[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Senate]
[Pages 30744-30764]
[From the U.S. Government Publishing Office, www.gpo.gov]




  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--CONFERENCE 
                                 REPORT

  The PRESIDING OFFICER. The clerk will report the conference report.
  The assistant legislative clerk read as follows.

       A conference report to accompany H.R. 1815 to authorize 
     appropriations for the fiscal year 2006 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, having met, have agreed 
     that the House recede from its disagreement to the amendment 
     of the Senate, and agree to the same with an amendment, 
     signed by a majority of the conferees on the part of both 
     Houses.

  The PRESIDING OFFICER. The Senate will proceed to the consideration 
of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of December 18, 2005.)
  Mr. WARNER. Mr. President, will the Chair advise the Senate with 
regard to any time allocation for remarks in connection with the 
pending matter?
  The PRESIDING OFFICER. There was not a time allocation.
  Mr. LEVIN. Mr. President, I congratulate Senator Warner. Without his 
leadership we would not be here. We had a record number of amendments 
which we had to deal with in a record short period of time. He showed 
incredible tenacity and patience and wisdom, as he always does in 
bipartisanship. I commend him and particularly our staffs.
  Mr. President, I thank our leadership as well for their staying with 
us on this one. There was a time earlier this year when we didn't think 
we were going to get an authorization bill, and except for the efforts 
of our leaders we would not be here either. I want to particularly 
thank them.
  Mr. President, I am pleased to join my good friend and colleague, 
Senator Warner, the Chairman of the Senate Armed Services Committee, in 
urging the adoption of the conference report on H.R. 1815, the National 
Defense Authorization Act for Fiscal Year 2006. Getting this conference 
report to the Senate required the labors of Hercules, the patience of 
Job and the magic of Merlin. We would not have been able to complete 
conference on this important bill--made so very urgent by the fact that 
we are nation at war--without the tireless efforts of Senator Warner.
  First, a word on the extraordinary events of the last few days.
  On the Senate side, every one of our conferees--including all 11 
Democrats on the Armed Services Committee--signed the conference 
report. Each of these Senators signed on the basis of the text of the 
conference report that was agreed to between the Senate and House 
conferees.
  As is our usual practice, we delivered our Senate signature sheets to 
the House on Friday afternoon, with the understanding that the 
conference report would be filed first in the House and acted upon 
first by that body. The Senate stood ready to take up the conference 
report as soon as it came over from the House and to pass it after 1 
hour of debate.
  Unfortunately, the conference report was not filed on either Friday 
or Saturday, because the House Republican leadership was considering 
adding an extraneous bill to the conference report. This bill was not a 
part of our conference, is not in the jurisdiction of our committee, 
and was never considered by any of the conferees. The bill was not a 
part of the conference report that was agreed to by our conferees on 
either side of the aisle.
  Senator Warner and I strongly objected to a procedure so totally 
destructive of bedrock legislative process. When we learned that such 
an attempt might be made, we joined together and retrieved the Senate 
signature sheets from the House. Only after we were assured on Sunday 
afternoon that the conference report would be voted on in the House of 
Representatives as agreed, with no effort to insert additional 
material, did we return the Senate signature sheets to the House.
  I will ask unanimous consent that a copy of the cover letter that we 
sent to the House be inserted in the Record. I would also make 
reference to Senator Warner's remarks in the Record on this subject 
last Friday, and my remarks last Saturday.
  Even before the events of the last weekend, the Armed Services 
Committee faced obstacles and hurdles in completing this bill that we 
have never faced before. For example:
  It took us over 2 months from the time we reported the bill to the 
Senate on May 15 to the time debate initially began on July 20.
  Then, after only 5 days of debate, our bill was pulled down by the 
majority leader on July 26 when the Senate failed to invoke cloture on 
the bill. We had to wait over 3 months and negotiate a very complicated 
unanimous consent agreement which limited the number of amendments 
before we were able to resume debate on the bill on November 4.
  We debated the bill for an additional 7 days and finally passed it by 
a unanimous 98 to 0 vote on November 15, but not before disposing of a 
total of 261 amendments--more amendments ever considered to any Defense 
authorization bill since Congress passed the first annual Defense 
authorization bill back in 1961.
  As far as completing conference this session, there were a lot of 
people who doubted it could be done because of the sheer size and 
complexity of this legislation, leaving aside some of its very 
contentious issues. Over the past 10 years, we have averaged a total of 
70 days in conference with the House on this massive bill. Last year 
alone, we were in conference with the House for a total of 85 days. We 
completed this conference in under 1 month--29 days, to be exact. We 
compromised on a lot of issues, but we didn't compromise the quality of 
this legislation just for the sake of getting it done quickly. In 
short, we did it right and we are very proud of that. This year, we 
have produced a true holiday gift for our troops and our Nation.
  This conference report contains provisions that provide well-deserved 
support for our military personnel and their families. In particular, 
the conference report will:
  Increase basic pay by 3.1 percent, a half percent higher than 
inflation;
  Increase the death gratuity for all active duty deaths from $12,400 
to $100,000, retroactive to the beginning of Operation Enduring 
Freedom;
  Authorize a new special pay of $430 a month during hospitalization 
for service members while rehabilitating from an injury or disease 
incurred in a combat zone;
  Authorize a new leave of up to 21 days when adopting a child;
  Provide $30 million in impact aid to local school districts, 
including a new

[[Page 30745]]

$10 million authorization for schools that have a large increase or 
decrease in students due to rebasing, activation of new military units, 
or base realignment and closure;
  Increase funding for military child-care services by $50 million, and 
for family assistance services by $10 million; and
  Create a mental health task force to help military members and 
families deal with an increasing number of mental health issues.
  The bill also contains several provisions especially designed to 
benefit our National Guard and Reserve personnel and their families:
  Every member of the Selected Reserve will have access to government-
subsidized health care under the military TRICARE Standard medical 
program for themselves and their families.
  Tier 1 is the TRICARE Reserve Select program that we authorized last 
year. National Guard and Reserve personnel who are mobilized can use 
this benefit for a year for each period of mobilized service, as long 
as they remain in the Selected Reserve. The Government pays 72 percent 
of their health care premium--they pay only 28 percent.
  Tier II includes members of the Selected Reserve who do not have 
access to health insurance through their civilian employment. The 
Government pays 50 percent of their premium; and
  Tier III includes members of the Selected Reserve who have access to 
health insurance through their employer but choose TRICARE. The 
Government pays 15 percent of their premium, they pay the remaining 85 
percent.
  National Guard and Reserve members who suffer an income loss when 
mobilized will be paid an income replacement payment after 18 months of 
active duty, upon completion of 24 months of active duty in a 5-year 
period, or when mobilized within 180 days of an earlier mobilization.
  Reservists who are ordered to active duty for more than 30 days will 
receive a full housing allowance rather than the current 140 days.
  In the bill we authorize the following end strengths for our active-
duty forces: Army--512,400, an increase of 10,000 soldiers from last 
year's authorized end strength; Navy--352,700, 13,200 less than last 
year, in accordance with the Department's request; Marine Corps--
179,000, an increase of 1,000 Marines; and Air Force--357,400, 2,300 
less than last year's authorization, again in accordance with the 
Department's request.
  We are very concerned about the Army's ability to recruit enough 
enlistees to make the end strength that we authorized. This bill gives 
the Army new tools to help it meet its recruiting goals:
  A new bonus of up to $1000 for soldiers who refer a successful 
recruit to the Army;
  New authority to experiment with innovative recruiting incentives;
  Authorization for matching contributions to the Thrift Savings Plan 
during a service member's initial enlistment; and
  An increased maximum enlistment bonus of up to $40,000.
  This bill does not include everything that I fought for. For example, 
I am very disappointed that we were not able to eliminate the 
requirement that survivor benefit plan annuity payments be reduced by 
the amount of dependency and idemnity compensation received from the 
Veterans' Administration. I am also disappointed that we were not able 
to immediately repeal the 10-year phase-in of the concurrent receipt of 
military retired pay and VA disability compensation for military 
retirees with less than a 100 percent disability who are considered 
``totally disabled'' because their disability renders them 
unemployable.
  Before I comment further on a number of other issues in the 
conference report relating to support for our men and women in uniform, 
weapons systems and nonproliferation programs, I want to comment on 
provisions relating to the treatment of detainees and the sense of the 
Congress on United States policy on Iraq.
  I am pleased that the conference report contains the full text of the 
McCain amendment on torture, without change. This language firmly 
establishes in law that the United States will not subject any 
individual in our custody, regardless of nationality or physical 
location, to cruel, inhuman, or degrading treatment or punishment. The 
amendment provides a single standard--``cruel, inhuman, or degrading 
treatment or punishment''--without regard to what agency holds a 
detainee, what the nationality of the detainee is, or where the 
detainee is held. With the enactment of this amendment, the United 
States will put itself on record as rejecting any effort to claim that 
these words have one meaning as they apply to the Department of Defense 
and another meaning as they apply to the CIA; one meaning as they apply 
to Americans and another meaning as they apply to our enemies; or one 
meaning as they apply in the United States and another meaning as they 
apply elsewhere in the world.
  The McCain amendment is not only an important statement of law, it is 
a reaffirmation of one of the core values of our system of government 
and a restatement of who we are as Americans. I would not have signed 
or supported any conference report that did not include these 
provisions.
  Despite repeated efforts by administration officials and their allies 
in the House of Representatives to amend this language, the conference 
report does not allow the President to authorize actions that violate 
the standards in the McCain amendment, or to immunize individuals who 
engage in such actions from either criminal prosecution or civil suit. 
Despite repeated efforts by administration officials and their allies 
in the House, the conference report does not authorize the U.S. 
government to indemnify individuals who are found to be liable for 
violating the standards in the McCain amendment, and it does not make 
reckless or wanton behavior a prerequisite to such liability.
  The conference report would add a new section establishing a defense 
in any legal action against a person who engages in specific 
operational detention and interrogation practices that were officially 
authorized at the time that they were conducted, if the defendant did 
not know that the practices were unlawful and a person of ordinary 
sense and understanding would not have known that they were unlawful. 
This is not a new defense: it is virtually identical to the defense 
already available under the Manual for Courts-Martial for military 
members who act in reliance upon lawful orders.
  It has never been my understanding that the McCain amendment would, 
by itself, create a private right of action. I do not believe that the 
amendment was intended either to create such a private right of action, 
or to eliminate or undercut any private right of action--such as a 
claim under the alien tort satute--that is otherwise available to an 
alien detainee. Rather, the McCain amendment would establish a legal 
standard applicable to any criminal prosecution or a private right of 
action that is otherwise available under law. That would not be changed 
in any way by the affirmative defense added in the new section. Nor 
would the McCain amendment be undermined in any way by any of the other 
detainee provisions in the conference report.
  I opposed the initial amendment addressing the legal rights of 
Department of Defense detainees at Guantanamo Bay, Cuba when Senator 
Graham offered it on the Senate floor, because it would have stripped 
federal courts of jurisdiction to hear habeas corpus challenges--
including pending cases--brought by Guantanamo detainees. 
Unfortunately, the Senate approved that amendment by a 49-to-42 vote.
  Following the Senate vote, I worked with Senator Graham to build back 
protection into his amendment. We did so in three ways:
  First, the jurisdiction-stripping provision in the initial Graham 
amendment would have applied retroactively to all pending cases in 
Federal court--stripping the Federal courts of jurisdiction to consider 
pending cases, including the Hamdan case now pending in the Supreme 
Court. The revised amendment adopted by the Senate--the so-called 
Graham-Levin-Kyl amendment--does not apply to or alter any habeas

