, given a label unilaterally by any 
administration, by this President or the next, as an unlawful enemy 
combatant, and all their rights evaporate once they are given that 
label, that calls into question the very idea of America; and that, I 
believe, is a setback in the war of ideas.
  We can do better than this bill. And, in fact, on Friday, we had 
better than this bill, when Senator Warner and Senator McCain came 
forward with what I thought was a sound compromise. We had a sound 
compromise on Friday, but during the weekend that unraveled. During the 
weekend, I think we took a step back in the war on ideas.
  It was not an irrevocable step back. The majority and the 
administration has waited 5 years to bring us legislation on this 
subject. Let us take another 5 days, if it takes it, to get it right.
  We shouldn't be retreating back to our districts just because of our 
election and leaving the work undone or done poorly. And I regret to 
say that this bill is done poorly, and it must be changed.
  Mr. HUNTER. I want to take 30 seconds, Mr. Speaker, just to remind my 
friend who just spoke that this bill is largely the product of not only 
this body but Senator Warner, Senator McCain, and Senator Graham. 
Shortly, they are going to be introducing the precise same bill in the 
other body.
  And, Mr. Speaker, in this bill, military commissions, if you will 
check on page 7, to answer the gentleman who just spoke who thought his 
wife might in some wild circumstance be prosecuted under this bill, 
this bill gives jurisdiction and military commissions, on line 24, page 
7, to alien unlawful enemy combatants. It does not take away the habeas 
rights of U.S. citizens.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SKELTON. Mr. Speaker, at the request of the Democratic leader, I 
submit for the Record a letter from various religious organizations 
dated September 27.

                                               September 27, 2006.
       Dear Representative: We are writing to strongly encourage 
     you to reject the ``compromise'' Military Commissions Act of 
     2006 and to vote no on final passage of the bill. More than 
     anything else, the bill compromises America's commitment to 
     fairness and the rule of law.

[[Page H7543]]

       For the last five years the United States has repeatedly 
     operated in a manner that betrays our nation's commitment to 
     law. The U.S. has held prisoners in secret prisons without 
     any due process or even access to the Red Cross and has 
     placed other prisoners in Guantanamo Bay in a transparent 
     effort to avoid judicial oversight and the application of 
     U.S. treaty obligations. The federal government has operated 
     under legal theories which dozens of former senior officers 
     have warned endanger U.S. personnel in the field and has 
     produced legal interpretations of the meaning of ``torture'' 
     and ``cruel, inhuman and degrading'' treatment which had to 
     be abandoned when revealed to the public. Interrogation 
     practices were approved by the Department of Defense which 
     former Bush Administration appointee and General Counsel of 
     the Navy Alberto Mora described as ``clearly abusive, and * * 
     * clearly contrary to everything we were ever taught about 
     American values.'' According to media reports the CIA has 
     used a variety of interrogation techniques which the United 
     States has previously prosecuted as war crimes and routinely 
     denounces as torture when they are used by other governments.
       Instead of finally coming to grips with this situation and 
     creating a framework for detaining, interrogating and 
     prosecuting alleged terrorists which comports with the best 
     traditions of American justice, the proposed legislation will 
     mostly perpetuate the current problems. Worse, it would seek 
     to eliminate any accountability for violations of the law in 
     the past and prevent future judicial oversight. While we 
     appreciate the efforts various members of Congress have made 
     to address these problems, the ``compromise'' falls far short 
     of an acceptable outcome.
       The serious problems with this legislation are many and 
     this letter will not attempt to catalogue them all. Indeed, 
     because the legislation has only just been made available, 
     many of the serious flaws in this long, complex bill are only 
     now coming to light. For instance, the bill contains a new, 
     very expansive definition of enemy combatant. This definition 
     violates traditional understandings of the laws of war and 
     runs directly counter to Pres. Bush's pledge to develop a 
     common understanding of such issues with U.S. allies. Because 
     the proposed definition of combatant is so broad, the 
     language may also have potential consequences for U.S. 
     civilians. For instance, it may mean that adversaries of the 
     United States will use the definition to define civilian 
     employees and contractors providing support to U.S. combat 
     forces, such as providing food, to be ``combatants'' and 
     therefore legitimate subjects for attack. Yet, there has been 
     no opportunity to consider and debate the implications of 
     this definition, or other parts of the bill such as the 
     definitions of rape and sexual abuse.
       We strongly oppose the provisions in the bill that strip 
     individuals who are detained by the United States of the 
     ability to challenge the factual and legal basis of their 
     detention. Habeas corpus is necessary to avoid wrongful 
     deprivations of liberty and to ensure that executive 
     detentions are not grounded in torture or other abuse.
       We are deeply concerned that many provisions in the bill 
     will cast serious doubt on the fairness of the military 
     commission proceedings and undermine the credibility of the 
     convictions as a result. For instance, we are deeply 
     concerned about the provisions that permit the use of 
     evidence obtained through coercion. Provisions in the bill 
     which purport to permit a defendant to see all of the 
     evidence against him also appear to contain serious flaws.
       We believe that any good faith interpretation of the 
     definitions of ``cruel, inhuman and degrading'' treatment in 
     the bill would prohibit abusive interrogation techniques such 
     as waterboarding, hypothermia, prolonged sleep deprivation, 
     stress positions, assaults, threats and other similar 
     techniques because they clearly cause serious mental and 
     physical suffering. However, given the history of the last 
     few years we also believe that the Congress must take 
     additional steps to remove any chance that the provisions of 
     the bill could be exploited to justify using these and 
     similar techniques in the future.
       Again, this letter is not an attempt to catalogue all of 
     the flaws in the legislation. There is no reason why this 
     legislation needs to be rushed to passage. In particular, 
     there is no substantive reason why this legislation should be 
     packaged together with legislation unrelated to military 
     commissions or interrogation in an effort to rush the bill 
     through the Congress. Trials of the alleged ``high value'' 
     detainees are reportedly years away from beginning. We urge 
     the Congress to take more time to consider the implications 
     of this legislation for the safety of American personnel, for 
     U.S. efforts to build strong alliances in the effort to 
     defeat terrorists and for the traditional U.S. commitment to 
     the rule of law. Unless these serious problems are corrected, 
     we urge you to vote no.
           Sincerely,
         Physicians for Human Rights; Center for National Security 
           Studies; Amnesty International U.S.A.; Human Rights 
           Watch; Human Rights First; American Civil Liberties 
           Union; Open Society Policy Center; Center for American 
           Progress Action Fund; The Episcopal Church; Jewish 
           Council for Public Affairs; Presbyterian Church (USA), 
           Washington Office; Maine Council of Churches; 
           Pennsylvania Council of Churches; Wisconsin Council of 
           Churches; Brennan Center for Justice at NYU Law School; 
           Robert F. Kennedy Memorial Center for Human Rights; 
           Center for Constitutional Rights; The Bill of Rights 
           Defense Committee; Unitarian Universalist Service 
           Committee; Leadership Conference of Women Religious; 
           Center for Human Rights and Global Justice, NYU School 
           of Law; The Shalom Center; Washington Region Religious 
           Campaign Against Torture; The Center for Justice and 
           Accountability; Center of Concern; Justice, Peace & 
           Integrity of Creation Missionary Oblates; Rabbis for 
           Human Rights--North America; Humanist Chaplaincy at 
           Harvard University; No2Torture.

  Mr. Speaker, I yield 2 minutes to the gentlewoman from California 
(Ms. Lee).
  Ms. LEE. Mr. Speaker, I want to thank the gentleman for yielding and 
for his leadership and his commitment to our young men and women in 
uniform throughout the world.
  At a time when even the National Intelligence Estimate has concluded 
that the occupation in Iraq has spawned a new generation of terrorists 
and made us, quite frankly, less safe, this bill now will undermine the 
security of our brave troops and hand a victory to those who believe 
the rule of force should prevail over the rule of law.
  I have to say once again, as the daughter of a 25-year military 
Lieutenant Colonel who served this country in many, many capacities 
through two wars, that this scares me. It scares me to death.
  What century are we living in when we trust intelligence acquired 
through torture? Clearly, the President fails to realize that these 
techniques will destroy the credibility of any verdicts that use 
information derived from torture.
  Insisting on fairness and just credibility is all we are asking for, 
credibility in the process. This isn't about protecting those who would 
harm us, as the Republicans would have you believe, it is about 
protecting our own troops and our Nation and not further alienating our 
country in the eyes of the world community.
  When we turn away from the legal and the moral values that have 
guided our Nation, we give up the principles that differentiate us from 
the terrorists.
  I quoted from a prayer given by Reverend Baxter at the National 
Cathedral during the memorial service for the victims and families of 
9/11 5 years ago, and Reverend Baxter said, and I keep thinking about 
this prayer, he said, ``Let us not become the evil who we deplore.''
  So I just want to urge a ``no'' vote on this bill; and I want to 
thank Mr. Skelton for his leadership, for his support for the troops, 
for his steadfast work on behalf of our national security, and for 
making sure that this body continues to try to uphold the rule of law.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from 
Virginia (Mr. Moran).
  Mr. MORAN of Virginia . I thank my good friend, an inspirational 
leader on the Armed Services Committee.
  I oppose this bill. It would send a message to the world that the 
United States can disregard international treaties and law and, 
instead, do as it pleases. For generations, we have been the beacon to 
guide the actions of other nations. If we descend from the high moral 
ground, we are, in effect, losing ground to the terrorists.
  Secretary of State Colin Powell was so accurate when he said, part of 
this war on terrorism is an ideological and political struggle. Our 
moral posture is our best weapon to prevail in that struggle.
  Mr. Speaker, this is not a good bill. Since the inception of the 
Geneva Conventions 60 years ago, no other country in the world has 
tried to undermine and negate its provisons its spirit as this bill 
would.
  For enemy combatants, the bill eliminates the right of habeas corpus. 
This is a right enshrined in our Constitution that may be abandoned 
only, and I quote, ``when in cases of rebellion or invasion the public 
safety may require it.'' The elimination of habeas is not just illegal, 
it is flat out wrong.
  The purpose of habeas corpus is simple. It is to avoid injustice, to 
avoid the detention by government of any individual that is erroneous, 
unwarranted, or in violation of law. This purpose and the values from 
which it stems do not distinguish among individuals or circumstances. 
They seek to avoid any injustice to any detained individuals.

[[Page H7544]]

  All Americans want to hold terrorists accountable, but if we try to 
redefine the nature of torture, whisk people into secret detention 
facilities and use secret evidence to convict them in special courts, 
our actions do, in fact, embolden our enemies more than any extremist 
rhetoric could ever do.
  This bill needs to be defeated.
  Mr. HUNTER. Mr. Speaker, I yield 30 seconds to the gentleman from 
Indiana (Mr. Buyer).
  Mr. BUYER. Mr. Speaker, I want to make sure the debate has clarity. 
To the gentleman, when you say this bill applies to everyone or all 
American citizens, that is completely false. I want the gentleman to 
know that.
  I would like you to know that when you refer to page 61, at the top 
it says, provisions of this chapter. So an earlier speaker brought us 
this issue about, well, it doesn't say the word alien. In order to be 
tried under the Code of Military Commissions, you have to be an alien. 
So when you go to page 7, you look at line 17, section 948c, it says 
the persons who are subject to a military commission is any alien 
unlawful enemy combatant.
  So this does not apply to American citizens.
  Mr. SKELTON. Mr. Speaker, I yield 30 seconds to the gentleman from 
Virginia (Mr. Moran).
  Mr. MORAN of Virginia. I thank the ranking member.
  Mr. Buyer, I have been to Guantanamo, as I am sure you have been, and 
I was stunned at the fact that the vast majority of people detained at 
Guantanamo were not in fact caught on the battleground. Many of these 
people were put there by bounty hunters. They were in the wrong place 
at the wrong time.
  After 5 years, they have very little information to provide us. Those 
14 that we are now putting at Guantanamo should not redefine the vast 
majority of the prisoners at Guantanamo who do in fact deserve a fair 
trial.
  Mr. SKELTON. Mr. Speaker, I yield an additional 30 seconds to the 
gentleman from Oregon (Mr. Wu).
  Mr. WU. Mr. Speaker, I would like to respond to the two chairmen's 
remarks that I was incorrect in my analysis of the law or of the 
proposed bill.
  I stand by that analysis, and not only is that analysis correct, but 
this reference to the detention act as a cure for that is totally 
specious, because this detention act we passed as a rider to an 
appropriations bill. So any remedy provided by the detention act goes 
away in the year of appropriation.
  If you read that language, that word alien does appear on page 93, 
but the determination of that jurisdictional fact will be done by a 
military tribunal, and that is not where American civilians should have 
their rights determined.
  Mr. SKELTON. Mr. Speaker, may I inquire as to the amount of time 
remaining?
  The SPEAKER pro tempore. The gentleman from Missouri has 1 minute 
remaining, and the gentleman from California has 3\1/2\ minutes 
remaining.
  Mr. SKELTON. May I inquire, Mr. Speaker, does the gentleman choose to 
close?
  Mr. HUNTER. We just have one other speaker, then I am going to 
reserve the balance.
  Mr. SKELTON. Mr. Speaker, I reserve the balance of my time.
  Mr. HUNTER. Mr. Speaker, I yield 30 seconds to the gentleman from 
Indiana (Mr. Buyer) for a response.
  Mr. BUYER. I just want to share with the gentleman, I have to go 
back, you have to look at the four corners of the document. Please 
don't dive into rhetoric.
  When you go to the four corners of the document, it is very clear who 
is subject to the Code of Military Commissions. So, in title 18, you 
will have the Federal Code that applies to U.S. citizens; you will have 
the UCMJ creating a third chapter that will apply to unlawful enemy 
combatants, the Code of Military Commissions. It will not apply to 
United States citizens.
  It is very, very clear. If you think it applies to somebody else, 
sir, I cannot get into your mind, but I just want you to know that the 
world will be able to see what we have created here does not apply to 
American citizens.
  Mr. HUNTER. Mr. Speaker, at this time, I would like to yield 1 minute 
to the gentlewoman from Texas (Ms. Granger).
  Ms. GRANGER. Mr. Speaker, each Member in this House comes to Congress 
with his own agenda, his district's needs, and his committee requests, 
but the one thing that should surmount all those individual desires, 
needs, and energies is the commitment to keep our Nation safe.
  Fourteen terrorists are now being held at Guantanamo Bay awaiting 
trial. Thousands of the family members of Americans killed on September 
11 are awaiting justice, and our constituents are waiting for Congress 
to act. The bill we have before us helps make that possible. It sends a 
message to the extremists that if they plot to kill or harm our 
citizens, America will find them, get the information they have, and 
bring them to justice. And it sends a message to those who fight to 
protect our freedom that we will protect them, too.
  I do not know of anything that this Congress can do that is more 
important than passing this bill today, a bill carefully crafted, 
protecting classified intelligence information, providing clear 
guidelines for our intelligence officers who are responsible for 
interrogating those terrorists, and keeping our promises to the 
American people to do everything we can to keep them safe.
  Mr. Speaker, I am proud to support this bill, and I thank those 
responsible for bringing it to the floor.
  Mr. SKELTON. Mr. Speaker, I yield 15 seconds to the gentleman from 
Oregon (Mr. Wu).
  Mr. WU. I stand by my analysis of the proposed bill. The two chairmen 
stand by theirs. This is the best reason why this bill should not be 
rushed through. The staff cannot be held responsible for drafting 
errors, and we should not be rushing this kind of legislation through 
without the careful consideration that it deserves.
  Mr. SKELTON. Mr. Speaker, this is a day in constitutional history 
that will stand out like Mars at perihelion. We want tough, but we also 
want certainty in any conviction that comes from this tribunal; and I 
am fearful, Mr. Speaker, that this legislation is an invitation for 
reversal by the Supreme Court.
  We want to be tough on those despicable people, but we also want a 
conviction to withstand the scrutiny of our Supreme Court and our 
judicial process.
  Mr. Speaker, I yield back.
  Mr. HUNTER. Mr. Speaker, at this time I reserve the balance of my 
time, which I believe is 2 minutes, and move to the Judiciary 
Committee.

