[Congressional Record Volume 153, Number 138 (Tuesday, September 18, 2007)]
[Senate]
[Pages S11632-S11645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008
The PRESIDING OFFICER. The Senate will resume consideration of H.R.
1585, which the clerk will report.
The legislative clerk read as follows:
A bill (H.R. 1585) to authorize appropriations for fiscal
year 2008 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.
Pending:
Nelson (NE) (for Levin) amendment No. 2011, in the nature
of a substitute.
Levin (for Specter/Leahy) amendment No. 2022, to restore
habeas corpus for those detained by the United States.
Warner (for Graham/Kyl) amendment No. 2064, to strike
section 1023, relating to the granting of civil rights to
terror suspects.
Mr. SMITH. Madam President, I ask unanimous consent to call up my
amendment No. 2067.
Mr. McCAIN. Madam President, reserving the right to object, I will
object. I say to my friend from Oregon, I understand this is the hate
crimes bill. I appreciate his passion and commitment on this issue.
There is no one more respected in the Senate who has had the situation
of my distinguished friend from Oregon. But we are on the Defense bill.
We have to move forward with the amendments. We have to get it done. We
have both Iraq as well as the impending 1st of October date staring us
in the face. At this time I object to the request by the Senator from
Oregon.
The PRESIDING OFFICER. Objection is heard.
Mr. SMITH. I thank the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, we have had an informal discussion. I am
sad that there is not an opportunity on this bill to bring up the hate
crimes bill. I do hope there is a way, following this session, to bring
up the hate crimes bill. It has broad support and deserves to be heard
and, I hope, passed. I discussed with Senator McCain the possibility
that the Senator from Delaware would now be recognized. We agreed that
he would at this time.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Madam President, I ask unanimous consent to set aside the
pending amendment and call up amendment No. 2335.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Madam President, I reserve the right to object.
Mr. BIDEN. Madam President, I will not call it up at the moment. I
withdraw the request.
I do ask unanimous consent that Senators Graham, Casey, Brown, and
Sanders be added as cosponsors to amendment No. 2335.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. I want to explain briefly what this amendment does. It
adds $23.6 billion to allow the Army to replace all of its up-armored
HMMWVs with mine resistant ambush protected vehicles, the so-called
MRAPs. It also adds a billion dollars to increase the cost of the 8,000
MRAPs we are trying to purchase today. In terms of the specifics of
this amendment, the idea is simple. If we can prevent two-thirds or
more of our casualties with a vehicle that is basically a modified and
armored truck, we have to do all in our power to do it, in my view.
Last, it provides $400 million for better protection against
explosively formed penetrators or EFPs. These are those shaped-charges
that hit our vehicles from the side and are increasingly deadly.
I want to be straight with my colleagues. This is a very expensive
amendment. Twenty-five billion dollars is a lot of money. But compared
to saving the lives and limbs of American soldiers and marines, it is
cheap.
Our commanders in the field tell us that MRAPs will reduce casualties
by 67 to 80 percent.
The lead commander on the ground in Iraq, LTG Ray Odierno, told us
months ago that he wanted to replace every Army up-armored HMMWV in
Iraq with an MRAP.
Instead of adjusting the requirement immediately, the Pentagon has
taken its time to study this issue and just recently they have agreed
that the general needs a little over half of what he asked for. 10,000
instead of approximately 18,000.
This makes no sense. Are we only supposed to care about the tactical
advice of our commanders in the field when it is cheap?
[[Page S11633]]
I don't think that is what the American people or our military men
and women expect from us.
More importantly, while we argue about the best strategy for Iraq, we
must still protect those under fire. I disagree with the President's
strategy in Iraq. I do not believe a strong central government will
lead to a stable, self-sufficient Iraq.
I think we need a new strategy that focuses on implementing the Iraqi
constitution's call for federalism and re-focuses the mission of
American forces on fighting al-Qaida, border protection, and continuing
to train the Iraqi forces.
While we disagree on strategy, the fight continues in the alleys of
Baghdad and the streets of Diyala Province. American soldiers and
marines are targets every day they are there. So every day they are
there, we must give them the best protection this nation has.
The American political process is designed to make change and
decisionmaking a slow and deliberative process. Those of us who want a
change in strategy have three options.
One, we must convince enough colleagues to sustain a veto from the
President; or, two, we must convince the American people to elect
enough new Senators and House Members willing to sustain a veto. Or,
finally, three, we must convince the American people to elect a
President willing to change strategies. That is reality. I believe in
this system, which means I will not walk away from my duty to try to
convince both my colleagues and the American people that there is a
better path to stability in Iraq.
It also means that I will not give up on my obligation to our
military men and women.
While we take the time necessary to move the political process for
change, they face improvised explosive devices, rocket propelled
grenades, explosively formed penetrators, sniper fire, and suicide
bombers every day. We have an obligation to protect each and every one
of them to the best of our ability. I agree with the Commandant of the
Marine Corps, GEN James Conway when he said, ``Anything less is
immoral.''
In terms of the specifics of this amendment, the idea is very simple.
If we can prevent two-thirds or more of our casualties with a vehicle
that is basically a modified and armored truck, we must do all in our
power to do that.
Will it be a challenge to American industry to build close to 23,000
MRAPs in the next 12 to 15 months? Absolutely. Can they do it? Only if
we give them a real chance. If we provide funding up front for all that
is needed, we give business the ability to increase capacity to
produce. If we give little bits here and there, they and their
subcontractors will be limited in their ability to produce these life-
saving vehicles. Less will be produced and more Americans will return
injured or dead.
I gave a statement on July 19, when I first introduced this
amendment, that laid out some of the history of the MRAP program. I
won't go into all of that again, but I will reiterate the key choice my
colleagues have to make: Do we do our best to save American lives,
knowing that the only downside is the possible need to reprogram
funding at the end of the year, or do we care more about some unknown
topline wartime funding number than those lives?
I urge my colleagues to support this amendment.
I thank the managers of the bill and yield the floor.
Mr. LEVIN. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, I have had conversations with the two
managers, Senator McCain and Senator Levin. I would hope people who
feel strongly about the amendment that is pending; that is, the habeas
corpus amendment, would come and speak on this amendment. The floor is
open for debate on that issue. It is an extremely important amendment.
No matter how you feel about it, it is important--whether you are for
it or against it. I would hope Senators would come and talk about that
amendment.
I have also spoken with Senator Levin and Senator McCain about how we
proceed from this point forward. We have been somewhat tepid in moving
forward because we did not know how the vote would turn out on the DC
voting rights. We know that now, so we are moving ahead as quickly as
we can on the Defense authorization bill because that matter is out of
the way procedurally.
What I have spoken to the two managers about is that we would have
the Defense authorization bill, and as a sidetrack, we would have Iraq
amendments--a finite number from the Democrats, a finite number from
the Republicans. We would work on time agreements for those amendments.
Our floor staff is trying to draw something up and submit that to the
Republican leader. I have not today--even though I have spoken to him
in the past about that--spoken to him about that, although we have
spoken to Senator Kyl, Senator McCain, Senator Lott, and others. The
distinguished Republican leader was simply off the floor at the time.
So our two staffs are coming up with something in writing to see if
there is a way we can move forward on that; otherwise, we will offer
them as part of the Defense authorization bill.
On this matter, I have the greatest comfort level with Senator
Levin's ability to manage this bill. He has, in years past, done such a
remarkably good job. For many years, it has been Senator Warner working
with him. Now, because of the change in the ranking membership of that
committee, it is Senator McCain, who also is very experienced. So we
should be able to move this legislation along, I hope, quickly.
There is a lot to do on this bill, and I would hope Members on this
side would listen to what Senator Levin has to say and come when it is
to their interest, and maybe even sometimes when it is not to their
interest, but at least in an effort to dispose of this legislation.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. STEVENS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Madam President, I ask unanimous consent that I be
permitted to speak as in morning business for up to about 7 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Stevens are printed in today's Record under
``Morning business.'')
Mr. STEVENS. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I would like to repeat what my friend
and distinguished chairman said: We need to get opening statements
done. The debate has now begun on the National Defense Authorization
Act for Fiscal Year 2008. We are looking at the date of September 18,
and we want to get this bill done as quickly as possible and to
conference with the House so we can provide the much needed equipment,
training, pay, and care for our veterans as well as our military
personnel. I urge my colleagues, if they have any statements to make on
this bill, that they come over and make them.
I also would like to point out, as my friend from Michigan has, that
we will be working on the large number of amendments on the bill as
well as the provisions on Iraq. The sooner we complete action on this
legislation, the sooner we can get it to conference with the other body
and to the President's desk for signature.
This is not the first time we have addressed this bill, and I hope it
is the last for the National Defense Authorization Act, at least for
fiscal year 2008. I again express my appreciation and admiration for
the distinguished chairman, Senator Levin, who has not only worked
closely with this side of the aisle but also has worked very hard to
forge a bipartisan bill that received a unanimous vote from the
committee
[[Page S11634]]
upon its reporting to the floor of the Senate. Obviously, we have a
great debate here again on the issue of Iraq with the consideration of
several amendments, so I hope we will be able to also dispose of those
as quickly as possible.
As all of my colleagues know, we have received the much anticipated
testimony of GEN David Petraeus and Ambassador Ryan Crocker, and the
Senate now begins a debate of historic proportions. In my opinion, at
stake is nothing less than the future of Iraq, the Middle East, and the
security of all Americans for decades to come. The Senate faces a
series of stark choices: whether to build on the success of the surge
and fight for additional gains or whether to set a date for Americans
to surrender in Iraq and thereby suffer the terrible consequences that
will ensue. As we consider each of the Iraq-related amendments filed on
this bill, let us understand the enormous consequences of decisions
that are taken here.
Henry Kissinger framed the debate in a Washington Post article this
weekend, saying:
American decisions in the next few months will affect the
confidence and morale of potential targets, potential allies,
and radical Jihadists around the globe. Above all, they will
define the U.S. capacity to contribute to a safer and better
world.
I ask unanimous consent to have the article by Dr. Kissinger from the
Washington Post over the weekend printed in the Record at this time.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Disaster of Hasty Withdrawal
(By Henry A. Kissinger)
Two realities define the range of a meaningful debate on
Iraq policy: The war cannot be ended by military means alone.
But neither is it possible to ``end'' the war by ceding the
battlefield. The radical jihadist challenge knows no
frontiers; American decisions in the next few months will
affect the confidence and morale of potential targets,
potential allies and radical jihadists around the globe.
Above all, they will define the U.S. capacity to contribute
to a safer and better world. The imperative is for bipartisan
cooperation in a coordinated political and military strategy,
even while the political cycle tempts a debate geared to
focus groups.
The experience of Vietnam is often cited as the example for
the potential debacle that awaits us in Iraq. But we will
never learn from history if we keep telling ourselves myths
about it. The passengers on American helicopters fleeing
Saigon were not U.S. troops but Vietnamese civilians.
American forces had left two years earlier. Vietnam collapsed
because of the congressional decision to reduce aid by two-
thirds to Vietnam and to cut it off altogether for Cambodia
in the face of a massive North Vietnamese invasion that
violated every provision of the Vietnam Peace Agreement.