[[Page 30746]]

case pending in the courts at the time of enactment.
  Under the Supreme Court's ruling in Lindh v. Murphy, 521 U.S. 320, 
the fact that Congress has chosen not to apply the habeas-stripping 
provision to pending cases means that the courts retain jurisdiction to 
consider these appeals. Again, the Senate voted affirmatively to remove 
language from the original Graham amendment that would have applied 
this provision to pending cases. The conference report retains the same 
effective date as the Senate bill, thereby adopting the Senate position 
that this provision will not strip the courts of jurisdiction in 
pending cases.
  Let me be specific.
  The original Graham amendment approved by the Senate contained 
language stating that the habeas-stripping provision ``shall apply to 
any application or other action that is pending on or after the date of 
the enactment of this Act.'' We objected to this language and it was 
not included in the Senate passed bill.
  An early draft of the Graham-Levin-Kyl amendment contained language 
stating that the habeas-stripping provision ``shall apply to any 
application or other action that is pending on or after the date of the 
enactment of this Act, except that the Supreme Court of the United 
States shall have jurisdiction to determine the lawfulness of the 
removal, pursuant to such amendment, of its jurisdiction to hear any 
case in which certiorari has been granted as of such date.'' We 
objected to this language and it was not included in the Senate-passed 
bill.
  A House proposal during the conference contained language stating 
that the habeas-stripping provision ``shall apply to any application or 
other action that is pending on or after the date of enactment of this 
Act.'' We objected to this language and it was not included in the 
conference report.
  Rather, the conference report states that the provision ``shall take 
effect on the date of the enactment of this Act.'' These words have 
their ordinary meaning--that the provision is prospective in its 
application, and does not apply to pending cases. By taking this 
position, we preserve comity between the judicial and legislative 
branches and avoid repeating the unfortunate precedent in Ex parte 
McCardle, in which Congress intervened to strip the Supreme Court of 
jurisdiction over a case which was pending before that Court.
  Second, the initial Graham amendment would have provided for direct 
judicial review only of status determinations by Combat Status Review 
Tribunals, CSRTs. By contrast, the revised Graham-Levin-Kyl amendment 
adopted by the Senate provided for direct judicial review of both 
status determinations by CSRTs and convictions by military commissions. 
The amendment does not affirmatively authorize either CSRTs or military 
commissions--instead, it establishes a judicial procedure for 
determining the constitutionality of such processes.
  Again, this improvement is preserved in the conference report, which 
retains the Senate language authorizing direct review of both status 
determinations by CSRTs and convictions by military commissions.
  Third, the initial Graham amendment would have provided only for 
review of whether a tribunal complied with the Department's own 
standards and procedures. By contrast, the revised amendment adopted by 
the Senate would authorize courts to determine whether the standards 
and procedures used by CSRTs and military commissions are consistent 
with the Constitution and laws of the United States.
  This language has been revised in conference only to state what the 
intent of the amendment already was--that it was not intended to grant 
to an alien detainee any rights under the Constitution and laws of the 
United States that the detainee does not already have. Otherwise, the 
improved language remains intact in the conference report: The courts 
would be expressly authorized to determine whether the standards and 
procedures used in a status determination or the trial of an alien 
detainee at the Guantanamo are consistent with the Constitution and 
laws of the United States, as they apply to that detainee.
  We expect that final decisions in both the CSRT process and under the 
military order for trials will be reached in an expeditious manner to 
ensure judicial review within a reasonable period of time. The 
statement of managers makes this point expressly with regard to CSRT 
determinations, because the amendment requires that CSRT procedures be 
submitted to Congress. The statement of managers does not make this 
point with regard to military commissions only because the procedures 
for military commissions are not in any way addressed in the conference 
report.
  The Senate bill also contained a provision that would require the 
Secretary of Defense to submit to Congress a report on the procedures 
used by combat status review tribunals and administrative review boards 
for determining the status of the detainees held at Guantanamo Bay and 
the need to continue to hold such detainees. This provision has been 
expanded in the conference report to require that the report also 
address procedures in operation in Afghanistan and Iraq for a 
determination of the status of aliens detained in the custody or under 
the physical control of the Department of Defense.
  Nothing in the conference report is intended to in any way authorize, 
endorse or approve either these procedures or Military Commission Order 
No. 1, which establishes Department of Defense procedures for the trial 
of detainees. Nor does anything in the conference report authorize, 
endorse or approve the administration's position on the President's 
authority to treat any alien or category of aliens as ``enemy 
combatants'' or ``unlawful combatants''. All that it does is to require 
that certain DOD procedures be submitted to the Congress and 
establishes an orderly process for the review of those procedures in 
the courts to determine whether they are consistent with the 
Constitution and laws of the United States. The conference report does 
not attempt to prejudge the outcome of that review.
  Throughout the conference, we were pressed by administration 
officials and their allies in the House to make changes to the Senate 
language. We were asked to strip the courts of jurisdiction over 
pending cases; to eliminate any review of the constitutionality of 
procedures established by the Department of Defense; to expand the 
habeas limitations to detainees held anywhere in the world; to expand 
these provisions to strip legal rights from detainees held by the CIA 
and other agencies; to bar detainees from ever bringing any legal 
action challenging any aspect of their detention; to prohibit the 
courts from providing legal relief for detainees who are found to be 
improperly held; and to grant immunity to individuals engaged in 
detention and interrogation operations. We successfully opposed all of 
these changes.
  The conference report does make two changes to the Senate language 
which are more complex.
  First, the Senate-passed provision would have established an 
exclusionary rule prohibiting CSRTs from considering evidence obtained 
through ``undue coercion''. I was troubled by the phrase ``undue 
coercion'', because of the implication that there might be such a thing 
as ``due''--or appropriate--coercion. I do not believe that coerced 
testimony is ever appropriate.
  We were able to modify the provision in the conference report to 
eliminate the word ``undue'', an improvement over the Senate language. 
At the same time, however, the provision was modified so that it only 
provides for an ``assessment'' of whether the testimony was obtained 
through cruel, inhuman or degrading treatment and, if so, requires the 
tribunal to decide if there is any probative value to the testimony. We 
do not authorize such testimony to be used: a reviewing court will make 
that determination.
  It is a centuries-old principle of Anglo-American law, enshrined in 
the fifth amendment to the Constitution, that no person shall be 
compelled to be a witness against himself. Regardless whether this rule 
of law is expressly incorporated into CSRT procedures, I

[[Page 30747]]

hope and believe that the courts will enforce the generally accepted 
rule of law and ensure that evidence obtained through coercion is 
excluded from any administrative or judicial proceedings.
  Second, while the Senate-passed provision would have eliminated 
federal court jurisdiction only for habeas corpus actions, the 
conference report would eliminate such jurisdiction for ``any other 
action against the United States or its agents'' relating to detention 
at Guantanamo Bay, Cuba. This new language is limited to detainees who 
either: (1) remain in military custody at Guantanamo; or (2) although 
they have been released from Guantanamo, have been determined by the 
United States Court of Appeals (subject to Supreme Court review) to 
have been properly detained as enemy combatants. This language places a 
limitation on legal recourse available to detainees. While we do not 
know whether any legal remedies other than habeas corpus actions would 
have been available to detainees, I would have preferred not to have 
this limitation in the bill.
  In sum, administration officials and their allies in the House have 
sought at every turn to deny legal rights or recourse to detainees at 
Guantanamo and elsewhere. I do not believe that we should have gone 
down the road of limiting legal remedies for detainees in the manner 
that we did. However, once the Senate voted over my objection to 
eliminate habeas corpus relief, my effort turned toward: (1) building 
back access to the courts on direct appeal of administrative 
determinations of status or criminal conduct; (2) avoiding stripping 
the courts of jurisdiction over pending cases; and (3) ensuring that 
the provisions on detainee rights would not be used to undermine the 
McCain amendment.
  I believe that we succeeded on all three issues. The conference 
report preserves a meaningful opportunity for detainees to challenge 
the legality of their detention or any criminal conviction in federal 
court. It ensures that the provisions eliminating habeas corpus 
jurisdiction will be prospective in their application and will not 
apply to pending cases. And of course we worked with Senator McCain to 
preserve his amendment intact and to shape the Graham-Levin language so 
as to avoid undermining the McCain amendment.
  The conferees endorsed with minimal change the provision on United 
States policy on Iraq which garnered overwhelming bipartisan support 
from over three-quarters of the Senate. This provision shows that both 
houses of Congress, and both political parties, have come together with 
a common message to our troops, to the administration, to the American 
people, and, most importantly, to the Iraqi people.
  Expressing the heartfelt gratitude of the American people to our 
troops and their families for their unwavering devotion to duty, 
service to the Nation, and selfless sacrifice, Congress in this 
conference report reiterates its support for them and for a successful 
conclusion to their mission.
  Congress, in the provision in the conference report, notes that 
calendar year 2006 should be a period of significant transition to full 
Iraqi sovereignty, with Iraqi security forces taking the lead for the 
security of a free and sovereign Iraq, thereby creating the conditions 
for the phased redeployment of United States forces from Iraq.
  Congress expresses its view that the administration should tell the 
leaders of all groups and political parties in Iraq that they need to 
make the compromises necessary to achieve the broad-based and 
sustainable political settlement that is essential for defeating the 
insurgency in Iraq, within the schedules they set for themselves.
  Congress directs the administration to provide Congress and the 
American people specific information on its strategy in Iraq, 
principally the diplomatic, political, economic, and military measures 
that are being undertaken; whether the Iraqis have made the compromises 
necessary to achieve the broad-based and sustainable political 
settlement that is essential for defeating the insurgency; and the 
conditions that must be met in order to provide for the transition of 
additional security responsibility to Iraqi security forces, along with 
a plan for meeting such conditions, and an assessment of the extent to 
which such conditions have been met.
  This provision, which has garnered broad bipartisan support, is a 
significant win for the American people, and a large step forward for 
policy for Iraq. The messages that it sends are important, and the 
information it demands is crucial, for establishing and advancing a 
strategy for completing the mission in Iraq successfully, for beginning 
the process of redeployment of our military forces, and for doing so in 
a manner that will hopefully enhance U.S. national security.
  The conference report also authorizes $50 billion in supplemental 
funding for fiscal year 2006 to support our troops on the ground in 
Iraq and Afghanistan. This is consistent with the budget resolution. 
Included in this $50 billion is funding to support increased Army and 
Marine Corps personnel, funding to buy additional armor for their 
vehicles and to repair or replace the equipment that our troops rely 
on. It also includes $1 billion for our No. 1 force protection 
priority, the Joint Improvised Explosive Device or IED Task Force.
  This bill authorizes military construction and family housing 
projects that will improve the quality of life of our men and women in 
uniform and their families. It also authorizes $1.5 billion to begin 
implementing the decisions of the 2005 base realignment and closure 
round. These funding authorizations are consistent with the military 
construction appropriations enacted in November and will allow those 
projects to proceed.
  The conferees agreed to the Army's request to relax the punitive 
restrictions on military construction at Fort Buchanan, Puerto Rico 
that were enacted 5 years ago in light of the protests over Vieques. 
The Army activities at Fort Buchanan are not now and never were related 
to the Navy's activities at Vieques, and I am pleased that the 
conferees agreed to address these unjust restrictions.
  With respect to nonproliferation programs, although I would have 
preferred the amendment that Senator Lugar added to the Senate-passed 
bill, which would have repealed all of the various conditions that the 
Cooperative Threat Reduction, CTR, program must meet before spending 
money in any given year, I am pleased that we have included permanent 
authority to waive on an annual basis the requirement to certify that 
the various conditions have been met by each country recipient of CTR 
funds.
  The CTR program and the nonproliferation programs at the Department 
of Energy are all funded at the budget request. Within the Department 
programs we were able to address some urgent requirements by providing 
additional funds to accelerate the shutdown of the last plutonium-
producing reactor in Russia and to accelerate the security of nuclear 
weapons storage at key Russian sites.
  The agreement includes $4.0 million in Air Force accounts that the 
Air Force and the Department of Defense have the option to use to study 
and improve the performance of conventional, nonnuclear, penetrator 
weapons. I hope and urge the Department to use at least the $4.0 
million to support conventional, nonnuclear weapons development.
  The conference report includes a series of provisions designed to 
improve the management of the Department of Defense. These include 
provisions that would:
  Help protect the Federal employee workforce from unfair competition 
by codifying an important set of historic precedents and commonsense 
principles for public-private competition;
  Improve the management of DOD's major defense acquisition programs by 
requiring the Department to establish more realistic and achievable 
cost and performance estimates and tighten oversight requirements for 
programs that are experiencing problematic cost growth;
  Improve the management of $70 billion a year of DOD contracts for 
services by requiring the Department to establish a new management 
structure for such contracts and requiring strict