                              {time}  1500

  The SPEAKER pro tempore. The gentleman from California (Mr. Hunter) 
reserves the balance of his time, which is 2 minutes; and the gentleman 
from Wisconsin (Mr. Sensenbrenner) is recognized.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions 
Act of 2006.
  This legislation is critical to the national security interests of 
the United States. The bill creates a fair and orderly process to 
detain and prosecute al Qaeda members and other dangerous terrorists 
captured during the war on terror. It also sets clear ground rules 
pertaining to how we will treat these prisoners in our custody. The way 
we treat terrorist enemy combatants sends a strong signal to the rest 
of the world about our commitment to the rule of law.
  This legislation says to the world that the U.S. rejects torture, 
rejects cruel and inhumane treatment and rejects other tactics commonly 
used by our terrorist enemies. It says that we will not subject enemy 
combatants in our custody, many of whom planned and supported the 
largest mass murder ever on American soil, to the cruel and brutal 
treatment they regularly utilize against our soldiers and our 
civilians.
  At the same time, this bill also makes it clear to the terrorists and 
their lawyers that America will not allow them to subvert our judicial 
process or disrupt the war on terror with unnecessary or frivolous 
lawsuits. The bill strikes the right balance. It establishes a 
mechanism that is full and fair, but also orderly and efficient.
  In the aftermath of the 9/11 attacks, the administration began 
detaining foreign terrorists as ``enemy combatants'' at Guantanamo Bay 
and instituted procedures to review their status

[[Page H7545]]

and to prosecute them for war crimes by military commissions authorized 
by the President. During this time, detainees filed suit in Federal 
Court to challenge the legality of their detention and of the 
commissions.
  The Supreme Court then held in the Rasul case that the Federal habeas 
corpus statute protected Gitmo detainees. To address Rasul, Congress 
passed the Detainee Treatment Act of 2005, which barred habeas and 
other lawsuits by detainees in U.S. custody, but provided for limited 
judicial review of DOD detention decisions by the D.C. Circuit.
  In June, the Supreme Court held in Hamdan that the DTA did not bar 
nearly 200 habeas corpus petitions and the other lawsuits by detainees 
pending on the date of enactment, despite clear statutory language and 
Supreme Court precedents to the contrary.
  This bill clarifies congressional intent to prohibit any habeas 
corpus petitions or other lawsuits pending on or filed after enactment 
brought by any alien in U.S. custody detained as an enemy combatant or 
awaiting such a determination.
  The Supreme Court has never, never held that the Constitution's 
protections, including habeas corpus, extend to non-citizens held 
outside the United States. In fact, the Supreme Court rejected such an 
argument in 1950 in the case of Johnson v. Eisentrager. Moreover, in 
the 1990 Verdugo case, the Court reiterated that aliens detained in the 
United States but with no substantial connection to our country cannot 
avail themselves of the Constitution's protections. As a result, any 
argument that this bill breaks new ground or improperly denies 
detainees certain constitutional rights is both groundless and 
misguided.
  Despite the fact that detainees have very few rights under our 
Constitution, this bill reflects Congress's statutory determination 
that they are entitled to an orderly process and a full and fair review 
of the government's core decisions authorizing their detention by the 
D.C. Circuit, a respected article 3 court.
  As we consider this legislation, it is important to remember first 
and foremost that this bill is about prosecuting the most dangerous 
terrorists America has ever confronted. Individuals like Khalid Sheik 
Mohammed, the mastermind of the 9/11 attacks, or Ahbd al-Nashiri, who 
planned the attack on the USS Cole. None of their victims was treated 
with the kind of respect for human life and the rule of law embodied in 
this legislation which will apply to them.
  I urge my colleagues to support this vital legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this is a very important discussion today, and we have 
an opportunity to consider whether we are willing to respect the ideals 
of law and human dignity in actuality rather than just in rhetoric. 
This legislation goes to the core of who we are as a nation.
  So I begin the Judiciary Committee's discussion of this matter on two 
points simply. The first is the point on habeas corpus. Because, you 
see, we have determined that detainees will not have the ability to 
challenge the conditions of their detention in court unless and until 
the administration decides to try them before a military commission. 
Those who are not tried will have no recourse to any independent court 
at any time.
  So because people have been encouraging each other to read the bill, 
I want to turn to page 93, line 12, where the habeas corpus matters are 
included. Here is what it says: ``No court shall hear or consider an 
application for a writ of habeas corpus filed by or on behalf of an 
alien detained by the United States who has been determined by the 
United States to have been properly detained as an enemy combatant.''
  There is where 62 law professors from dozens of universities tell us 
that what we are doing is changing the hallowed writ of habeas corpus 
so that it will not apply by law. We are by law changing a 
constitutional provision.
  The other important part of our discussion on the Judiciary 
Committee, and, by the way, I hope that the ranking member of the Armed 
Services Committee can serve on the Judiciary Committee, because he has 
made some excellent legal arguments today, the other point that I would 
bring to your attention is that the President will now, under these 
provisions in the bill, be allowed to interpret the Geneva Conventions, 
especially common article 3, the way that he wants and to exclude it 
from other review by the courts. By eliminating the judicial review of 
executive acts as significant as detention and domestic surveillance, 
this cannot be squared with the principles of transparency and the rule 
of law on which our constitutional democracy rests.
  Congress would gravely disserve our global reputation as a law-
abiding country by enacting bills that seek to combat terrorism by 
stripping judicial review. I refer my colleagues to page 83, section 6, 
relating to treaty obligations. Here it is. This is the bill:
  ``(3) Interpretation by the President. As provided by the 
Constitution and by this section, the President has the authority for 
the United States to interpret the meaning and application of the 
Geneva Conventions and to promulgate higher standards and 
administrative regulations for violations of treaty obligations which 
are not grave breaches of the Geneva Conventions.
  ``The President shall issue interpretations that will be published in 
the Federal Register.''
  So what we have done now is give to the President, and I think it is 
about time somewhere in the proceedings that this be made public 
knowledge, give the President exclusive power to interpret the common 
article 3 of the Geneva Conventions and that it would be unreviewable.
  It is upon these two points that I would urge that the Members of the 
House of Representatives on this day go on record as refusing to accede 
to these onerous provisions of a bill that would change the course of 
America's relationship, historic relationship, with international 
treaties.

 Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee 
                  on the Judiciary, September 25, 2006

       Dear Senator Specter, Senator Leahy, and Members of the 
     Committee: Thank you for the opportunity to submit this 
     statement in connection with today's hearing. (``Examining 
     Proposals to Limit Guantanamo Detainees Access to Habeas 
     Corpus Review''). My comments focus on the historical 
     foundations of habeas corpus that are relevant to the 
     Committee's consideration of the proposed legislation, S. 
     3930. As the United States Supreme Court has repeatedly made 
     clear, the Constitution, at a minimum, protects the writ of 
     habeas corpus as it existed in 1789. Eliminating habeas 
     corpus for prisoners held at Guantanamo Bay would be 
     inconsistent with centuries of tradition and would fall below 
     the review required by the Constitution.
       I am currently Counsel at the Brennan Center for Justice at 
     New York University School of Law. The Brennan Center is a 
     nonpartisan institution dedicated to safeguarding access to 
     justice and the rule of law through scholarship, public 
     education, and legal action. One of the Brennan Center's 
     primary goals is to ensure accountability, transparency, and 
     checks and balances in the formulation and implementation of 
     national security policy.
       During the past decade, I have focused extensively on the 
     history of habeas corpus. My scholarly articles and amicus 
     curiae briefs on habeas have been cited by the Supreme Court 
     and federal courts of appeals. I hold a J.D. from Yale Law 
     School and a Masters Degree in History from Oxford 
     University.
       My comments are organized as follows. First, I describe the 
     historical roots of habeas corpus as a check against unlawful 
     executive detention and how those protections are guaranteed 
     under the Constitution and laws of the United States. Second, 
     I explain the writ's broad territorial scope and guarantee of 
     a searching examination of the factual and legal basis for a 
     prisoner's detention. Third, I show that habeas corpus 
     secures another fundamental requirement of the common law and 
     due process--the right to be free of detention based on 
     evidence gained by torture. Finally, I explain why appellate 
     review under the Detainee Treatment Act of 2005 of a 
     Combatant Status Review Tribunal determination does not 
     provide an adequate and effective substitute for 
     constitutionally mandated habeas. To the contrary, such 
     review would foreclose any meaningful inquiry into the 
     factual and legal basis for a prisoner's detention and 
     sanction evidence secured by torture and other coercion.


 I. Habeas Corpus Provides A Check Against Unlawful Executive Detention

       For centuries, the writ of habeas corpus has provided the 
     most fundamental safeguard against unlawful executive 
     detention in the Anglo-American legal system. William 
     Blackstone praised habeas as the ``bulwark'' of individual 
     liberty, while Alexander Hamilton called it among the 
     ``greate[st] securities to liberty and republicanism.'' The 
     writ

[[Page H7546]]

     has since been described as ``the most important human 
     right in the Constitution.
       Today habeas is typically used by convicted prisoners to 
     collaterally attack their criminal sentences. At its 
     historical core, however, the writ provides a check against 
     executive detention without trial, and it is in this context 
     that its protections have always been strongest. Above all, 
     habeas guarantees that no individual will be imprisoned 
     without the most basic requirement of due process--a 
     meaningful opportunity to demonstrate his innocence before a 
     neutral decisionmaker.
       Habeas corpus was part of colonial law from the 
     establishment of the American colonies, and the common law 
     writ operated in all thirteen British colonies that rebelled 
     in 1776. The Framers enshrined habeas corpus in the 
     Suspension Clause of the Constitution, which states that 
     Congress ``shall not'' suspend the writ of habeas corpus 
     ``unless when in Cases of Rebellion or Invasion the public 
     Safety may require it.'' The First Congress codified this 
     constitutional command in the Judiciary Act of 1789, making 
     the writ available to any individual held by the United 
     States who challenges the lawfulness of his detention. For 
     the Framers of the Constitution, restricting Congress's power 
     to suspend habeas corpus was never controversial: the only 
     debate concerned what conditions, if any, could ever justify 
     suspension of the Great Writ, and the Framers concluded that 
     Congress could exercise its suspension power only under the 
     most exceptional circumstances. The constitutional guarantee 
     of habeas corpus stands apart and perpetually independent 
     from the other guarantees of the Bill of Rights enacted two 
     years later in 1791.
       Under the influence, if not the command of the Suspension 
     Clause, Congress has always felt itself obligated to provide 
     for the writ in the most ample manner. Since the Nation's 
     founding, the writ has been suspended on only four occasions: 
     during the middle of the Civil War in the United States; 
     during an armed rebellion in several southern States after 
     the Civil War; during an armed rebellion in the Philippines 
     in the early 1990s; and in Hawaii immediately after the 
     attack on Pearl Harbor. Each suspension was not only a 
     response to an ongoing, present emergency, but was limited in 
     duration to the active rebellion or invasion that 
     necessitated it.


  II. Habeas Corpus Extends To Any Territory Within The Government's 
 Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry 
      Into The Factual And Legal Basis For A Prisoner's Detention

       As the Supreme Court has recognized, the writ of habeas 
     corpus has an `` `extraordinary territorial ambit.' '' Habeas 
     has always reached any territory over which the government 
     exercised sufficient power and control to compel obedience to 
     the writ's command. As Lord Mansfield wrote in 1759, ``even 
     if a territory was `no part of the realm [of England],' there 
     was `no doubt' as to the court's power to issue writs of 
     habeas corpus if the territory was `under the subjection of 
     the Crown.' '' At common law, therefore, habeas was 
     available not only in territories beyond the borders of 
     England, such as the mainland American colonies and West 
     Indies, but also in territory over which England exercised 
     exclusive control and jurisdiction but lacked sovereignty.
       The right to habeas corpus has always extended to aliens as 
     well as citizens. The writ has been available in time of 
     peace as well as in time of war. Even alleged enemy aliens 
     have had access to habeas to demonstrate their innocence, 
     including by submitting evidence to a court. Indeed, in one 
     case Chief Justice Marshall, on circuit, required an enemy 
     alien to be produced in court and ordered his release. As the 
     Supreme Court observed in Rasul v. Bush, detainees at 
     Guantanamo have the right to habeas review because they are 
     imprisoned in territory over which the United States has 
     complete jurisdiction and control and because, unlike the 
     World War II-era prisoners in Johnson v. Eisentrager, they 
     have never been convicted of any crime and maintain their 
     innocence.
       Common law courts did not simply accept the government's 
     factual response to a prisoner's habeas petition; instead, 
     they routinely probed that response and examined additional 
     evidence submitted by both sides to ensure the factual and 
     legal sufficiency of a person's confinement. The writ's 
     guarantee of a searching judicial inquiry crystallized in 
     response to the Crown's efforts to detain individuals 
     indefinitely without due process. In 1592, English judges 
     protested that when they ordered the release of individuals 
     unlawfully imprisoned by the Crown, executive officials 
     transported them to ``secret [prisons]'' to place them beyond 
     judicial review. As a result, the judges issued a resolution 
     affirming their power to release prisoners if a response to 
     the writ was not made.
       The Crown, nevertheless, continued to avoid a judicial 
     examination into a prisoner's detention by providing a 
     general response (or return) that did not specify the cause 
     of commitment. This issue came to a head in the seminal 
     Darnel's Case. There, the Attorney General asserted that it 
     was the king's prerogative to detain suspected enemies of 
     State by his ``special command,'' without a judicial inquiry 
     into the factual and legal basis for their detention. He 
     emphasized the Crown's overriding interest in national 
     security and insisted that judges defer to the king's 
     judgment.
       When the court upheld the Crown by finding its response 
     sufficient, it sparked a constitutional crisis that led to 
     the establishment of habeas corpus as the pre-eminent 
     safeguard of common law due process and personal liberty. 
     This was entrenched through the enactment of the Petition of 
     Right or 1628, the Habeas Corpus Act of 1641, and the 
     Habeas Corpus Act of 1679. By the late 1600s habeas corpus 
     had become--and would remain--``the great and efficacious 
     writ, in all manner of illegal confinement'' and the most 
     ``effective remedy for executive detention.''
       At common law, courts consistently engaged in searching 
     review on habeas corpus to probe the factual and legal basis 
     for a prisoners commitment, including by conducting hearings 
     and taking evidence. In the United States, courts have 
     exercised the same searching review of executive detention. 
     Indeed, in one its first habeas cases, the Supreme Court 
     affirmed the writ's historic function at common law; to 
     determine whether there was an adequate factual and legal 
     basis for the commitment,'' fully examining and considering 
     the evidence and finding it insufficient to justify the 
     prisoners' detention on allegations of treason.
       Habeas also has always guaranteed review of the lawfulness 
     of a newfangled tribunal established to try individuals 
     before that trial takes place. This review has been exercised 
     in time of war and in time of peace, and over all categories 
     of alleged offenders. To deny that review would jeopardize a 
     longstanding protection of habeas.
       By contrast, habeas review has always been more limited in 
     post-conviction cases--which today make up the bread and 
     butter of a federal court's habeas docket. But that is 
     precisely because the prisoner had already been convicted at 
     a trial that provided fundamental due process, including the 
     opportunity to see the government's evidence and to confront 
     and cross-examine its witnesses, a right that Justice Scalia 
     has said is ``founded on natural justice,'' Absent that 
     process, a federal judge with jurisdiction over a habeas 
     corpus petition has the power to examine the factual and 
     legal basis for the prisoner's detention in the first 
     instance, including the power to take evidence and conduct a 
     hearing, where appropriate. At issue in the Guantanamo habeas 
     cases is executive detention without any judicial process--
     precisely the situation that lies at the Great Writ's core 
     and that mandates a searching examination of the government's 
     allegations.


III. Habeas Corpus Serves As An Essential Check On The Use of Evidence 
                           Gained By Torture.

       Habeas corpus also vindicates another core guarantee of the 
     common law--the categorical prohibition on the use of 
     evidence obtained by torture. During the sixteenth century, 
     crown officials occasionally issued warrants authorizing the 
     torture of prisoners. Pain was inflicted by a variety of 
     ingenious devices, including thumbscrew, pincers, and the 
     infamous rack. The use of torture dec1ined after an 
     investigation showed that a suspected traitor had been 
     ``tortured upon the rack'' based upon false allegations. 
     Shortly thereafter the king asked the common law judges 
     whether another alleged traitor ``might not be racked'' to 
     make him identify accomplices, and ``whether there were 
     any law against it.'' The judges' answer was unanimous: 
     the prisoner could not be tortured because ``no such 
     punishment is known or allowed by our law.''
       The Framers of the Constitution also abhorred torture, 
     which they viewed as a mechanism of royal despotism. As the 
     Supreme Court has repeatedly held, reliance on evidence 
     obtained by torture is forbidden not merely because it is 
     inherently unreliable but also because such ``interrogation 
     techniques [are] offensive to a civilized system of 
     justice.'' Without the availability of habeas corpus to 
     provide a searching inquiry into the basis for a prisoner's 
     detention, and to determine whether, in fact, evidence 
     justifying that detention has been obtained by torture or 
     other coercive methods, this fundamental common law 
     protection would be jeopardized.