Should America repeat a self-inflicted wound? An abrupt
withdrawal from Iraq would not end the war; it would only
redirect it. Within Iraq, the sectarian conflict could assume
genocidal proportions; terrorist base areas could reemerge.
Lebanon might slip into domination by Iran's ally, Hezbollah;
a Syria-Israel war or an Israeli strike on Iranian nuclear
facilities might become more likely as Israel attempted to
break the radical encirclement; Turkey and Iran would
probably squeeze Kurdish autonomy. The Taliban in Afghanistan
would gain new impetus. Countries where the radical threat is
as yet incipient, such as India, would face a mounting
domestic challenge. Pakistan, in the process of a delicate
politica1 transformation, would encounter more radical
pressures and might even turn into a radicai challenge
itself. That is what is meant by ``precipitate'' withdrawal--
a withdrawal in which the United States loses the ability to
shape events, either within Iraq, on the antijihadist
battlefield or in the world at large.
The proper troop level in Iraq will not be discovered by
political compromise at home. To be sure, no ``dispensable''
forces should be retained there. Yet the definition of
``dispensable'' must be based on strategic and political
criteria. If reducing troop levels turns into the litmus test
of American politics, each withdrawal will generate demands
for additional ones until the political, military and
psychological framework collapses. An appropriate Iraq
strategy requires political direction. But the political
dimension must be the ally of military strategy, not a
resignation from it.
Symbolic withdrawals, urged by such wise elder statesmen as
Sens. John Warner and Richard Lugar, might indeed assuage the
immediate public concerns. They should be understood,
however, as palliatives; their utility depends on a balance
between their capacity to reassure the U.S. public and their
propensity to encourage America's adversaries to believe that
they are the forerunners of complete retreat.
The argument that the mission of U.S. forces should be
confined to defeating terrorism, protecting the frontiers,
preventing the emergence of Taliban-like structures and
staying out of the civil war aspects is also tempting. In
practice, it will be difficult to distinguish among the
various aspects of the conflict with any precision.
Some answer that the best political result is most likely
to be achieved by total withdrawal. The option of basing
policies on the most favorable assumptions about the
future is, of course, always available. Yet nothing in
Middle East history suggests that abdication confers
influence. Those who urge this course need to put forward
their recommendations for action if what occurs are the
dire consequences of an abrupt withdrawal foreseen by the
majority of experts and diplomats.
The missing ingredient has not been a withdrawal schedule
but a political and diplomatic design connected to a military
strategy. The issue is not whether Arab or Muslim societies
can ever become democratic; it is whether they can become so
under American military guidance in a time frame for which
the U.S. political process will stand.
American exhortations for national reconciliation are based
on constitutional principles drawn from the Western
experience. But it is impossible to achieve this in a six-
month period defined by the ``surge'' in an artificially
created state racked by the legacy of a thousand years of
ethnic and sectarian conflicts. Experience should teach us
that trying to manipulate fragile political structures--
particularly one resulting from American-sponsored
elections--is likely to play into radical hands. Nor are the
present frustrations with Baghdad's performance a sufficient
excuse to impose a strategic disaster on ourselves: However
much Americans may disagree about the decision to intervene
or about the policy afterward, the United States is in Iraq
in large part to serve the American commitment to global
order, not as a favor to the Baghdad government.
It is possible that the present structure in Baghdad is
incapable of national reconciliation because its elected
constituents were chosen on a sectarian basis. A wiser course
would be to place more emphasis on the three principal
regions and promote technocratic, efficient and humane
administration in each. The provision of services and
personal security coupled with emphasis on economic,
scientific and intellectual development may represent the
best hope for fostering a sense of community. More efficient
regional government leading to a substantial decrease in the
level of violence, to progress toward the rule of law and to
functioning markets could over time give Iraqis an
opportunity for national reconciliation--especially if no
region is strong enough to impose its will on the others by
force. Failing that, the country may well drift into de facto
partition under the label of autonomy, such as already exists
in the Kurdish region. That very prospect might encourage the
Baghdad political forces to move toward reconciliation. Much
depends on whether it is possible to create a genuine
national army rather than an agglomeration of competing
militias.
The second and ultimately decisive route to overcoming the
Iraqi crisis is through international diplomacy. Today the
United States is bearing the major burden for regional
security militarily, politically and economically in the face
of passivity of the designated potential victims. Yet many
other nations know that their internal security and, in some
cases, their survival will he affected by the outcome in
Iraq. That passivity cannot last. These countries must
participate in the construction of a civil society, and
the best way for us to foster those efforts is to turn
reconstruction into a cooperative international effort
under multilateral management.
It will not be possible to achieve these objectives in a
single, dramatic move: The military outcome in Iraq will
ultimately have to be reflected in some international
recognition and some international enforcement of its
provisions. The international conference of Iraq's neighbors
and the permanent members of the U.N. Security Council has
established a possible forum for this. A U.N. role in
fostering such a political outcome could be helpful.
Such a strategy is the best path to reduce America's
military presence in the long run; an abrupt reduction of
American forces will impede diplomacy and set the stage for
more intense military crises down the road.
Pursuing diplomacy inevitably raises the question of how to
deal with Iran. Cooperation is possible and should be
encouraged with an Iran that pursues stability and
cooperation. Such an Iran has legitimate aspirations that
need to be respected. But an Iran that practices subversion
and seeks regional hegemony--which appears to be the current
trend--must be faced with lines it will not be permitted to
cross: The industrial nations cannot accept radical forces
dominating a region on which their economies depend, and the
acquisition of nuclear weapons by Iran is incompatible with
international security. These truisms need to be translated
into effective policies, preferably common policies with
allies and friends.
None of these objectives can be realized, however, unless
two conditions are met: The United States needs to maintain a
presence in the region on which its supporters can count and
which its adversaries have to take seriously. The country
must recognize that whatever decisions are made now, multiple
crises in Iraq, in the Middle East and to
[[Page S11635]]
world order will continue after a new administration takes
office. Bipartisanship is a necessity, not a tactic.
Mr. McCAIN. Madam President, let us proceed with this debate, keeping
in mind that the underlying bill, the National Defense Authorization
Act, contains many non-Iraq provisions which constitute good defense
policy and which will strengthen the ability of our country to defend
itself. That is why the committee voted unanimously to report the bill,
which fully funds the President's $648 billion defense budget request,
authorizes a 3.5-percent pay raise for all military personnel,
increases Army and Marine end-strength, reforms the system that serves
wounded veterans, and provides necessary measures to avoid waste,
fraud, and abuse in defense procurement. It is a good bill. It is a
bipartisan bill. I believe we need to send it to the President's desk.
While the Senate moved off the bill in July and on to other things
and then went on to a month-long recess, America's soldiers, marines,
sailors, and airmen continued fighting bravely and tenaciously in Iraq
in concert with their Iraqi counterparts. Some Senators undoubtedly
welcomed the delay in considering the Defense bill, believing that
General Petraeus would deliver to Congress a report filled only with
defeat and despair. If this was their hope, they were sorely
disappointed. As we all now know, General Petraeus and Ambassador
Crocker reported what some of us argued before the bill was pulled 2
months ago: that the surge is working, that we are making progress
toward our goals, and that success, while long, hard, and by no means
certain, is possible. We are succeeding only after 4 years of failures,
years which have exacted an enormous cost on our country and on the
brave men and women who fight in Iraq on our behalf.
Some of us from the beginning warned against the Rumsfeld strategy of
too few troops, insufficient resources, and a plan predicated on hope
rather than on the difficult business of stabilization and
counterinsurgency. We lost years to that strategy, years we cannot get
back. In the process, the American people became saddened, frustrated,
and angry. I, too, am heartsick at the terrible price we have paid for
nearly 4 years of mismanaged war. But I also know America cannot simply
end this effort in frustration and accept the terrible consequences of
defeat in Iraq. We cannot choose to lose in Iraq. I believe we must
give our commanders the time and support they have asked for to win
this conflict.
Ralph Peters, the distinguished military strategist, summed it up
best, noting that Congress's failure to support General Petraeus:
Would be a shame, since, after nearly 4 years of getting it
miserably wrong in Iraq, we are finally getting it right.
In 2 days of testimony and countless interviews, General Petraeus and
Ambassador Crocker described how we are finally getting it right. We
finally have in place a counterinsurgency strategy, one we should have
been following from the beginning, which makes the most effective use
of our strength and does not advance the tactics of our enemy. This new
strategy, backed by a tactical surge in troops, is the only approach
that has resulted in real security improvements in Iraq.
General Petraeus reported that the overall number of ``security
incidents'' in Iraq has declined in 8 of the last 12 weeks and that
sectarian violence has dropped substantially since the change in
strategy. Civilian deaths nationwide are down by nearly half since
December and have dropped by some 70 percent in Baghdad. Deaths
resulting from sectarian violence have come down by 80 percent since
December, and the number of car bombings and suicide attacks has
declined in each of the past 5 months. Anyone who has traveled recently
to Anbar or Diyala or Baghdad can see the improvements that have taken
place over the past months. With violence down, commerce has risen, and
the bottom-up efforts to forge counterterrorism alliances are bearing
tangible fruit. This is not to argue that Baghdad or other areas have
suddenly become safe--they have not--but such positive developments
illustrate General Petraeus's contention that Americans and Iraqi
forces have achieved substantial progress.
There are many challenges remaining, and the road ahead is long and
tough. The Maliki government has not taken advantage of our efforts to
enable reconciliation and is not functioning as it must. While violence
has declined significantly, it remains high, and success is not
certain. We can be sure, however, that should the Congress choose to
lose by legislating a date for withdrawal, and thus surrender, or by
mandating a change in mission that would undermine our efforts in Iraq,
then we will fail for certain. Make no mistake, the consequences of
America's defeat in Iraq will be terrible and long lasting.
There is in some corners a belief that we can simply turn the page in
Iraq, come home, and move on to other things. This is dangerously
wrong. If we surrender in Iraq, we will be back--in Iraq and
elsewhere--in many more desperate fights to protect our security and at
an even greater cost in American lives and treasure. Two weeks ago,
General Jim Jones testified before the Armed Services Committee and
outlined what he believes to be the consequences of such a course: ``a
precipitous departure which results in a failed state in Iraq,'' he
said, ``will have a significant boost in the numbers of extremists,
jihadists, in the world, who will believe that they will have toppled
the major power on Earth and that all else is possible. And I think it
will not only make us less safe; it will make our friends and allies
less safe. And the struggle will continue. It will simply be done in
different and in other areas.''
Some Senators would like to withdraw our troops from Iraq so we can
get back to fighting what they believe to be the real war on terror.
This, too, is inaccurate. Iraq has become the central front in the
global war on terror, and failure there would turn Iraq into a
terrorist sanctuary, in the heart of the Middle East, next door to
Iran, the world's largest state-sponsor of terrorism. If we fail in
Iraq, we will concede territory to jihadists to plan attacks against
America and our friends and allies. The region could easily descend
into chaos, wider war, and genocide, and we should have no doubt about
who will take advantage.
