[Congressional Record Volume 152, Number 124 (Thursday, September 28, 2006)]
[Extensions of Remarks]
[Pages E1879-E1880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              MILITARY COMMISSIONS LEGISLATION ACT OF 2006

                                 ______
                                 

                               speech of

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                     Wednesday, September 27, 2006

  Mr. UDALL of Colorado. Mr. Speaker, I regret that I cannot support 
this bill in its present form.
  After 5 years of negligence by both the House Republican leadership 
and the president, today they are insisting the House vote rapidly on a 
long-overdue bill to establish military commissions to try ``unlawful 
enemy combatants.''
  This should have been done sooner and the legislation definitely 
should be better.
  If President Bush had come to Congress sooner with his request for 
legislation establishing military commissions, we could have avoided 
prolonged legal battles and delay in getting a system in place. But 
despite his stated interest in bringing the terrorists to justice, this 
president has seemed to be more interested in enhancing executive 
branch powers than he has in trying and convicting those who would harm 
Americans.
  Five years ago, when President Bush first issued his executive order 
to set up military commissions, legal experts warned that the 
commissions lacked essential judicial guarantees, such as the right to 
attend all trial proceedings and challenge any prosecution evidence. I 
took those views very seriously because those experts made what I 
thought was a compelling case that the proposed system

[[Page E1880]]

would depart too far from America's fundamental legal traditions to be 
immune from serious legal challenges.
  So, beginning 3 years ago, I have cosponsored bills that would 
establish clear statutory authority for detaining enemy combatants and 
using special tribunals to try them. Unfortunately, neither the 
president nor the Republican leadership thought there was a need for 
Congress to act--the president preferred to insist on unilateral 
assertions of executive authority, and the leadership was content with 
an indolent abdication of Congressional authority and responsibility.
  Then, earlier this year, the Supreme Court put an end to that 
approach.
  In the case of Hamdan v. Rumsfeld, the Court ruled that the military 
commissions set up by the Administration to try enemy combatants lacked 
constitutional authority in part because their procedures violated 
basic tenets of military and international law, including that a 
defendant must be permitted to see and hear evidence against him. 
Although the Court did not rule that the president is prohibited from 
establishing military commissions, it did determine that the current 
system isn't a ``regularly constituted court'' and doesn't provide 
judicial guarantees.
  We are voting on this bill--on any bill, in fact--only because that 
Hamdan decision forced the Administration to come to Congress, not 
because President Bush has been in any hurry to try the more than 400 
detainees at Guantanamo under sound procedures based on specific 
legislation.
  And we are being forced to vote today--not later, and only on this 
specific bill, with no opportunity to even consider any changes--
because, above all, the Republicans have decided they need to claim a 
legislative victory when they go home to campaign, to help take voters' 
minds off the Administration's missteps and their own failure to pass 
legislation to address the voters' concerns.
  In other words, for the Bush Administration and the Republican 
leadership it's business as usual--ignore a problem as long as 
possible, then come up with a last-minute proposal developed without 
any input from Democrats, allow only a ``take it or leave it'' vote, 
and then smear anyone who doesn't support it as failing to support our 
country.