    IV. The Proposed Legislation Would Violate the Suspension Clause

       The proposed legislation would markedly depart from 
     historical precedent and the Constitution's command that the 
     writ be made available. This legislation, moreover, would 
     sweep under the jurisdictional bar only non-citizens, raising 
     serious questions under the Constitution's guarantee of equal 
     protection as well.
       The Committee may ask whether review by the District of 
     Columbia Circuit established under the Detainee Treatment Act 
     of 2005 (``DTA'') obviates any problem under the 
     Constitution. It does not. Such review falls far short of the 
     minimum review guaranteed under the Suspension Clause because 
     it would deny prisoners any meaningful inquiry into the 
     factual and legal basis for their detention and would 
     sanction the use of evidence secured by torture and other 
     coercion. Since others have explained the flaws of this 
     review scheme in greater detail, I describe them below only 
     briefly.
       The Guantanamo detainees are all held pursuant to a finding 
     by the Combatant Status Review Tribunal (``CSRT'') that they 
     are ``enemy combatants.'' The CSRT was established by the 
     President only nine days after the Supreme Court's ruling in 
     Rasul that Guantanamo detainees have the right to challenge 
     their executive detention in federal district court by habeas 
     corpus. The order creating the CSRT pre-judged the detainees, 
     declaring that they had already been

[[Page H7547]]

     found to be enemy combatants based on multiple levels of 
     internal review. Rather than affording the detainees a 
     meaningful opportunity to prove their innocence, the CSRT 
     denied them fundamental rights, including the right to 
     counsel; the right to see the evidence against them; and the 
     right to a neutral decisionmaker. Moreover, as the government 
     itself acknowledges, the CSRT permits the use of evidence 
     gained by torture. In short, as District Judge Joyce Hens 
     Green found, the CSRT denies the core protections of 
     elementary due process that habeas provides: a searching 
     factual inquiry to determine whether a prisoner's 
     detention is unlawfu1, including whether it is based on 
     evidence secured by torture.
       Review of CSRT determinations under the DTA would not 
     provide detainees with any opportunity to challenge the 
     factual and legal basis for their detention. The DTA, on its 
     face, limits review to whether the CSRT followed its own 
     procedures. No detainee, as the government argues, can ever 
     present evidence to a federal court even if that evidence 
     shows he is innocent or that he was tortured. In short, DTA 
     review of a CSRT finding would deny prisoners precisely the 
     meaningful factual inquiry provided by habeas corpus and 
     secured under the Suspension Clause.


                             V. Conclusion

       Habeas corpus has aptly been described as ``the water of 
     life to revive from the death of imprisonment.'' For 
     centuries, the Great Writ has prevented the Executive from 
     imprisoning individuals based upon mere suspicion and without 
     a meaningful examination of its allegations. Habeas corpus 
     demands that individuals have a fair opportunity to 
     demonstrate their innocence before a neutral decisionmaker. 
     Eliminating habeas at Guantanamo would flout this long 
     tradition and would gut the core protections guaranteed under 
     the Suspension Clause.
       Thank you for the opportunity to provide this statement. My 
     colleagues and I are happy to provide the Committee with any 
     further information.
                                                  Jonathan Hafetz,
                                  New York, NY, September 25, 2006

  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, let me just point out what the people on the other side, 
if they have their way, are going to have as a result.
  I just want to quote one of the coordinating counsels for the 
detainees, a gentleman named Michael Ratner, who boasted about what 
they are planning on doing in public. ``The litigation is brutal for 
the United States. It is huge. We have over 100 lawyers now from big 
and small firms working to represent the detainees. Every time an 
attorney goes down there, it makes it much harder for the U.S. military 
to do what they are doing. You can't run an interrogation with 
attorneys. What they are going to do now is that we are getting court 
orders to get more lawyers down there.''
  Now, to put some order in this and to defeat what Mr. Ratner said, 
the legislation has got to pass.
  Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr. 
Daniel E. Lungren).
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the 
gentleman for yielding.
  Mr. Speaker, there has been some discussion by some on the other side 
to suggest that somehow this bill that we bring before us is 
unconstitutional, that it grants powers to the President that are 
somehow unconstitutional.
  Let me just read from the concurring opinion of Justice Breyer in the 
Hamdan case when he basically said that their decision rested upon a 
single ground, that Congress had not issued the executive a blank 
check, that the President had to go back to us to get authority for 
this. Then they go ahead and say nothing prevents the President from 
returning to Congress to seek the authority he believes necessary.
  The President believes this authority is necessary. We have worked 
with him in both the House and the Senate, two different committees on 
the House side, to try and give him the authority he believes 
necessary, in the words of Justice Breyer.
  We need to be clear on some things concerning the language of section 
7 of this bill. This action is necessary because, in Rasul, the United 
States Supreme Court interpreted the Federal habeas corpus statutory 
scheme as allowing those detained in Guantanamo Federal petitions for 
relief in the Federal courts. The decision was, to say at the least, a 
major departure from historical precedent. However, this is important. 
Since the decision was based solely on an interpretation of a statute, 
28 U.S.C. 2241, it was easily correctable by congressional action.
  That is exactly what we did with the Senate with the enactment last 
year of the Detainee Treatment Act. This statute replaced statutory 
habeas review with a process of administrative review in which it 
ultimately would be subject to review by the United States Circuit 
Court of Appeals for the District of Columbia Circuit.

                              {time}  1515

  So we are not changing the scheme, the statutory scheme of habeas 
corpus. This Congress already did it a year ago. What we are dealing 
with is the Hamdan case, another case of statutory interpretation in 
which the court failed to apply the Detainee Treatment Act to cases 
which were then pending as of the date of the enactment. Thus, we are 
here once again to clarify what we have already determined to be the 
law. In short, section 7 of our bill informs the court that this time 
we really mean it.
  For us to do anything other than to affirm the Detainee Treatment Act 
would indeed be a dramatic departure from what has been deeply rooted 
in our Nation's legal tradition. Contrary to what has been said on the 
other side, the United States Supreme Court recognized the 1950 case of 
Johnson v. Eisenstrager that there is, and this is the Supreme Court 
speaking, ``no instance where a court in this or any other country 
where the writ is known issued it on behalf of an alien enemy.''
  So we are not changing the law, we are not being inconsistent with 
the court, we are not being unconstitutional. What we are doing is 
precisely in the mainstream of what the Court has said.
  Furthermore, this raises an additional question which must be 
clarified. The debate today relates to the interpretation of a statute 
and has absolutely nothing to do with what is referred to as the other 
writ. The other side keeps talking about this has been in our existence 
for hundreds of years. They speak of it as being part of the 
Constitution. Folks, that is the great writ, capital G, capital W. This 
is the statutory writ. Two different things. Two different things. We 
have to understand that. In both the Rasul and Hamdan, the question 
relating to the Detainee Treatment Act was one of statutory 
interpretation. The Supreme Court did not refer to the great writ; they 
referred to the statutes. The statutory habeas framework found in title 
28 is a creature of Congress. In fact, in Ex Parte McCardle, the United 
States Supreme Court upheld congressional limitations on the scope of 
judicial review concerning the habeas statute.
  What Congress creates, it can also limit. Even professor Erwin 
Chemerinsky, with whom I seldom agree, points out in his treatise on 
Federal Jurisdiction that, following the Civil War, congressional 
statutes rather than the constitutional provision are the source of 
rights relating to habeas corpus.
  At the same time, as has been pointed out but needs to be pointed out 
again, this bill goes to great lengths to ensure detainees will receive 
full and fair consideration of their claims. The bill allows the 
respected article 3 court, the U.S. Court of Appeals for the D.C. 
Circuit, to review two key government decisions: one, a combatant 
status review tribunal's determination that a detainee is an enemy 
combatant; and, two, any final decisions by the military commissions 
authorized by this bill. This is ample protection when compared with 
the requirement of a review of status by a competent tribunal under 
article 5 of the Geneva Conventions.
  In fact, this legislation before us would expand the eligibility of 
judicial review over that provided in current law. It would expand it, 
not contract it, not remain the same. It would actually expand it. I 
urge my colleagues to vote for this bill.
  Mr. CONYERS. Mr. Speaker, before yielding to the gentlewoman from 
California, I would just like to respond to the comments that I have 
heard.
  Never before has a President of the United States had the exclusive 
power to interpret the Geneva Conventions and publish what he has 
interpreted in the Record. And never before has a President had the 
power to eliminate judicial review of executive acts as significant as 
detention and domestic surveillance. And that can't be squared with the 
principles of transparency and the rule of law.

[[Page H7548]]

  I would refer all of my colleagues to 62 professors of law, not 
lawyers, professors of law, who have explained why section 83 and 
section 6 are very problematic and are going to lead us right back into 
the court, because for 5 long years after the 9/11 tragedy, not a 
single detainee has been brought to justice because this administration 
insists on unilaterally pursuing secret, unconstitutional strategies 
that cannot pass judicial muster.
  I yield 2 minutes to the gentlewoman from California (Ms. Zoe 
Lofgren), member of the Judiciary Committee.
  Ms. ZOE LOFGREN of California. Mr. Speaker, it was clear from the 
beginning that the executive branch lacked the authority to create 
courts without the Congress passing laws to provide for them, so it is 
important and proper that Congress create courts so that terrorist 
suspects can be swiftly tried, found guilty, and be punished. 
Unfortunately, this bill will not accomplish that.
  Others have spoken well about the deficiencies in the definition of 
who may be incarcerated without charge forever, but I want to 
particularly object to the provisions suspending habeas corpus.
  America is a proud free Nation because we are a Nation of laws, not 
men. Key to the rule of law is the brilliant system of checks and 
balances created by the Founding Fathers. This bill dumps the checks 
and balances by asserting that the courts cannot review the actions of 
the executive branch.
  While poorly crafted rules are included in the bill, rules without 
remedies are not real rules. Not only is it unwise, it is mostly 
unconstitutional. And instead of allowing for swift prosecution and 
punishment, enactment of this bill into law will lead to years of 
further legal wrangling.
  We all took an oath to defend and uphold the Constitution of the 
United States, and here is what article I, section 9 says: ``the 
privilege of the writ of habeas corpus shall not be suspended unless 
when in cases of rebellion or invasion the public safety may require 
it.''
  Congress may not suspend the great writ of habeas corpus and limit 
the checks and balances whenever it wants to. Congress may do so only 
in cases of rebellion and invasion, neither of which is present today. 
Nine distinguished retired justices have written to bring this to our 
attention.
  I include their letter for the Record.

       To Members of Congress: The undersigned retired federal 
     judges write to express our deep concern about the lawfulness 
     of Section 6 of the proposed Military Commissions Act of 2006 
     (``MCA''). The MCA threatens to strip the federal courts of 
     jurisdiction to test the lawfulness of Executive detention at 
     the Guantanamo Bay Naval Station and elsewhere outside the 
     United States. Section 6 applies ``to all cases, without 
     exception, pending on or after the date of the enactment of 
     [the MCA] which relate to any aspect of the detention, 
     treatment, or trial of an alien detained outside of the 
     United States . . . since September 11, 2001.''
       We applaud Congress for taking action establishing 
     procedures to try individuals for war crimes and, in 
     particular, Senator Warner, Senator Graham, and others for 
     ensuring that those procedures prohibit the use of secret 
     evidence and evidence gained by coercion. Revoking habeas 
     corpus, however, creates the perverse incentive of allowing 
     individuals to be detained indefinitely on that very basis by 
     stripping the federal courts of their historic inquiry into 
     the lawfulness of a prisoner's confinement.
       More than two years ago, the United States Supreme Court 
     ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees 
     at Guantanamo have the right to challenge their detention in 
     federal court by habeas corpus. Last December, Congress 
     passed the Detainee Treatment Act, eliminating jurisdiction 
     over future habeas petitions filed by prisoners at 
     Guantanamo, but expressly preserving existing jurisdiction 
     over pending cases. In June, the Supreme Court affirmed in 
     Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal 
     courts have the power to hear those pending cases. These 
     cases should be heard by the federal courts for the reasons 
     that follow.
       The habeas petitions ask whether there is a sufficient 
     factual and legal basis for a prisoner's detention. This 
     inquiry is at once simple and momentous. Simple because it is 
     an easy matter for judges to make this determination--federal 
     judges have been doing this every day, in every courtroom in 
     the country, since this Nation's founding. Momentous because 
     it safeguards the most hallowed judicial role in our 
     constitutional democracy--ensuring that no man is imprisoned 
     unlawfully. Without habeas, federal courts will lose the 
     power to conduct this inquiry.
       We are told this legislation is important to the ineffable 
     demands of national security, and that permitting the courts 
     to play their traditional role will somehow undermine the 
     military's effort in fighting terrorism. But this concern is 
     simply misplaced. For decades, federal courts have 
     successfully managed both civil and criminal cases involving 
     classified and top secret information. Invariably, those 
     cases were resolved fairly and expeditiously, without 
     compromising the interests of this country. The habeas 
     statute and rules provide federal judges ample tools for 
     controlling and safeguarding the flow of information in 
     court, and we are confident that Guantanamo detainee cases 
     can be handled under existing procedures.
       Furthermore, depriving the courts of habeas jurisdiction 
     will jeopardize the Judiciary's ability to ensure that 
     Executive detentions are not grounded on torture or other 
     abuse. Senator John McCain and others have rightly insisted 
     that the proposed military commissions established to try 
     terror suspects of war crimes must not be permitted to rely 
     on evidence secured by unlawful coercion. But stripping 
     district courts of habeas jurisdiction would undermine this 
     goal by permitting the Executive to detain without trial 
     based on the same coerced evidence.
       Finally, eliminating habeas jurisdiction would raise 
     serious concerns under the Suspension Clause of the 
     Constitution. The writ has been suspended only four times in 
     our Nation's history, and never under circumstances like the 
     present. Congress cannot suspend the writ at wi1l, even 
     during wartime, but only in ``Cases of Rebellion or Invasion 
     [when] the public safety may require it.'' U.S. Const. art. 
     I, Sec. 9, cl. 2. Congress would thus be skating on thin 
     constitutional ice in depriving the federal courts of their 
     power to hear the cases of Guantanamo detainees. At a 
     minimum, Section 6 would guarantee that these cass would be 
     mired in protracted litigation for years to come. If one goal 
     of the provision is to bring these cases to a speedy 
     conclusion, we can assure you from our considerable 
     experience that eliminating habeas would be 
     counterproductive.
       For two hundred years, the federal judiciary has maintained 
     Chief Justice Marshall's solemn admonition that ours is a 
     government of laws, and not of men. The proposed legislation 
     imperils this proud history by abandoning the Great Writ to 
     the siren call of military necessity. We urge you to remove 
     the provision stripping habeas jurisdiction from the proposed 
     Military Commissions Act of 2006 and to reject any 
     legislation that deprives the federal courts of habeas 
     jurisdiction over pending Guantanamo detainee cases.
           Respectfully,
       Judge John J. Gibbons, U.S. Court of Appeals for the Third 
     Circuit (1969-1987), Chief Judge of the U.S. Court of Appeals 
     for the Third Circuit (1987-1990).
       Judge Shirley M. Hufstedler, U.S. Court of Appeals for the 
     Ninth Circuit (1968-1979).
       Judge Nathaniel R. Jones, U.S. Court of Appeals for the 
     Sixth Circuit (1979-2002).
       Judge Timothy K. Lewis, U.S. District Court, Western 
     District of Pennsylvania (1991-1992), U.S. Court of Appeals 
     for the Third Circuit (1992-1999).
       Judge William A. Norris, U.S. Court of Appeals for the 
     Ninth Circuit (1980-1997).
       Judge George C. Pratt, U.S. District Court, Eastern 
     District of New York (1976-1982), U.S. Court of Appeals for 
     the Second Circuit (1982-1995).
       Judge H. Lee Sarokin, U.S. District Court for the District 
     of New Jersey (1979-1994), U.S. Court of Appeals for the 
     Third Circuit (1994-1996).
       William S. Sessions, U.S. District Court, Western District 
     of Texas (1974-1980), Chief Judge of the U.S. District Court, 
     Western District of Texas (1980-1987).
       Judge Patricia M. Wald, U.S. Court of Appeals for District 
     of Columbia Circuit (1979-1999), Chief Judge of the U.S. 
     Court of Appea]s for District of Columbia Circuit (1986-
     1991).

  We should be pulling together as a country to track down these 
terrorists and bring them to justice instead of facing this 
unconstitutional and divisive measure that was brought before us as 
part of a political agenda with an eye on the midterm elections, 
instead of a bill that would unify us as part of an American agenda 
with an eye to the continued greatness and security of our country.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, I am afraid that my friends on the other side of the 
aisle aren't listening. There are two types of habeas corpus: one is 
the constitutional great writ. We are not talking about that here. We 
can't suspend that. That is in the Constitution, and we can't suspend 
that by law.
  The other is statutory habeas corpus, which has been redefined time 
and time again by the Congress. That is what we are talking about here, 
and we have the constitutional power to redefine it.
  I yield 4 minutes to the gentleman from Iowa (Mr. King).
  Mr. KING of Iowa. Mr. Speaker, I thank the chairman for 6 powerful 
years leading the Judiciary Committee.

