[Congressional Record Volume 152, Number 130 (Thursday, November 16, 2006)]
[Senate]
[Pages S11058-S11061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD:
  S. 4060. A bill to amend the Military Commissions Act of 2006 to 
improve and enhance due process and appellate procedures, and for other 
purposes; to the Committee on Armed Services.
  Mr. DODD. Mr. President: I rise to introduce the Effective Terrorists 
Prosecution Act of 2006. This legislation would make critically 
important changes to the measure that Congress narrowly approved on 
September 29, the Mi1itary Commissions Act of 2006. Let me be clear 
from the outset of my remarks. I will take a backseat to no one when it 
comes to defending our country against terrorism. I fully support the 
use of military commissions to protect U.S. intelligence and expedite 
judicial proceedings vital to military action under the Uniform Code of 
Military Justice. Unlike the Administration, I trust the United States 
military and our legal system to arbitrate decisions related to enemy 
combatants.
  I strongly believe that terrorists who seek to destroy America must 
be punished for any wrongs they commit against this country. But in my 
view, in order to sustain America's moral authority and win a lasting 
victory against our enemies, such punishment must be meted out only in 
accordance with the rule of law.
  My legislation provides essential legal tools for our war on terror 
in seven key ways: It restores the writ of habeas corpus for 
individuals held in U.S. custody. It narrows the definition of unlawful 
enemy combatant to individuals who directly participate in hostilities 
against the United States who are not lawful combatants. It prevents 
the use of evidence in court gained through the unreliable and immoral 
practices of torture and coercion. It empowers military judges to 
exclude hearsay evidence they deem to be unreliable. It authorizes the 
U.S. Court of Appeals for the Armed Forces to review decisions by the 
military commissions. It limits the authority of the President to 
interpret the meaning and application of the Geneva Conventions and 
makes that authority subject to congressional and judicial oversight. 
Finally, it provides for expedited judicial review of the Military 
Commissions Act of 2006 to determine the constitutionality of its 
provisions.
  Before I elaborate on each of these critical points, let me simply 
underscore the point that for more than 200 years, our Nation has 
served as a shining example in its promotion of civil and human rights 
throughout the world. Denial of basic legal proceedings to individuals 
held in the custody of the United States has raised questions over our 
basic adherence to the U.S. Constitution and also diminished our 
reputation around the world. American citizens are questioning their 
own government's judgments, terrorists are citing American abuses to 
recruit new loyalists, and American servicemembers fear detention 
overseas under similarly abusive conditions in violation of their human 
rights.
  Supporters of the administration's law may say that to speak out 
against its enactment is being soft on terrorism. Not only is this 
sentiment wholly inaccurate, it underestimates a fundamental strength 
of our Nation and the best defense against terrorists--respect for the 
rule of law.
  For instance, the administration-backed law eliminates the principle 
of habeas corpus which has served as the backbone of common law since 
before the Magna Carta in the 13th century. Under the writ of habeas 
corpus independent courts may review the legality of custody decisions. 
My legislation would restore this basic tenet in the context of 
military commissions.
  The administration's approach allows the President to remove anyone 
he so chooses from America's standard jurisprudence and designate him 
or her as an ``unlawful enemy combatant'' if he has engaged in 
hostilities or supported hostilities against the United States. Such 
individuals are subject to arrest and detention indefinitely without 
charge. In contrast, my legislation allows the designation of 
``unlawful enemy combatants'' only for those individuals engaged in 
armed conflict against the United States. This provision seeks to 
curtail potential abuse of the enemy combatant designation so that 
holding individuals in detention indefinitely without a trial will 
prove

[[Page S11060]]