The Iranian President has stated his intentions bluntly. This is the
same fellow who announced his dedication and his nation's dedication to
the extinction of the state of Israel the same President of the country
that is exporting lethal explosive devices of the most lethal and
dangerous kind into Iraq, killing American service men and women. This
President said this:
Soon, we will see a huge power vacuum in the region. Of
course, we are prepared to fill the gap.
We cannot allow an Iranian dominated Middle East to take shape in the
context of wider war and terrorist safehavens. General Jones is just
one of many distinguished national security experts who warn against
the consequences of a precipitous withdrawal from Iraq. As Brent
Scowcroft said, ``The costs of staying are visible; the costs of
getting out are almost never discussed . . . If we get out before Iraq
is stable, the entire Middle East region might start to resemble Iraq
today. Getting out is not a solution.'' Natan Sharansky has, written
that a precipitous withdrawal of U.S. forces ``could lead to a
bloodbath that would make the current carnage pale by comparison.'' And
Henry Kissinger warns that, ``An abrupt withdrawal from Iraq would not
end the war; it would only redirect it.''
The proponents of withdrawal counter that none of these terrible
consequences would unfold should any of their various proposals become
law. On the contrary, they argue, U.S. forces could, when not engaged
in training the Iraqi forces, engage in targeted counterterrorism
operations. But our own military commanders say that such a narrow
approach to the complex Iraqi security environment will not succeed,
and that moving in with search and destroy missions to kill and capture
terrorists, only to immediately cede the territory to the enemy, is a
recipe for failure. How can they be so sure? It's simple--this focus on
training and counterterrorism constitutes the very strategy that so
plainly failed for the first four years of this war. To return to such
an unsuccessful approach is truly ``staying the course,'' and it is a
course that will inevitably lead to our defeat and to catastrophic
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consequences for Iraq, the region, and the security of the United
States.
General Petraeus and his commanders have embraced a new strategy, one
that can, over time, lead to success in Iraq. They are fighting smarter
and better, and in a way that can give Iraqis the security and
opportunity to make decisions necessary to save their country from the
abyss of genocide and a permanent and spreading war, and in a way that
will safeguard fundamental American interests. They ask just two things
of us: the time to continue this strategy and the support they need to
carry out their mission. They must have both, and I will fight to
ensure that they do.
As we engage in this debate, I hope that each of us will recall our
most solemn allegiance, which is not to party or politics but to
country. I have heard on this floor the claim that our efforts in Iraq
somehow constitute ``Bush's war'' or the ``Republican war.'' Nothing
could be farther from the truth. Presidents do not lose wars. Political
parties do not lose wars. Nations lose wars and suffer the
consequences, or prevail and enjoy the blessings of their success.
All of us want our troops to come home, and to come home as soon as
possible. But we should want our soldiers to return to us with honor,
the honor of victory that is due all of those who have paid with the
ultimate sacrifice. We have many responsibilities to the people who
elected us, but one responsibility outweighs all the others, and that
is to protect this great and good Nation from all enemies foreign and
domestic.
This is a serious debate and one we engage at a time of national
peril. The Americans who make the greatest sacrifices have earned the
right to insist that we do our duty, as best we can and remember to
whom and what we owe our first allegiance--to the security of the
American people and to the ideals upon which our Nation was founded.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Madam President, earlier in the day, there was the
attempt of my friend and colleague, Senator Smith, to at least try to
propose an amendment that deals with hate crimes and try to get it into
an order and to be able to have consideration of that amendment during
the Defense authorization bill. There has been objection. I can
understand the importance of the underlying amendment. I certainly
believe that underlying amendment has great significance and
importance, and we are going to have an opportunity, I believe,
tomorrow to vote on it.
I wish to indicate I have every intention, with Senator Smith, of
offering at some time the hate crimes legislation. I know the question
comes up: Why are we offering hate crimes legislation on a Defense
authorization bill? The answer is very simple: The Defense
authorization bill is dealing with the challenges of terrorism, and the
hate crimes issue--to try to get a handle on the problems of hate
crimes, we are talking about domestic terrorism. We have our men and
women who are over in Iraq and Afghanistan and around the world
fighting for American values. One of the values we have as Americans is
the recognition that we do not believe individuals ought to be singled
out because of their race, religion or sexual orientation and be the
subject of hate attack.
This has been an ongoing and continuing issue for our country. At
another time, I will get into greater detail about the nature of the
challenges we are facing on this particular issue. We passed hate crime
legislation at the time of Dr. King, but it was somewhat restrictive in
terms of its application. We have been reminded about this challenge
probably most dramatically with Mr. Shepard out in the Wyoming
countryside, who was selected to be a victim of a hate crime and
suffered a horrific death.
I, for one, and I think others do, understand we have voted on this
on other Defense authorization bills. It has been carried on other
Defense authorization bills. I know my friend and colleague, Senator
Smith, would not have taken an unreasonable period of time. We have
voted on this issue. We voted in 2004 and in 2000 on this issue.
Members are familiar with the substance of the issue. So we don't need
a great deal of time. We are glad to cooperate with the floor managers
in terms of the time.
I didn't want to let the afternoon go by and leave any doubt. I have
had the opportunity to mention this to Senator Levin on other
occasions. I mentioned it, as well, to our majority leader, Senator
Reid, who has been supportive. I know Senator Levin has been supportive
of the substance of it. It seems to me we are talking about Defense
authorization and we are talking effectively about the national
security and about the values of our country and why our men and women
are involved in defending our country and these values. Certainly, we
ought to be able to say, as we are dealing with the problem of hatred
and violence around the world, that we will battle hatred and violence
as it is applied here at home.
As I mentioned, at another time I will go into detail on the history
of the legislation and, again, the reasons for it and the facts on this
particular issue in recent times.
At a time when our ideals are under attack by terrorists in other
lands, it is more important than ever to demonstrate that we practice
what we preach, and that we are doing all we can to root out the
bigotry and prejudice in our own country that leads to violence here at
home.
Crimes motivated by hate because of the victim's race, religion,
ethnic background, sexual orientation, disability, or gender are not
confined to the geographical boundaries of our great Nation. The
current conflicts in the Middle East and Northern Ireland, the ethnic
cleansing campaigns in Bosnia and Rwanda, or the Holocaust itself
demonstrate that violence motivated by hate is a world-wide danger, and
we have a special responsibility to combat it here at home.
This amendment will strengthen the Defense Authorization Act by
protecting those who volunteer to serve in the military. The vast
majority of our soldiers serve with honor and distinction. These men
and women put their lives on the line to ensure our freedom and for
that, we are truly grateful. Sadly, our military bases are not immune
from the violence that comes from hatred.
In 1992, Allen Schindler, a sailor in the Navy was viciously murdered
by two fellow sailors because of his sexual orientation. Seven years
later, PFC Barry Winchell, an infantry soldier in the Army, was
brutally slain for being perceived as gay. These incidents prompted the
military to implement guidelines to prevent this type of violence, but
there is more that we can do. We have to send a message that these
crimes won't be tolerated against any member of society.
A disturbing trend has also been discovered in the military. Last
year, the Southern Poverty Law Center reported that members of hate
groups have been entering into the military. As recruiters struggle to
fulfill their quotas, they are being forced to accept recruits who may
be extremists, putting our soldiers at higher risk of hate motivated
violence. This can't be tolerated. We must stem the tied of hatred and
bigotry by sending a loud and clear message that hate crimes will be
punished to the fullest extent of the law.
Since the September 11 attacks, we've seen a shameful increase in the
number of hate crimes committed against Muslims, Sikhs, and Americans
of Middle Eastern descent. Congress has done much to respond to the
vicious attacks of September 11. We have authorized the use of force
against terrorists and those who harbor them in other lands. We have
enacted legislation to provide aid to victims and their families, to
strengthen airport security, to improve the security of our borders, to
strengthen our defenses against bioterrorism, and to give law
enforcement and intelligence officials enhanced powers to investigate
and prevent terrorism.
Protecting the security of our homeland is a high priority, and there
is more that we should do to strengthen our defenses against hate that
comes from abroad. There is no reason why Congress should not act to
strengthen our defenses against hate that occurs here at home.
Hate crimes are a form of domestic terrorism. They send the poisonous
message that some Americans deserve to be victimized solely because of
who they are. Like other acts of terrorism, hate crimes have an impact
far greater
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than the impact on the individual victims. They are crimes against
entire communities, against the whole nation, and against the
fundamental ideals on which America was founded. They are a violation
of all our country stands for.
Since the September 11 attacks, the Nation has been united in our
effort to root out the cells of hatred around the world. We should not
turn a blind eye to acts of hatred and terrorism here at home.
Attorney General Ashcroft put it well when he said:
Just as the United States will pursue, prosecute, and
punish terrorists who attack America out of hatred for what
we believe, we will pursue, prosecute and punish those who
attack law-abiding Americans out of hatred for who they are.
Hatred is the enemy of justice, regardless of its source.
Now more than ever, we need to act against hate crimes and send a
strong message here and around the world that we will not tolerate
crimes fueled by hate.
The Senate should not hesitate in condemning countries that tolerate
crimes motivated by the victim's race, religion, ethnic background,
sexual orientation, disability, or gender. Hate is hate regardless of
what nation it originates in. We can send a strong message about the
need to eradicate hate crimes throughout the world by passing this hate
crimes amendment to the Defense Department Authorization Bill.
We should not shrink now from our role as the beacon of liberty to
the rest of the world. The national interest in condemning bias-
motivated violence in the United States is great, and so is our
interest in condemning bias-motivated violence occurring world-wide.
The hate crimes amendment we are offering today condemns the
poisonous message that some human beings deserve to be victimized
solely because of their race, religion, or sexual orientation and must
not be ignored. This action is long overdue. When the Senate approves
this amendment, we will send a message about freedom and equality that
will resonate around the world.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Madam President, first, I concur with something Senator
McCain said which is that the floor is open now for people to come down
and speak, either on the bill, on the pending habeas corpus amendment,
or on any other matter on which they wish to speak. There will be no
more votes today, I am authorized to say. Also, there will be a cloture
vote tomorrow at approximately 10:30 a.m. on the Specter-Leahy-Dodd
amendment. Then we hope to take action relative to the Graham
amendment. There are some discussions going on relative to that
amendment. Then, hopefully, we would promptly move to take up the Webb
amendment. It is the intention of this manager that the Webb amendment
then be called up immediately after the disposition of, first, the
Specter-Leahy-Dodd cloture vote and then the Graham amendment, and it
is my intention that Senator Webb then have his amendment called up. I
believe Senator Webb will be ready to proceed at that time.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, will the distinguished chairman yield
for a question?
Mr. LEVIN. I will be happy to yield.
Mr. McCAIN. Madam President, it is my understanding in my
conversations with the chairman, we are moving forward in narrowing
down amendments so we have an additional managers' package so we have a
manageable number of amendments that need to be debated and voted on,
and we will try to get time agreements on those, as well as the Iraqi
amendments.
Mr. LEVIN. The Senator is correct. I did fail to mention that the
leaders are meeting to see if there can't be a unanimous consent
agreement worked out relative to the Iraq amendments. Senator Reid
described that proposed unanimous consent agreement, but that is going
on.