[[Page H7549]]

  The Supreme Court created a mess and hurt the Global War on Terror 
with its unnecessary and unconstitutional opinion in the Hamdan case. 
The Supreme Court had no authority to hear the Hamdan case. The 
Detainee Treatment Act gave the Court of Appeals for the District of 
Columbia Circuit exclusive jurisdiction over the validity of any final 
decision of an enemy combatant status review tribunal. The Supreme 
Court in Hamdan v. Rumsfeld ignored the provision of the DTA and a 
longstanding line of its own precedents which stood for the principle 
that Congress can limit jurisdiction in pending as well as future 
cases.
  The DTA provided that: no court, justice, or judge shall have 
jurisdiction to hear or consider an application for a writ of habeas 
corpus filed by or on behalf of an alien detained by the Department of 
Defense at Guantanamo Bay.
  The plain language of this statute clearly applies to cases pending 
at the date of enactment. The Supreme Court should have reached this 
conclusion, relying on their own precedent, but they failed to do so. 
In response, this legislation, H.R. 6166, has been carefully drafted so 
that the Court can fully understand that it applies to both pending and 
later filed cases. It was not necessary for Congress to be so specific, 
but in order that the Court will not make the same mistake twice, 
Congress has carefully chosen the language ``pending on or filed after 
the date of enactment'' in section 5 of this legislation.
  In his dissent in Hamdan v. Rumsfeld, Justice Scalia reminded the 
majority that they failed to cite a single case where such a 
jurisdiction limitation provision was denied immediate effect in 
pending cases. I agree with his opinion that the cases granting such 
immediate effect are legion.
  The Court's opinion has had yet another fatal flaw. In order to apply 
the Geneva Conventions, the Court decided on its own that the Global 
War on Terror was not of international character. I cannot imagine that 
even the majority on the Court believed their own opinion. The Global 
War on Terror can in no way be characterized as a mere civil war. It is 
a war between Western Civilization and militant Islamic fascists from 
all around the world. It does not take place only in legislation.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Simpson). The Chair notes a disturbance 
in the gallery in violation of the rules of the House and directs the 
Sergeant at Arms to restore order.
  The Chair recognizes the gentleman from Iowa.
  Mr. KING of Iowa. It is a war between Western Civilization and 
militant Islamic fascists from all around the Muslim world. It does not 
take place only in one nation. Global is international.
  The Court decided the conclusion they desired and then shoehorned 
their decision to fit a preferred result, substituting their judgment 
for the constitutional judgment of Congress and of our Commander in 
Chief. And that was during a time of war. By doing this, the Supreme 
Court's majority in Hamdan further undermined our Constitution which 
relies on the separation of powers.
  The unconstitutional intervention by the Supreme Court in Hamdan 
could have been handled by Congress and the President in another way. 
Under article III, section 2, Congress could have reasserted our 
clearly defined authority to limit the jurisdiction of the Supreme 
Court and to grant jurisdiction to any inferior court of our choosing, 
as expressed in the very plain language of the Detainee Treatment Act.
  If we had not been a Nation at war, a Nation urgently concerned about 
protecting our citizens from attack, Congress may well have advised the 
Court of their unconstitutional intervention and the Court's 
obstruction of the ability of the Commander in Chief to protect America 
from our enemies and ignored the Court's decision. The necessities of 
war won out over the separation of powers, and for the first time the 
Supreme Court has engaged in setting parameters in war fighting beyond 
our national borders.
  Because of our national security, Congress and the President jumped 
through a series of hoops set by the Court, rather than carry on a 
protracted power struggle over the Constitution with the Court. But, 
Mr. Speaker, Congress concedes no power to the Court not defined in the 
Constitution or specified by statute.
  Mr. CONYERS. Mr. Speaker, I now yield 2\1/2\ minutes to the gentleman 
from Virginia, a member of the Judiciary Committee, Mr. Scott.
  Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for 
yielding.
  Mr. Speaker, while I support the efforts to establish a system of 
military commissions as required by the Supreme Court's decision in the 
Hamdan case, I am disappointed that a bill of this magnitude is being 
considered under a closed rule and without assurances that traditional 
notions of due process, judicial independence, and full compliance with 
the Geneva Conventions will be in the bill.
  One of the most egregious problems of this bill is the creation of a 
presumption in favor of admitting coerced evidence, along with the 
continued insistence that a person can be fairly convicted using secret 
evidence. Another problem with the bill is it strips jurisdictions of 
civil courts from hearing cases involving plaintiffs who seek redress 
for violations of the torture provisions of the Geneva Conventions. 
This bill actually retroactively applies new standards. Now, whether 
this review of the habeas corpus as statutory or constitutional, it is 
a good idea; and it is the only way anybody can get a hearing on 
whether or not they have been tortured by the United States.
  Moreover, the only automatic right of appeal would be to an entirely 
new appellate court of military commission review, with all of the 
judges appointed by and in the chain of command of the Secretary of 
Defense. In addition, the Secretary of Defense would be granted wide 
latitude to depart without judicial scrutiny from the rules and 
detainee protections the legislation purports to create. It would allow 
him to do so whenever he deems it practicable or consistent with 
military or intelligence activities. In an extraordinary move, the bill 
would retroactively limit the scope of U.S. obligations under common 
article 3 more than half a century after the United States ratified the 
Geneva Conventions, and it immunizes all previous violations of the War 
Crimes Act and other laws against torture and inhumane treatment of 
detainees in our custody.
  This retroactive provision grants immunity to government officials 
and civilians, such as CIA operatives, interrogators, or those who may 
have authorized, ordered, or even participated in illegal acts of 
torture or abuse.

                              {time}  1530

  Mr. Speaker, this is a complex bill, and it is before us on a take-
it-or-leave-it basis, with no amendments. We should take the time to 
consider all of these new provisions deliberately to ensure that the 
legislation does not undermine the United States' commitment to the 
rule of law, the success of its fight against terrorism, and, most of 
all, the safety of our United States' servicemen and women.
  I urge my colleagues to defeat the passage of H.R. 6166.
  Mr. CONYERS. Mr. Speaker, I am proud to yield to the gentleman from 
California (Mr. Schiff), who has worked diligently on this issue, 2 
minutes.
  Mr. SCHIFF. Mr. Speaker, I want to try to resolve an issue which has 
been debated here this afternoon about what the effect of this 
legislation is on American citizens.
  Plainly, the legislation defines ``unlawful enemy combatant'' as any 
person who materially supports someone or is believed to support 
someone engaged in hostilities against the United States. That includes 
American citizens. And yet the majority says, but, under the 
legislation, only aliens can be brought up before the military 
tribunal. That is also correct. So how do you resolve this apparent 
difference?
  The reality is there is no difference. Because what the bill 
contemplates is a two-part system of justice: one for those who are 
brought before tribunals, and one for those who may never be brought 
before tribunals but who are, nonetheless, detained as unlawful enemy 
combatants. Because this bill contemplates that people will be 
detained, whether it is in a secret CIA prison or elsewhere, and 
perhaps never brought before a tribunal; and there is nothing in this 
legislation that prohibits the detention of an American indefinitely, 
never brought before a tribunal.

[[Page H7550]]

  Now the majority says, we don't do away with the habeas rights of 
Americans, writ large or writ small. If that is the case, why don't we 
say that in this legislation, that an American detained as an unlawful 
enemy combatant has the right of habeas corpus? The reason we don't say 
it in this bill is because the administration has consistently taken 
the position that those detained, including Americans, as unlawful 
enemy combatants do not have the right of habeas corpus to seek redress 
in courts and have fought that already in court.
  So where does that leave us in the war of ideas? We have an enemy 
that has nothing to offer in the war of ideas. We have everything to 
offer. But when we undermine the idea of what it is to be an American, 
the idea of this country, by saying that we will water down the rule of 
law, that we will have a separate system of justice or no system of 
justice, for those who are declared unlawful combatants will have no 
right to court redress, that is a setback in the war of ideas.
  Mr. CONYERS. Mr. Speaker, I am pleased to yield to the gentleman from 
New York (Mr. Nadler), a distinguished member of the Committee on the 
Judiciary, 2 minutes.
  Mr. NADLER. Mr. Speaker, this is how a Nation loses its moral 
compass, its identity, its values and, ultimately, its freedom to fear.
  It is ironic that the people who use the word ``freedom'' with 
reckless abandon, in everything from fries to a global vision, should 
come before the American people advocating the suspension of habeas 
corpus, secret star chamber tribunals, unlimited detention without 
review, and, yes, torture.
  Yes, we must be vigilant to protect our safety. But we must not allow 
the honor and values of our Nation to be permanently stained by this 
detestable legislation. It is beneath us. It is not what we stand for.
  There are many infamies in this bill, as others have pointed out. I 
will concentrate on just one.
  This bill would allow the President, or any future President, to grab 
someone off a street corner in the United States, or anywhere else in 
the world, and hold them forever without any court review, without 
having to charge them, without ever having to justify their 
imprisonment to anyone.
  This bill is flatly unconstitutional, for it repeals the great writ, 
habeas corpus; not, Mr. Sensenbrenner, a statutory writ, the statutory 
great writ.
  Turn to page 93, ``No court, justice, or judge shall have 
jurisdiction to hear or consider an application for writ of habeas 
corpus filed by or on behalf of an alien detained by the United States 
who has been determined by the United States to have been properly 
detained as an enemy combatant or is awaiting such determination.''
  ``Awaiting such determination''? That says it all. Nowhere in this 
new law is there any time limit for making this determination. In fact, 
it could be never.
  We are told that these procedures are only for those the President 
has called ``the worst of the worst.'' How do we know they are the 
worst of the worst? Because the President says so. And the President 
and Federal bureaucrats, as we all know, never make mistakes.
  Some people held as unlawful enemy combatants may be put before a 
military tribunal, but they need not be. They can be held forever 
without a hearing, without a military tribunal.
  So let's review. The government can snatch anyone who is not a U.S. 
citizens anywhere in the world, including on the streets of this city, 
whether or not they are actually doing anything, and detain them in 
jail forever, out of reach of our Constitution, our laws or our courts.
  We rebelled against King George, III, for far less infringements on 
liberty than this 200 years ago, but we seem to have forgotten. This 
bill makes the President a dictator for when someone can order people 
jailed forever without being subject to any judicial review. That is 
dictatorial power. The President wants to exist in a law-free zone. He 
does not want to be bound by the law of war or our treaty obligations. 
He does not want to answer to the Constitution, to the Congress or to 
the courts.
  Mr. Speaker, rarely in the life of a Nation is the question so stark: 
Are we going to rush this complete repudiation of what we stand for 
through the Congress? I hope we are better than that.
  Mr. CONYERS. Mr. Speaker, I yield to the gentleman from Maryland (Mr. 
Van Hollen), an excellent member of the Committee on the Judiciary, 2 
minutes.
  Mr. VAN HOLLEN. Mr. Speaker, we now know what the administration 
wanted to hide from the American people: that the consensus view of all 
16 intelligence agencies is that the Iraq war has made the overall 
terrorism problem worse, not better; that it has fueled the jihadist 
movement and made us less safe, and not more safe.
  The Bush administration was wrong about weapons of mass destruction. 
They were wrong about alleged collaboration between al Qaeda and Saddam 
Hussein, and they are wrong about this bill.
  This bill will weaken, not strengthen, our national security. They 
are wrong because this bill will place our troops in Iraq and elsewhere 
around the world in greater danger of torture, both today and in future 
conflicts. They are wrong because this bill will further erode our 
already tarnished credibility and moral standing around the world.
  Let us always remember that our strength flows not only from the 
force of our military but from the power of our example. And they are 
wrong because we have learned the hard way that information extracted 
through torture and extreme coercion can be unreliable.
  Remember when Secretary Powell at the United Nations told the world 
that Saddam Hussein had mobile bioweapons labs? That information came 
from a person that we turned over to Egypt who was tortured, and the 
CIA has since acknowledged that information was false, and yet that was 
important information that was used as part of our argument to go to 
war in Iraq.
  This is a defining moment for our Congress and our country. It will 
define who we are as a people and what we stand for, and yet it gives 
the President too much of a blank check to unilaterally decide that 
answer for all of us. It gives the President the authority to 
unilaterally define what constitutes specific acts of torture. It gives 
the President the authority to unilaterally decide who can be detained 
as an enemy combatant, including American citizens, and, therefore, 
send them into a legal limbo.
  Mr. Speaker, when we take very important decisions in the name of the 
American people, we better get it right. This bill gets it wrong.
  Mr. CONYERS. Mr. Speaker, I include for the Record a letter dated 
September 27 from the American Civil Liberties Union and 41 other 
organizations.

                                               September 27, 2006.
       Dear Representative: We are writing to strongly encourage 
     you to reject the ``compromise'' Military Commissions Act of 
     2006 and to vote no on final passage of the bill. More than 
     anything else, the bill compromises America's commitment to 
     fairness and the rule of law.
       For the last five years the United States has repeatedly 
     operated in a manner that betrays our Nation's commitment to 
     law. The U.S. has held prisoners in secret prisons without 
     any due process or even access to the Red Cross and has 
     placed other prisoners in Guantanamo Bay in a transparent 
     effort to avoid judicial oversight and the application of 
     U.S. treaty obligations. The Federal government has operated 
     under legal theories which dozens of former senior officers 
     have warned endanger U.S. personnel in the field and has 
     produced legal interpretations of the meaning of ``torture'' 
     and ``cruel, inhuman and degrading'' treatment which had to 
     be abandoned when revealed to the public. Interrogation 
     practices were approved by the Department of Defense which 
     former Bush Administration appointee and General Counsel of 
     the Navy Alberto Mora described as ``clearly abusive, and . . 
     . clearly contrary to everything we were ever taught about 
     American values.'' According to media reports the CIA has 
     used a variety of interrogation techniques which the United 
     States has previously prosecuted as war crimes and routinely 
     denounces as torture when they are used by other governments.
       Instead of finally coming to grips with this situation and 
     creating a framework for detaining, interrogating and 
     prosecuting alleged terrorists which comports with the best 
     traditions of American justice, the proposed legislation will 
     mostly perpetuate the current problems. Worse, it would seek 
     to eliminate any accountability for violations of the law in 
     the past and prevent future judicial oversight. While we 
     appreciate the efforts various members of Congress have made 
     to address these problems, the ``compromise'' falls far short 
     of an acceptable outcome.

[[Page H7551]]

       The serious problems with this legislation are many and 
     this letter will not attempt to catalogue them all. Indeed, 
     because the legislation has only just been made available, 
     many of the serious flaws in this long, complex bill are only 
     now coming to light. For instance, the bill contains a new, 
     very expansive definition of enemy combatant. This definition 
     violates traditional understandings of the laws of war and 
     runs directly counter to President Bush's pledge to develop a 
     common understanding of such issues with U.S. allies. Because 
     the proposed definition of combatant is so broad, the 
     language may also have potential consequences for U.S. 
     civilians. For instance, it may mean that adversaries of the 
     United States will use the definition to define civilian 
     employees and contractors providing support to U.S. combat 
     forces, such as providing food, to be ``combatants'' and 
     therefore legitimate subjects for attack. Yet, there has been 
     no opportunity to consider and debate the implications of 
     this definition, or other parts of the bill such as the 
     definitions of rape and sexual abuse.
       We strongly oppose the provisions in the bill that strip 
     individuals who are detained by the United States of the 
     ability to challenge the factual and legal basis of their 
     detention. Habeas corpus is necessary to avoid wrongful 
     deprivations of liberty and to ensure that executive 
     detentions are not grounded in torture or other abuse.
       We are deeply concerned that many provisions in the bill 
     will cast serious doubt on the fairness of the military 
     commission proceedings and undermine the credibility of the 
     convictions as a result. For instance, we are deeply 
     concerned about the provisions that permit the use of 
     evidence obtained through coercion. Provisions in the bill 
     which purport to permit a defendant to see all of the 
     evidence against him also appear to contain serious flaws.
       We believe that any good faith interpretation of the 
     definitions of ``cruel, inhuman and degrading'' treatment in 
     the bill would prohibit abusive interrogation techniques such 
     as waterboarding, hypothermia, prolonged sleep deprivation, 
     stress positions, assaults, threats and other similar 
     techniques because they clearly cause serious mental and 
     physical suffering. However, given the history of the last 
     few years we also believe that the Congress must take 
     additional steps to remove any chance that the provisions of 
     the bill could be exploited to justify using these and 
     similar techniques in the future.
       Again, this letter is not an attempt to catalogue all of 
     the flaws in the legislation. There is no reason why this 
     legislation needs to be rushed to passage. In particular, 
     there is no substantive reason why this legislation should be 
     packaged together with legislation unrelated to military 
     commissions or interrogation in an effort to rush the bill 
     through the Congress. Trials of the alleged ``high value'' 
     detainees are reportedly years away from beginning. We urge 
     the Congress to take more time to consider the implications 
     of this legislation for the safety of American personnel, for 
     U.S. efforts to build strong alliances in the effort to 
     defeat terrorists and for the traditional U.S. commitment to 
     the rule of law. Unless these serious problems are corrected, 
     we urge you to vote no.
           Sincerely,
       Physicians for Human Rights.
       Center for National Security Studies.
       Amnesty International USA.
       Human Rights Watch.
       Human Rights First.
       American Civil Liberties Union.
       Open Society Policy Center.
       Center for American Progress Action Fund.
       The Episcopal Church.
       Jewish Council for Public Affairs.
       National Religious Campaign Against Torture.
       Presbyterian Church (USA), Washington Office.
       Friends Committee on Nat'l Legislation.
       Maine Council of Churches.
       Pennsylvania Council of Churches.
       Wisconsin Council of Churches.
       Brennan Center for Justice at NYU Law School.
       Center for Constitutional Rights.
       Robert F. Kennedy Memorial Center for Human Rights.
       The Bill of Rights Defense Committee.
       Unitarian Universalist Service Committee.
       Leadership Conference of Women Religious.
       Center for Human Rights and Global Justice, NYU School of 
     Law.
       The Shalom Center.
       Washington Region Religious Campaign Against Torture.
       The Center for Justice and Accountability.
       Center of Concern.
       Justice, Peace & Integrity of Creation Missionary Oblates.
       Rabbis for Human Rights--North America.
       Humanist Chaplaincy at Harvard University.
       No2Torture.
       Maryland Christians for Justice and Peace.
       American Library Association.
       Churches Center for Theology and Public Policy.
       Disciples Justice Action Network (Disciples of Christ).
       Equal Partners in Faith.
       Christians for Justice Action (United Church of Christ).
       Reclaiming the Prophetic Voice.
       Baptist Peace Fellowship of North America.
       Pax Christi USA: National Catholic Peace Movement.
       Fellowship of Reconciliation.
       Maryknoll Office for Global Concerns.