[[Page 30748]]

review of interagency contracting mechanisms that have been abused in 
the past;
  Reduce the risk of abusive acquisition practices like those seen in 
the proposed tanker lease contract by requiring the Secretary of 
Defense or the Deputy Secretary of Defense to personally approve any 
proposal to purchase a major weapon system as a commercial item; and
  Prohibit the Department from wasting hundreds of millions of dollars 
on unneeded audits of financial management systems that must be 
replaced because they are incapable of producing timely, accurate and 
complete financial data for management purposes.
  I am particularly pleased that the conference report also includes a 
provision for disaster relief for small business concerns damaged by 
drought. In the same way that floods, hailstorms, tornadoes, and other 
natural phenomena can devastate small businesses, the harm caused by 
unusually low water levels on the Great Lakes can be irreparable to 
businesses that depend on the waterways. The Small Business Act already 
provides disaster assistance to businesses have been victim to a number 
of natural disasters, so I am grateful that we have been able to 
broaden eligibility for that assistance to include businesses that have 
been hurt by below-average water levels on the Great Lakes.
  With respect to the Navy's shipbuilding accounts, the conference 
agreement incorporates reasonable cost caps on Virginia-class attack 
submarines in the Future Years Defense Program, the fifth DD(X) land 
attack destroyer, to be bought in 2010, and the fifth and sixth 
littoral combat ships, to be bought in 2008 or 2009. The conferees did 
not include a cost cap on the LHA because too little is known yet about 
the final design. The conference agreement also reflects the fact that 
the House has agreed to the Senate provision preventing the Navy from 
conducting a winner-take-all competition for the next generation 
destroyer program called the DD(X). Finally, the conferees agreed to a 
provision requiring the Navy to maintain 12 aircraft carriers and 
provided funding to overhaul the USS John F. Kennedy that the Navy had 
planned to retire.
  The conferees dealt with the Navy's program to buy a new presidential 
helicopter, called the VXX, by adopting compromise language that would: 
(1) allow production of the pilot production helicopters to go forward; 
and (2) require that the Secretary of the Navy submit an acquisition 
strategy for the full rate production aircraft, Increment Two, by March 
15, 2006. This strategy would be required to include one phase of 
operational testing before initiation of full rate production for VXX. 
The agreement would fence 25 percent of the Fiscal Year 2006 R&D 
funding until the Secretary submits that strategy.
  The conferees also dealt with the Army's future combat systems by 
agreeing that the entire Army future combat systems program, including 
the manned ground vehicles project, should remain in system development 
and demonstration, rather than having large portions revert to the 
technical base. This is a recognition of the importance of the Army's 
only modernization program to both the future Army, and to the spinout 
of FCS technologies to the current force, as well as a recognition of 
the need for the future combat systems to be developed as an integrated 
system of systems as quickly as possible.
  The bill also demonstrates the conferees continued strong support for 
the Department's special operations, counterdrug and humanitarian 
operations. In particular the conferees enhanced DOD's ability to 
combat terrorism and the production and trafficking of illegal drugs, 
including: authorizing and funding five additional National Guard 
Chemical, Biological, Radiological, Nuclear and High Yield Explosive 
(CBRNE) Enhanced Response Force Package teams, in addition to 
sustaining the existing 12 teams--which provide support to civilian 
authorities in the aftermath of a WMD incident; directing the 
Department to report on the use of DOD aerial reconnaissance assets to 
support the Department of Homeland Security; authorizing use of 
counterdrug funding for 2 years for joint task forces combating 
terrorism and narcotics production and trafficking, and; designating 
the Chairman of the Joint Chiefs of Staff as the principal military 
advisor to the Homeland Security Council. The conferees also agreed to 
authorize increased funding for humanitarian operations, including $40 
million in a future supplemental for Pakistan, and expanding the 
medical assistance to include related education, training, and 
technical assistance.
  In science and technology, this year's conference report includes a 
number of provisions and funding measures that support the 
transformation of our military while improving our ability to rapidly 
move new technologies out of the laboratory and onto the battlefield. 
The conference report authorizes over $11.3 billion for science and 
technology research programs, an increase of $840 million over the 
President's budget request. It also makes permanent the SMART, Science, 
Math, and Research for Transformation, Scholarship for Service Program 
to help the DoD educate, train, and employ the highest quality 
technical workforce. In order to better utilize the innovative talents 
of our nation's small businesses, the bill establishes a pilot program 
to promote the transition of technologies from the Small Business 
Innovative Research program into DoD acquisition programs. Finally, the 
conference report increases funding for and establishes mechanisms to 
accelerate and better coordinate research in a number of priority areas 
including robotics, unmanned ground vehicles, IED detection and defeat, 
the diagnosis and treatment of blast injuries, semiconductor 
microelectronics, and the development and deployment of advanced fuel 
cell vehicles.
  I ask unanimous consent that the letter I referred to be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                  Committee on Armed Services,

                                Washington, DC, December 18, 2005.
     Hon. Duncan Hunter,
     Chairman, Armed Services Committee, and National Defense 
         Authorization Act for Fiscal Year 2006 Conference, House 
         of Representatives, Washington, DC.
       Dear Duncan: On Friday, December 16, we joined you and Ike 
     Skelton in conducting the final meeting of the conferees 
     along with other Members of the Senate and House.
       At the conclusion of the meeting, the ``base bill'' was 
     agreed upon and signatures of Republican and Democratic 
     Committee Members were requested and affixed to the 
     Conference Report with the expectation that the House, 
     following the customary procedure, would be the first chamber 
     to file. It was our further understanding that this would be 
     done Friday evening.
       We are returning to you the signatures of the Senate 
     conferees on the condition that there are no changes made in 
     the ``base bill'' and Conference Report and that the House 
     obtain a Rule which precludes any further amendment.
       You have shown strong leadership during this very brief and 
     unusual conference period and we have confidence that you can 
     achieve passage in the House of the ``base bill''. We believe 
     it is in the interest of the Nation and the men and women of 
     the Armed Forces that our Conference Report as agreed to on 
     December 16 becomes law.
           Sincerely,
     Carl Levin,
     Ranking Member.
     John Warner,
     Chairman.

  Mr. LEVIN. My particular thanks to my staff for their extraordinary 
work:
  Rick DeBobes, Peter Levine, Jon Clark, Chris Cowart, Dan Cox, Madelyn 
Creedon, Brie Eisen, Evelyn Farkas, Richard Fieldhouse, Creighton 
Greene, Bridget Higgins, Mike Kuiken, Gary Leeling, Mark McCord, Bill 
Monahan, Arun Seraphin.
  Also to Charlie Abell and others of Senator Warner's staff.


                       comments on final passage

  Mr. KYL. I would like to say a few words about the now-completed 
National Defense Authorization Act for fiscal year 2006, and in 
particular about section 1405 of that act, which expels lawsuits 
brought by enemy combatants from United States courts. I see that my 
colleague, the senior Senator from South Carolina, is also on the 
floor.

[[Page 30749]]

  I would like to begin by commenting on the need for this legislation. 
This provision originally was added to the bill in an amendment that 
was offered by Senator Graham and of which I was a cosponsor, as well 
as Senator Chambliss.
  Keeping war-on-terror detainees out of the court system is a 
prerequisite for conducting effective and productive interrogation, and 
interrogation has proved to be an important source of critical 
intelligence that has saved American lives.
  In Rasul v. Bush, the U.S. Supreme Court interpreted section 2241 of 
title 28 to authorize enemy combatants held outside of the United 
States to file habeas-corpus petitions challenging their status in 
federal courts. Such a process is both without precedent and is utterly 
impractical.
  Giving detainees access to federal judicial proceedings threatens to 
seriously undermine vital U.S. intelligence-gathering activities. Under 
the new Rasul-imposed system, shortly after al-Qaida and Taliban 
detainees arrive at Guantanamo Bay, they are informed that they have 
the right to challenge their detention in Federal court and the right 
to see a lawyer. Detainees overwhelmingly have exercised both rights. 
The lawyers inevitably tell detainees not to talk to interrogators. 
Also, mere notice of the availability of these proceedings gives 
detainees hope that they can win release through adversary litigation--
rather than by cooperating with their captors. Effective interrogation 
requires the detainee to develop a relationship of trust and dependency 
with his interrogator. The system imposed last year as a result of 
Rasul--access to adversary litigation and a lawyer--completely 
undermines these preconditions for successful interrogation.
  Navy VADM Lowell Jacoby expounded on the preconditions for effective 
interrogation in a declaration attached to the United States' brief in 
the Padilla litigation in the Southern District of New York. Vice 
Admiral Jacoby at the time was the Director of the Defense Intelligence 
Agency. He noted in the Declaration that:

       DIA's approach to interrogation is largely dependent upon 
     creating an atmosphere of dependency and trust between the 
     subject and the interrogator. Developing the kind of 
     relationship of trust and dependency necessary for effective 
     interrogations is a process that can take a significant 
     amount of time. There are numerous examples of situations 
     where interrogators have been unable to obtain valuable 
     intelligence from a subject until months, or, even years, 
     after the interrogation process began.
       Anything that threatens the perceived dependency and trust 
     between the subject and interrogator directly threatens the 
     value of interrogation as an intelligence gathering tool. 
     Even seemingly minor interruptions can have profound 
     psychological impacts on the delicate subject-interrogator 
     relationship. Any insertion of counsel into the subject-
     interrogator relationship, for example--even if only for a 
     limited duration or for a specific purpose--can undo months 
     of work and may permanently shut down the interrogation 
     process.

  Specifically with regard to Jose Padilla, Vice Admiral Jacoby also 
noted in his Declaration that:

       Providing [Padilla] access to counsel now would create 
     expectations by Padilla that his ultimate release may be 
     obtained through an adversarial civil litigation process. 
     This would break--probably irreparably--the sense of 
     dependency and trust that the interrogators are attempting to 
     create.

  The system of litigation that Rasul has wrought is unacceptable.
  Mr. GRAHAM. I agree entirely. If I could add one thing on this point: 
perhaps the best evidence that the current Rasul system undermines 
effective interrogation is that even the detainees' lawyers are 
bragging about their lawsuits' having that effect. Michael Ratner, a 
lawyer who has filed lawsuits on behalf of numerous enemy combatants 
held at Guantanamo Bay, boasted in a recent magazine interview about 
how he has made it harder for the military to do its job. He 
particularly emphasized that the litigation interferes with 
interrogation of enemy combatants. Ratner stated:

       The litigation is brutal for [the United States]. It's 
     huge. We have over one hundred lawyers now from big and small 
     firms working to represent these detainees. Every time an 
     attorney goes down there, it makes it that much harder [for 
     the U.S. military] to do what they're doing. You can't run an 
     interrogation . . . with attorneys. What are they going to do 
     now that we're getting court orders to get more lawyers down 
     there?