to be the exception rather than the norm.
  Also, unlike the law backed by the administration, my bill further 
promotes humane treatment of military personnel by prohibiting the use 
of evidence gained by coercion in a trial. Such a provision is 
critically important for two reasons. First, the use of torture has 
been proven ineffective in interrogations when a detainee simply says 
what he believes an interrogator wants to hear in order to stop the 
torture. Second it deprives foreign militaries the ability to cite U.S. 
actions to justify their own misconduct toward future American POWs.
  My bill grants discretion to military judges to exclude hearsay 
evidence determined to be unreliable. Under my legislation, judges are 
given discretion in the event that classified evidence has a bearing on 
the innocence of an individual, but is excluded due to national 
security concerns and declassified alternatives are insufficient. 
America's military judges have been fully trained and prepared to 
handle classified information. The Bush administration's failure to 
recognize this fact is an insult to the men and women of our military's 
bench and an affront to the U.S. military legal system. Moreover, my 
bill properly grants the Armed Forces judicial review of these 
decisions unlike the administration's law which denies the United 
States Court of Appeals of the Armed Forces the right to hearing 
military commission appeals.
  And, just as important as restoring our commitment in the Uniform 
Code of Military Justice, my legislation would also reaffirm America's 
commitment to the contents of the Geneva Conventions. In contrast, the 
Administration's Military Commissions Act gives unprecedented authority 
to the president to define what interrogation techniques constitute 
``grave breaches'' of the Geneva Conventions. The United States 
President should not have the right to unilaterally define the legal 
boundaries of torture. The United States Congress has ratified 
universally recognized conventions prohibiting such conduct, and the 
President should recognize them as the law of the land. Indeed, there 
is a lesson to be learned in the events of the last 6 years, 
particularly in the case of Abu Ghraib, when not only was our Nation's 
reputation tarnished, but our commitment to the rule of law was 
credibly called into question. This is not the America our Nation's 
greatest generations have long fought for. Our country would have been 
better served if we had looked to the pages of history to guide us 
through this national crisis.
  Just 60 years ago, the United States confronted the daunting task of 
bringing history's most despicable war criminals to justice. In 
determining how to deal with Nazi leaders guilty of grave atrocities, 
our country never forgot its pivotal role as the leader of the free 
world. There were strong and persuasive voices crying for the execution 
of these men who had commanded, with ruthless efficiency, the slaughter 
of 6 million innocent Jews and 5 million other innocent men, women, and 
children. Why should these men who had extinguished so many lives be 
given a trial at all? Why should they not be subjected to the same fate 
to which they had subjected countless innocent people? Why not just 
shoot them, as Winston Churchill wanted? Why not just give in to legal 
scholars, who said there was no court, no judge, no laws, and no 
precedent?
  Why not? Because, as I have recounted on this floor on several 
occasions, America has always stood for something more. Our leaders at 
Nuremberg, including the young prosecutor Thomas Dodd, my father, 
rejected the certainty of execution for the uncertainty of a trial. In 
doing so, we reaffirmed the ideal that this Nation should never tailor 
its eternal principles to the conflict of the moment, because if we 
did, we would be walking in the footsteps of the enemies we despised.
  Almost 60 years to the day after the Nuremberg verdicts, Congress 
passed the Military Commissions Act, with the support of the 
administration which steps away from the high principles established at 
Nuremberg and honored in the decades since. In my view, this law has 
dishonored our Nation's proud history.
  Indeed, to watch the Senate, on the anniversary of Nuremberg, negate 
these great principles and traditions was one of the saddest days I 
have seen in a quarter century of service in this body. It pains me to 
no end to have seen the administration and its allies rush this bill 
through Congress in the days before an election with hopes of 
exploiting Americans' fears of a terrorist attack. This administration 
would have the American people believe that the war on terror requires 
a choice between protecting America from terrorism and upholding the 
basic tenets upon which our country was founded--but not both. This 
canard is untrue and frankly negligent.
  I believe that the United States Congress made a crucial mistake. And 
that is why the final provision in my bill is perhaps the most 
important one--it will ensure that each of the provisions of the 
administration's Military Commission Act is quickly reviewed by our 
Nation's courts, and appropriately evaluated for their 
constitutionality. I do not pretend to have all the answers regarding 
the legality and probity of this highly controversial statute. But I 
believe it is essential for America's security and moral authority to 
allow those best qualified to make these judgments--members of our 
esteemed judiciary--to have an opportunity to overturn the most 
egregious provisions of this Act.
  In turn, we in Congress have our own obligation, to work in a 
bipartisan way to repair the damage that has been done, to protect our 
international reputation, to preserve our domestic traditions, and to 
provide a successful mechanism to improve and enhance the tools 
required by the global war on terror.
  I urge my colleagues to consider the consequences if we fail to 
correct the mistakes that have been made. I hope that Congress and the 
administration will take a serious look at my proposal and work with me 
to improve the current system, for the sake of our security, our 
international standing, and our commitment to the rule of law.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection the bill was ordered to be printed in the 
Record, as follows:

                                S. 4060

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Effective Terrorists 
     Prosecution Act of 2006''.

     SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.

       Paragraph (1) of section 948a of title 10, United States 
     Code (as enacted by the Military Commissions Act of 2006 
     (Public Law 109-366)), is amended to read as follows:
       ``(1) Unlawful enemy combatant.--The term `unlawful enemy 
     combatant' means an individual who directly participates in 
     hostilities as part of an armed conflict against the United 
     States who is not a lawful enemy combatant. The term is used 
     solely to designate individuals triable by military 
     commission under this chapter.''.

     SEC. 3. DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY 
                   COMBATANT STATUS REVIEW TRIBUNAL NOT 
                   DISPOSITIVE FOR PURPOSES OF JURISDICTION OF 
                   MILITARY COMMISSIONS.

       Section 948d of title 10, United States Code (as enacted by 
     the Military Commissions Act of 2006 (Public Law 109-366)), 
     is amended--
       (1) by striking subsection (c); and
       (2) by redesignating subsection (d) as subsection (c).

     SEC. 4. EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF 
                   STATEMENTS OBTAINED BY COERCION.

       Section 948r of title 10, United States Code (as enacted by 
     the Military Commissions Act of 2006 (Public Law 109-366)), 
     is amended by striking subsections (c) and (d) and inserting 
     the following new subsection (c):
       ``(c) Exclusion of Statements Obtained by Coercion.--A 
     statement obtained by use of coercion shall not be admissible 
     in a military commission under this chapter, except against a 
     person accused of coercion as evidence that the statement was 
     made.''.

     SEC. 5. DISCRETION OF MILITARY JUDGE TO EXCLUDE HEARSAY 
                   EVIDENCE DETERMINED TO BE UNRELIABLE OR LACKING 
                   IN PROBATIVE VALUE.

       Section 949a(b)(2)(E)(ii) of title 10, United States Code 
     (as enacted by the Military Commissions Act of 2006 (Public 
     Law 109-366)), is amended by striking ``if the party opposing 
     the admission of the evidence demonstrates that the evidence 
     is unreliable or lacking in probative value'' and inserting 
     ``if the military judge determines, upon motion by counsel, 
     that the evidence is unreliable or lacking in probative 
     value''.

[[Page S11061]]

     SEC. 6. DISCRETION OF MILITARY JUDGE TO TAKE CERTAIN ACTIONS 
                   IN EVENT THAT A SUBSTITUTE FOR CLASSIFIED 
                   EXCULPATORY EVIDENCE IS INSUFFICIENT TO PROTECT 
                   THE RIGHT OF A DEFENDANT TO A FAIR TRIAL.

       Section 949j(d)(1) of title 10, United States Code (as 
     enacted by the Military Commissions Act of 2006 (Public Law 
     109-366)), is amended by adding at the end the following: 
     ``If the military judge determines that the substitute is not 
     sufficient to protect the right of the defendant to a fair 
     trial, the military judge may--
       ``(A) dismiss the charges in their entirety;
       ``(B) dismiss the charges or specifications or both to 
     which the information relates; or
       ``(C) take such other actions as may be required in the 
     interest of justice.''.

     SEC. 7. REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED 
                   STATES COURT OF APPEALS FOR THE ARMED FORCES 
                   RATHER THAN COURT OF MILITARY COMMISSION 
                   REVIEW.

       (a) Review.--
       (1) In general.--Section 950f of title 10, United States 
     Code (as enacted by the Military Commissions Act of 2006 
     (Public Law 109-366)), is amended to read as follows:

     ``Sec. 950f. Review by Court of Appeals for the Armed Forces

       ``(a) Cases To Be Reviewed.--The United States Court of 
     Appeals for the Armed Forces, 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.
       ``(b) Scope of Review.--In a case reviewed by the United 
     States Court of Appeals for the Armed Forces under this 
     section, the Court may only act with respect to matters of 
     law.''.
       (2) Clerical amendment.--The table of sections at the 
     beginning of subchapter VI of chapter 47A of such title (as 
     so enacted) is amended by striking the item relating to 
     section 950f and inserting the following new item:

``950f. Review by Court of Appeals for the Armed Forces.''.