The Senator from Arizona is correct, we are going to seek to reduce
the number of amendments that require rollcalls. We are going to seek
time agreements. We have a huge number of amendments which have been
filed, in the two hundreds. We made some progress because we disposed
of 50 amendments the other day.
We very much thank Senator McCain, by the way, and his staff, and
Senator Warner, for the efforts they are putting into this legislation.
Senator McCain is a very easy person with whom to work. We are used to
having people on the committee who are both chairman and ranking
member, regardless who is in control of the committee, work on a
bipartisan basis. Senator McCain is surely in that tradition. We are
grateful for that effort.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I thank the distinguished chairman for
his kind remarks. All things considered, I would rather the situation
be reversed, but I certainly do appreciate the opportunity.
One of the nice things about this body is that over a 20-year period,
the Senator from Michigan and I have had the honor of working together
on behalf of this Nation's defense on this very important committee,
the Armed Services Committee. One of the previous chairman's statues
presides in the office named after him--the office in which we both
work and where we spend our time on the committee. I believe given our
past history, I say to the chairman, that it is very possible we could
dispose of this bill by the end of the week. One of the reasons why the
chairman and I both made the argument to our colleagues to get it done
is because we have to go to conference with the House, the other body,
which has a number of different provisions that have to be reconciled.
Then we have to get it to the President's desk, and October 1 is the
beginning of a new fiscal year. So I hope our colleagues all appreciate
the urgency.
One of the provisions of this legislation is the Wounded Warriors. We
were all appalled at the conditions at Walter Reed. That is why we in
the committee, with some guidance from a distinguished commission--a
lot of guidance from a distinguished commission, headed by Senator Dole
and former Secretary Shalala. These are very important issues for the
medical care of the men and women who are serving. It will not happen
unless we get this legislation passed. So we are kind of asking for a
higher calling here to understand the necessity to get this bill to the
President's desk before the October 1.
Of course, we can have a continuing resolution. We have done that,
not on the DOD bill, as I recall. I don't know if the chairman recalls
it. That, obviously, does not do what these thousands of hours of hard
work on our part and on the part of the military leaders and the
members of staff do.
It is my fine hope, I say to the chairman, that we are able to finish
this bill this week with the cooperation of all involved.
I yield the floor.
Mr. LEVIN. Madam President, while we hope the Senator from Arizona is
right and we can complete the bill this week, we also are aware of the
fact that on Friday, we do have to leave here somewhat early because of
the Jewish holidays. That will be only part of the day. I hope we can
make tremendous progress this week. It may be a bit optimistic in terms
of finishing it this week. That is going to depend on the cooperation
of our colleagues. We have hundreds of amendments. We need colleagues
who can clear many of them, and we need time agreements on the rest. It
depends on our colleagues.
We are going to do everything we can to continue a great tradition
here. May I say, this is the 46th year in a row that the authorization
bill has come to the floor, and we are not going to break the record of
having an authorization for every one of those previous 45 years. We
always had it because of the provisions of the bill which are so
important--the pay and benefits and the support of not only our troops
but also their families.
When the Senator from Arizona made reference to the Wounded Warriors
legislation, I know our Presiding Officer, Senator McCaskill, because
of her active role and participation in that legislation, understands
precisely what we
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are saying. That legislation is so important that it is not only in the
bill but it is in a separate bill which was passed that is now
awaiting, hopefully, a resolution between the Senate and the House. But
in any event, the Senator is correct, the presence of that legislation
in this bill may be the greatest assurance we have that legislation is
going to become law. There are a lot of reasons, hundreds of reasons,
why we need this authorization bill passed. That is surely one of the
most important ones, one that has had the support of so many of our
Members. So many of our Members and our Veterans' Affairs Committee
have been so active with that legislation as well.
I join in the comments of my good friend from Arizona and hope our
colleagues will come to the floor now. We can take up matters. We can
get unanimous consent. We can even set aside pending matters. There are
things we can do this afternoon. I do hope our colleagues will come to
the floor and give their speeches on habeas corpus or other subjects.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Madam President, I rise today in the course of this
Defense authorization bill to discuss an amendment which I am working
on and preparing to offer. It is an important amendment to this bill.
It is a critically important amendment for our Nation. It is an
amendment known as the DREAM Act.
The DREAM Act is a narrowly tailored bipartisan measure that I have
sponsored with Republican Senator Chuck Hagel of Nebraska, Republican
Senator Dick Lugar of Indiana, and in past years with Senator Orrin
Hatch of Utah. It would give a select group of students in America a
chance to become permanent residents only if they came to this country
as children, are long-term U.S. residents, have good moral character,
and enlist in the military or attend college for at least 2 years. The
DREAM Act is supported by a large coalition in the Senate, and also by
military leaders, religious leaders, and educators from across the
political spectrum and around the country.
During the 109th Congress, the DREAM Act was adopted unanimously as
an amendment to the immigration reform legislation that passed in the
Senate. In the 108th Congress, the DREAM Act was the only immigration
reform proposal reported to the Senate floor on a bipartisan 16-to-3
vote by the Senate Judiciary Committee.
Now, obviously, in the midst of the Defense authorization bill, some
people question why one might bring up an immigration issue. The answer
is simple: The DREAM Act would address a very serious recruitment
crisis facing our military. Under the DREAM Act, tens of thousands of
well-qualified potential recruits would become eligible for military
service for the first time. They are eager to serve in the armed
services, and under the DREAM Act, they would have a very strong
incentive to enlist because it would give them a path to permanent
legal status.
First, let us look at the recruitment crisis we face today. Largely
due to the wars in Iraq and Afghanistan, the Army is struggling to meet
recruitment quotas. Because of these recruitment difficulties, the Army
is accepting more applicants who are high school dropouts, have low
scores on military aptitude tests, and, unfortunately, have criminal
backgrounds.
The statistics tell the story. In 2006, almost 40 percent of Army
recruits had below-average scores on the military aptitude test. That
is the highest rate of students with low scores since 1985. In 2006,
almost 20 percent of Army recruits did not have a high school degree.
This is the highest rate of high school dropouts enlisting in the Army
since 1981. By comparison, from 1984 to 2004, 90 percent or more of
Army recruits had high school diplomas. Why does this matter? The Army
said itself that high school graduation is the best single predictor of
``stick-to-itiveness'' that is required to succeed in the military and
in life.
Charles Moskos, a Northwestern University sociologist, is an expert
in military culture, and he says:
The more dropouts who enlist, the more discipline problems
the Army is likely to have.
Even more disturbing, the number of so-called moral waivers for Army
recruits who have committed crimes has increased by 65 percent in the
last 3 years, from 4,918 in 2003 to 8,129 in 2006. Many of these
waivers are for serious crimes--aggravated assault, burglary, robbery,
and even vehicular homicide. In fact, individuals with criminal
backgrounds were 11.7 percent of the 2006 recruiting class. Now, in
contrast, under the DREAM Act, all recruits would be well-qualified
high school graduates with good moral character.
Let me tell you how the DREAM Act would work. Currently, our
immigration laws prevent thousands of young people from pursuing their
dreams and really becoming part of America's future. Their parents
brought these children to the United States when they were under the
age of 16. For many, it is the only home they know. They are fully
assimilated into American society. They really don't want much more
than just to be Americans and to have a chance to succeed. They have
beaten the odds all of their young lives. The kids who would be helped
by the DREAM Act face a high school dropout rate among undocumented
immigrants of 50 percent. So it is a 50-50 chance that they would even
qualify to be part of this act.
Incidentally, the dropout rate for legal immigrants is 21 percent and
for native-born Americans, 11 percent. So already these young people
would have to beat the odds and graduate from high school to even
qualify to be considered.
They have also demonstrated the kind of determination and commitment
that makes them successful students and points the way to significant
contributions they will make in their lives. They are junior ROTC
leaders, honor roll students, and valedictorians. They are tomorrow's
soldiers, doctors, nurses, teachers, Senators, and Congressmen.
Over the years, I have had a chance to meet a lot of these DREAM Act
kids. That is what they call themselves, incidentally. Let me give you
one example. Oscar Vasquez was brought to Phoenix, AZ, by his parents
when he was 12 years old. He spent his high school years in Junior ROTC
and dreamed of one day enlisting in the U.S. military. At the end of
his junior year, the recruiting officer told Oscar he was ineligible
for military service because he was undocumented. He was devastated.
But he found another outlet for his talent. Oscar, because of the
help of two energetic science teachers, was enrolled in a college
division robot competition sponsored by the National Aeronautics and
Space Administration. With three other undocumented students, Oscar
worked for months in a windowless storage room in his high school and
tested their invention at a scuba training pool on the weekends.
Competing against students from MIT and other top universities, Oscar's
team won first place in this robot competition.
Oscar has since graduated from high school. You know what he does? He
is not in the military. He is not using his scientific skills. He is an
undocumented person in America. He hangs sheetrock for a living. It is
the best job he could get without a college education or the
opportunity to enlist in the military. He wants to save his money in
hopes that someday--just someday--the door will open and give him a
chance to be part of this Nation, the only Nation he has really ever
known. Couldn't we use his talent? Couldn't the military use someone
like Oscar? The DREAM Act would help students just like him. It is
designed to assist only a select group of students who would be
required to earn their way to legal status.
Now, the fundamental premise of the DREAM Act is that we shouldn't
punish children for the mistakes their parents made. That isn't the
American way. The DREAM Act says to these students: America is going to
give you a chance. It won't be easy, but you can earn your way into
legal status. We will give you the opportunity if you meet the
following requirements: if you came to the United States when you were
15 years old or younger, if you
[[Page S11639]]
have lived here at least 5 years, are of good moral character, and you
graduate from high school and then serve in the military or attend
college for at least 2 years.
The DREAM Act doesn't mandate military service. There is a college
option. A student who is otherwise eligible could earn legal status
that way. It would be inconsistent with the spirit of our volunteer
military to force young people to enlist as a condition for obtaining
legal status, but the DREAM Act creates strong incentives for military
service.
Many DREAM Act kids come from a demographic group that is already
predisposed to serve the United States in the military. A 2004 survey
by the RAND Corporation found that 45 percent of Hispanic males and 31
percent of Hispanic females between ages 16 and 21 were very likely to
serve in the Armed Forces, compared to 24 percent of White males and 10
percent of White females.
It is important to note that immigrants have an outstanding tradition
of service in the military. There are currently 35,000 noncitizens
serving in the military and about 8,000 more will enlist each year.
These are not citizens; they are legal residents who are willing to
serve our country.
I have met them. The second trip I made to Iraq was to a Marine Corps
base west of Baghdad. They lined up a group of young marines from
Illinois to whom I could say hello. It was a hot and dusty day. They
stood there waiting for this Senator to show up. The last one of them
in line was a young Hispanic man from Chicago named Jesus. Jesus had
with him a brown envelope. He said: Senator, I would like to ask you a
favor. He said: I enlisted in the Marines and I am glad to be a marine,
but the one thing I would like to do someday is to vote. I am not a
citizen and, he said, I need a chance. He said: I hope you can help me
get a chance to become a U.S. citizen.
I said to myself, what more could we ask of this young man? He
volunteered for the U.S. Marine Corps to go to a battle zone and risk
his life for America.