  When I read that quote, that for me was the last straw. I knew that 
something had to be done. On this issue, both the detainees' lawyers 
and the Defense Department seem to agree: involving enemy combatants in 
adversarial litigation in U.S. courts undermines effective 
interrogation of those detainees.
  Mr. KYL. I am glad that we have been able to work together on this 
issue. I would add that interrogation of these detainees is important. 
In his Declaration to the Southern District of New York, DIA Director 
Jacoby described how interrogation has proven to be a critical 
intelligence tool--indeed, our most important intelligence tool--in 
past conflicts and in the current war on terror. Interrogation was our 
most valuable source of information in World War II and the gulf war, 
and has played a key role in stopping numerous terrorist attacks in the 
present conflict. Vice Admiral Jacoby stated in that declaration:

       Interrogations are vital in all combat operations, 
     regardless of the intensity of the conflict. Interrogation 
     permits the collection of information from sources with 
     direct knowledge of, among other things, plans, locations, 
     and persons seeking to do harm to the United States and its 
     citizens. When done effectively, interrogation provides 
     information that likely could not be gained from any other 
     source.
       The Department of the Army's Field Manual governing 
     Intelligence Interrogation, FM 34-52, dated 28 September 
     1992, provides several examples of the importance of 
     interrogations in gathering intelligence. The Manual cites, 
     for example, the United States General Board on Intelligence 
     survey of nearly 80 intelligence units after World War II. 
     Based upon those surveys, the Board estimated that 43 percent 
     of all intelligence produced in the European theater of 
     operations was from HUMINT, and 84 percent of the HUMINT was 
     from interrogation. The majority of those surveyed agreed 
     that interrogation was the most valuable of all collection 
     operations.
       The Army Field Manual also notes that during OPERATION 
     DESERT STORM, DoD interrogators collected information that, 
     among other things, helped to: develop a plan to breach Iraqi 
     defensive belts; confirm Iraqi supply-line interdiction by 
     coalition air strikes; identify diminishing Iraqi troop 
     morale; and identify a United States Prisoner of War captured 
     during the battle of Kafji.

  Vice Admiral Jacoby also noted that interrogations of enemy 
combatants captured in the War on Terror have played a vital role in 
preventing numerous terrorist attacks. Again, quoting from his 
declaration in the Padilla litigation, Jacoby noted that interrogations 
of combatants such as those held at Guantanamo Bay have:

     . . . provided vital information to the President, military 
     commanders, and others involved in the war on Terrorism. It 
     is estimated that more than 100 additional attacks on the 
     United States and its interests have been thwarted since 11 
     September 2001 by the effective intelligence gathering 
     efforts of the Intelligence Community and others.
       In fact, Padilla's capture and detention were the direct 
     result of such effective intelligence gathering efforts. The 
     information leading to Padilla's capture came from a variety 
     of sources over time, including the interrogation of other 
     detainees. Knowledge and disruption of Al Qaida's plot to 
     detonate a `dirty bomb' or arrange for other attacks within 
     the United States may not have occurred absent the 
     interrogation techniques described above.

  There are other examples of the importance of intelligence obtained 
from interrogation. In a recent new release, the Defense Department 
described valuable information that was obtained from interrogation of 
Mohamed al Kahtani, an enemy combatant being held at Guantanamo Bay. 
The Pentagon release noted that interrogation of Kahtani has yielded 
information that:

       Clarified Jose Padilla's and Richard Reid's relationship 
     with al-Qaida and their activities in Afghanistan; provided 
     infiltration routes and methods used by al-Qaida to cross 
     borders undetected; explained how Osama Bin Laden evaded 
     capture by U.S. forces, as well as provided important 
     information on his health; and provided detailed information 
     about 30 of Osama Bin Laden's bodyguards who are also held at 
     Guantanamo.


[[Page 30750]]


  The Pentagon's news release concluded: ``the result of those 
interrogations [at Guantanamo Bay] has undoubtedly produced information 
that has saved the lives of U.S. and coalition forces in the field.''
  Let me cite another example: a June 27, 2004 Washington Post story 
notes that on November 11, 2001, Pakistani forces captured Ibn al-
Shaykh al-Libi, a Libyan national who ran the Khaldan paramilitary camp 
in Afghanistan. In January 2002, al-Libi was handed over to U.S. forces 
and interrogated. According the Post, interrogation of al-Libi:

     . . . provided the CIA with intelligence about an alleged 
     plot to blow up the U.S. Embassy in Yemen with a truck bomb 
     and pointed officials in the direction of Abu Zubaida, a top 
     al Qaeda leader know to have been involved in the September 
     11 plot. In March 2002, Abu Zubaida was captured. . . . 
     [Interrogation of Zubaida] led to the apprehension of other 
     al Qaeda members, including Ramzi Binalshibh, also in 
     Pakistan. The capture of Binalshibh and other al Qaeda 
     leaders--Omar al-Faruq in Indonesia, Rahim al-Nashiri in 
     Kuwait, and Muhammad al Darbi in Yemen--were all partly the 
     result of information gained during interrogations, according 
     to U.S. intelligence and national security officials.

  The bottom line is that keeping detainees out of court makes 
effective interrogation possible, and interrogation has proved to be an 
invaluable source of intelligence, allowing the United States to 
capture important terrorists, prevent future terrorist attacks, and 
save the lives of American soldiers in the field.
  I should also say a few words about some of the attacks that have 
been made against our amendment. For example, some critics have 
suggested that our amendment is inconsistent with the McCain 
amendment--that it prevents detainees from suing to enforce the McCain 
amendment. The response to this criticism is relatively 
straightforward: our amendment does not take anything away because the 
McCain amendment does not create a private cause of action in the first 
place. That amendment directly regulates military officers and is 
enforced through the usual mechanisms of military discipline.
  Mr. GRAHAM. You are absolutely correct Senator Kyl. I must admit, I'm 
a bit baffled by the assertion that our amendment is somehow internally 
inconsistent, that our provisions interfere with the McCain provisions 
in some way.
  While we must ensure that detainees are treated humanely, and that is 
what we addressed so well with the McCain portion of our total package, 
directing our departments and agencies to refrain from cruel, inhumane, 
or degrading treatment; we also don't want to give these detainees the 
right to abuse our courts by going after our soldiers, sailors, airmen 
and marines based on how we have decided to treat them. In fact, while 
it is true that some physical abuses have occurred, we know that 
members of al-Qaida are trained to claim mistreatment to manipulate 
public opinion of the war.
  I would like to remind all of my colleagues of some of the most 
egregious cases that prompted our amendments. For instance, a detainee 
who threw a grenade that killed an Army medic, a medic--someone trying 
to render medical assistance, and who often treats our enemies on the 
battlefield as well as our own troops.
  In any event, the detainee who threw the grenade that killed an Army 
medic in a firefight, and who comes from a family with longstanding al-
Qaida ties, filed for an injunction forbidding anyone from 
interrogating him or engaging in ``cruel, inhuman, or degrading'' 
treatment of him.
  Now clearly, our reaffirmation of America's policy against treating 
anyone in a cruel, inhuman, or degrading way tells the world that we 
are not like our enemy. We do not allow our departments or agencies to 
treat people like that. And if our people do abuse people, we prosecute 
them to the fullest extent of the law.
  However, to allow a detainee access to our courts to contest every 
aspect of his detention, a person who has fought against the very 
system he now seeks to make use of, is ludicrous. And for anyone to say 
that somehow our provisions undermine the McCain provisions or our 
overall amendment is just as wrong.
  Senator McCain, due to his service in our Nation's military, is 
uniquely qualified to take the lead on these issues. The McCain 
provisions are about us. How we behave. How we administer justice. It 
is another affirmative statement that the United States of America is 
that ``Shining City on the Hill'' President Reagan referred to. I am 
very proud to have been part of Senator McCain's effort to retake the 
moral high ground in the war on terror.
  The Graham-Kyl provisions are about them, the detainees, and what 
rights they do and, most importantly, do not have. And I am proud of 
the provisions we have made for the detainee's status to be reviewed by 
the Federal courts on the one time direct appeal. We allow for a just 
process, in the form of military tribunals and boards and commissions, 
a process based on Supreme Court precedent, modeled on the tribunals we 
have used in the past and created in accordance with Geneva Convention 
requirements. That is the process we have established for determining 
the status of detainees.
  But I have gotten a little far afield here, let's get back to the 
lawsuits. Here is another of the crazy lawsuits out there: there's a 
suit out there by a detainee accusing military health professionals of 
``gross and intentional medical malpractice'' in alleged violation of 
the 4th, 5th, 8th, and 14th Amendments, 42 U.S.C. 1981, and other, 
unspecified, international agreements. Now I don't know about the rest 
of you, but a detainee has no business in our courts suing the 
individual doctors and nurses that are making sure that that detainee 
is in good health.
  Here is another one. There is one guy down there that we are trying 
to send home, and he's suing to keep us from sending him home. Imagine 
that, he is trying to stay.
  One high level al-Qaida detainee lawsuit complains about the base 
security procedures, the speed of the mail, and his medical treatment. 
He is asking the courts to order the marines to transfer him into the 
``least onerous conditions'' at Guantanamo and allow him to keep any 
books and reading material sent to him.
  I think this one is the one that makes me the maddest. A high level 
al-Qaida member, who probably has the blood of 9/11 on his hands, 
complaining about the speed of his mail delivery. Complaining about how 
onerous the conditions are at Guantanamo.
  With the McCain provisions of our amendment, we have, in addition to 
the President's order and other regulations already in place, directed 
the Department of Defense to treat him humanely. But under our 
provisions, he will receive the justice he deserves.
  As you can see, these cases have nothing to do with cruel or inhumane 
treatment. They are abuses of our courts by the very people who are 
trying to kill Americans here and abroad. I don't know about you, 
Senator Kyl, but I believe that when you raise arms against the United 
States, you should not be surprised when you lose the privilege of our 
court system. As the McCain amendment provisions state very clearly, we 
are not going to treat people inappropriately. And, Senator Kyl, as our 
provisions state very clearly, we are not going to allow them to make a 
mockery of our courts, standing beside our own citizens at the 
courthouse door.
  We have provided a fair alternative judicial process for the 
detainees with our provisions. In fact, we have been more than fair. We 
have given them more process than our own soldiers and marines would 
enjoy under the Geneva Convention. This in no way undermines the McCain 
provisions about how we will treat them and I would challenge anyone 
who thinks so to come to the Senate floor and debate us on that point.
  Mr. KYL. To be clear, neither the CSRT nor the ARB process is 
designed to entertain grievance about the conditions of confinement. Is 
that your understanding as well?
  Mr. GRAHAM. And those are the only channels that have been created 
where the detainee himself can pursue a remedy on his own in a semi-
adversarial forum. These complaints about