       (b) Conforming Amendments.--
       (1) In general.--Chapter 47A of title 10, United States 
     Code (as so enacted), is further amended as follows:
       (A) In section 950c(a), by striking ``the Court of Military 
     Commission Review'' and inserting ``the United States Court 
     of Appeals for the Armed Forces''.
       (B) In section 950d, by striking ``the Court of Military 
     Commission Review'' each place it appears and inserting ``the 
     United States Court of Appeals for the Armed Forces''.
       (C) In section 950g(a)(2), by striking ``the Court of 
     Military Commission Review'' each place it appears and 
     inserting ``the United States Court of Appeals for the Armed 
     Forces''.
       (D) In section 950h, by striking ``the Court of Military 
     Commission Review'' each place it appears and inserting ``the 
     United States Court of Appeals for the Armed Forces''.
       (2) Uniform code of military justice.--Section 867a(a) of 
     title 10, United States Code (article 67a(a) of the Uniform 
     Code of Military Justice), is amended by striking 
     ``Decisions'' and inserting ``Except as provided in sections 
     950d and 950g of this title, decisions''.

     SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a) In General.--Section 6(a) of the Military Commissions 
     Act of 2006 (Public Law 109-366) is amended--
       (1) in paragraph (2)--
       (A) in the first sentence, by inserting after 
     ``international character'' the following: ``and preserve the 
     capacity of the United States to prosecute nationals of enemy 
     powers for engaging in acts against members of the United 
     States Armed Forces and United States citizens that have been 
     prosecuted by the United States as war crimes in the past''; 
     and
       (B) by striking the second sentence; and
       (2) in paragraph (3)--
       (A) in subparagraph (A)--
       (i) by striking ``the President has the authority for the 
     United States to interpret the meaning and application of the 
     Geneva Conventions and to promulgate'' and inserting ``the 
     President has the authority, subject to congressional 
     oversight and judicial review, to promulgate''; and
       (ii) by striking ``higher standards and'';
       (B) in subparagraph (B), by striking ``interpretations'' 
     and inserting ``rules''; and
       (C) by amending subparagraph (D) to read as follows:
       ``(D) The President shall notify other parties to the 
     Geneva Conventions that the United States expects members of 
     the United States Armed Forces and other United States 
     citizens detained in a conflict not of an international 
     character to be treated in a manner consistent with the 
     standards described in subparagraph (A) and embodied in 
     section 2441 of title 18, United States Code, as amended by 
     subsection (b).''.
       (b) Modifications of War Crimes Offenses.--
       (1) Inclusion of denial of trial rights among offenses.--
     Paragraph (1) of section 2441(d) of title 18, United States 
     Code (as enacted by the Military Commissions Act of 2006), is 
     amended by adding at the end the following new subparagraph:
       ``(J) Denial of trial rights.--The act of a person who 
     intentionally denies one or more persons the right to be 
     tried before a regularly constituted court affording all the 
     judicial guarantees which are recognized as indispensable by 
     civilized peoples as prescribed by common Article 3 of the 
     Geneva Conventions.''.
       (2) Definition of serious physical pain or suffering.--
     Clause (ii) of subparagraph ((D) of paragraph (2) of such 
     section (as so enacted) is amended to read as follows:
       ``(ii) serious physical pain;''.

     SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED 
                   BY THE UNITED STATES.

       (a) Restoration.--Subsection (e) of section 2241 of title 
     28, United States Code, as amended by section 7(a) of the 
     Military Commissions Act of 2006 (Public Law 109-366), is 
     repealed.
       (b) Conforming Amendment.--Subsection (b) of section 7 of 
     the Military Commissions Act of 2006 (Public Law 109-366) is 
     repealed.

     SEC. 10. EXPEDITED JUDICIAL REVIEW OF MILITARY COMMISSIONS 
                   ACT OF 2006.

       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 
     the Military Commissions Act of 2006 (Public Law 109-366), or 
     any amendment made by that 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. 11. EFFECTIVE DATE.

       The amendments made by this Act shall take effect on 
     October 17, 2006, the date of the enactment of the Military 
     Commissions Act of 2006 (Public Law 109-366), immediately 
     after the enactment of that Act and shall apply to all cases, 
     without exception, that are pending on or after such date.
                                 ______