I listen to speeches on the floor here. My friend from Alabama,
Senator Sessions, comes to the floor on a regular basis and criticizes
the DREAM Act. He criticizes this bill that would give young people who
are undocumented and graduate from high school, of good moral
character, without a criminal background, who want to serve our Nation
in the military on their path to becoming legal. He criticizes this
bill. He calls it amnesty.
Do you know what, an amnesty is a giveaway. Amnesty is a card to pass
``Go'' and collect $200 in America. Do you think those who would
volunteer for the military, who are willing to risk their lives for our
country, are going to receive amnesty? Is this a gift? It is a gift to
America that they are willing to risk their lives for our country. It
is a gift to America that once having served, they will come back as
proud Americans, voting and living in this country. It is a gift to
America that they will use their skills and talent to make this a
greater nation. For my colleagues to come to the floor and call this
amnesty is to, in some ways, denigrate the fantastic sacrifice these
young people would be willing to make, who serve in the military to
become citizens.
I will concede this is not the only path to citizenship under this
DREAM Act. Those who finish 2 years of college would also have a
chance. I think that is only fair. To make this contingent only on
military service I think would create a situation which is not
consistent with a volunteer military. I hate to see us lose these young
men and women who want to be part of America and are willing to risk
their lives for that opportunity.
A recent study by the Center for Naval Analysis concluded ``non-
citizens have high rates of success while serving in the military--they
are far more likely, for example, to fulfill their enlistment
obligations than their U.S.-born counterparts.''
The study also concluded there are additional benefits to enlisting
noncitizens. For example, noncitizens ``are more diverse than citizen
recruits--not just racially and ethnically, but also linguistically and
culturally. This diversity is particularly valuable as the United
States faces the challenges of the global war on terrorism.''
The DREAM Act is not just the right thing to do; it would be good for
America. The DREAM Act would allow a generation of immigrants with
great potential and ambitions to contribute to the military and other
sectors of American society.
I am not just speaking for myself here, as the sponsor of this
legislation. The Department of Defense recognizes it, and we have
worked with them. Bill Carr, the Acting Under Secretary of Defense for
Military Personnel Policy, recently said the DREAM Act is ``very
appealing'' to the military because it would apply to the ``cream of
the crop'' of students, in his words. Mr. Carr concluded the DREAM Act
would be ``good for [military] readiness.''
On the Defense authorization bill, I don't believe it is unusual or
improper for us to consider a bill that a leader in the Department of
Defense said would be good for military readiness.
Last year at a Senate Armed Services Committee hearing on the
contributions of immigrants to the military, David Chu, the Under
Secretary of Defense for Personnel and Readiness, said:
There are an estimated 50,000 to 65,000 undocumented alien
young adults who entered the United States at an early age
and graduate from high school each year, many of whom are
bright, energetic and potentially interested in military
service. They include many who participated in high school
Junior ROTC programs. Under current law, these young people
are not eligible to enlist in the military . . . Yet many of
these young people may wish to join the military, and have
the attributes needed--education, aptitude, fitness and moral
qualifications. . . .
The Under Secretary went on to say:
. . . the DREAM Act would provide these young people the
opportunity of serving the United States in uniform.
Military experts agree. Margaret Stock, a professor at West Point,
said:
Passage of the DREAM Act would be highly beneficial to the
U.S. military. The DREAM Act promises to enlarge dramatically
the pool of highly qualified recruits for the U.S. Armed
Forces . . . passage of this bill could well solve the Armed
Forces enlistment recruiting woes.
Do you know what we are offering to young people now to enlist in our
military? For many of them, a $10,000 cash bonus, right out of high
school, if they will enlist in the military. And if they will show up
within 6 weeks, we double it to $20,000, the largest cash incentive we
have ever offered. These young people aren't looking for a cash
incentive. All they want is a chance to fight for America, to defend
our country and to become part of our Nation's future.
Conservative military scholar Max Boot agrees. When asked about the
DREAM Act, he said:
It's a substantial pool of people and I think it's crazy we
are not tapping into it.
These experts are right. The DREAM Act kids are ideal recruits. They
are high school graduates, they have good moral character, and they
desperately want to serve America. At the time when the military has
been forced to unfortunately lower many of its standards to meet
recruitment targets, we should not underestimate the significance of
these young people as a national security asset.
This is the choice the DREAM Act presents us. We can allow a
generation of immigrant students with great potential and ambition to
contribute more to America, or give them the future of living in the
shadows, uncertain about what they can do, uncertain about where life
will lead them.
I am going to urge my colleagues to support this legislation and I
hope they will, for a moment, pause and reflect. There have been a lot
of things said about immigration during the course of this debate. I
look back on this issue as one who doesn't come to it objectively. I am
the son of an immigrant. My mother came to this country as a young girl
at the age of 2 from Lithuania. Her naturalization certificate sits
behind my desk upstairs. She became a naturalized citizen at the age of
25. She lived long enough to see me sworn into the Senate, and I was so
proud of that day and so proud to be a Senator from the State of
Illinois.
I believe in immigration. I believe the diversity of America is our
strength; that Black, White, and Brown, from every corner of this Earth
we have come together to create something no nation on Earth can rival.
There are those who will always see immigration differently, those
who
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will question it, and those who will be critical. For those people, I
ask them to step back and take an honest look at this. Step back and
take an honest look at these young people, meet them, sit down with
them, as I have. They will bring tears to your eyes when they talk to
you about how hard they are working to make it in this country. They
don't get many of the breaks which other kids get, but they keep on
trying.
One of my friends is getting his graduate degree in microbiology at
the University of Chicago. He keeps going to school because, as he
said: Senator, I don't know what to do when I get out of school. I am
not a legal American. I am undocumented. My dream is to work for a
pharmaceutical company, to do medical research one day. Can we afford
to let him go? Can we afford to turn our back on what he will bring to
America?
It is interesting to me, before the end of this year we are likely to
debate H-1B visas. The debate behind H-1B visas is that we don't have a
large talent pool in America. We need to bring the best and brightest
from India, from Asia, from Africa, and from Europe. We need to bring
them in so our companies in America, starved for talent, that can't
find it here, could find it in these visa holders coming in from
foreign countries. We will let them work for 3 years or 6 years. Some
them may try to stay. Some of them will go home.
But if we are at a point where we don't have a large enough talent
pool in America, can we honestly say that these young people, the
people who would be benefitted by the DREAM Act, are a talent we can
waste? I don't think so.
Just last year I was eating in a restaurant in Chicago. It is a
pretty famous breakfast place called Ann Suther's. Tom Tully is an
alderman for the city of Chicago, and his family owns the restaurant.
He introduced me to a young man with an apron on. He called him Juan
and he said: Juan, come over and meet the Senator. He explained to me
that Juan, who came to this country illegally, was allowed to stay and
become a citizen under the amnesty that was offered by President Reagan
20 years ago. Juan went on to get an engineering degree and went on to
work with an engineering firm, but because he remembers that this
restaurant offered him a chance to wash dishes when nobody else would
give him a job, he shows up every once in a while on a Saturday and
works for a few hours for nothing, just to be around his old friends.
Those are heart-warming stories and there are many of them out there.
I know there are people who seriously question whether immigration can
be debated successfully on the floor of the Senate. I am hoping it can
be and I am hoping my colleagues on the Democratic side and the
Republican side will join me in this bipartisan effort for these young
people, to give them a chance to serve and a chance to excel. It will
make their lives better and make America a better nation.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
(The remarks fo Mr. Conrad and Mr. Gregg pertaining to the
introduction of S. 2063 are printed in today's Record under
``Statements of Inroduced Bills and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Madam President, first of all, let me say I applaud both
of the Senators who are working in an exemplary way to try to achieve
something that is very difficult to achieve. I applaud them for their
effort.
Madam President, what is the pending business?
The PRESIDING OFFICER. The pending amendment is amendment No. 2022
offered by the Senator from Michigan.
Mr. INHOFE. All right. Madam President, I ask unanimous consent to
set the pending amendment aside for the purpose of considering my
amendment No. 2271 and then to revert back to this pending amendment.
It is my understanding that this amendment is one of 10 amendments that
is going to be considered.
The PRESIDING OFFICER. Is there objection?
The Senator from North Dakota.
Mr. CONRAD. Madam President, I am constrained to object on behalf of
the managers of the bill.
The PRESIDING OFFICER. Objection is heard.
Mr. INHOFE. All right.
Mr. President, I ask unanimous consent that I be recognized as in
morning business.
The PRESIDING OFFICER (Mr. Salazar). Without objection, it is so
ordered.
Mr. INHOFE. Mr. President, there has been a lot of discussion since
last week when MoveOn.org, with a very liberal antiwar stance--which we
understand has been their position for quite some time, raising
millions of dollars for various Democratic Party candidates--ran an ad.
Up until the September 10 ad in the New York Times calling General
Petraeus ``General Betray Us,'' MoveOn.org seemed to be in line with
the Democrat's public statements supporting the troops but opposing the
war.
It is my understanding my good friend, the junior Senator from Texas,
is going to be having a resolution that will be coming up shortly. I
want a chance to talk a little bit about that resolution.
I believe that MoveOn.org's ad crossed the line by attacking the
character and integrity of America's top military leader in Iraq.
General Petraeus is a man of honor, honesty, and integrity. He is a
West Point graduate. He has held leadership positions in airborne,
mechanized, and air assault infantry units in Europe and the United
States, including command of a battalion in the 101st Airborne
Division, as well as a brigade in the 82nd Airborne Division.
He was the aide to the Chief of Staff of the Army; battalion,
brigade, and division operations officer; he has done it all. He was
the Executive Assistant to the Chairman of the Joint Chiefs of Staff.
He was the top graduate--not one of the top graduates, but the top
graduate--of the U.S. Army Command and General Staff College. He earned
M.P.A. and Ph.D. degrees from Princeton University. We are talking
about a Ph.D. from Princeton University. This is not an ordinary
officer. This is a man with incredible credentials.
He has won multiple awards and decorations, including being
recognized by US News & World Report as one of America's 25 best
leaders in the year 2005.
He is our top military commander in Iraq and commander of the Multi-
National Force-Iraq, confirmed by the Senate as the right man for the
job. He was confirmed, I might add, unanimously by the Senate.
The very day General Petraeus sat before Congress to offer his latest
report, MoveOn.org ran a full-page ad in the New York Times attacking
his message before they even heard his message.
The ad accused General Petraeus of ``Cooking the Books for the White
House'' and called him ``a military man constantly at war with the
facts.'' Their shameless attack on his character did not stop there.
They accused him of being a traitor, calling him ``General Betray Us.''
Well, anyway, MoveOn.org's attempt to discredit General Petraeus is
deplorable, and I join with other Members of the Senate in condemning
its actions.
I have no issue with news agencies or individuals offering and
debating opposing views. That is what we do on this floor every day.
However, MoveOn.org crossed the line when they ran the ad attacking the
motives and honor of our No. 1 commander on the ground in Iraq.
I support Senator Lieberman's condemnation of MoveOn.org's attempt at
character assassination, and I call on them to retract their scurrilous
ad with another full-page ad apologizing for their error in judgment.