[[Page 30751]]

conditions of confinement, these are for the military itself to enforce 
through its own procedures and systems of accountability for monitoring 
its soldiers. And we have no reason to believe that those systems are 
not adequate to investigate and remedy abuses. For all the attention to 
cases such as Abu Ghraib, one thing that deserves emphasis is that it 
was our own military that discovered, investigated, and punished those 
abuses. That is as it should be. These standards of treatment are 
important, but they need to be enforced through the military's internal 
systems of accountability and Congressional oversight, not through 
lawsuits and adversarial proceedings brought by detainees. The 
military's own accountability systems ultimately, I think, will be more 
effective in monitoring our detention centers and in remedying abuses. 
All that litigation would do--letting these detainees into court--is 
undermine intelligence gathering through interrogation.
  Mr. BROWNBACK. If I might interrupt, I would like to add that I share 
the understanding of my colleagues from Arizona and South Carolina. I 
supported the McCain amendments--I think that it is important to ensure 
that detainees are treated humanely. But I would not support allowing 
those detainees to file lawsuits against our armed forces, and I wasn't 
aware that anyone had even suggested that the McCain amendments allow 
detainees to file Bivens-type actions.
  Mr. KYL. No one really argued that the McCain amendments do create a 
private cause of action, except that some groups have suggested that 
the Graham/Kyl amendment is somehow inconsistent with the McCain 
amendments, the implication being that the Graham amendment wiped out 
the forum for bringing some cause of action that otherwise was created. 
Obviously, if the McCain amendment did create a private right of 
action, our amendment would bar the courts from entertaining that 
action. But the fact alone that the same Congress that adopted the 
McCain amendment also adopted the Graham/Kyl amendment tends to 
confirm, I would think, that the McCain amendments never were intended 
to create a private right of action in the first place.
  As a matter of fact, the Supreme Court recently has tightened the 
standards for spontaneously recognizing such actions in cases where 
Congress is silent on the matter--I believe it was in the recent case 
of Alexander against Sandoval. The McCain amendments do not state that 
they create a private cause of action. They regulate the conduct our 
troops rather than creating rights. And we have alternative means of 
their enforcement--as my colleague mentioned, through the system of 
military discipline--and thus we do not need a private cause of action 
to be implemented. I would be pretty surprised if, under those 
circumstances, anyone were to argue that the McCain amendment created a 
private right of action. So the senior Senator from South Carolina is 
correct, the Graham-Levin-Kyl amendment does not take away any cause of 
action created elsewhere in this bill, because the bill does not create 
any rights of action. Some members have been arguing that the McCain 
amendment will establish a standard that perhaps could be employed in 
another cause of action. That is, of course, true. But if such a cause 
of action is to exist, Congress will have to create it in the future. 
No cause of action currently available could serve as a vehicle for 
enforcing the McCain amendment in a private lawsuit, and I think that 
all the backers of that amendment consistently agree that the McCain 
amendments themselves did not create a private right of action. Again, 
it would be strange to construe this Act as intending such a private 
action when by the same hand this Congress would take away any forum 
for asserting such action.
  Mr. GRAHAM. I thank the Senator from Arizona for his comments. I'd 
also like to say a word about the timing of this bill because we 
drafted this section very carefully and I want our colleagues to know 
exactly what they will be agreeing to. While our language does respond 
to the Rasul decision by effectively reversing the Supreme Court's 
decision in that case, we wanted to respect the courts' role in this by 
addressing two different considerations.
  First, as we stated before, we wanted the CSRT process to yield 
decisions which will be reviewed by the DC Circuit Court of Appeals. 
And we wanted to be sensitive to the Rasul court's concerns about a 
process for the detainees. So, what we did was make the substantive 
provisions governing the CSRTs and ARBs apply to all cases, those 
pending on or after the enactment date. This was to ensure that every 
detainee was provided with the same protections and review.
  Second, regarding the modification of the jurisdiction of those 
courts currently hearing individual habeas or other actions that have 
been filed by the detainees, we wanted those cases to be recast as 
appeals of their CSRT determinations. We believe that is the best way 
to balance between allowing the detainees to challenge their status, 
and still allowing effective detention and interrogation techniques. As 
we all know, a court either has jurisdiction to hear a case or it 
doesn't. Jurisdiction doesn't attach for all time when the case is 
filed.
  This is really no different than transferring a case from one court 
to another. But in this case, given the change in the substantive law 
as well, we were required to extinguish these habeas and other actions 
in order to effect a transfer of jurisdiction over these cases to the 
DC Circuit Court and substantive legal change as well.
  Mr. KYL. Right. It may not be quite right to characterize this bill's 
provisions as transferring jurisdiction. Rather, they extinguish one 
type of action--all of the actions now in the courts--and create in 
their place a very limited judicial review of certain military 
administrative decisions.
  Mr. GRAHAM. Yes, that is correct. But we do still allow some types of 
judicial review to go forward--those cases asking for review, in 
accordance with section 1405, of military commissions or CSRTs. And the 
very last paragraph of section 1405--I believe that it is paragraph 
(h)(2)--adopts a compromise of sorts. It states that the bill's 
authorization for limited DC Circuit review of CSRTs and military 
commissions shall apply to pending cases. Obviously, no pending case 
seeks judicial review in the DC Circuit pursuant to section 1405. What 
this paragraph means is that, at the same time that the courts like the 
DC district courts kick these cases out of their courtrooms, they can 
also tell them where they should go next. And if, for example, a habeas 
action currently is in the DC Circuit, that court can simply construe 
that action as a request for review of the detainee's CSRT pursuant to 
subsection (e) of 1405, and allow that claim to go forward in that 
form.
  Mr. KYL. The DC Circuit will have to give the petitioner leave to 
amend his claim, I assume?
  Mr. GRAHAM. Yes, I assume that they will do so. No sense in kicking 
out a detainee's current habeas action in the DC Circuit just so that 
he has to refile a section 1405 review request--it would be better to 
let the current case go forward as a 1405 review request, as 
appropriately amended.
  Mr. KYL. We agree on that point. The one thing that critics have said 
about this bill that is correct is that it is a jurisdiction stripping 
bill. It strips every court of jurisdiction to hear claims from 
detainees held in Guantanamo Bay. The courts' rule of construction for 
these types of statutes is that legislation ousting the courts of 
jurisdiction is applied to pending cases. It has to. We're not just 
changing the law governing the action. We are eliminating the forum in 
which that action can be heard. And there is no exception anywhere in 
this bill for keeping intact part of that forum to hear the case. The 
case simply has nowhere to be heard.
  I have just been handed a memorandum on this subject. The governing 
cases on this question are the Landraf case, as well as Hallowell v. 
Commons, 239 U.S. at 506, and Sherman v. Grinnell, 123 U.S. at 679. As 
the Landraf court noted, these statutes ``speak to the

[[Page 30752]]

power of the court rather than the rights or obligations of the 
parties.'' These cases articulate the rule that will govern the 
detainee habeas actions and other lawsuits that currently are in the 
courts: legislation removing jurisdiction applies to pending cases and 
removes those cases from the courts.
  Mr. GRAHAM. Mr. President, if Senator Kyl would be so kind, could he 
explain how our amendment will affect ongoing litigation? Specifically, 
my understanding is that the Supreme Court granted certiorari recently 
in a case.
  Mr. KYL. Yes. The Constitution gives Congress the power to make 
``exceptions'' and ``regulations'' to the Supreme Court's 
jurisdiction--or at least, to its appellate jurisdiction. It was 
Marbury v. Madison that held that Congress could not regulate original 
jurisdiction, but the court since then has made clear that even habeas 
actions filed directly in the Supreme Court are regarded as falling 
within a subspecies of the Supreme Court's appellate jurisdiction. This 
would be an interesting exam question for a law school class.
  The Congress's authority to use this power was affirmed by the 
Supreme Court in the case of Ex Parte McCardle. That case involved, I 
believe, an even sharper use of this authority than this bill does--I 
believe that there the Supreme Court had even heard argument in that 
case before Congress stripped the court's jurisdiction over it. The 
Supreme Court upheld the statute and dismissed Colonel McCardle's case 
for want of jurisdiction.
  Mr. GRAHAM. And we are confident that McCardle still is good law?
  Mr. KYL. So long as the Constitution still is good law. I am not 
aware that the clause in Article III allowing Congress to make 
exceptions and regulations to Supreme Court appellate jurisdiction has 
been repealed.
  I suppose that some might argue that stripping the Supreme Court of 
jurisdiction over a pending case is unconstitutional if it is driven by 
some impure motive. But I can't imagine that the court would take away 
an authority clearly granted to Congress by the Constitution, 
regardless of what motive one might attribute to us. I am a member of 
this body, and would have great difficulty describing some definitive 
motive or intent to every law that we enact. I don't know how the 
Supreme Court or any other court could accurately discern such a 
motive. The laws that we enact have meanings that can be discerned 
through ordinary rules of construction. I think the rule of law is much 
more secure when the meaning of legislation is governed by those 
universally accessible rules of construction rather than through some 
attempt to psychoanalyze Congress's motive. And in any event, as I 
recall, this amendment was filed before the Supreme Court even granted 
review in the Hamdan case. That makes it a little hard to argue that 
the amendment was motivated by a desire to strip the court of its 
jurisdiction in that case. I don't think that the Constitution gives 
Hamdan a greater right to have his case go forward than it did to 
Colonel McCardle.
  Mr. GRAHAM. So once this bill is signed into law, you anticipate that 
the Supreme Court will determine whether to maintain their grant of 
certiorari?
  Mr. KYL. Yes, in my opinion, the court should dismiss Hamdan for want 
of jurisdiction. That is what they did in Ex Parte McCardle. I assume 
that we may see an unhappy dissent from the court's order from one or 
two of the Justices--there may be some members of the court who refuse 
to accept McCardle and article III. But I think that a majority of the 
court would do the right thing--to send Hamdan back to the military 
commission, and then allow him to appeal pursuant to section 1405 of 
this bill.
  The court also may well request a round of briefing on the effect of 
the effect on the Hamdan case. I suppose that a lawyer in the SG's 
office can look forward to rereading Ex Parte McCardle and the debates 
on the case in Hart & Wechsler's. But again, I don't think that this 
will change the result.
  As for legislative history, I think it usually is regarded as an 
element of the canons of construction. It gives some indication of what 
Congress at least understood what it was doing--the context in which a 
law was enacted. Although, I understand that Justice Scalia does not 
read legislative history. I suppose that for his sake, we will have to 
strive to be exceptionally clear in the laws that we write.
  Mr. GRAHAM. Let me address another issue. As we worked through this 
language in conference, we received a lot of comments from our 
colleagues who were concerned not only about the frivolous cases being 
filed by al-Qaida terrorists at Guantanamo, but by people detained by 
our forces in Iraq.
  I believe there are several cases that have been filed by those held 
in Iraq challenging their detention by American forces. Our language 
does not address these cases, and let me tell you why.
  The Rasul v. Bush decision that we have talked so much about worked 
two significant changes in prior POW or detainee law. Prior to Rasul, 
the Eisentrager line of cases had governed whether foreign combatants 
had access to our courts. In 1950, the Eisentrager court held that a 
Federal district court lacked authority to hear habeas cases for some 
German POWs held by U.S. forces outside the U.S. These Germans had been 
tried and convicted of war crimes by an American military commission 
headquartered in Nanking, and then put in jail in Germany.
  The Court stated six reasons for its decision. The German prisoners 
were: (1) Enemy aliens who (2) had never been or resided in the United 
States, (3) were captured outside U.S. territory and there held in 
military custody, (4) were there tried and convicted by the military 
(5) for offenses committed there, and (6) were imprisoned there at all 
times.
  The Eisentrager line of cases is the reason the Bush administration 
chose to locate the al Qaida and Taliban holding facility at 
Guantanamo. The Bush administration relied upon the Eisentrager line of 
cases so as to prevent exactly what we have seen happen since Rasul: 
terrorists with lawyers. Now I'm a lawyer myself, and I think we can 
all agree that that is a bad combination.
  In fact, if my colleagues will permit me a quick aside, I would 
remind them again of the statement by one of the lawyers for some of 
these terrorists, Michael Ratner. Mr. Ratner boasts about the fact that 
this litigation has undermined intelligence gathering in the war on 
terror. In an interview published in May of this year Mr. Ratner 
stated:

       The litigation is brutal for the United States. It's huge. 
     We have over one hundred lawyer now from big and small firms 
     working to represent these detainees. Every time an attorney 
     goes down there, it makes it that much harder for the U.S. 
     military to do what they're doing. You can't run an 
     interrogation with attorneys. What are they going to do now 
     that we're getting court orders to get more lawyers down 
     there?