  Mr. Speaker, I turn now to the gentleman from Massachusetts (Mr. 
Frank), a former member of the committee, 1 minute.
  Mr. FRANK of Massachusetts. Mr. Speaker, I understand the lack of 
compassion for terrorists. I share much of it. But this is not about 
terrorists. This is about people accused of terrorism. And there may be 
human realms where infallibility is a valid concept, not in the 
arresting of people and certainly not when this is done in the fog of 
war.
  Have we not had enough examples of error, of people like the recent 
case, to our embarrassment, of a man sent to Syria to be tortured by 
the United States wrongly; of Captain Yee; of Mr. Mayfield in Oregon?
  Have we not had enough examples of error to understand that you need 
to give people accused of this terrible crime a way to prove that the 
accusations were not true? That is what is at risk here.
  I believe that the law enforcement people of America and the Armed 
Forces of America are the good guys. But they are not the perfect guys. 
They are not people who don't make mistakes, particularly acting as 
they do under stress.
  It is a terrible thing to contemplate that this bill will allow 
people to be locked up indefinitely with no chance to prove that they 
were locked up in error. We should not do it.
  Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
  The last reason for the many that have been brought forward as to why 
this legislation is dangerous and unwise is that it endangers our 
troops because it has the effect of lowering the standards set forth in 
the Geneva Conventions. By allowing the President to unilaterally 
interpret the Geneva Conventions and then exempting his interpretations 
from any scrutiny, we are creating a massive loophole to this time-
honored treaty and endangering our own troops.
  As the head of Army intelligence, Lieutenant General Kimmons warned 
us, no good intelligence is going to come from abusive practices. I 
think history tells us that. And if you don't believe him, just ask 
Maher Arar, an innocent Canadian national, who was sent by our Nation, 
I am sorry to report, to Syria where he was tortured.
  This legislation decimates separation of powers by retroactively 
cutting off habeas corpus. Let us not approve this legislation in the 
House of Representatives this evening.
  Mr. Speaker, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 3 minutes, and I would 
like to make a couple of points.
  First of all, this legislation has to be read in conjunction with the 
Detainee Treatment Act which was signed into law last year. That law 
provides for a procedure to review whether or not someone is properly 
detained as an enemy combatant. So the business of indefinite detention 
is a red herring.
  Secondly, this legislation itself creates a number of new rights for 
detainees and people who are tried before military commissions. Let me 
enumerate them. There are 26 new rights:
  A right to counsel provided by the government at trial and throughout 
appellate proceedings; an impartial judge; the presumption of 
innocence; standard of proof is beyond a reasonable doubt.
  The right to be informed of the charges against the defendant as soon 
as practicable.
  The right to service of charges sufficiently in advance of trial to 
prepare a defense.
  The right to reasonable continuances.
  The right to peremptorily challenge members of the commission. That 
is something nobody has in the United States against a Federal judge.
  Witnesses must testify under oath and counsel, and members of the 
military commission must take an oath.
  The right to enter a plea of not guilty.
  The right to obtain witnesses and other evidence.
  The right to exculpatory evidence as soon as practicable.
  The right to be present in court, with the exception of certain 
classified evidence involving national security, preservation of safety 
or preventing disruption of proceedings.

[[Page H7552]]

  The right to a public trial, except for national security or physical 
safety issues.
  The right to have any finding or sentences announced as soon as 
determined.
  The right against compulsory self-incrimination.
  The right against double jeopardy.
  The defense of lack of mental responsibility.
  Voting by members of the military commission by secret written 
ballot.
  Prohibition against unlawful command influence towards members of the 
commission, counsel, and military judgments.
  Two-thirds vote of members is required for conviction, three-quarters 
is required for sentence to life or over 10 years, and unanimous 
verdict is required for the death penalty.
  Verbatim authenticated record of trial.
  Cruel and unusual punishment is prohibited.
  Treatment and discipline during confinement the same as afforded to 
prisoners in U.S. domestic courts.
  The right to review the full factual record by the convening 
authority, and the right to at least two appeals, including two in 
article 3 in Federal appellate court. That is one more appeal than the 
Constitution gives United States citizens.

                              {time}  1545

  So what's the beef? There are 26 more rights that are created in this 
legislation. Vote down the legislation, you vote down all of these new 
rights.
  Mr. Speaker, at this time I yield the balance of my time to the 
gentleman from California (Mr. Hunter) and ask unanimous consent that 
he be permitted to yield portions of that time as he sees fit.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  The SPEAKER pro tempore. The gentleman from California has 3\1/2\ 
minutes remaining.
  Mr. HUNTER. Mr. Speaker, I yield myself 2\1/2\ minutes.
  Mr. Speaker, I want to thank all my colleagues on both sides of this 
debate.
  This great Nation, this shining city on a hill, was attacked on 9/11. 
We undertook aggressive action against the terrorists who attacked us. 
We killed a lot of them. We found them in places where they never 
thought we would find them, in caves at 10,000-foot elevation mountain 
ranges, in deserts, in cities, and we captured some of them. And some 
of those who designed the attack against the United States and New York 
and Pennsylvania and Washington have been captured. And they are now in 
Guantanamo or going to Guantanamo. And the Supreme Court of the United 
States has charged this body with building a system with which to 
prosecute these terrorists, and we are responding with that system.
  Now, I would say to those who say that this is not fair, that we 
haven't given them enough rights, I think we have given them plenty. We 
have enumerated those. The chairman of the Judiciary Committee went 
over many basic rights. But the world is going to see these trials. And 
as I watch these defendants, these people, including those who designed 
the attack on 9/11, being presumed innocent; being given lawyers by the 
United States; being set against a standard of proof beyond a 
reasonable doubt; being protected against self-incrimination; being 
given the right to exculpatory evidence; being given the right to two 
appeals, not one appeal, as the minority had in the initial markup 
coming out of the Armed Services Committee, the American people will 
have an opportunity to see whether or not they think that the alleged 
terrorists have been given enough rights. So let's do what the Supreme 
Court asked us to do.
  We have put together an excellent product. It is agreed on. It will 
be introduced shortly in the U.S. Senate. For those who say they want 
to see the product of Mr. Warner and Mr. McCain and Mr. Graham, they 
have had a great deal of input into this, and they will be introducing 
this piece of legislation in the other body. So let's get on with this. 
It is our duty to pass this bill, to construct this system, construct 
this court, and bring justice before the eyes of the widows and orphans 
of 9/11, our fellow citizens, and the world. Let's do it.
  Mr. Speaker, I yield the balance of my time to the majority leader, 
Mr. Boehner.
  Mr. BOEHNER. Mr. Speaker, let me thank my colleague for yielding.
  We all know that in the years since 9/11 we have been focused on one 
vital goal, and that is stopping terrorist attacks before they happen.
  I want to commend Chairman Hunter and Chairman Sensenbrenner for 
their work on this piece of legislation. I think we all know that to 
stop terrorist attacks before they happen, we need to be able to 
interrogate terrorist suspects, find out what they know, and put them 
on trial.
  After 9/11, President Bush vowed to devote his Presidency to 
protecting the American people, and he vowed to use every tool at his 
disposal under the law to fight the terrorists and attack them before 
they attack us.
  If we are serious about stopping terrorist attacks before they 
happen, the ability to extract information from terrorist suspects and 
put them on trial is essential.
  President Bush put together a system to accomplish these goals after 
9/11. We have captured some of the world's most dangerous terrorists. 
But now our efforts are on hold because of a Supreme Court decision in 
June and that without congressional authorization, the Federal 
Government lacks the authority to use military tribunals for these 
suspected terrorists.
  In the wake of this Court decision, Congress has a choice. We can do 
nothing and allow the terrorists in U.S. custody to go free or to go 
into a trial meant for American civilians; or we can authorize 
tribunals for terrorists, find out what they know, and bring them to 
justice.
  This bill will allow us to continue to gather important intelligence 
information from foreign terrorists caught in battle or caught while 
plotting attacks on America. As President Bush has said, the 
information we have learned from captured terrorists ``has helped us to 
take potential mass murderers off the streets before they were able to 
kill us.''
  We know these interrogations have provided invaluable intelligence 
information that has thwarted terrorist attacks and has saved American 
lives. This bill allows Congress to draw the parameters for detaining 
and bringing to justice terrorists like Khalid Sheikh Mohammed, the 
driving force behind the terrorist attacks of September 11. The bill 
will provide clear guidance for Americans who are interrogating the 
terrorist suspects on behalf of our country. It will preserve this 
crucial program while meeting our commitments and obligations under the 
Geneva Conventions. It will also help us meet a 9/11 Commission 
recommendation that America develop a common coalition approach toward 
the detention and humane treatment of captured terrorists.
  We recognize military tribunals play a critical role in helping us 
fight the global war on terror, and we will give these tools to our 
President as he fights to help keep all of us safe.
  But the real question today is, what will my colleagues, my Democrat 
colleagues, do when it comes to this vote today?
  Virtually every time the President asks Congress for the tools he 
needs to stop terrorist attacks, a majority of my Democrat friends have 
said ``no.'' Democrats by and large voted ``no'' on establishing the 
Department of Homeland Security in July of 2002.
  A majority of Democrats voted ``no'' on additional funds to respond 
to the attacks of September 11 and bolster homeland security efforts in 
May of 2002. The majority of the Democrats voted ``yes'' to deny 
funding for law enforcement to carry out provisions of the PATRIOT Act 
in July of 2004. And a majority of Democrats voted ``no'' on the REAL 
ID Act, which makes it difficult for terrorists to travel freely 
throughout the United States, in February of 2005. And Democrats voted 
``no'' on reauthorizing the PATRIOT Act, and gloated about killing it, 
in December of 2005.
  And more recently, many Democrats voted against a resolution 
condemning the illegal leaks of classified intelligence information 
that could impair our fight against terrorism. Democrats voted ``no'' 
in the Judiciary Committee against allowing the terrorist surveillance 
program to go forward. And the

[[Page H7553]]

Democrats in the Judiciary Committee voted ``no'' on this bill as well.
  So the question is, will my Democrat friends work with Republicans to 
preserve this crucial program or oppose giving the President the tools 
that he needs to protect the American people? Will my Democrat friends 
work with Republicans to give the President the tools he needs to 
continue to stop terrorist attacks before they happen, or will they 
vote to force him to fight the terrorists with one arm tied behind his 
back?
  Now, I do not, and will never, question the integrity or the 
patriotism of my colleagues on the other side of the aisle. This is 
about giving our President the tools he needs to wage war against 
terrorists who are trying to kill us. And I hope that we will stand 
together this week and vote to give our President the tools that we 
need to fight and win in our war against terrorists all over the world.
  Mr. BLUMENAUER. Mr. Speaker, I am disappointed and perplexed that the 
administration and the Republican leadership refuse to provide 
meaningful legislation dealing with suspected terrorists and instead 
attempt to repeat the mistakes of the past. H.R. 6166, the Military 
Commissions Act, does nothing for our security and attempts to add 
legitimacy to the current improper actions of the Bush administration.
  By not adhering to the strictest standards when putting suspected 
terrorists on trial, we run the risk of punishing innocent people who 
could simply have been in the wrong place at the wrong time. It is now 
widely known that potentially hundreds of inmates in Guantanamo Bay may 
in fact have had nothing to do with terrorism, If we accept this 
legislation to be the new law of the land, we will be skirting our 
moral responsibility to be vigorous in our pursuit of terrorists while 
remaining just in our cause,
  This administration has repeatedly shown that it will make the wrong 
judgments and has repeatedly crossed the line while never acknowledging 
its own mistakes. Rather than stepping back to address the flaws that 
resulted in the Supreme Court's ``Hamdan vs, Rumsfeld'' decision, the 
administration and the Republican Majority continue to charge forward 
with more of the same. Congress can and must do better.
  Mr. SHAYS. Mr. Speaker, although I have some reservations, I support 
this legislation and appreciate it being brought up for consideration.
  On June 29, 2006, the Supreme Court ruled 5-3 in the case of Hamdan 
v. Rumsfeld that the Bush administration lacked the authority to take 
the ``extraordinary measure'' of scheduling special military trials for 
inmates, in which defendants have fewer legal protections than in 
civilian U.S. courts. Supreme Court Justice John Paul Stevens 
recommended Congress authorize a trial system closely based on our 
military's court-martial process. I am pleased that is what we are 
doing today.
  It is a testament to our system of government that the highest court 
has given us guidance in properly administering justice to these 
terrorism suspects. We should bring detainees to trial with protections 
similar to military courts. This will guarantee the trials are honest, 
fair and impartiaI and that justice is done.
  I recognize there are certain areas in which the tribunal system we 
are authorizing must deviate from a traditional court-martial and in my 
judgment this bill handles those differences in a fair and just manner.
  On September 19, 2006, along with several of my Republican 
colleagues, I wrote to Majority Leader Boehner urging him to bring a 
bill to the floor that ensures the United States remains fully 
committed to the Geneva Convention. In our judgment, the bill 
considered by the Senate Armed Services Committee was a good bill, and 
I am grateful the bill before the House was modified to closely reflect 
the provisions in the Senate.
  The legislation could have be more explicit in stating the so-called 
enhanced or harsh techniques that have been implemented in the past by 
the CIA may not be used under any U.S. law or order. The bill provides 
the President with some latitude to define what techniques may be used 
in accordance with the prohibition against cruel, inhuman and degrading 
treatment.
  When I read the language in this bill--and specifically the 
definitions of cruel, inhumane and degrading treatment--I believe any 
reasonable person would conclude that all of those techniques would 
still be criminal offenses under the War Crimes Act because they 
clearly cause ``serious mental and physical suffering.''
  I am also concerned about the bill's definition of rape, and of 
sexual assault or abuse under a section delineating what crimes may be 
prosecuted before military tribunals if committed by an enemy combatant 
or if committed by an American against a detainee. The narrow 
definition in this bill leaves out other acts, as well as the notion 
that sex without consent is also rape, as defined by numerous state 
laws and federal law.
  For these reasons, I am voting for the Democrat Motion to Recommit 
the bill to require a reauthorization of this legislation and also to 
request expedited judicial review.
  Mr. LEVIN. Mr. Speaker, I regret that once again the Republican 
Leadership has chosen to stampede far-reaching legislation through the 
House without adequate debate or any opportunity for Members to offer 
amendments. It has been 5 years since the 9/11 attacks, and it is only 
now that Congress is taking up legislation to try and punish terrorist 
suspects. The 96-page bill before the House was negotiated in secret 
last weekend and only introduced less than 48 hours ago. After waiting 
5 years, can't we take even 5 days to consider a bill of this 
magnitude?
  This Nation's security requires that terrorists must be caught, 
convicted and punished, and we need a process to do this. It is not 
clear to me how the proponents of this bill can claim that they are 
being tough on terrorists when it is almost certain that this 
legislation will not withstand constitutional scrutiny by the Supreme 
Court. The bill before the House bars detainees from filing habeas 
corpus suits challenging their detention. Under the bill, a person can 
be labeled an unlawful enemy combatant and detained indefinitely with 
no judicial view. This will not pass constitutional muster. Habeas 
corpus isn't about giving special rights to terrorists, as some have 
claimed; rather, it is about giving people who are accused of serious 
crimes an opportunity to disprove the charges against them.
  I am also concerned that this legislation gives the President the 
authority to reinterpret the meaning and application of Common Article 
3 of the Geneva Conventions. Especially given the well documented 
abuses of prisoners held at Abu Ghraib and Guantanamo Bay, we need to 
be clear that the United States will rigorously comply with its 
international obligations under the Geneva Conventions. This is 
important both to reinforce our Nation's moral standing in the world 
and to protect the men and women of our Armed Forces. If a U.S. soldier 
is held prisoner by another nation, we expect that they will enjoy the 
full protections of the Geneva Conventions, not some watered-down 
interpretation.
  It is the job of Congress to pass legislation to try and punish 
terrorists. That legislation must protect our men and women in uniform 
from erosion of the Geneva Conventions, and the legislation must be 
tough, fair and able to withstand constitutional challenge. The bill 
before the House meets none of these standards, and I urge my 
colleagues to reject it. Rather than rush through such a fundamentally 
flawed bill, the House should remain in session and do the job right.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong opposition to 
H.R. 6166, the Military Commissions Act of 2006. I oppose the bill 
because it creates an unfair trial system for military detainees, and 
does almost nothing to curb the President's power to authorize 
interrogation tactics that are widely recognized as torture.
  Mr. Speaker, this so-called compromise bill, is actually nearly 
identical to what the administration has sought all along. The bill 
continues to allow secret evidence in trials, prohibits detainees from 
challenging the merits of their detention in courts, and effectively 
allows the President to authorize the CIA to continue inhumane 
detention and interrogation.
  The Supreme Court ruled in the Hamdan v. Rumsfeld case that the 
President's system to try terrorist suspects is unlawful. All of us 
here and Americans everywhere want to see al Qaeda fighters tried and 
convicted for their crimes. The measure the House is considering, 
however, does not go far enough to ensure that military trials will be 
conducted in a fair and open fashion. For instance, the bill still 
allows certain classified evidence to be kept secret from defendants, 
giving them access only to evidence with large redacted portions. And 
it still permits certain cases under which a military judge could allow 
a trial in absentia. Perhaps most egregiously, the measure actually 
blocks the ability of innocent detainees to challenge the validity of 
their detention in an independent judicial tribunal because the bill 
denies the right of detainees to bring a habeas corpus action.
  Mr. Speaker, habeas corpus is not ``special treatment for 
terrorists,'' as proponents of the measure claim. Rather, it is a legal 
procedure that has the power to exonerate innocent detainees--not 
terrorists--who have been imprisoned and not brought to trial. Indeed, 
the writ of habeas corpus is the bedrock of the rule of law and traces 
its heritage back to the signing of the Magna Carta in 1215 A.D.
  Denying habeas corpus review for detainees in U.S. custody is simply 
another unwarranted attempt by the Executive branch to arrogate powers 
vested by the Constitution in the Federal judiciary. If the bill before 
us becomes law, the administration could pick and choose not only who 
could be tried, but could hold them in prison indefinitely with no 
possibility of judicial review.