But they would not do it. You know they would not do it. Still, we can
try. They don't have the character to do it.
While no American is above scrutiny, this was clearly a calculated
move on the part of this organization to undermine the noble efforts of
this patriot to execute his duties that we in Congress unanimously sent
him to accomplish.
It amazes me how far some will go to root for American failure in
Iraq. MoveOn.org clearly placed their political agenda ahead of the
best interests of the United States and particularly the men and women
of the military when they chose to run that ad.
[[Page S11641]]
Now, something interesting happened. A reporter from the Washington
Post came up with this, did a little research. According to the
director of public relations for the New York Times, the open rate for
an ad of that size and type is $181,000. According to a September 14
Washington Post article, the New York Times dramatically slashed its
normal rates for the full-page ad.
A spokesman for MoveOn.org confirmed to the Post they paid only
$65,000 for the ad. The Post reporter called the Times advertising
department without identifying himself and was quoted a price of
$167,000 for a full-page black-and-white ad on a Monday. The New York
Times refused to offer any explanation for why the paper would give
them a rate one-third of their published rate.
Now, my first visit to Iraq was in August of 2003, and my latest
visit was on the August 30, 2007. The Iraq I saw last time is not the
Iraq I visited in 2003. I would like to say also that between those
years I have actually been to the Iraqi AOR, area of operations, some
15 times. During that period of time I have seen these things.
I knew what General Petraeus was going to say when he came here last
week because I was with him a few days before that. I read General
Petraeus's and Ambassador Crocker's prepared statements and listened
intently to their testimonies. I compared their assessment with the
assessments I have made over the past 4 years visiting Iraq. It appears
our assessments are based on similar events that have occurred in Iraq.
I watched Ramadi as it changed. You might remember a year ago they
claimed Ramadi was going to become the terrorist capital of the world.
Ramadi is now totally secured.
I visited Fallujah. I have been there several times. I was there
during all the elections. I watched those Iraqi security forces go and
vote. I watched the American marines go door to door World War II
style. Fallujah now--which was the hotbed in Anbar Province of Iraq--is
now under total security, and not with U.S. forces but with Iraqi
security forces.
I visited Patrol Base Murray, south of Baghdad, and met with local
Iraqis who came forward and established provisional units of
neighborhood security volunteers. These individuals heard the Americans
were coming and were there and cheering, waiting for them to arrive.
I watched these Neighborhood Watch and Concerned Citizens groups take
root in Anbar Province and slowly make their way to other cities
spreading across Iraq--local civilians willing to stand up and take
back their neighborhoods, their cities, and province.
Citizens are marking IEDs with orange paint--undetonated IEDs and
PRGs--identifying al-Qaida in their towns and testifying against them.
It is something that was not happening a few months before or prior to
the surge. They are guarding critical infrastructure and working side
by side with the U.S. forces.
I saw the anti-American messages at the mosques. Our intelligence
goes into the mosques for each of their weekly meetings. Up through
December of this past year, they averaged that 85 percent of the
messages were anti-American messages. Since April of this year, there
have been no anti-American messages. I guess I learned something that
no one else seems to agree with; that is, we spend entirely too much
time talking about the political leaders, when the religious leaders
are the ones responsible for these major changes. These are the ones
who are standing in the mosques and talking about Americans and the
coalition forces as their allies, not as adversaries, as they were
before.
I visited the Joint Security Stations in Baghdad. It used to be our
kids would go out on a mission during the daytime, and they would come
back at night to the green zone. They do not do that anymore. These
Joint Security Stations--even as to the report that came in, our goal
was to have 34, and there are now 32 of those Joint Security Stations.
These guys go out, and instead of coming back, they sit and become
friends with the Iraqis and actually sleep in the homes of the Iraqi
security forces.
I watched the surge operations take effect, visited a former al-Qaida
sanctuary, and saw a strengthening of Iraqi forces resulting in an
increase in burden sharing.
I observed a steady decrease in the number of attacks in Anbar from
40 to less than 10 a day.
I visited the markets. There is a lot of talk about that. A lot of
people go and visit the markets with all kinds of protection. I went to
the markets without any protection, and I talked, through an
interpreter, to people. I picked out people holding babies, and they
were all glad to see us.
I met with U.S. and coalition leaders and commanders, Iraqi leaders
and commanders, and local civilian groups on each trip.
I watched the political, economic, and diplomatic growth over time.
It has been uneven and frustrating, but it has been a movement in the
right direction.
I guess the bottom line is Iraq is achieving progress. No one can
debate that. It is not just General Petraeus. It is what the Iraqis
say. It is what they are saying, the religious leaders and the
political leaders. It is happening, happening since the surge. The
surge is clearly working.
The coalition forces are handing back control of Iraq to the Iraqis
and to the Iraqi security forces. Local leaders who want better lives
for their people are bravely standing up and rejecting the fatalist,
cynical, and hate-filled diet fed to them by al-Qaida and other
extremists.
Iraqis are realizing that al-Qaida does not offer a long-term vision
of hope or an opportunity for them any more than it would for the
average Californian or New Yorker or Oklahoman.
A backlash and rebellion against al-Qaida has been going on over the
last 6 months in places such as Anbar Province and Babil Province south
of Baghdad. When the tribal leaders and clerics in Anbar made the
conscious decision to reject al-Qaida, they virtually overnight
transformed their province into a model for the rest of the country to
emulate. The ``concerned citizens'' of Babil Province--I was there--
recognized the progress made in Anbar and decided they wanted to do the
same thing. So it is spreading. It is spreading into areas even up
toward Tikrit, the hometown of Saddam Hussein.
So al-Qaida understands the importance of the collective American
will when it comes to prosecuting the war on terror. They understand
they have absolutely no chance of winning this war over the long run
militarily. They understand their only chance of achieving victory is
to get the American people to call for a withdrawal. If we pull out of
the fight, they win. There is no other way to characterize it. This is
a strategic military objective for them. Like with any military
objective, they have developed a tactic to achieve it. Their tactic in
this case is to tear away the American will to win by committing
horrific and brutal attacks against innocent victims. They understand
that Americans agonize over the pictures and the news reports of those
atrocities.
Let there be no doubt about it, our will as Americans to fight for
freedom and democracy around the world is under attack by a brutal and
ruthless enemy. That enemy would be emboldened by a victory in Iraq.
Iraq would become a safe haven for terrorists and extremists from which
they can launch their wicked atrocities around the world.
We could accept the offer of Iran's President to step in and fill the
vacuum. He has clearly said: If the Americans pull out, we go in.
However, this offer comes from a man who has vowed the extermination of
the Jewish State of Israel, and he has vowed to expand his nuclear
program and clearly puts us in jeopardy of being held hostage.
It is not in the American ethic to turn our back on people who are
striving for a better way of life for their children. It is not in our
national interest to leave a failed Iraqi State.
The surge is working, largely due to the leadership of one great
American--GEN David Petraeus. MoveOn.Org should just once retreat from
their attack on America and apologize to that great American hero, GEN
David Petraeus.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
[[Page S11642]]
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I see Senator Specter on the floor. I ask
unanimous consent that after Senator Specter is recognized, if Senator
Graham is on the floor, he be recognized for debate only on the bill,
and then that Senator Chambliss be recognized, if he is on the floor,
for debate only, and that then the Senate proceed to a period of
morning business, with Senators permitted to speak therein for up to 10
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank the Chair and my friend from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I ask unanimous consent to speak for up
to 20 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I have sought recognition to comment on
the amendment to restore the constitutional right of habeas corpus--an
amendment that is pending before the Senate and will be voted on
tomorrow morning at 10:30 on a motion to invoke cloture.
The issue of the availability of habeas corpus for the detainees at
Guantanamo is a matter of enormous importance. It is a matter of a
fundamental constitutional right that people should not be held in
detention unless there is an evidentiary reason to do so, or at least
some showing that the person ought to be in detention. It is a
constitutional right that has existed since the Magna Carta in 1215,
and it has been upheld in a series of cases in the Supreme Court of the
United States.
In the decision of Hamdi v. Rumsfeld, Justice O'Connor, speaking for
a plurality, said that they ``all agree that, absent suspension, the
writ of habeas corpus remains available to every individual detained
within the United States.'' What Justice O'Connor was referring to was
the express constitutional provision in Article I, Section 9, Clause 2,
that habeas corpus may not be suspended except in time of invasion or
rebellion. Obviously, if there cannot be a suspension of the writ of
habeas corpus, there is a provision in that clause recognizing the
existence of the constitutional right of habeas corpus. You cannot
suspend a right that doesn't exist.
As amplified by Justice Stevens, in the case of Rasul v. Bush, the
statutory right to habeas corpus applies to those held at the United
States Naval Base at Guantanamo Bay, Cuba. Although Guantanamo Bay is
not within the territory of the United States, it is under the complete
jurisdiction and control of the United States.
In that case, Justice Stevens noted that ``application of the [writ
of] habeas corpus to persons detained at the base is consistent with
the historical reach of the writ of habeas corpus. At common law,
courts exercised habeas jurisdiction over the claims of aliens detained
within sovereign territory of the realm, as well as the claims of
persons detained in the so-called `exempt jurisdiction,' where ordinary
writs did not run, and all other dominions under the sovereign's
control.'' That is obviously a conclusive statement of the Supreme
Court that in Guantanamo, under the control of the United States, the
writ of habeas corpus would apply in accordance with the historic reach
of habeas corpus under the common law. Although Justice Stevens wrote
as to statutory habeas, his historic analysis implicates the right to
habeas under the common law and the Constitution
Justice Stevens went on to point out:
Habeas corpus is, however [citing from Williams v. Kaiser]
``a writ antecedent to statute, . . . throwing its root deep
into the genius of our common law.''
And continuing, he said that the writ had ``received explicit
recognition in the Constitution, which forbids suspension of `[t]he
Privilege of the Writ of Habeas Corpus . . . unless when in Cases of
Rebellion or Invasion the public Safety may require it.' ''
Obviously, the exceptions--Rebellion or Invasion--do not apply in the
Guantanamo situation.
Justice Stevens went on to say:
[A]t its historical core, the writ of habeas corpus has
served as a means of reviewing the legality of Executive
detention, and it is in that context that its protections
have been strongest.
Justice Stevens then went on to note this--referring to the opinion
of Justice Jackson, concurring in the result in the case of Brown v.
Allen:
The historic purpose of the writ has been to relieve
detention by executive authorities without judicial trial.
And he goes on to say:
Executive imprisonment has been considered oppressive and
lawless since John, at Runnymede, pledged that no free man
should be imprisoned, dispossessed, outlawed, or exiled save
by the judgment of his peers or by the law of the land. The
judges of England developed the writ of habeas corpus largely
to preserve these immunities from executive restraint.
Going on, Justice Stevens pointed out:
Consistent with the historic purpose of the writ, this
Court has recognized the federal court's power to review
applications for habeas corpus in a wide variety of cases
involving Executive detention, in wartime as well as in times
of peace.