  Now that is what we are facing. Terrorists with lawyers. I am pretty 
sure the American people expect more from their government than that.
  But getting back to what I was saying about Eisentrager. The Bush 
administration relied on the Supreme Court's decision in Eisentrager 
when they located the detainees at Guantanamo, reasoning sensibly, at 
least I think it was sensibly, that since the al-Qaida and Taliban 
members were enemy aliens who were being held by U.S. forces outside 
the United States after being captured on the battlefield, that they 
would not have access to Federal courts.
  But then the Supreme Court held in Rasul that the detainees could 
have access to our courts to challenge their detention. Would my 
colleague from Arizona care to comment on the Rasul decision?
  Mr. KYL. Where to even begin? The U.S. has been accused before in its 
history of imperialistic behavior, but I think that this is the first 
time ever that a portion of a sovereign nation has been annexed to the 
United States by the U.S. Supreme Court.
  Rasul begins with a discussion of two cases that were irrelevant to 
the question before the court, Ahrens v. Clark

[[Page 30753]]

and the Braden case. Ahrens had adopted a strict rule that district 
courts may only hear cases within their territorial jurisdiction. 
Braden then softened that rule for particular circumstances--for cases 
where a defendant is in prison in one state but under indictment in 
another, allowing the defendant to bring a habeas action to challenge 
the indictment in the latter state's courts. Neither of these cases has 
anything to do with enemy combatants.
  From a discussion of these relatively mundane decisions, the Rasul 
majority adopts a rather stunning non-sequitir: that ``because Braden 
overruled the statutory predicate to Eisentrager's holding, Eisentrager 
plainly does not preclude the exercise of section 2241 jurisdiction 
over petitioners' claims.''
  It could almost be a rule of construction that when a lawyer says 
``plainly'' or ``clearly,'' he usually is identifying the weakest point 
in his argument. Braden is a case concerned more with the technical 
aspects of judicial administration than with core questions of the 
scope of the writ. Eisentrager is different. The Nazi soldiers denied 
access to the writ in that case did not simply file in the wrong 
forum--Alabama instead of Kentucky--or at the wrong phase of their 
sentences. Eisentrager denied review to the Nazi soldiers because they 
were Nazi soldiers in the custody of the U.S. military in occupied 
Germany. It is not a case about how we administer the writ of habeas 
corpus, but about the power and nature of the writ and who may employ 
it. I doubt that there was any member of the court who participated in 
Braden who believed that the court in that case was destroying the 
foundation of Eisentrager.
  So according to section III of Rasul, Braden killed the ``statutory 
predicate'' for Eisentrager and that's that. No more territorial 
jurisdiction requirement for habeas courts. Apparently even the Rasul 
court itself was unwilling to buy this argument, however, because 
section IV of the opinion goes on to explain that Guantanamo Bay, Cuba 
is really part of the territory of the United States--something which 
section III just told us irrelevant and unnecessary to the court's 
decision.
  But territorial jurisdiction does matter--a point that the court 
seems to concede by attempting to annex Guantanamo Bay to the United 
States. But Cuba is not the United States. Eisentrager should be 
restored to its rightful place as the precedent that governs litigation 
attempted by enemy combatants outside of our territory--even for the 
special case of Guantanamo Bay. Eisentrager was the law of the land for 
over 50 years, until Rasul carved a hole into it. Through this act, 
Congress patches that hole and restores Eisentrager's role as the 
governing standard. We do this not because, or not just because, Rasul 
doesn't make sense and is wrong. We do it because Eisentrager's 
reasoning is compelling, and the rule that is established wards off 
much mischief.
  Let me quote two key passages from Eisentrager that explain why enemy 
combatants outside the United States should not have access to U.S. 
courts. As that court began by noting, there has been:

     . . . no instance where a court, in this or any other country 
     where the writ is known, has issued it on behalf of an alien 
     enemy who, at no relevant time and in no stage of his 
     captivity, has been within its territorial jurisdiction. 
     Nothing in the text of the Constitution extends such a right, 
     nor does anything in our statutes.

  Not only has this always been the law, but it should remain so. 
Eisentrager explains rather clearly and eloquently why we do not let 
enemy combatants sue our soldiers in our courts:

       A basic consideration in habeas corpus practice is that the 
     prisoner will be produced before the court. This is the crux 
     of the statutory scheme established by the Congress; indeed, 
     it is inherent in the very term ``habeas corpus.'' And though 
     production of the prisoner may be dispensed with where it 
     appears on the face of the application that no cause for 
     granting the writ exists, Walker v. Johnston, we have 
     consistently adhered to and recognized the general rule. 
     Ahrens v. Clark. To grant the writ to these prisoners might 
     mean that our army must transport them across the seas for 
     hearing. This would require allocation of shipping space, 
     guarding personnel, billeting and rations. It might also 
     require transportation for whatever witnesses the prisoners 
     desired to call as well as transportation for those necessary 
     to defend legality of the sentence. The writ, since it is 
     held to be a matter of right, would be equally available to 
     enemies during active hostilities as in the present twilight 
     between war and peace. Such trials would hamper the war 
     effort and bring aid and comfort to the enemy. They would 
     diminish the prestige of our commanders, not only with 
     enemies but with wavering neutrals. It would be difficult to 
     devise more effective fettering of a field commander than to 
     allow the very enemies he is ordered to reduce to submission 
     to call him to account in his own civil courts and divert his 
     efforts and attention from the military offensive abroad to 
     the legal defensive at home. Nor is it unlikely that the 
     result of such enemy litigiousness would be a conflict 
     between judicial and military opinion highly comforting to 
     enemies of the United States.

  Other authorities also have emphasized that the Anglo-American common 
law tradition includes no place for habeas petitions filed by enemy 
aliens in military custody outside our territory. Law Professor Peter 
Lushing, in an internet posting commenting on the Graham amendment 
shortly after it passed the Senate, put the matter quite colorfully: 
``the guys in the powdered wigs would have flipped over the idea that 
habeas extends to foreigners we are in combat with who have been 
captured and are being held by us abroad.'' He concludes: ``the Rasul 
decision has extended habeas far beyond what anybody alive during the 
ratification of the Constitution would have envisioned.''
  Former U.S. Attorney General William Barr testified on the subject of 
detainees in the war on terror before the Senate Judiciary Committee on 
June 15 of this year. His testimony made a considerable impact on 
members of the committee--it persuaded several of us that something 
needed to be done legislatively to correct the current situation. Here 
is what Attorney General Barr had to say about the history of habeas 
and detainees:

       The determination that a particular foreign person seized 
     on the battlefield is an enemy combatant has always been 
     recognized as a matter committed to the sound judgment of the 
     Commander in Chief and his military forces. There has never 
     been a requirement that our military engage in evidentiary 
     proceedings to establish that each individual captured is, in 
     fact, an enemy combatant.

  Attorney General Barr went on to note:

       World War II provides a dramatic example. During that war, 
     we held hundreds of thousands of German and Italian prisoners 
     in detention camps within the United States. These foreign 
     prisoners were not charged with anything; they were not 
     entitled to lawyers; they were not given access to U.S. 
     courts; and the American military was not required to engage 
     in evidentiary proceedings to establish that each was a 
     combatant.

  The concerns that were expressed in the passage from Eisentrager that 
I quoted earlier also have been expressed by other, more recent 
commentators, with the present conflict against Islamic extremism in 
mind. For example, in a 2003 article in George Washington Law Review, 
law professor John C. Yoo notes the special importance of 
``interrogating enemy combatants for information about coming attacks'' 
in this conflict, and concludes:

     . . . de novo judicial review threatens to undermine the very 
     effectiveness of the military effort against al-Qaeda. A 
     habeas proceeding could become a forum for recalling 
     commanders and intelligence operatives from the field into 
     open court; disrupting overt and covert operations; revealing 
     successful military tactics and methods; and forcing the 
     military to shape its activities to the demands of the 
     judicial process.

  Similarly, Andrew McCarthy, a former federal prosecutor who led the 
case against Sheik Omar Abdel Rahman, offered a stinging criticism of 
Rasul the day after the Supreme Court issued its opinion. He stated 
that:

       How can it conceivably be appropriate to impose on our 
     soldiers the burdens of stopping to collect evidence and 
     write incident reports in the middle of fighting a war? Of 
     course they do a measure of that now--after all, it is much 
     in their interest correctly to sort out whom to hold and whom 
     to release. But, until now, that has certainly not been done 
     with the rigor anticipation of litigation will doubtless 
     produce. It is not enough to

[[Page 30754]]

     say, hopefully, that U.S. courts will be indulgent given 
     what's involved. Empirically, judicial demands on 
     governmental procedural compliance become steadily more 
     demanding over time, and government naturally responds by 
     being even more internally exacting to avoid problems. In no 
     time flat, what was once thought a trifling inconvenience 
     becomes a major expenditure--in this case one that will 
     inevitably detract from the military mission which is the 
     bedrock of our safety.

  McCarthy also summarized why the Rasul decision is at war with the 
role and duties of the Federal judiciary in our constitutional 
framework:

       In the Framers' ingenious construct, the courts of the 
     United States are supposed to be a bulwark protecting members 
     of the uniquely American community--i.e., citizens of the 
     United States and those aliens who, by their lawful 
     participation in our national life, have immersed themselves 
     into the fabric of American society--from the excesses of an 
     oppressive executive or a legislature insufficiently heedful 
     of their fundamental rights. It is the institution that 
     ensures the law and order a free people must have in order to 
     thrive.
       Nevertheless, as manifested in Rasul, yesterday's case 
     involving claims of foreign enemy combatants captured on 
     faraway battlefields and held by the military in Guantanamo 
     Bay, Cuba--an installation outside the jurisdiction of any 
     U.S. court--the judiciary is no longer a neutral arbiter 
     there to ensure that Americans get a fair shake from their 
     government and its laws. Instead, it is evolving, or 
     morphing, into a sort of United Nations with teeth. It has 
     seized the mantle of international arbiter, ensuring that the 
     world--including that part of it energetically trying to kill 
     Americans--has a forum in which to press its case against the 
     United States.

  McCarthy went on to conclude: ``Rasul is a dangerous decision. 
Congress should slam the door on al-Qaeda today.''
  And again, former Attorney General Barr also commented on this same 
question--on the impracticality of applying judicial process and 
standards to questions of the detention of enemy combatants. Because of 
his authority and the force of his arguments, I quote from his June 15 
testimony at length:

       There appear to be courts and critics who continue to claim 
     that the Due Process Clause applies and that the CSRT process 
     does not go far enough. I believe these assertions are 
     frivolous.
       I am aware of no legal precedent that supports the 
     proposition that foreign persons confronted by U.S. troops in 
     the zone of battle have Fifth Amendment rights that they can 
     assert against the American troops. On the contrary, there 
     are at least three reasons why the Fifth Amendment has no 
     applicability to such a situation. First, as the Supreme 
     Court has consistently held, the Fifth Amendment does not 
     have extra-territorial application to foreign persons outside 
     the United States. As Justice Kennedy has observed, ``[T]he 
     Constitution does not create, nor do general principles of 
     law create, any juridical relation between our country and 
     some undefined, limitless class of non-citizens who are 
     beyond our territory.'' Moreover, as far as I am aware, prior 
     to their capture, none of the detainees had taken any 
     voluntary act to place themselves under the protection of our 
     laws; their only connection with the United States is that 
     they confronted U.S. troops on the battlefield. And finally, 
     the nature of the power being used against these individuals 
     is not the domestic law enforcement power--we are not seeking 
     to subject these individuals to the obligations and sanctions 
     of our domestic laws--rather, we are waging war against them 
     as foreign enemies, a context in which the concept of Due 
     Process is inapposite.
       In society today, we see a tendency to impose the judicial 
     model on virtually every field of decision-making. The notion 
     is that the propriety of any decision can be judged by 
     determining whether it satisfies some objective standard of 
     proof and that such a judgment must be made by a ``neutral'' 
     arbiter based on an adversarial evidentiary hearing. What we 
     are seeing today is an extreme manifestation of this--an 
     effort to take the judicial rules and standard applicable in 
     the domestic law enforcement context and extend them to the 
     fighting of wars. In my view, nothing could be more farcical, 
     or more dangerous.
       These efforts flow from a fundamental error--confusion 
     between two very distinct constitutional realms. In the 
     domestic realm of law enforcement, the government's role is 
     disciplinary--sanctioning an errant member of society for 
     transgressing the internal rules of the body politic. The 
     Framers recognized that in the name of maintaining domestic 
     tranquility an overzealous government could oppress the very 
     body politic it is meant to protect. The government itself 
     could become an oppressor of ``the people.''
       Thus our Constitution makes the fundamental decision to 
     sacrifice efficiency in the realm of law enforcement by 
     guaranteeing that no punishment can be meted out in the 
     absence of virtual certainty of individual guilt. Both the 
     original Constitution and the Bill of Rights contain a number 
     of specific constraints on the Executive's law enforcement 
     powers, many of which expressly provide for a judicial role 
     as a neutral arbiter or ``check'' on executive power. In this 
     realm, the Executive's subjective judgments are irrelevant; 
     it must gather and present objective evidence of guilt 
     satisfying specific constitutional standards at each stage of 
     a criminal proceeding. The underlying premise in this realm 
     is that it is better for society to suffer the cost of the 
     guilty going free than mistakenly to deprive an innocent 
     person of life or liberty.
       The situation is entirely different in armed conflict where 
     the entire nation faces an external threat. In armed 
     conflict, the body politic is not using its domestic 
     disciplinary powers to sanction an errant member, rather it 
     is exercising its national defense powers to neutralize the 
     external threat and preserve the very foundation of all our 
     civil liberties. Here the Constitution is not concerned with 
     handicapping the government to preserve other values. Rather 
     it is designed to maximize the government's efficiency to 
     achieve victory--even at the cost of ``collateral damage'' 
     that would be unacceptable in the domestic realm.