  That's been their approach to almost everything of importance, so 
while it's disappointing it's not surprising that the Administration 
and the Republican leadership have not approached this important topic 
more thoughtfully.
  The goal, of course, should be to have legislation to help make 
America safer that can withstand the proper scrutiny of the courts 
while meeting the needs of the American people and not undermine our 
ability to have the support of our allies.
  The bill originally proposed by the president fell short of meeting 
those standards. I opposed it because I thought it risked irreparably 
harming the war on terror by tying up the prosecution of terrorists 
with new untested legal norms that did not meet the requirement of the 
Hamdan decision; endangering our service members by attempting to 
rewrite and limit our compliance with Common Article Three of the 
Geneva Conventions; undermining basic standards of U.S. law; and 
departing from a body of law well understood by our troops.
  I was not alone in rejecting the bill the president originally 
proposed. As we all know, several members of the other body, including 
Senator Warner, Chairman of the Senate Armed Services Committee, and 
other members of that committee, including Senators McCain and Graham, 
also had serious objections to that legislation and, joined by Senator 
Levin, the ranking Democrat on the Committee, developed legislation 
that struck the important balance between military necessity and basic 
due process.
  When the House Armed Services Committee took up the president's bill, 
I joined in voting for an alternative, offered by our colleague, 
Representative Skelton, the Committee's senior Democratic member, that 
was identical to that bipartisan Senate legislation.
  That alternative would have established tough but fair rules, based 
on the Uniform Code of Military Justice and its associated regulations, 
for trying terrorists. This would have fully responded to what the 
Supreme Court identified as the shortcomings in the previous system. 
But the Republican leadership insisted on moving forward with the 
president's bill rather than working in a bipartisan manner, and so 
that alternative was rejected. As a result, I voted against sending the 
president's bill to the House floor.
  But the bill now before the House is neither the president's bill nor 
the bipartisan bill approved by the Senate Armed Services Committee. 
Instead, it is a new measure, just introduced, that differs in many 
respects and reflects the result of further negotiations involving the 
White House, several Republican Senators, and the House Republican 
leadership.
  And while this new bill includes some improvements over the 
president's original bill, it still does not meet the test of deserving 
enactment, and I cannot support it.
  Some of my concerns involve the bill's specific provisions. But just 
as serious are my concerns about what the bill does not say.
  For example, the bill includes provisions intended to bar detainees 
from challenging their detentions in federal courts by denying those 
courts jurisdiction to hear an application for a writ of habeas corpus 
``or any other action against the United States or its agents relating 
to any aspect of the detention, transfer, treatment, trial, or 
conditions of confinement'' by or on behalf of an alien that the 
government--that is, the Executive Branch--has determined ``to have 
been properly detained as an enemy combatant or is awaiting such 
determination.''

  These provisions, which the bill says are to apply to cases now 
before the courts, evidently allow indefinite detention, or detention 
at least until the war on terrorism is ``over.''
  And while the reference to ``aliens'' seems to mean that this is not 
to apply to American citizens--who are not immune from being considered 
``enemy combatants''--some legal experts say it is not completely clear 
that citizens would really have the ability to challenge their 
detentions.
  I could not support any legislation intended to give the President--
any president, of any party--authority to throw an American citizen 
into prison without what the Supreme Court has described as ``a 
meaningful opportunity to contest the factual basis for that detention 
before a neutral decisionmaker,'' and I prefer to err on the side of 
caution before voting for a measure that is not more clear than the 
bill before us on this point.
  Also, these sweeping jurisdiction-stripping provisions, as well as 
other parts of the bill, raise enough legal questions that military 
lawyers say there is a good chance the Supreme Court will rule it 
unconstitutional. I do not know if they are right about that, but their 
views deserve to be taken seriously--not only because we in Congress 
have sworn to uphold the Constitution but also because if our goal 
truly is to avoid unnecessary delays in bringing terrorists to justice, 
we need to take care to craft legislation that can and will operate 
soon, not only after prolonged legal challenges.
  In addition, I am concerned that the bill gives the President the 
authority to ``interpret the meaning and application'' of U.S. 
obligations under the Geneva Conventions. Instead of clearly banning 
abuse and torture, the bill leaves in question whether or not we are 
authorizing the Executive Branch to carry out some of the very things 
the Geneva Conventions seek to ban.
  I cannot forget or discount the words of Rear Adm. Bruce MacDonald, 
the Navy's Judge Advocate General, who told the Armed Services 
Committee ``I go back to the reciprocity issue that we raised earlier, 
that 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 women were 
taken and held as a detainee.''
  I share that concern, and could not in good conscience support 
legislation that could put our men and women in uniform at risk.
  Mr. Speaker, establishing a system of military tribunals to bring to 
trial some of the worst terrorists in the world shouldn't be a partisan 
matter. I think we can all agree that there is a need for a system that 
can deliver swift and certain justice to terrorists without risking 
exposing Americans to improper treatment by those who are our 
adversaries now or who may become adversaries in the future.
  Unfortunately, I think there is too much risk that the bill before 
the House today will not accomplish that goal and has too many flaws to 
deserve enactment as it stands. So, I cannot support it.