In a very curious decision, in Boumediene v. Bush, the Court of
Appeals for the District of Columbia ignored the historic common law
analysis of the Rasul case in concluding that the Supreme Court's
decision was based solely upon the statutory provision for habeas
corpus. The Boumediene court reasoned that Rasul could be changed by an
act of Congress, the Military Commissions Act, which was passed in
2006. In that case, instead of looking to Rasul, as noted in the New
York Times article by Adam Liptak on March 5 of this year, the
Boumediene court looked to case law decided before Rasul. Liptak points
out:
Instead of looking to Rasul, which was recent and concerned
Guantanamo, the appeals court, reverting to the Court of
Appeals for the District of Columbia, justified its decision
by citing a 1950 Supreme Court decision, Johnson v.
Eisentrager. That case involved German citizens convicted of
war crimes in China and held at a prison in Germany. The
court ruled that they had no right to habeas corpus.
Liptak points out the inapplicability of the Eisentrager case,
stating:
The Court's reliance on Eisentrager was curious. Both
Antonin Scalia, dissenting in Rasul, and John Yu, an
architect of the Bush administration's post-9/11 legal
strategy, have written that they understood Rasul to have
overruled Eisentrager.
The Boumediene decision seemed to ignore the finding in Rasul that
the Naval Base at Guantanamo Bay fell within the jurisdiction and
control of the United States. If detainees at Guantanamo Bay fall
within United States jurisdiction, as Rasul found, the aliens held at
Guantanamo have a greater claim to habeas corpus rights. For example,
Courts have held that aliens within the United States cannot be denied
habeas corpus without violating the Suspension Clause.
Following its discussion of Rasul and Eisentrager, the Boumediene
decision relied upon the proceedings in the Combatant Status Review
Tribunals which, realistically viewed, are totally insufficient. The
procedures of the Combatant Status Review Tribunals were taken up by
the U.S. District Court for the District of Columbia in a case
captioned: In re Guantanamo Detainees Cases, 355 F.Supp.2d 443 (2005).
Beginning on page 468 of the opinion, the district court noted a
proceeding in the Combatant Status Review Tribunal where an individual
was accused of associating with al-Qaida personnel. The court noted:
``. . . [T]he Recorder of the [Combatant Status Review
Tribunal] asserted, `While living in Bosnia, the Detainee
associated with a known Al Qaida operative.' ''
The detainee then said:
``Give me his name.''
The Tribunal President said:
``I do not know.''
The detainee then said:
``How can I respond to this?''
The detainee went on to say:
``. . . I asked the interrogators to tell me who
this person was. Then I could tell you if I might have known
this person, but not if this person is a terrorist. Maybe I
knew this person as a friend. Maybe it was a person that
worked with me. Maybe it was a person that was on my team.
But I do not know if this person is Bosnian, Indian or
whatever. If you tell me the name, then I can respond and
defend myself against this accusation.''
Later in the court's opinion, the detainee is quoted to the following
effect:
``That is it, but I was hoping you had evidence that you
can give me. If I was in your
[[Page S11643]]
place--and I apologize in advance for these words--but if a
supervisor came to me and showed me accusations like these, I
would take these accusations and I would hit him in the face
with them.''
And at that, everyone in the tribunal room burst into laughter.
This is illustrative of what goes on in the Combatant Status Review
Tribunals. They charge someone with being an associate of al-Qaida, but
they cannot even give the person a name.
There was a very informative declaration filed by Stephen Abraham
about what goes on in a Combatant Status Review Tribunal.
I ask unanimous consent to have printed in the Record at the
conclusion of my remarks this declaration.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. SPECTER. Colonel Abraham identified himself as a lieutenant
colonel in the U.S. Army Reserves who served as a member of a Combatant
Status Review Tribunal and had an opportunity to observe and
participate in the CSRT process.
Among other things, Colonel Abraham points out:
On one occasion, I was assigned to a CSRT panel with two
other officers. . . .We reviewed evidence presented to us
regarding the recommended status of a detainee. All of us
found the information presented to lack substance.
What were purported to be specific statements of fact
lacked even the most fundamental earmarks of objectively
credible evidence. Statements allegedly made by percipient
witnesses lacked detail. Reports presented generalized
statements in indirect and passive forms without stating any
source of the information or providing a basis for
establishing the reliability or the credibility of the
source. Statements of interrogators presented to the panel
offered inferences from which we were expected to draw
conclusions favoring a finding of ``enemy combatant'' but
that, upon even limited questioning from the panel, yielded
the response from the Recorder, ``We'll have to get back to
you.'' The personal representative did not participate in any
meaningful way.
On the basis of the paucity and weakness of the information
provided both during and after the CSRT hearing, we
determined that there was no factual basis for concluding
that the individual should be classified as an enemy
combatant.
The details of Colonel Abraham's statement are very much in line with
the opinion of the U.S. District Court for the District of Columbia in
the matter captioned: In re Guantanamo Detainee Cases. They had charges
but presented absolutely no information. Consequently, there can be no
contention that Combatant Status Review Tribunals are an adequate and
effective alternative approach to Federal court habeas corpus. There
must be a type of review which presents a fair opportunity for
determination as to whether there was any basis to hold a detainee. For
such a purpose, Combatant Status Review Tribunals are totally
inadequate.
It is for that reason that I urge my colleagues to legislate in the
pending Department of Defense authorization bill to reinstate the
statutory right of habeas corpus. It is my judgment that the Supreme
Court of the United States will act on the case now pending there to
uphold the constitutional right, disagreeing with the decision of the
Court of Appeals for the District of Columbia in Boumediene v. Bush.
Initially, the U.S. Supreme Court had denied to take certiorari in
the case, and it was curious because Justice Stevens did not vote for
cert. where three other Justices had. But then after the declaration by
Colonel Abraham was filed on a petition for rehearing, which required
five affirmative votes by Supreme Court Justices, the petition for
rehearing was granted, and the Supreme Court of the United States now
has that case.
I have filed a brief as amicus curiae in the case, urging the Supreme
Court to overrule the District of Columbia case and to uphold the
decision in Rasul v. Bush, which holds that there is a statutory right
to habeas corpus and that is rooted in historic common law that
predates the Constitution, tracing its roots to the Magna Carta with
John at Runnymede in 1215. But pending any action by the Supreme Court
of the United States, which is not by any means certain,
notwithstanding my own view that the Supreme Court will reaffirm Rasul
and reverse the Court of Appeals for the District of Columbia's ruling
in Boumediene, the Congress should now alter the statutory provision in
2006 and make it clear that the statutory right to habeas corpus
applies to Guantanamo because of the total inadequacy of the fairness
of the procedures under the Combatant Status Review Tribunal.
Exhibit 1
Declaration of Stephen Abraham
Lieutenant Colonel, United States Army Reserve
I, Stephen Abraham, hereby declare as follows:
1. I am a lieutenant colonel in the United States Army
Reserve, having been commissioned in 1981 as an officer in
Intelligence Corps. I have served as an intelligence officer
from 1982 to the present during periods of both reserve and
active duty, including mobilization in 1990 (``Operation
Desert Storm'') and twice again following 9-11. In my
civilian occupation, I am an attorney with the law firm Fink
& Abraham LLP in Newport Beach, California.
2. This declaration responds to certain statements in the
Declaration of Rear Admiral (Retired) James M. McGarrah
(``McGarrah Dec.''), filed in Bismullah v. Gates, No. 06-1197
(D.C. Cir.). This declaration is limited to unclassified
matters specifically related to the procedures employed by
Office for the Administrative Review of the Detention of
Enemy Combatants (``OARDEC'') and the Combatant Status Review
Tribunals (``CSRTs'') rather than to any specific information
gathered or used in a particular case, except as noted
herein. The contents of this declaration are based solely on
my personal observations and experiences as a member of
OARDEC. Nothing in this declaration is intended to reflect or
represent the official opinions of the Department of Defense
or the Department of the Army.
3. From September 11, 2004 to March 9, 2005, I was on
active duty and assigned to OARDEC. Rear Admiral McGarrah
served as the Director of OARDEC during the entirety of my
assignment.
4. While assigned to OARDEC, in addition to other duties, I
worked as an agency liaison, responsible for coordinating
with government agencies, including certain Department of
Defense (``DoD'') and non-DoD organizations, to gather or
validate information relating to detainees for use in CSRTs.
I also served as a member of a CSRT, and had the opportunity
to observe and participate in the operation of the CSRT
process.
5. As stated in the McGarrah Dec., the information
comprising the Government Information and the Government
Evidence was not compiled personally by the CSRT Recorder,
but by other individuals in OARDEC. The vast majority of the
personnel assigned to OARDEC were reserve officers from the
different branches of service (Army, Navy, Air Force,
Marines) of varying grades and levels of general military
experience. Few had any experience or training in the legal
or intelligence fields.
6. The Recorders of the tribunals were typically relatively
junior officers with little training or experience in matters
relating to the collection, processing, analyzing, and/or
dissemination of intelligence material. In no instances known
to me did any of the Recorders have any significant personal
experience in the field of military intelligence. Similarly,
I was unaware of any Recorder having any significant or
relevant experience dealing with the agencies providing
information to be used as a part of the CSRT process.
7. The Recorders exercised little control over the process
of accumulating information to be presented to the CSRT board
members. Rather, the information was typically aggregated by
individuals identified as case writers who, in most
instances, had the same limited degree of knowledge and
experience relating to the intelligence community and
intelligence products. The case writers, and not the
Recorders, were primarily responsible for accumulating
documents, including assembling documents to be used in the
drafting of an unclassified summary of the factual basis for
the detainee's designation as an enemy combatant.
8. The information used to prepare the files to be used by
the Recorders frequently consisted of finished intelligence
products of a generalized nature--often outdated, often
``generic,'' rarely specifically relating to the individual
subjects of the CSRTs or to the circumstances related to
those individuals' status.
9. Beyond ``generic'' information, the case writer would
frequently rely upon information contained within the Joint
Detainee Information Management System (``JDIMS''). The
subset of that system available to the case writers was
limited in terms of the scope of information, typically
excluding information that was characterized as highly
sensitive law enforcement information, highly classified
information, or information not voluntarily released by the
originating agency. In that regard, JDIMS did not constitute
a complete repository, although this limitation was
frequently not understood by individuals with access to or
who relied upon the system as a source of information. Other
databases available to the case writer were similarly
deficient. The case writers and Recorders did not have access
to numerous information sources generally available within
the intelligence community.
10. As one of only a few intelligence-trained and suitably
cleared officers, I served
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as a liaison while assigned to OARDEC, acting as a go-between
for OARDEC and various intelligence organizations. In that
capacity, I was tasked to review and/or obtain information
relating to individual subjects of the CSRTs. More
specifically, I was asked to confirm and represent in a
statement to be relied upon by the CSRT board members that
the organizations did not possess ``exculpatory information''
relating to the subject of the CSRT.
11. During my trips to the participating organizations, I
was allowed only limited access to information, typically
prescreened and filtered. I was not permitted to see any
information other than that specifically prepared in advance
of my visit. I was not permitted to request that further
searches be performed. I was given no assurances that the
information provided for my examination represented a
complete compilation of information or that any summary
of information constituted an accurate distillation of the
body of available information relating to the subject.
12. I was specifically told on a number of occasions that
the information provided to me was all that I would be shown,
but I was never told that the information that was provided
constituted all available information. On those occasions
when I asked that a representative of the organization
provide a written statement that there was no exculpatory
evidence, the requests were summarily denied.
