[Congressional Record Volume 152, Number 123 (Wednesday, September 27, 2006)]
[Senate]
[Pages S10274-S10275]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            VOTE EXPLANATION

  Mr. McCAIN. Mr. President, due to the passing of a close friend, I 
was not present for the vote on amendment No. 5086, offered by Mr. 
Levin. With whis statement, I would like to inform the Senate that, had 
I been present, I would have voted against this amendment, which sought 
to strike the pending legislation on military commissions and insert 
the text of the bill reported out of the Armed Services Committee.
  Senators Warner, Graham and I wrote and supported the bill that was 
reported out of the Senate Armed Services Committee. Over the past 2 
weeks, however, we have been involved in negotiations with the White 
House and the House of Representatives and reached a compromise.
  The compromise legislation, which I support, does not redefine the 
Geneva Conventions in any way. It amends the War Crimes Act--which 
currently says only that a violation of Common Article 3 is a war 
crime--by enumerating nine categories of offenses that constitute 
``grave breaches of Common Article 3'' and thus are war crimes, 
punishable by imprisonment or death.
  The bill authorizes the President to interpret the Geneva 
Conventions--a power he has already under the Constitution--as to what 
constitute nongrave breaches. These interpretations must be published 
in the Federal Register, and they will have same force as other 
administrative regulations, and thus may be trumped by law passed by 
Congress.
  I am pleased with the agreement that we have reached with the 
administration and I support this legislation in the form pending on 
the floor. For this reason, if I had been present, I would have cast my 
vote against amendment No. 5086.
  Mr. ROBERTS. Mr. President, I rise today in support of the timely 
passage of this legislation. In my view it is essential to the 
successful prosecution of our war against the terrorists.

[[Page S10275]]

  Ever since the Supreme Court announced its decision in the case of 
Hamdan v. Rumsfeld, I have made clear that my three primary goals for 
legislation authorizing military tribunals were: (1) Adjudicating the 
cases of detained terrorists in proceedings that are consistent with 
our values of justice, (2) protecting classified information, and (3) 
ensuring that our military and intelligence officers have clear 
standards for what is, and is not, permissible during detention and 
interrogation operations.
  After discussing these issues with National Security Adviser Hadley 
and officials at the Department of Justice, I am comfortable in saying 
that this legislation accomplishes each of those goals.
  First, the legislation authorizes the President to establish military 
commissions for the trial of unlawful enemy combatants. Enemy 
combatants tried under this legal system will have the benefit of a 
comprehensive process that assures them of legal representation, access 
to witnesses and evidence, the ability to present a defense, and the 
ability to appeal any judgment to the Court of Military Commission 
Review, the DC Circuit Court of Appeals, and, ultimately, to the 
Supreme Court.
  I dare say that some who may be tried by these military commissions 
will receive more due process and legal protection than they were ever 
willing to grant to others.
  Second, while ensuring a full and fair process, the legislation also 
recognizes the important role that classified information is likely to 
play in these trials. The legislation expressly provides the government 
with a privilege to protect classified information. At the same time, 
the bill provides a number of ways for the trial court to ensure that 
the defendant is sufficiently apprised of the evidence to be used 
against him. I think this bill strikes the right balance between 
providing a full and fair process, and protecting classified 
information.
  Third, and most important to me as chairman of the Intelligence 
Committee, the bill provides military and intelligence officers 
conducting detention and interrogation operations with clear standards.
  Why is this so important? Because, there is a consensus in the 
intelligence community that terrorist interrogations are the single 
best source of actionable intelligence against the plots of a 
determined enemy.
  Interrogation is a tool used by our brave men and women in the 
military and intelligence community to combat a continuing terrorist 
threat from those who are bent on attacking and killing Americans.
  The majority of useable and actionable intelligence against al-Qaida 
comes from terrorist interrogations and debriefings. This tool is vital 
to keeping Americans safe--it is irreplaceable and it must be 
preserved.
  Of particular note is the CIA's detention and interrogation program, 
which has been a supremely valuable source of information. This program 
has produced intelligence that has helped disrupt terrorist networks 
and prevent terrorist attacks. Furthermore, it has been carefully 
monitored to ensure that it complies with all our laws.
  But, the Supreme Court's decision in Hamdan applied the Geneva 
Convention's Common Article 3 to unlawful enemy combatants. This 
threatened to shut down the CIA's detention and interrogation 
operations.
  The standard articulated in Common Article 3 is extremely vague. This 
standard leaves military and intelligence officers in the dark as to 
what is, and what is not, permitted in detaining and interrogating 
unlawful enemy combatants. Moreover, because under current law any 
violation of Common Article 3 is a criminal violation, our 
interrogators potentially could be subjected to criminal prosecution 
for otherwise lawful actions.
  Consequently, Congress must act to ensure that our military personnel 
and intelligence officers are not forced to operate, or be subjected to 
prosecution, under such a vague standard. It is our responsibility to 
provide clear guidance to military personnel and intelligence officers 
as to what is, and is not, permitted in interrogations. The standard 
must be clear enough so that our intelligence officers, who are making 
judgment calls in the field, can continue to operate.
  The legislation currently before the Senate provides that clarity. It 
expressly provides for what acts constitute grave breaches of Common 
Article 3 and what acts would be subject to prosecution. It further 
allows the President to promulgate regulations for lesser violations of 
treaty obligations.
  As a result, in passing this legislation, we will give the dedicated 
and honorable Americans on the front lines in the war on terror the 
clarity they need to fulfill their mission.
  To win this war and keep Americans safe, our troops in the field and 
our law enforcement personnel here at home need timely and actionable 
intelligence. We get that intelligence in many forms such as satellite 
imagery, intercepted communications, financial tracking and human 
intelligence, including interrogations. In the past months, many of 
these intelligence collection tools have been damaged by deliberate 
leaks of classified information.
  We can ill afford to lose any of these intelligence collection tools 
if we are to succeed. I am grateful that this bill will allow our 
Nation to continue its highly valuable interrogation programs.
  I support the bill, and I urge my colleagues to do the same.
  Mr. WARNER. Mr. President, we have had a very good debate. We have 
voted on one amendment. We have time remaining on the Specter 
amendment. We should be able to conclude that debate in the morning and 
proceed, I presume, to a prompt vote on the Specter amendment, and then 
proceed with the other two amendments.

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