[[Page H7554]]

  Although the bill does not technically redefine the Geneva 
Conventions, the measure does nothing to curb the power of an executive 
branch, like the current one, with a track record of abusing the human 
rights of secret military detainees. The bill states that the President 
has the `` authority to interpret the meaning and application of the 
Geneva Conventions,'' and could do so through executive orders. There 
is no question that President Bush fully intends to authorize the CIA 
to continue what it euphemistically refers to as ``alternative 
interrogation techniques.''
  We know now that most of these interrogations using ``alternative 
techniques'' have occurred in secret ``black site'' prisons in Eastern 
Europe and other foreign lands in clear and direct violation of Common 
Article 3, which prohibits signatories from inflicting ``cruel 
treatment and torture'' and ``humiliating and degrading treatment'' 
upon individuals who are not actively engaging in combat, including 
soldiers who have surrendered or been arrested and become prisoners of 
war.

  The bill may technically skirt the issue of America's conduct under 
the Geneva Conventions. But if American personnel blithely toss aside 
our international treaty obligations to uphold standards in the 
detention and interrogation of wartime prisoners, America will alienate 
our long-time allies who are crucial partners in the fight against 
terrorism. If America whisks people from the streets into secret 
detention facilities, and then uses secret evidence to convict them in 
special courts, it will do more to embolden our enemies than any 
extremist jihad web site ever could.
  Mr. Speaker, this is far too serious an issue to be used as a script 
for the mud-slinging commercials of campaign season. The very fact that 
the House is considering such legislation shows that Congress has not 
been exercising adequate authority over an arrogant and overbearing 
executive branch. There is a great need for a system to try suspected 
terrorists, both for the sake of the families of the victims of the 
September 11 attacks and for the sake of our American men and women 
fighting overseas. But the bill before the House--despite being labeled 
as a ``compromise''--fails to provide truly open trials and does not 
even allow innocent detainees to challenge their imprisonment. It is 
just another opportunity to rubber-stamp the President's ill-advised 
plan, and should be defeated.
  Mr. Speaker, in the final analysis, the debate today is not about the 
terrorists or America's enemies; it is about the character of our 
country. It is not about them; it is about us. It is not about the 
terrorists; it is about who we are. We are the United States of 
America. We fight hard but we fight fair. We fight to defend our 
families, our friends, the powerless and unprotected. We fight to 
preserve our way of life and the ideas we believe in. And here is what 
we believe:
  We believe in equal justice under law.
  We believe in the dignity of the human being.
  We believe in fair play and square dealing.
  We believe in opportunity for all, responsibility from all, and 
community of all.
  We believe in personal liberty and the public interest.
  We believe in freedom of conscience and worship.
  Mr. Speaker, the Global War on Terror is not just a battle of arms, 
though arms we need. It is also a battle of ideas over how we should 
live. If we jettison the principles bequeathed us by our forebears to 
gain a temporary and fleeting advantage over our enemies, then we will 
succeed in doing something no adversary ever could do and that is to 
defeat ourselves.
  Mr. Speaker, we do not need to surrender our cherished beliefs, 
values, and liberties to prevail against our enemies. We need only 
conduct our affairs by the principles of honor and freedom that have 
made this nation the strongest, most powerful, and most admired nation 
in the history of the world.
  I urge my colleagues to reject this ill-conceived and unwise 
legislation.
  Mr. PAUL. Mr. Speaker, I rise in strongest opposition to this ill-
conceived legislation. Once again, the House of Representatives is 
abrogating its Constitutional obligations and relinquishing its 
authority to the executive branch of government.
  Mr. Speaker, this legislation will fundamentally change our country. 
It will establish a system whereby the President of the United States 
can determine unilaterally that an individual is an ``unlawful enemy 
combatant'' and subject to detention without access to court appeal. 
What is most troubling is that nothing in the bill would prevent a 
United States citizen from being named an ``enemy combatant'' by the 
President and thus possibly subject to indefinite detention. Congress 
is making an enormous mistake in allowing such power to be concentrated 
in one person.
  Additionally, the bill gives the President the exclusive authority to 
interpret parts of the Geneva Convention relating to treatment of 
detainees, to determine what does and does not constitute a violation 
of that Convention. The President's decision on this matter would not 
be reviewable by either the legislative or judicial branch of 
government. This provision has implications not only for the current 
administration, but especially for any administration, Republican or 
Democrat, that may come to power in the future.
  This legislation eliminates habeas corpus for alien unlawful enemy 
combatants detained under this act. Those thus named by the President 
will have no access to the courts to dispute the determination and 
detention. We have already seen numerous examples of individuals 
detained by mistake, who were not involved in terrorism or anti-
American activities. This legislation will deny such individuals the 
right to challenge their detention in the court. Certainly we need to 
prosecute those who have committed crimes against the United States, 
but we also need to be sure that those we detain are legitimately 
suspect.
  I am also concerned that sections in this bill dealing with 
protection of U.S. personnel from prosecution for war crimes and 
detainee abuse offenses are retroactively applied to as far back as 
1997.
  Mr. Speaker, this bill will leave the men and women of our military 
and intelligence services much more vulnerable overseas, which is one 
reason many career military and intelligence personnel oppose it. We 
have agreed to recognize the Geneva Convention because it is a very 
good guarantee that our enemy will do likewise when U.S. soldiers are 
captured. It is in our own interest to adhere to these provisions. 
Unilaterally changing the terms of how we treat those captured in 
battle will signal to our enemies that they may do the same. 
Additionally, scores of Americans working overseas as aid workers or 
missionaries who may provide humanitarian assistance may well be 
vulnerable to being named ``unlawful combatants'' by foreign 
governments should those countries adopt the criteria we are adopting 
here. Should aid workers assist groups out of favor or struggling 
against repressive regimes overseas, those regimes could well deem our 
own citizens ``unlawful combatants.'' It is a dangerous precedent we 
are setting.
  Mr. Speaker, we must seek out, detain, try, and punish if found 
guilty anyone who seeks to attack the United States. We in Congress 
have an obligation to pass legislation that ensures that process will 
go forward. What Congress has done in this bill, though, is to tell the 
President ``you take charge of this, we reject our Constitutional 
duties.'' I urge my colleagues to reject this ill-conceived piece of 
legislation.
  Mr. CARDIN. Mr. Speaker, Congress has an obligation under the 
Constitution to enact legislation that creates fair trials for accused 
terrorists that will be upheld by the courts. We also have an 
obligation to protect our troops that fall into enemy hands, and to 
uphold American values and the rule of law. Finally, even during 
wartime, the President must work with Congress and the courts to uphold 
our Constitution. In June, the Supreme Court in Hamdan v. Rumsfeld 
struck down the President's military commissions, since they violated 
the Uniform Code of Military Justice and the Geneva Conventions. The 
Court noted that Congress, not the president, has the authority under 
Article I, Section 8 of the Constitution to ``define and punish 
piracies and felonies committed on the high seas, and offenses against 
the law of nations.''
  I strongly support our government's efforts to isolate, track down, 
and ultimately kill or capture suspected terrorists who are planning 
terrorist attacks against the United States. We must bring these 
terrorists to justice swiftly. We must also strengthen our efforts to 
protect the homeland by providing additional resources to law 
enforcement and emergency services personnel who are charged with 
disrupting and responding to a terrorist attack in the United States. 
As a former member of the Homeland Security Committee, I have fought 
hard to implement the recommendations of the 9/11 Commission and to 
distribute our homeland security funds on the basis of actual threats 
and vulnerabilities.
  I am therefore extremely disappointed, Mr. Speaker, that the House 
leadership failed to reach out to members on both sides of the aisle in 
crafting this legislation. We should heed the warning given by our 
former Chairman of the Joint Chiefs of Staff and former Secretary of 
State Colin Powell, who states that ``the world is beginning to doubt 
the moral basis of our fight against terrorism.''
  The 9/11 Commission recommended that ``the United States should 
engage its friends to develop a common coalition approach toward the 
detention and humane treatment of captured terrorists. New principles 
might draw upon Article 3 of the Geneva Conventions . . . Allegations 
that the United States abused prisoners in its custody make it harder 
to build the diplomatic, political, and military alliances the [U.S.] 
government will need.'' This legislation today undermines the 
protections of the Geneva Convention, and by weakening our moral 
authority makes it harder for us to work

[[Page H7555]]

with allies to win the war on terrorism and protect Americans.
  I share the concerns of the many current and former military officers 
that testified to Congress that any weakening of these protections will 
place American soldiers at risk if they are captured overseas. I am 
pleased that last December Congress adopted Senator McCain's 
legislation and outlawed the use of torture, and cruel, inhuman or 
degrading treatment by U.S. personnel, which would endanger the 
treatment of our American soldiers overseas. I am disappointed, 
therefore, that this legislation allows the use of statements obtained 
by some this prohibited behavior to be admissible in court.
  Finally, this legislation eliminates the fundamental legal right of 
habeas corpus, which would permit our government to hold detainees 
indefinitely without charge, trial, or the right to an independent 
hearing to weigh the evidence against the accused terrorist.
  We must join with our allies to win the war on terrorism and bring 
terrorists to justice. Our Constitution contains the very values we 
hold dear and that makes us proud to be Americans, and which motivate 
our soldiers to lay down their lives in defense of this country. I have 
sworn to uphold and defend our Constitution and to protect our 
democracy. This legislation takes a step backward, is inconsistent with 
the rule of law, and will make it harder to work with our allies to 
build an effective coalition to defeat terrorism. I therefore will vote 
against this legislation.
  Five years after the 9/11 attacks, it is inexcusable that not a 
single one of the terrorists who planned the 9/11 attacks has been 
brought to trial. I am hopeful that the Senate will improve this 
legislation as Congress continues to discharge its constitutional duty 
to create military commissions that are consistent with the rule of law 
and that will result in convictions of terrorists that will be upheld 
by our courts.
  Mr. LANTOS. Mr. Speaker, we are embarking on a debate of 
extraordinary importance to the Nation and to our success on the war on 
terrorism. It is centered on a fundamental issue of concern to anyone 
who cares about human rights--and there are still many of us, 
thankfully.
  So this should be a debate about ideas, and there should be full and 
complete deliberation.
  Unfortunately, because of an arrogant White House and a Republican 
Leadership in this House that has simply bowed to the Executive's 
will--as it has so many times before--we have once again made the 
consideration of a critical legislative initiative a charade, a debate 
being conducted with undue haste and without any serious consideration.
  Mr. Speaker, since September 11, 2001, one of the most vexing 
problems that has faced our country in the struggle against the forces 
of nihilism and extremism is our approach to those who come into our 
custody because we believe they are a danger to the United States. We 
have seen unclear policy and muddy thinking leading to cruel treatment 
of those in U.S. custody, with some conduct even amounting, in the view 
of the former General Counsel to Department of the Navy under this 
Administration, to be torture. Finally, last June the Supreme Court 
ruled that the Administration's unilateral set of rules for trying 
terrorist suspects was unlawful.
  Let us make no mistake about it--our treatment of detainees and our 
failure to come up with a joint approach with our allies has damaged 
our ability to prosecute successfully the war on terrorism. It has 
endangered our troops by setting standards for others that I believe we 
will deeply regret. It has impeded our ability to work with many of our 
allies who have a different view from this Administration on the 
obligations of the Geneva Convention, one that has since been adopted 
by our own Supreme Court. It has undermined our legitimacy worldwide 
and been a recruiting tool for our enemies.
  The legislation before us should be an effort to address these 
problems, and in some ways it has. It establishes a better framework 
for trying detainees than the one established by the Administration. 
And by keeping it a crime to engage in serious physical abuse against 
detainees, it prohibits the worst of the abuses that we have seen, 
including those that are also banned by the Army's new Field Manual on 
interrogation, including forcing the detainee to be naked, perform 
sexual acts, or pose in a sexual manner; placing hoods or sacks over 
the head of a detainee or using duct tape over the eyes; applying 
beatings, electric shock, burns, or other forms of physical pain; 
waterboarding; using working dogs during an interrogation; inducing 
hypothermia or heat injury; conducting mock executions; depriving the 
detainee of necessary food, water, sleep or medical care.
  Unfortunately, Mr. Speaker, the legislation remains deeply flawed in 
more ways than I have time to describe here. It prohibits any detainee 
from ever raising the Geneva Conventions in any case before any court 
or military commission, a provision that I fear will be used against 
our own troops if they are ever captured by the enemy. It takes actions 
against existing lawsuits and establishes a whole new system for 
military appeals that is constitutionally suspect, will lead to even 
more court cases, and could leave us five years from now with exactly 
the same number of convictions we have under the existing military 
tribunal system: zero. We should be trying to expedite trials of 
terrorist suspects, not providing the basis for more delays. And, 
acting directly against the recommendations of the bilateral 9-11 
Commission, this legislation does not represent a joint approach with 
our allies.
  Mr. Speaker, nearly 60 years ago, I fled from a continent in ruins 
from a war conducted without rules, marked by atrocities on a scale 
that the world had never seen. Much of that continent was under a 
dictatorship in Moscow that was bent on oppressing its citizens and 
those under its dominance everywhere. So the issues presented by this 
bill are more than a policy debate to me.
  I am profoundly disappointed by what we are doing today. It does not 
represent progress in protecting our troops and civilians who are 
caught up in armed conflict. It represents a retreat.
  The Geneva Conventions were meant to protect people like me and our 
country's troops from the worst abuses of war. This country has always 
stood for the upholding and supporting those protections and expanding 
them whenever we could, in our national interest.
  We should not be rushing legislation through now, just before an 
election, when we know it won't be needed for many months. We should 
not be considering a bill that is substantially different from the one 
that has been already put through our Committees. And we should not be 
debating legislation without any chance of presenting our individual 
ideas for improving it.
  But here we are. Under these circumstances, I oppose this legislation 
and fully expect to be back debating these issues when the Supreme 
Court overturns this ill-advised legislation.
  Mr. NADLER. Mr. Speaker, this is how a nation that has become fearful 
loses its moral compass, its identity, its values, and, ultimately, its 
freedom.
  It is ironic that the people who use the word freedom with reckless 
abandon, in everything from fries to a global vision, should come 
before the American people today advocating for the suspension of 
habeas corpus, secret Star Chamber tribunals, unlimited detention 
without review and, yes, torture.
  I know, we've been told it's not really torture, but I am sickened by 
the quibbling, legalistic hair splitting on something so basic to our 
nation's fundamental values.
  Have you forgotten? We are America.
  Let me say that again: we are the United States of America.
  We have stood as a beacon to the world. People have aspired to our 
way of life, our values, our example, our leadership.
  We are told that our enemies do not respect the rules of war or the 
rights of their captives, but do you really believe that ``somewhat 
better than al Qaeda'' is how we should measure our conduct? I don't.
  And now, with scant deliberation, in an election eve stampede, we are 
urged to throwaway our values, our honor, our constitution, and our 
standing in the world as if it were yesterday's newspaper.
  Yes, we must be vigilant to keep our nation safe, but we must not 
stand by while the honor and values of our nation are permanently 
stained by this detestable legislation. It is beneath us. It is not 
what we stand for.
  Benjamin Franklin once said ``they that can give up essential liberty 
to obtain a little temporary safety deserve neither liberty nor 
safety.'' He was right.
  Perhaps if this administration had the minimal competence necessary 
to make us safe, we might have a debate about the wisdom of Franklin's 
and the Founders' commitment to liberty. But this administration has 
demonstrated beyond any doubt that it is not our values that place us 
at risk, but its own incompetence, and the willingness of a rubber-
stamp Republican Congress to follow the President over any cliff.
  What are we being asked to do here, and why are we being asked to 
rush to judgement?
  There are many infamies in this bill, as others have pointed out. I 
will concentrate on just one.
  This bill would allow the President, or any future President, to grab 
someone off a street comer in the United States, or anywhere else in 
the world, and hold them forever, without any court review, without 
having to charge them, without ever having to justify their 
imprisonment to anyone.
  This bill is flatly unconstitutional, for it repeals the Great Writ--
Habeas Corpus. Not a statutory writ, but the Constitutional Great Writ.
  Read the bill. I know we're not supposed to do that in the Republican 
Congress, but, just

[[Page H7556]]

this once, for the sake of our nation, please read the bill.
  Turn to page 93.