13. At one point, following a review of information, I
asked the Office of General Counsel of the intelligence
organization that I was visiting for a statement that no
exculpatory information had been withheld. I explained that I
was tasked to review all available materials and to reach a
conclusion regarding the non-existence of exculpatory
information, and that I could not do so without knowing that
I had seen all information.
14. The request was denied, coupled with a refusal even to
acknowledge whether there existed additional information that
I was not permitted to review. In short, based upon the
selective review that I was permitted, I was left to
``infer'' from the absence of exculpatory information in the
materials I was allowed to review that no such information
existed in materials I was not allowed to review.
15. Following that exchange, I communicated to Rear Admiral
McGarrah and the OARDEC Deputy Director the fundamental
limitations imposed upon my review of the organization's
files and my inability to state conclusively that no
exculpatory information existed relating to the CSRT
subjects. It was not possible for me to certify or validate
the non-existence of exculpatory evidence as related to any
individual undergoing the CSRT process.
16. The content of intelligence products, including
databases, made available to case writers, Recorders, or
liaison officers, was often left entirely to the discretion
of the organizations providing the information. What
information was not included in the bodies of intelligence
products was typically unknown to the case writers and
Recorders, as was the basis for limiting the information. In
other words, the person preparing materials for use by the
CSRT board members did not know whether they had examined all
available information or even why they possessed some pieces
of information but not others.
17. Although OARDEC personnel often received large amounts
of information, they often had no context for determining
whether the information was relevant or probative and no
basis for determining what additional information would be
necessary to establish a basis for determining the
reasonableness of any matter to be offered to the CSRT board
members. Often, information that was gathered was discarded
by the case writer or the Recorder because it was considered
to be ambiguous, confusing, or poorly written. Such a
determination was frequently the result of the case writer or
Recorder's lack of training or experience with the types of
information provided. In my observation, the case writer or
Recorder, without proper experience or a basis for giving
context to information, often rejected some information
arbitrarily while accepting other information without any
articulable rationale.
18. The case writer's summaries were reviewed for quality
assurance, a process that principally focused on format and
grammar. The quality assurance review would not ordinarily
check the accuracy of the information underlying the case
writer's unclassified summary for the reason that the quality
assurance reviewer typically had little more experience than
the case writer and, again, no relevant or meaningful
intelligence or legal experience, and therefore had no skills
by which to critically assess the substantive portions of the
summaries.
19. Following the quality assurance process, the
unclassified summary and the information assembled by the
case writer in support of the summary would then be forwarded
to the Recorder. It was very rare that a Recorder or a
personal representative would seek additional information
beyond that information provided by the case writer.
20. It was not apparent to me how assignments to CSRT
panels were made, nor was I personally involved in that
process. Nevertheless, I discerned the determinations of who
would be assigned to any particular position, whether as a
member of a CSRT or to some other position, to be largely the
product of ad hoc decisions by a relatively small group of
individuals. All CSRT panel members were assigned to OARDEC
and reported ultimately to Rear Admiral McGarrah. It was well
known by the officers in OARDEC that any time a CSRT panel
determined that a detainee was not properly classified as an
enemy combatant, the panel members would have to explain
their finding to the OARDEC Deputy Director. There would be
intensive scrutiny of the finding by Rear Admiral McGarrah
who would, in turn, have to explain the finding to his
superiors, including the Under Secretary of the Navy.
21. On one occasion, I was assigned to a CSRT panel with
two other officers, an Air Force colonel and an Air Force
major, the latter understood by me to be a judge advocate. We
reviewed evidence presented to us regarding the recommended
status of a detainee. All of us found the information
presented to lack substance.
22. What were purported to be specific statements of fact
lacked even the most fundamental earmarks of objectively
credible evidence. Statements allegedly made by percipient
witnesses lacked detail. Reports presented generalized
statements in indirect and passive forms without stating the
source of the information or providing a basis for
establishing the reliability or the credibility of the
source. Statements of interrogators presented to the panel
offered inferences from which we were expected to draw
conclusions favoring a finding of ``enemy combatant'' but
that, upon even limited questioning from the panel, yielded
the response from the Recorder, ``We'll have to get back to
you.'' The personal representative did not participate in any
meaningful way.
23. On the basis of the paucity and weakness of the
information provided both during and after the CSRT hearing,
we determined that there was no factual basis for concluding
that the individual should be classified as an enemy
combatant. Rear Admiral McGarrah and the Deputy Director
immediately questioned the validity of our findings. They
directed us to write out the specific questions that we had
raised concerning the evidence to allow the Recorder an
opportunity to provide further responses. We were then
ordered to reopen the hearing to allow the Recorder to
present further argument as to why the detainee should be
classified as an enemy combatant. Ultimately, in the absence
of any substantive response to the questions and no basis for
concluding that additional information would be forthcoming,
we did not change our determination that the detainee was not
properly classified as an enemy combatant. OARDEC's response
to the outcome was consistent with the few other instances in
which a finding of ``Not an Enemy Combatant'' (NEC) had been
reached by CSRT boards. In each of the meetings that I
attended with OARDEC leadership following a finding of NEC,
the focus of inquiry on the part of the leadership was ``what
went wrong.''
24. I was not assigned to another CSRT panel.
I hereby declare under the penalties of perjury based on my
personal knowledge that the foregoing is true and accurate.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise this afternoon in opposition to
the Leahy-Specter amendment on the Defense authorization bill. The
Leahy-Specter amendment will strike an important change made by the
Military Commissions Act of 2006 that strips courts of jurisdiction to
hear habeas corpus petitions from alien unlawful enemy combatants
detained by the United States.
This amendment would restore jurisdiction to the Federal courts to
hear habeas petitions from detainees who are currently pending trial
before a military commission. Essentially, this amendment would grant
habeas corpus rights to all non-U.S. citizens, regardless of location,
who are detained by the United States.
The amendment would have the effect during the current global war on
terrorism or during a large-scale protracted war on the scale of World
War II of giving any noncitizen detained by U.S. forces, regardless of
where they are detained and regardless of the reason for their
detention, the right to challenge that detention in the U.S. court
system.
I can think of few better ways to ensure that the United States is
defeated in any conflict in which we engage and few better ways to
undermine the national security of the United States than to adopt this
amendment.
In 2004, the Supreme Court's decision in Hamdi v. Rumsfeld held that
the President is authorized to detain enemy combatants for the duration
of hostilities based on longstanding law-of-war principles. It also
held that Congress could authorize the President to detain persons,
including U.S. citizens, designated as enemy combatants without trial
for a criminal offense so long as the enemy combatant has a process to
challenge that designation.
As a result of the Hamdi decision, the Department of Defense created
the
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Combatant Status Review Tribunal, a process where detainees may
challenge their status designations.
Congress passed and the President signed the Detainee Treatment Act
on December 30, 2005, which included the Graham-Levin amendment to
eliminate the Federal court statutory jurisdiction over habeas corpus
claims by aliens detained at Guantanamo Bay.
After a full and open debate, a bipartisan majority of Congress
passed the Military Commissions Act just last fall. The MCA amended the
Detainee Treatment Act provisions regarding appellate review and habeas
corpus jurisdictions by making the provisions of the DTA the exclusive
remedy for all aliens detained as enemy combatants anywhere in the
world, including those detained at Guantanamo Bay, Cuba. The MCA's
restrictions on habeas corpus codified important and constitutional
limits on captured enemies' access to our courts.
The District of Columbia Circuit upheld the MCA's habeas restrictions
in Boumediene v. Bush earlier this year. The Supreme Court, in a rare
move, reconsidered their denial of certiorari and will make a decision
on this case in the near future. In the meantime, Congress should not
act hastily.
Before the Supreme Court decision in Rasul v. Bush in June 2004, the
controlling case law for over 50 years was set out in the Supreme Court
case of Johnson v. Eisentrager, a 1950 case which held that aliens in
military detention outside the United States were not entitled to
judicial review through habeas corpus petitions in Federal courts. The
Court recognized that extension of habeas corpus to alien combatants
captured abroad ``would hamper the war effort and bring aid and comfort
to the enemy,'' and the Constitution requires no such thing.
The Rasul case changed the state of the law for detainees held at
Guantanamo Bay, Cuba, due to the unique nature of the long-term U.S.
lease of that property. The Supreme Court reasoned that the habeas
corpus statute and the exercise of complete jurisdiction and control
over the Navy base in Cuba were sufficient to establish the
jurisdiction of U.S. Federal courts over habeas petitions brought by
detainees.
The Supreme Court ruled that the status of a detainee as an enemy
combatant must be determined in a way that provides the fundamentals of
due process--namely, notice and opportunity to be heard. The executive
branch established Combatant Status Review Tribunals, or CSRTs, to
comply with this mandate. Judicial review of CSRT determinations of
enemy combatant status by article III courts is provided by the
Detainee Treatment Act. Under the DTA, appeals of CSRT decisions may be
made to the U.S. Court of Appeals for the DC Circuit.
In his dissent in the Rasul case, Justice Scalia wisely pointed out
that at the end of World War II, the United States held approximately 2
million enemy soldiers, many of whom no doubt had some complaint about
their capture or conditions of confinement. Today, approximately 25,000
persons are detained by the United States in Iraq, Afghanistan, and at
Guantanamo Bay.
Restoring jurisdiction over alien enemy combatants could result in
providing the right of habeas corpus to all those detainees held
outside the United States so long as their place of detention is under
the jurisdiction and control of the U.S. Armed Forces.
In fact, habeas challenges on behalf of detainees held in Afghanistan
have already been filed.
The Supreme Court recognized in Johnson v. Eisentrager that allowing
habeas petitions from enemy combatants forces the judiciary into direct
oversight of the conduct of war in which they will be asked to hear
petitions from all around the world, challenging actions and events on
the battlefield. This would simply be unworkable as a practical matter
and could greatly interfere with the Executive's authority to wage war.
As the Supreme Court revisits these issues, Congress should not undue
what it has done.
Federal courts have ruled twice--in December 2006 at the district
court level on the remand of the Hamdan case from the Supreme Court and
again in February 2007 at the DC Circuit Court level in the
consolidated cases of Boumediene and Al Odah--that the Military
Commissions Act is constitutional and that alien enemy unlawful
combatants have no constitutional rights to habeas corpus.
The Supreme Court, at the end of June, decided it would hear these
cases on expedited appeal this fall. It is appropriate for Congress to
allow the Supreme Court to review the decision made by the DC Circuit
Court of Appeals, applying the standards of review enacted in the DTA
and the MCA before granting habeas rights to and opening the Federal
courts to thousands of detainees held outside the United States.
For these reasons, and simply because it represents extremely bad
policy, I urge my colleagues to oppose the Leahy-Specter amendment.
Mr. President, I had also intended to talk a little while today about
Senator Graham's amendment seeking to strike section 1023 of the
underlying bill. It is my understanding now that there are discussions
ongoing relative to the possibility of trying to work that amendment
out. So if that amendment does come to the floor for consideration, I
will be back to talk about the support of that amendment at that time.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Menendez). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________