  Attorney General Barr brought these concerns into relief with the 
following hypothetical example:

       Let me posit a battlefield scenario. American troops are 
     pinned down by sniper fire from a village. As the troops 
     advance, they see two men running from a building from which 
     the troops believe they had received sniper fire. The troops 
     believe they are probably a sniper team. Is it really being 
     suggested that the Constitution vests these men with due 
     process rights as against the American soldiers? When do 
     these rights arise? If the troops shoot and kill them--i.e., 
     deprive them of life--could it be a violation of due process? 
     Suppose they are wounded and it turns out they were not enemy 
     forces. Does this give rise to Bivens' Constitutional tort 
     actions for violation of due process? Alternatively, suppose 
     the fleeing men are captured and held as enemy combatants. 
     Does the due process clause really mean that they have to be 
     released unless the military can prove they were enemy 
     combatants? Does the Due Process Clause mean that the 
     American military must divert its energies and resources from 
     fighting the war and dedicate them to investigating the 
     claims of innocence of these two men?
       This illustrates why military decisions are not susceptible 
     to judicial administration and supervision. There are simply 
     no judicially manageable standards to either govern or 
     evaluate military operational judgments. Such decisions 
     inevitably involve the weighing of risks. One can easily 
     imagine situations in which there is an appreciable risk that 
     someone is an enemy combatant, but significant uncertainty 
     and not a preponderance of evidence. Nevertheless, the 
     circumstances may be such that the President makes a judgment 
     that prudence dictates treating such a person as hostile in 
     order to avoid an unacceptable risk to our military 
     operations. By their nature, these military judgments must 
     rest upon a broad range of information, opinion, prediction, 
     and even surmise. The President's assessment may include 
     reports from his military and diplomatic advisors, field 
     commanders, intelligence sources, or sometimes just the 
     opinion of frontline troops. He must decide what weight to 
     give each of these sources. He must evaluate risks in light 
     of the present state of the conflict and the overall military 
     and political objectives of the campaign.

  Attorney General Barr goes on to consider the practical consequences 
of applying civilian due process concepts in the context of military 
detention of enemy combatants:

       The imposition of such procedures would fundamentally alter 
     the character and mission of our combat troops. To the extent 
     that the decisions to detain persons as enemy combatants are 
     based in part on the circumstances of the initial encounter 
     on the battlefield, our frontline troops will have to concern 
     themselves with developing and preserving evidence as to each 
     individual they capture, at the same time as they confront 
     enemy forces in the field. They would be diverted from their 
     primary mission--the rapid destruction of the enemy by all 
     means at their disposal--to taking notes on the conduct of 
     particular individuals in the field of battle. Like 
     policeman, they would also face the prospect of removal from 
     the battlefield to give evidence at post-hoc proceedings.
       Nor would the harm stop there. Under this due process 
     theory, the military would have to take on the further burden 
     of detailed investigation of detainees' factual claims once 
     they are taken to the rear. Again, this would radically 
     change the nature of the military enterprise. To establish 
     the capacity to conduct individualized investigations and 
     adversarial hearings as to every detained combatant would 
     make the conduct of war--especially irregular warfare--vastly 
     more cumbersome and expensive. For every platoon of combat 
     troops, the United States would have

[[Page 30755]]

     to field three platoons of lawyers, investigators, and 
     paralegals. Such a result would inject legal uncertainty into 
     our military operations, divert resources from winning the 
     war into demonstrating the individual ``fault'' of persons 
     confronted in the field of battle, and thereby uniquely 
     disadvantage our military vis-a-vis every other fighting 
     force in the world.
       Second, the introduction of an ultimate decision maker 
     outside of the normal chain of command, or altogether outside 
     the Executive Branch, would disrupt the unitary chain of 
     command and undermine the confidence of frontline troops in 
     their superior officers. The impartial tribunals could 
     literally overrule command decisions regarding battlefield 
     tactics and set free prisoners of war whom American soldiers 
     have risked or given their lives to capture. The effect of 
     such a prospect on military discipline and morale is 
     impossible to predict.

  Attorney General Barr also noted that ``Supreme Court's decision in 
Rasul was a statutory ruling, not a constitutional one.'' He went on to 
point out:

       An important consequence follows: Congress remains free to 
     restrict or even to eliminate entirely the ability of enemy 
     aliens at Guantanamo Bay to file habeas petitions. Congress 
     could consider enacting legislation that does so--either by 
     creating special procedural rules for enemy alien detainees, 
     by requiring any such habeas petitions to be filed in a 
     particular court, or by prohibiting enemy aliens from hauling 
     military officials into court altogether.

  Obviously, the Congress has taken the former Attorney General up on 
his suggestion, particularly the third variation of it.
  I should also say a few words about military commissions. The 
Judiciary Committee also heard enlightening testimony on the history of 
these commissions. Former Attorney General Barr commented on them as 
follows:

       Throughout our history we have used military tribunals to 
     try enemy forces accused of engaging in war crimes. Shortly 
     after the attacks of 9/11, the President established military 
     commissions to address war crimes committed by members of al-
     Qaeda and their Taliban supporters.
       Again, our experience in World War II provides a useful 
     analog. While the vast majority of Axis prisoners were simply 
     held as enemy combatants, military commissions were convened 
     at various times during the war, and in its immediate 
     aftermath, to try particular Axis prisoners for war crimes. 
     One notorious example was the massacre of American troops at 
     Malmedy during the Battle of the Bulge. The German troops 
     responsible for these violations were tried before military 
     commissions.

  As an aside, those disturbed by the tendency of some in the press and 
politics to take the side of the Guantanamo detainees--of those 
captured while at war with America--might find it interesting that the 
same phenomenon developed with regard to the Malmedy detainees. The 
Malmedy German soldiers were tried and convicted of massacring American 
POWs near the Belgian village of Malmedy during the Battle of the 
Bulge. This crime unquestionably occurred--the bodies of over 80 U.S. 
soldiers were recovered in a field, most of them shot in the head. 
Members of the German unit responsible for this crime later were 
captured and tried by a military commission. Over the years, these Nazi 
soldiers, at least some of whom unquestionably massacred American 
G.I.s, somehow managed to turn the tables on the U.S. military in the 
press and in political circles. Senator Joseph McCarthy took up their 
cause, as did other Senators. The most fanciful allegations of abuse 
made by these Nazi murderers were indulged by various prominent 
Americans, and the whole incident became a public relations 
embarrassment for the U.S. military. Eventually, this pressure campaign 
succeeded in winning the commutation of all death sentences given to 
the Malmedy killers, and all of the German soldiers involved--even 
their commander--were released from prison by the mid-1950s. For those 
who find it disturbing that the sympathies of the press (especially in 
Europe) and of various intellectuals have been misplaced on the side of 
the Guantanamo detainees, at least we can take comfort in the fact the 
perversions of truth and rank miscarriages of justice that have 
resulted from such misplaced sympathy so far in this war pale in 
comparison to those that followed from Malmedy.
  Perhaps first among those who would object to any sympathizing with 
the Guantanamo detainees would be Andrew McCarthy, the former Federal 
antiterror prosecutor. He has written often on this and other war-on-
terror topics. I was pleased to see that shortly after the Graham/Kyl 
amendment first passed the Senate, he wrote a column for National 
Review Online lauding our efforts. It was titled ``Restoring Law and 
Order,'' and McCarthy's only complaint was that ``it has taken our 
national legislature nearly a year-and-a-half--during all of which we 
have been at war--to stir itself to address this serious national-
security problem.'' So you can imagine my disappointment when, just two 
days later, Mr. McCarthy posted another column commenting on the final 
Senate language, which include some compromises to ensure bipartisan 
support. This column was titled ``Snatching Defeat from the Jaws of 
Victory.'' Some of its language I won't recite here. But its specific 
complaints bear scrutiny. Mr. McCarthy alleged that ``the senators 
resolved Tuesday that the ultimate decision about who is properly 
considered an `enemy combatant,' should rest with federal judges, not 
our military commanders.'' As he characterized the final Senate 
language, ``a panel of robed lawyers will second-guess the 
determination of [our soldiers'] commanders on scene that certain 
captives warranted detention--that holding them would be beneficial to 
the war effort.'' Similarly, with regard to military commissions, Mr. 
McCarthy complained that ``everything that happens in the commission 
would be reviewed by judges if this measure passes.''
  I do not think that these words are an accurate characterization of 
the Senate-passed language. I think that Mr. McCarthy probably relied 
on inaccurate characterizations of the language that were published in 
the press at the time rather than on the language itself. Nevertheless, 
Mr. McCarthy's complaints did cause me and others to take another look 
at the language, to make sure that it does what we intended.
  Limited judicial review of the decisions of the CSRTs and military 
commissions is authorized by paragraphs 2 and 3 of subsection 1405(e) 
of the conference report. These paragraphs authorize the same two 
narrow judicial inquiries into the ``status determinations'' and 
``final decisions'' of the CSRTs and military commissions. The 
difference in language here is not intended to connote any substantive 
difference in the scope of review--it simply attempts to accurately 
characterize the work of each entity: ``making status determinations'' 
for the CSRTs, and ``reaching final decisions'' for the military 
commissions.
  The review authorized by each of these paragraphs goes only to the 
following questions: did the CSRTs and commissions use the standards 
and procedures identified by the Secretary of Defense, and is the use 
of these systems to either continue the detention of enemy combatants 
or try them for war crimes consistent with the Constitution and Federal 
law? The first inquiry I think is straightforward: did the military 
follow its own rules? This inquiry does not ask whether the military 
reached the correct result by applying its rules, or even whether those 
rules were properly applied to the facts. The inquiry is simply whether 
the right rule was employed.
  As to the second inquiry, here the language has been further modified 
in order to make clear the narrow scope of the inquiry. The original 
Senate language spoke of whether ``subjecting'' an enemy combatant to 
the CSRT or commission systems was constitutional and legal. This 
formulation was somewhat illogical in that the detainee would not 
complain of the fact that he was forced to go through a CSRT--rather, 
he would want to challenge its adequacy as a means for justifying his 
continued detention. And in any event, our concern was to make clear 
that this language in no way invites a re-evaluation of the correctness 
of the military's decision, even under a deferential standard of 
review. Nor does it invite an as-applied challenge. All that this 
language asks is whether using these systems is good enough for the 
ends that they serve--to justify continued detention or to try an enemy 
combatant for war crimes. The only thing