       No court, justice, or judge shall have jurisdiction to hear 
     or consider an application for a writ of habeas corpus filed 
     by or on behalf of an alien detained by the United States who 
     has been determined by the United States to have been 
     properly detained as an enemy combatant or is awaiting such 
     determination.

  ``Awaiting such determination?'' That says it all. Nowhere in this 
new law is there any time limit for making this determination. In fact, 
it could be never.
  We are told that these procedures are only for those who the 
President has called ``the worst of the worst.''
  How do we know they are the worst of the worst? Because the President 
says so, and the President, and federal bureaucrats, as we know, are 
never wrong.
  Some people held as ``unlawful enemy combatants'' may be put before a 
military tribunal, but they need not be. They can be held forever 
without any hearing.
  A person designated as an ``unlawful enemy combatant'' can challenge 
his detention only if he is brought before a military commission, or a 
Combat Status Review Tribunal, and only after the military commission 
and all the appellate procedures are finished. Then he can appeal to 
the D.C. Circuit, but only to review the legal procedures. The court 
can never look at the facts. That's on page 56.
  So, let's review:
  The government can snatch anyone who is not a U.S. citizen, anywhere 
in the world, including on the streets of this city, whether or not 
they are in a combat situation, whether or not they are actually doing 
anything, and detain them forever, out of reach of our constitution, 
our laws, and our courts.
  It also says that a court can never review the conditions of 
detention, which is an elegant way of saying no court can hear a claim 
that the detainee was tortured. Ever.
  Who is subject to these rules? Well the President wants you to think 
this is only about Khalid Sheikh Mohammed. Bad guy. Dangerous guy. 
Deserves to be locked up. We all agree on that one.
  But it could also mean a lawful permanent resident. Someone like my 
grandmother while she was waiting to become a loyal American citizen, 
which she did, and which is why I am fortunate enough to have been born 
in this great country. It would apply to the relatives of anyone in 
this room who is not a Native American.
  We rebelled against King George III for far lesser infringements of 
our liberties than this. This bill makes the President a dictator--for 
the power to order people jailed forever without being subject to any 
judicial review is the very definition of dictatorial power.
  The President wants to live in a law-free zone. He does not want to 
be bound by the law of war or by our treaty obligations. He does not 
want to be answer to our Constitution, to the Congress or to the 
Courts.
  If someone is in this country and he commits a crime, we have laws to 
stop him and lock him up. If those laws, including the Classified 
Information Procedures Act, don't work, we can improve them. That's how 
we put Zacarias Moussaoui in jail. Anyone remember the 11th hijacker? 
We caught him, tried him in a regular court, and now he's in jail.
  Perhaps if this administration hadn't been asleep at the switch, we 
might have caught him before September 11th, and saved our nation from 
that terrible crime.
  We could also hold people as prisoners of war if we catch them on the 
battlefield. That's worked pretty well in all our wars.
  We can set up new rules that actually sort out the bad guys from the 
people we just grabbed, or who were sold to us by a rival group, as 
happened in Afghanistan. We already know that some of the people in 
Guantanamo have been there for years for nothing. Some of them have 
been released and some of them are still there. How does that make us 
safer?
  And then there's torture. When is torture not torture? Apparently 
whenever the President and his team of legal scholars says it isn't.
  This bill would write that dangerous practice into law.
  It would also allow statements extracted under torture to be used as 
evidence. See page 17 of the bill.
  Is it really hard, as the President and some members of Congress say, 
to understand the difference between legal interrogation and illegal 
torture? The people who wrote the Army Field Manual, and the people who 
train our troops, have never thought so. It only became a question when 
this President decided he was above the law.
  Now the President wants to have us grant him immunity, in advance, 
for whatever he might have ordered. That's a neat trick, and it's in 
this bill.
  Mr. Speaker, rarely in the life of a nation is the question so stark. 
Are we going to rush this complete repudiation of all we stand for 
through the Congress to give the Republicans an election issue? I hope 
we are not as cynical as some here seem to think we are.
  There is nothing we are doing today that we can't do properly with 
some care and deliberation. There is no danger that someone is going to 
be released from custody. This administration has certainly fiddled for 
the last few years without accomplishing anything.
  Perhaps, just perhaps, this time we can do it right. Let's try. 
That's the oath we took when we became members of this House. That's 
the responsibility we have today.
  Mr. GEORGE MILLER of California. Mr. Speaker, all Members of Congress 
support the effort to thwart international terrorism and make Americans 
safe. But there are right ways and wrong ways to carry out that 
critical effort. The military commissions bill before us today is the 
wrong way, and I urge my colleagues to vote against it.
  The Geneva Convention protects Americans everywhere. Congress should 
not alter our international obligations in an election-year rush 
ordered by Karl Rove's partisan strategy shop.
  We cannot use international law to justify America's actions when it 
suits our purposes and ignore it when it does not.
  America has given its word to the rest of the world that we win abide 
by the Geneva Conventions.
  Redefining our interpretation of the Geneva Convention is a slippery 
slope. Consider the words of the Navy's own Judge Advocate General, who 
testified to Congress on the possible implications of altering 
America's commitment to the Geneva conventions:
  ``I would be very concerned about other nations looking in on the 
United States and making a determination that, if it's good enough for 
the United States, it's good enough for us, and perhaps doing a lot of 
damage and harm internationally if one of our servicemen or 
servicewomen were taken and held as a detainee.''
  Beyond military personnel, the Geneva Conventions also protect those 
not in uniform--special forces personnel, diplomatic personnel, CIA 
agents, contractors, journalists, missionaries, relief workers and all 
other civilians. Changing our commitment to this treaty could endanger 
them, as well.
  In addition to my concerns about our commitment to the Geneva 
Conventions, there is a real possibility that this bill will not stand 
up to judicial scrutiny. The Supreme Court in ``Rasul v. Bush'' decided 
that detainees have habeas corpus rights. And well established case law 
lays out that legislation depriving federal courts of jurisdiction does 
not effect currently pending cases. And nine former federal judges 
recently wrote:
  ``Congress would thus be skating on thin constitutional ice in 
depriving the federal courts of their power to hear the cases of 
Guantanamo detainees. . . . If one goal of the provision is to bring 
these cases to a speedy conclusion, we can assure you from our 
considerable experience that eliminating habeas would be 
counterproductive.''
  Sacrificing our principles makes us neither safe nor free. In fact, 
there is some evidence that sacrificing our principles in this bill may 
make us less safe.
  Just yesterday, the President declassified portions of a National 
Intelligence Estimate--or NTE--which, news accounts say, details that 
U.S. foreign policy in Iraq and elsewhere has increased the spread of 
terrorism, making America less safe.
  One of the key reasons outlined in the NTE for this conclusion was 
that, entrenched grievances of injustice help create an anti-U.S. 
sentiment among Muslims that terrorist groups exploit to recruit new 
members and grow the jihadist movement--the images of and stories about 
detainee abuse at Abu Ghraib; the unexplained death of prisoners at the 
Bagram Collection Point in Afghanistan; the denial of habeas corpus 
rights to detainees at Guantanamo bay; the use of extraordinary 
rendition to kidnap suspected enemies of the state anywhere in the 
world; and secret CIA prisons.
  These incidents have all helped spread anti-U.S. sentient around the 
world. This has alienated us from friends and allies and added to the 
list of grievances terrorist groups like al Qaeda use to recruit new 
jihadists.
  The President should have the best possible intelligence to prevent 
future terrorist attacks on the United States and our allies. And those 
responsible for 9/11 and other terrorist acts should be brought to 
justice, tried, and punished accordingly, and their convictions should 
be upheld by our courts.
  Sadly, this legislation does not accomplish any of those things. For 
that reason, I encourage my colleague to vote against its passage.
  Mr. CROWLEY. Mr. Speaker, I have lost faith in this Republican 
controlled Congress. The Congress is no longer about doing what is 
right for out country.
  My colleagues on the other side of the aisle care more about giving 
the President what he wants then what is in the best interests of the 
people we are here to represent.
  And in case my friends don't read, the country does not have a very 
high opinion of this Congress and the rest of our government.

[[Page H7557]]

  This Congress granted an excessive amount of executive power to the 
President to wage his war on terror with no oversight.
  That excessive power brought us to our present day problems and this 
President is unwilling to fix these problems or even admit they exist.
  We must reclaim our Constitutional authority and bring America back 
to the moral high ground.
  Regardless of how we feel about detainees, we must treat them 
humanely and in accordance with our rule of law and the Geneva 
Conventions.
  The example set by the United States is the example given to our own 
soldiers in the field.
  These terrorists are vicious murderers, I know firsthand because they 
killed my cousin on 9/11, but my values as an American are what keeps 
those hatreds in check.
  I find it amazing that the man who campaigned on bringing values back 
to the Oval office has lead the perception of our nation to an all time 
low.
  Torture and harsh interrogation techniques are not my values and are 
not those of the American people.
  We must lead by example on these issues, not be an evasive quasi 
participant.
  Our soldiers are abroad fighting a battle our President has not 
allowed them to win because of his continued mismanagement of all 
aspects of the war.
  The National Intelligence Estimate done by our 16 intelligence 
agencies flat out says that the war in Iraq has actually invigorated 
the growth of terrorism and worsened the threat around the globe.
  We diverted all our attention from Afghanistan where the terrorists 
actually are and invaded Iraq on false statements and scare tactics.
  This Administration with the help of the Republican controlled 
Congress has continued to stay on the wrong course.
  Today, we could have had an opportunity to fix ones of those 
mistakes, but we are ignoring the respect for due process and denying 
Habeas Corpus to detainees.
  This bill disregards the Hamdan decision, which stated that it should 
be a requirement of a ``regularly recognized constituted court 
affording all the judicial guarantees which are recognized as 
indispensable by civilized people.''
  As civilized people we must respect our laws, without the rule of law 
we would have chaos.
  The Bush Administration still refuses to explain why we even need a 
different judicial system for accused terrorists.
  We must take the back the moral high ground in Congress just like 
many of our military leaders on the ground threw out the Department of 
Defenses recommendations on interrogation and instead decided to 
strictly follow the Geneva Conventions.
  We should be following the advice of our military who truly 
understand what the Geneva Conventions mean, not the civilian 
leadership who stay out of harms way.
  The President wants this Congress to bend the rules of our laws and 
the Geneva Conventions, a document that has protected our soldiers 
abroad since its inception.
  I ask my colleagues, are you prepared to bend those laws that have 
governed us so successfully so the President can have the power to 
allow the harsh interrogations tactics and detention of detainees who 
mayor may not be terrorists.
  We need to regain our stature as a world leader.
  I hate these terrorists and I believe they should be punished, 
punished for the murder of my cousin on 9/11.
  But they should be punished under the rule of law.
  I pray this Congress will lead by example and not follow the example 
of the terrorists.
  Mr. STARK. Mr. Speaker, I rise to defend American values.
  The Military Commissions Act--H.R. 6166--continues Republicans' 
despotic assault on the Constitution. It denies detainees held abroad 
the fundamental right of habeas corpus, which has for centuries 
protected against unjust government imprisonment. It limits protections 
against detainee mistreatment, sanctioning ``alternative procedures'' 
of interrogation that amount to cruel and unusual punishment. It denies 
people the opportunity to confront the evidence used against them--even 
if that evidence is obtained through coercive and inhumane practices. 
It strips our courts of the jurisdiction to review cases--including 
those already pending--concerning detainee abuse.
  Some call this legislation a ``compromise.'' I call it a 
capitulation. No sooner had the ink dried on this deal than the Bush 
administration declared that the CIA's program of secret detention and 
interrogation could and would continue. That should come as no 
surprise. Though this bill does not explicitly redefine our obligations 
under the Geneva Conventions, it permits the President to ``interpret 
the meaning and application'' of our historic commitment to the 
international community--and theirs to us.
  Make no mistake, our disregard for international law imperils the 
safety and security of our men and women in uniform. Our denial of due 
process to detainees invites foreign states and organizations to 
indefinitely imprison and interrogate our soldiers. Our insistence on 
defining detainees as ``enemy combatants'' undeserving of legal 
protections encourages our adversaries to deny these very same 
protections to American prisoners. Provided, of course, we haven't 
already done so ourselves: This legislation allows the Government to 
declare not only foreigners, but also U.S. citizens, ``enemy 
combatants'' and arrest and hold them indefinitely.
  This legislation further confirms that Republicans in Congress are no 
more interested in fundamental human rights than is President Bush and 
his administration. I urge my colleagues to vote ``no.''
  Mr. CLEAVER. Mr. Speaker, I was unable to personally cast votes today 
because I was attending a memorial service for SFC Michael Fuga. 
Sergeant Fuga was killed September 9, 2006 in Kandahar, Afghanistan. 
Sgt. Fuga was assigned to the Missouri National Guard's 35th Special 
Troops Battalion based in St. Joseph, MO. He and his family made 
Independence, in the district I am proud to serve, their home. Sgt. 
Fuga was 47 and had spent 28 years of his life in the Army. At the time 
of his death, he was training Afghan armed forces to help bring peace 
and stability to a nation that has known neither for decades.
  SGM James Schulte, who was in charge of Sergeant Fuga's deployment 
said, ``He was a true patriot and a great family man. I am truly 
honored to have known and served with him.'' We should all be so lucky 
to have something like that be said of us when we are gone.
  Sergeant Fuga volunteered to extend his time in Afghanistan because, 
his family says, he was committed to defeating those who attacked our 
Nation 5 years ago this week. Each day we are blessed to live under the 
freedoms which Sergeant Fuga and his colleagues in the Armed Forces so 
bravely serve to protect and ensure.
  Sergeant Fuga leaves behind his wife and 12-year-old daughter.
  I do not take the decision to miss votes lightly, but hope I can 
provide Sergeant Fuga's family some comfort on what will be a difficult 
night.
  Today, the House of Representatives debated and voted on H.R. 6166--
Military Commissions Act.
  Republicans tried to paint those who were not in favor of the bill as 
being soft on bringing terrorists to justice and meting out just 
punishment. They implied that those who were not in favor of the 
measure were trivializing the heinous crimes perpetrated against 
American citizens and service members.
  They refused to allow an open debate by suppressing thoughtful and 
germane amendments designed to strengthen the intent of the 
legislation. Once again they rushed through a piece of bad legislation 
written to appease an administration stubbornly determined on doling 
out justice as it sees fit. I am disheartened by the lack of importance 
this administration places on human rights, on due process, and on 
upholding the Constitution of these United States.
  Mr. LANGEVIN. Mr. Speaker, I rise in opposition to H.R. 6166 and am 
deeply disappointed that Congress has missed an opportunity to act in a 
bipartisan manner to prosecute those who would do harm to Americans, 
while ensuring that such efforts would withstand legal scrutiny.
  In June, the Supreme Court ruled in Hamdan v. Rumsfeld that President 
Bush exceeded his authority by establishing military commissions to try 
detainees in the global war on terrorism without explicit congressional 
approval. That decision presented Congress with an important 
opportunity to develop a proposal to try some of the world's most 
dangerous people and to provide swift justice to those who engaged in 
horrendous acts against our Nation. Unfortunately, instead of 
proceeding in a bipartisan manner to craft legislation that enjoys the 
full confidence of this body, Congress is faced with a proposal 
negotiated exclusively by Republicans and whose actual effectiveness in 
prosecuting terrorists remains in question.
  After the Hamdan decision, the House Armed Services Committee held 
numerous hearings on how Congress should respond, and I commend the 
chairman for his efforts to ensure that committee members learned the 
complexities of this topic.
  One constant theme we heard from the witnesses testifying was that 
Congress should ensure that any system established to try military 
detainees followed existing legal procedures to the greatest extent 
practicable.
  On that point, let us be clear. Despite the mischaracterizations of 
some Members on the floor today, no one has recommended giving 
terrorists the same rights as criminals or members of our Armed Forces. 
Everyone recognizes that many of these detainees are dangerous people, 
and we agree that the judicial

[[Page H7558]]

system used to try them must reflect the complexities of prosecuting 
enemy combatants in the midst of an ongoing war. What the legal experts 
did counsel, though, was that if military commissions did not include 
basic, broadly accepted principles of jurisprudence, the commissions 
could be subject to legal challenge.
  Unfortunately, we have no idea if the legislation before us will 
withstand such scrutiny because the commissions it would establish vary 
significantly from other accepted forms of tribunals that have been 
used to prosecute crimes in times of war.
  I hope that this legislation does ultimately pass constitutional 
muster, because it would be a devastating blow to our efforts to combat 
global terrorism if the conviction of a terrorist were overturned on a 
legal challenge. However, because I am not confident that the 
legislation will be upheld, I must oppose it.
  The other overarching concern I have with this measure is the impact 
it will have on the United States' obligations under the Geneva 
Conventions. The legislation would give the President broad authority 
to interpret U.S. compliance with the Geneva Conventions and would 
create confusion about which practices would be prohibited. The Supreme 
Court specifically stated in Hamdan that basic protections of the 
Geneva Conventions' Common Article 3 apply to detainees, but the 
legislation actually complicates compliance with Common Article 3 by 
creating new definitions of offenses that do not comport with 
international law. Unfortunately, this change could endanger our own 
men and women in uniform by encouraging other nations to redefine how 
they treat captured prisoners. We would not want other nations to offer 
anything other than full Geneva protections to our own troops, and we 
must therefore respect the concept of reciprocity on which the 
Conventions were established.

  As Colin Powell noted, respecting the Geneva Conventions not only 
protects our own servicemembers, but it affirms our commitment to 
international standards of law and justice at a time when our moral 
authority in the global war on terrorism is increasingly being 
questioned.
  I am deeply disappointed that, on a matter of such importance to the 
American people, Congress did not act in a careful and bipartisan 
fashion to establish a system of military commissions that can protect 
the American people and withstand legal scrutiny. Instead, the 
leadership is forcing this measure through the House while ignoring 
some very valid concerns. I simply ask where their sense of urgency was 
nearly 5 years ago when the President established military tribunals 
without congressional input.
  Some of my Democratic colleagues have argued for years that we need 
greater congressional involvement in the justice system for military 
detainees, but those appeals were ignored. Once again, Congress has 
abdicated its constitutional oversight responsibility for too long and, 
when finally forced to act, has chosen partisanship over sound policy.
  I urge my colleagues to oppose this measure so that we can craft an 
alternative that is tough on terrorists while meeting our legal and 
international obligations.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 1042, the previous question is ordered 
on the bill, as amended.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


               Motion to Recommit Offered by Mr. Skelton

  Mr. SKELTON. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. SKELTON. I am, Mr. Speaker.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:
       Mr. Skelton moves to recommit the bill H.R. 6166 to the 
     Committee on Armed Services with instructions to report the 
     same back to the House forthwith with the following 
     amendment:
       At the end of the bill, add the following new sections:

     SEC. 11. EXPEDITED JUDICIAL REVIEW.

       Notwithstanding any other provision of law, the following 
     rules shall apply to any civil action, including an action 
     for declaratory judgment, that challenges any provision of 
     this Act, or any amendment made by this Act, on the ground 
     that such provision or amendment violates the Constitution or 
     the laws of the United States:
       (1) The action shall be filed in the United States District 
     Court for the District of Columbia and shall be heard in that 
     Court by a court of three judges convened pursuant to section 
     2284 of title 28, United States Code.
       (2) An interlocutory or final judgment, decree, or order of 
     the United States District Court for the District of Columbia 
     in an action under paragraph (1) shall be reviewable as a 
     matter of right by direct appeal to the Supreme Court of the 
     United States. Any such appeal shall be taken by a notice of 
     appeal filed within 10 days after the date on which such 
     judgment, decree, or order is entered. The jurisdictional 
     statement with respect to any such appeal shall be filed 
     within 30 days after the date on which such judgment, decree, 
     or order is entered.
       (3) It shall be the duty of the United States District 
     Court for the District of Columbia and the Supreme Court of 
     the United States to advance on the docket and to expedite to 
     the greatest possible extent the disposition of any action or 
     appeal, respectively, brought under this section.

     SEC. 12. REAUTHORIZATION REQUIRED.

       (a) Military Commissions.--No military commission may be 
     convened under chapter 47A of title 10, United States Code, 
     as added by this Act, after December 31, 2009, except for 
     trial for an offense with respect to which charges and 
     specifications against the accused are sworn under section 
     948q(a) of that title before that date.
       (b) Treaty Obligations.--Effective on December 31, 2009--
       (1) sections 5, 6(a), and 6(c) of this Act shall cease to 
     be in effect; and
       (2) section 2441 of title 18, United States Code, is 
     amended--
       (A) in subsection (c), by striking the text of paragraph 
     (3) and inserting the text of that paragraph as in effect on 
     the day before the date of the enactment of this Act; and
       (B) by striking subsection (d) (as added by section 
     6(b)(1)).

  Mr. SKELTON (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion to recommit be considered as read and printed 
in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri is recognized for 5 minutes in support of his motion.
  Mr. SKELTON. Mr. Speaker, it is our obligation in this body to fix 
the deficiencies in this system in order to bring terrorists to 
justice. My motion to recommit with instructions would add two 
important elements to the bill that address this basic concern. First, 
it would require an expedited constitutional review of the entire 
matter. That is what we need. Second, it would require reauthorization 
of these military commissions after 3 years.
  Expedited judicial review is a well-known way to improve legislation 
for which legal challenges can be anticipated, and we can be sure that 
the military commissions system created by this bill will be subject to 
change. We can provide for expedited review of civil actions 
challenging the legality of this act by creating a three-judge panel of 
the D.C. District Court that would hear the actions. The U.S. Supreme 
Court would then review a judgment or review an order of the panel on 
an expedited basis.
  This type of provision is routinely placed in novel legislation. It 
was part of the McCain-Feingold campaign finance bill, part of the 
Voting Rights Act, and part of the Communications Decency Act.
  The motion to recommit would also require that Congress reauthorize 
these military commissions after 3 years and would allow any action 
before a military commission begun before 2010 to go forward, but it 
would require an educated debate on reauthorizing this system after we 
have had some real-world experience with this new judicial process.
  There is ample precedent for requiring reauthorization for 
controversial measures passed in a hurry in times of conflict. Most 
recently, Mr. Speaker, the PATRIOT Act contained reauthorization, or 
sunset, provisions. And taken together, Mr. Speaker, these two 
provisions will significantly improve the flawed legislation that we 
have before us today.
  We need not only to be tough. We need to be certain. And my motion to 
recommit would make this more certain that those despicable terrorists 
would be brought to justice.
  The SPEAKER pro tempore. Does the gentleman from California claim 
time in opposition to the motion to recommit?
  Mr. HUNTER. Yes, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
  Mr. HUNTER. Mr. Speaker, I do rise to oppose this motion.
  First, let me thank my colleague, Mr. Skelton, an outstanding 
gentleman and friend and a guy who cares about our country, and all the 
folks

[[Page H7559]]

who have really worked this issue and participated in the hearings and 
the briefings that we have had and the discussions with military 
experts.
  Let me tell you why I oppose this. First, Mr. Speaker, the Supreme 
Court not only gave permission but invited the Congress to put together 
this new system to try terrorists. And I want to direct my colleagues 
to the opinion of Justice Breyer, where he said: ``Nothing prevents the 
President from returning to Congress to seek the authority he believes 
necessary.''
  So the point is the Supreme Court has not only given us permission. 
They have given us the obligation of putting this together. The 
American people have given us the obligation of putting this together.
  The idea that we are going to pass this legislation with an 
uncertainty, with a lack of confidence, sending a message that somehow 
we need two permissions, is, I think, exactly the wrong message to send 
to the world.
  And I just remind my colleague Mr. Skelton that when we had our 
initial hearings and our initial markup, Mr. Skelton, you held up 
Senator Graham in the Senate and Senator McCain as having the gold 
standard with respect to this legislation and you offered their 
legislation. Let me tell you that this legislation will be introduced 
by them. The gentlemen that you said had the gold standard and judgment 
on what is fair, they will be introducing this in the other body very 
shortly.
  So, my colleagues, this is not a time to seek a second permission 
before we have passed the first legislation that actually sets into 
force and effect this important structure with which to try terrorists.

                              {time}  1600

  Let me just go to the second problem with what Mr. Skelton has. Mr. 
Skelton has a sunset provision. This sunsets a very important part of 
the bill. It sunsets the commission. So it says we have to go back and 
redo it, that we don't have confidence in what we have done, and we 
have to redo it after 3 years.
  The other bad part about this motion to recommit is it sunsets 
section 5 and section 6 which protect American troops. They say that 
you cannot sue American troops under Geneva article 3. You can't sue 
them civilly. Now that is a bad thing. That means that you would have, 
if this sunset goes into place that Mr. Skeleton is asking for, that 
you will have American troops exposed to civil suit by terrorists in 
American courts for alleged violations of Geneva article 3.
  It also does away with this distinction that we have made between 
grave offenses under Geneva article 3. The real grave offenses, the 
murder, the torture, all of those things, goes away with the cleavage 
between that. And maybe an American female colonel interrogating a male 
Muslim, and therefore being construed as having degraded him and his 
culture by having an American female interrogate him, that distinction 
between that and a bad offense would now be erased and American troops 
would be exposed to civil liability and civil suits under Geneva 
article 3.
  I would just ask my colleagues, if you have confidence in what we 
have done, and this has been a product of this body, of the other body, 
and of the administration working night and day to put together a solid 
package, if you have confidence in that, and you have confidence in 
this list of rights that we have enumerated, that we give to the 
defendants, that we give to the people who designed the attack on 9/11: 
the right to counsel, the right to proof beyond a reasonable doubt, the 
right to a secret vote in the jury so that a colonel cannot lean on a 
lieutenant to get a guilty verdict, the right against self-
incrimination, all of the basic rights. If you look at that package of 
rights and you think that is enough for the terrorists, then vote 
``yes'' on this bill, vote ``no'' on this motion to recommit.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of 
the Skelton motion to recommit with instructions to the Armed Services 
Committee the bill H.R. 6166, the Military Commissions Act of 2006. I 
support the Skelton motion because it provides for expedited judicial 
review of the bill's constitutionality.
  The need for expedited judicial review of the constitutionality of 
this proposed law is clear. Already, the Administration's military 
commissions plan has already been found fatally defective by the 
Supreme Court. That the majority has worked closely with the 
Administration to produce the bill before us provides little comfort or 
confidence that this bill will pass constitutional muster. It would be 
a shame to go prosecute detainees under the regime established in this 
bill only to have any convictions set aside because the procedures are 
later found to be constitutionally infirm.
  Mr. Speaker, Congress should pass legislation that will provide the 
President with a tough and fair system of military commissions that 
will ensure swift convictions for terrorists and protect our men and 
women in uniform. But the legislation must also respond to the United 
States Supreme Court's ruling in the Hamdan case and withstand judicial 
scrutiny, or it may not serve its other purposes.
  Many legal experts have raised serious questions about this bill's 
constitutionality. That is why it is critically important to quickly 
determine whether the statute will survive judicial scrutiny. Just 
think. If this bill is tied up in years of litigation and eventually 
struck down by the Supreme Court as unconstitutional, this could have 
disastrous implications: Convictions would be overturned; terrorists 
would have a ``get-out-of-jail-free'' card; and the United States would 
once again be left without a working military commissions system.
  Mr. Speaker, there is a right way to remedy this situation and it is 
simple. Under the Skelton provision, the judicial review would occur 
early on and quickly--before there are trials and convictions. And it 
would help provide stability and sure-footing for novel legislation 
that sets up a military commissions system unlike anything in American 
history.
  Such an approach provides no additional rights to alleged terrorists. 
All it does is give the Supreme Court of the United States the ability 
to decide whether the military commissions system under this act is 
legal or not. It simply guarantees rapid judicial review.
  For this reason, I support the Motion to Recommit.
  Mr. HUNTER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.


                             Recorded Vote

  Mr. SKELTON. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--ayes 195, 
noes 228, not voting 9, as follows:

                             [Roll No. 490]

                               AYES--195

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Carson
     Case
     Chandler
     Clay
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Cramer
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Hinojosa
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jefferson
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Leach
     Lee
     Levin
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Otter
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Skelton
     Slaughter

[[Page H7560]]


     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NOES--228

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chabot
     Chocola
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Cubin
     Culberson
     Davis (KY)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Flake
     Foley
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Marshall
     Matheson
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Neugebauer
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Oxley
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schmidt
     Schwarz (MI)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--9

     Castle
     Cleaver
     Davis (FL)
     Jackson-Lee (TX)
     Lewis (GA)
     Meehan
     Millender-McDonald
     Ney
     Strickland

                              {time}  1628

  Messrs. GALLEGLY, KENNEDY of Minnesota and MURTHA changed their vote 
from ``aye'' to ``no.''
  Ms. ZOE LOFGREN of California, Messrs. GORDON, OTTER, BRADY of 
Pennsylvania, STUPAK, MOLLOHAN and KANJORSKI changed their vote from 
``no'' to ``aye.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore (Mr. Bass). The question is on the passage of 
the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. HUNTER. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 253, 
noes 168, not voting 12, as follows:

                             [Roll No. 491]

                               AYES--253

     Aderholt
     Akin
     Alexander
     Andrews
     Bachus
     Baker
     Barrett (SC)
     Barrow
     Barton (TX)
     Bass
     Bean
     Beauprez
     Biggert
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boren
     Boswell
     Boustany
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (OH)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chabot
     Chandler
     Chocola
     Coble
     Cole (OK)
     Conaway
     Cramer
     Crenshaw
     Cubin
     Cuellar
     Culberson
     Davis (AL)
     Davis (KY)
     Davis (TN)
     Davis, Jo Ann
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Emerson
     English (PA)
     Etheridge
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Flake
     Foley
     Forbes
     Ford
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Herseth
     Higgins
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Marshall
     Matheson
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     Melancon
     Mica
     Michaud
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moore (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Pomeroy
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Ross
     Royce
     Ryan (WI)
     Ryun (KS)
     Salazar
     Saxton
     Schmidt
     Schwarz (MI)
     Scott (GA)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Spratt
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Tanner
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--168

     Abercrombie
     Ackerman
     Allen
     Baca
     Baird
     Baldwin
     Bartlett (MD)
     Becerra
     Berkley
     Berman
     Berry
     Bishop (NY)
     Blumenauer
     Boucher
     Brady (PA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Carson
     Case
     Clay
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Crowley
     Cummings
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Emanuel
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Frank (MA)
     Gilchrest
     Gonzalez
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hinchey
     Hinojosa
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jefferson
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     LaTourette
     Leach
     Lee
     Levin
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Miller (NC)
     Miller, George
     Mollohan
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Stark
     Stupak
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--12

     Castle
     Cleaver
     Davis (FL)
     Davis, Tom
     Jackson-Lee (TX)
     Keller
     Lewis (GA)
     Meehan
     Millender-McDonald
     Ney
     Radanovich
     Strickland

                              {time}  1645

  So the bill was passed.
  The result of the vote was announced as above recorded.

[[Page H7561]]

  A motion to reconsider was laid on the table.
  Stated for:
  Mr. KELLER. Mr. Speaker, on rollcall No. 491, I voted ``aye'' and I 
was here. Apparently, there was a card malfunction and it did not 
record my vote. Had I been present, I would have voted ``aye''.

                          ____________________