[[Page 30756]]

that this provision authorizes is, in effect, a facial challenge. In 
fact, we anticipate that once the District of Columbia Circuit decides 
these questions in one case, at least so long as military orders do not 
substantially change, that decision will operate as circuit precedent 
in all future cases, with no need to relitigate this second inquiry in 
the future. In effect, the second inquiry--into the constitutionality 
and lawfulness of the use of CSRTs and commissions--need only be 
decided once by the court.
  It bears quoting some of the thinking that undergirds the 
establishment of these review standards. Attorney General Barr, in his 
June 5 testimony before the Judiciary Committee, describes the 
philosophy and approach that paragraph 2's scope of review for CSRTs is 
designed to reflect:

       It seems to me that the kinds of military decisions at 
     issue here--namely, what and who poses a threat to our 
     military operations--are quintessentially Executive in 
     nature. They are not amenable to the type of process we 
     employ in the domestic law enforcement arena. They cannot be 
     reduced to neat legal formulas, purely objective tests and 
     evidentiary standards. They necessarily require the exercise 
     of prudential judgment and the weighing of risks. This is one 
     of the reasons why the Constitution vests ultimate military 
     decision-making in the President as Commander-in-Chief. If 
     the concept of Commander-in-Chief means anything, it must 
     mean that the office holds the final authority to direct how, 
     and against whom, military power is to be applied to achieve 
     the military and political objectives of the campaign.
       I am not speaking here of ``deference'' to Presidential 
     decisions. In some contexts, courts are fond of saying that 
     they ``owe deference'' to some Executive decisions. But this 
     suggests that the court has the ultimate decision-making 
     authority and is only giving weight to the judgment of the 
     Executive. This is not a question of deference--the point 
     here is that the ultimate substantive decision rests with the 
     President and that courts have no authority to substitute 
     their judgments for that of the President.

  And the thinking that underlies paragraph 3's scope of review for 
military-commission decisions is well articulated in Johnson v. 
Eisentrager:

       It is not for us to say whether these prisoners were or 
     were not guilty of a war crime, or whether if we were to 
     retry the case we would agree to the findings of fact or the 
     application of the laws of war made by the Military 
     Commission. The petition shows that these prisoners were 
     formally accused of violating the laws of war and fully 
     informed of particulars of these charges. As we observed in 
     the Yamashita case, ``If the military tribunals have lawful 
     authority to hear, decide and condemn, their action is not 
     subject to judicial review merely because they have made a 
     wrong decision on disputed facts. Correction of their errors 
     of decision is not for the courts but for the military 
     authorities which are alone authorized to review their 
     decisions.'' ``We consider here only the lawful power of the 
     commission to try the petitioner for the offense charged.

  There is another matter that I should mention before I yield the 
floor to my colleague from South Carolina. Some have asked why the 
jurisdiction-removing language in the bill is limited to Guantanamo. 
The answer is that Rasul is only about Guantanamo. Although the opinion 
contains the discussion of Ahrens and Braden that undercuts the 
``territorial-jurisdiction'' rule for habeas courts, in the end the 
decision appears to be based on the unique status of the naval station 
at Guantanamo Bay--the permanent nature of the lease, for example, 
which can only be terminated by the United States. Justice Kennedy 
adopted a similar focus in his concurring opinion. I believe that 
Justice Kennedy's concurrence goes so far as to declare that Guantanamo 
is in practical respects a U.S. territory.
  Some have raised the concern that the logic of Rasul will be extended 
to U.S. military and intelligence detention facilities in Iraq or 
Afghanistan. I think that such an extension would be very foolish and I 
do not think that the court will go there. I do not think that the 
Supreme Court is going to declare parts of Afghanistan or Iraq to be 
the territory of the United States. If the court does do so, we can of 
course legislatively overrule it, as we legislatively overrule Rasul 
today. But I do not think that it is either necessary, or respectful of 
the court's capacity for common sense, to preemptively overrule such an 
outlandish hypothetical decision. Does the Senator from South Carolina 
agree?
  Mr. GRAHAM. Yes, my friend from Arizona is correct, our language 
applies only to Guantanamo just because we understand that the Supreme 
Court only extended the jurisdiction of the courts over the detainees 
held at Guantanamo. And since the Rasul decision was based on the 
habeas statute in the U.S. Code, I am very comfortable amending that 
statute as a proper congressional response to the Court's decision.
  As I stated repeatedly to a number of my colleagues, we did not want 
to deprive the courts of jurisdiction to hear cases filed on behalf of 
detainees in Iraq because we are confident that, as the law stands now, 
those cases are already barred by previous Supreme Court decisions, 
which the Rasul decision left in place.
  We should always be careful when dealing with our co-equal branches. 
Just as we do not appreciate it when they stray into our areas of 
constitutional responsibility, we should always be willing to refrain 
from straying into theirs unnecessarily. As I read the Rasul decision, 
these other cases from other parts of the world are still subject to 
the Eisentrager opinion and will not be considered by U.S. courts.
  And so, our language is limited to Guantanamo. To my friends who 
counseled that we should extend our jurisdiction modification to those 
cases being filed on behalf of Iraqis held in accordance with the 
Geneva Convention, I would just counsel them to be patient. I cannot 
imagine the Court extending its jurisdiction halfway around the world 
to involve what is almost exclusively an executive branch function. 
However, should that become necessary, I am perfectly willing to modify 
our courts' jurisdiction again to ensure that does not happen. But 
again, in truth, especially after our very robust action here today, I 
cannot even conceive of such a decision by the Supreme Court.
  Mr. KYL. Well, that is what I thought before Rasul was decided. But 
we can cross that bridge if we get to it.
  Mr. GRAHAM. Mr. President, I would also like my esteemed colleague 
from Arizona, Senator Kyl, to address the misunderstandings that seem 
to have made their way into the press. For instance, when I returned 
from Iraq this morning, I was surprised to see the New York Times 
editorial page making some fundamental mistakes about what our 
legislation does.
  Mr. President, I would also request unanimous consent to have the New 
York Times editorial entitled Ban Torture. Period. from December 16, 
2005 entered in the Record.
  The first sentence reads, ``It should have been unmitigated good news 
when President Bush finally announced yesterday that he would back 
Senator John McCain's proposal to ban torture and ``cruel, inhuman or 
degrading'' treatment at United States prison camps. Nothing should be 
more obvious for an American president than to support a ban on 
torture.'' I agree, nothing should be more obvious. And I'd like to 
applaud the New York Times for finally endorsing the actions President 
Reagan took when we signed the Convention Against Torture on April 18, 
1988, and the Senate ratified the Convention on October 21, 1994.
  But since they appear to be laboring under some confusion, I would 
like to clarify how and when our antitorture statutes apply. First, 
torture has been illegal for quite some time. Indeed, Section 2340A of 
Title 18 of the United States Code specifically provides for the 
prosecution of people who torture overseas. And most of the techniques 
of torture, beatings, improper imprisonment, and threats have long been 
part of the criminal code of the United States.
  I strongly supported Senator McCain's amendment each and every time 
it came up. I am extremely pleased it passed. But, make no mistake, it 
does not make torture illegal. Torture has long been illegal. What the 
McCain language does is make a very clear statement that we will treat 
people humanely while we have them in our custody. The McCain amendment 
is a very clear policy statement that is in

[[Page 30757]]

accord with the best of American tradition. But it does not ban 
torture. Accordingly, the Graham-Levin-Kyl provisions do not equivocate 
in any way regarding torture. The Times editors, regrettably, for I 
appreciate the place the Times holds in our public discourse, do not 
appear to understand what they are talking about.
  I would like to address one other statement the Times makes. They 
state, and I quote, that ``What is at stake here, and so harmful to 
America's reputation, is the routine mistreatment of prisoners swept up 
in the so-called war on terror.'' Now I take great exception to this 
baseless smear of our soldiers and marines. It is said off-handedly, 
almost as if everyone takes it for granted that the fine men and women 
of our armed services routinely mistreat our prisoners.
  Well I will tell you, I for one don't take it for granted that the 
fine people who are putting their lives on the line to protect our 
Nation routinely mistreat the prisoners in their care. I believe they 
follow the orders that their superiors give them, orders based on such 
policy statements as Senator McCain's or the Army Field Manual, and 
they follow them to the best of their ability.
  Now, are there going to be bad apples? As a former JAG prosecutor and 
defense counsel, I can tell you affirmatively, yes, there will be. And 
they will be arrested, tried, convicted, and will serve long sentences. 
Those few individuals who do not live up to the high standards of the 
vast majority of our honorable service members, will be held 
accountable for their actions.
  Our troops do not deserve such a slander, and I call on the New York 
Times to take back the vile assertion they have made against the people 
who exemplify the best our Nation has to offer.
  Mr. KYL. Mr. President, I see that we are nearing the end of our 
allotted time. If I could quickly address a few other minor issues and 
summarize briefly. It is important to note that the limited judicial 
review authorized by paragraphs 2 and 3 of subsection (e) are not 
habeas-corpus review. It is a limited judicial review of its own 
nature. All habeas actions are terminated by this bill. I hope that 
this change will also put to rest any arguments that extending habeas 
to prisoners also extends to them some type of substantive rights. I do 
not believe that supposition is correct because habeas is a vehicle for 
asserting rights, not a source of rights. The fact that an individual 
has access to habeas does not mean that he has any of the rights that 
he asserts. But in any event, because this bill leaves no habeas in 
place, that debate need not be rejoined.
  Also, some have suggested that by vesting exclusive jurisdiction in 
the DC circuit for the paragraph 2 and 3 appeals, this bill bars even 
Supreme Court appellate review. That was not the drafters' intention, 
nor do I believe that it is a correct reading of the legislative 
language. Supreme Court review is implicit, or rather, authorized 
elsewhere in statute, for all judicial decisions. It is rarely 
mentioned expressly. In fact, when it is mentioned, it is sometimes to 
preempt Supreme Court review. Far example, the limit on successive 
federal habeas petitions for state prisoners in section 2244 bars 
petitions for certiorari following a three-judge panel's decision on a 
successive-petition application. The clear implication of these 
provisions is that Supreme Court review is implicitly allowed except 
where expressly barred, and thus since it is not barred here, it is 
allowed.


            uniform standards of interrogation for detainees

  Mr. McCAIN. I would like to thank the chairman and the ranking member 
for their untiring work to bring the Defense authorization bill to 
closure. In doing so, Congress takes a major step in ensuring that 
America stays true to its fundamental values. By establishing uniform 
standards for the interrogation of Department of Defense detainees, and 
by ensuring that the United States will not subject any individual to 
cruel, inhuman or degrading treatment or punishment, we are better able 
to wage and win the war on terror. This would not have been possible 
without the work of the chairman, the ranking member, and other members 
of this committee, including most notably the Senator from South 
Carolina.
  I would also like to thank the President and the national security 
advisor for their efforts in resolving the difficult issues underlying 
the amendment. In reaching agreement, we make sure that the world knows 
that the United States does not--and by law cannot engage in torture or 
cruel, inhuman or degrading treatment. During our talks, the 
administration raised legitimate concerns about legal claims facing 
civilian interrogators. Based on these concerns, the bill includes 
language that will allow accused civilian interrogators--like military 
interrogators--a robust defense if a person of ordinary sense and 
understanding would have believed he was following a lawful directive. 
It further includes language providing legal counsel to interrogators. 
These provisions are modeled on provisions drawn from the Uniform Code 
of Military Justice.
  With the detainee treatment provisions, Congress has clearly spoken 
that the prohibition against torture and other cruel, inhuman or 
degrading treatment should be enforced and that anyone engaging in or 
authorizing such conduct, whether at home or overseas, is violating the 
law. Sections 1402 and 1403 of Title XIV of this bill do not create a 
new private right ot action. At the same time, these provisions do not 
eliminate or diminish any private right of action otherwise available. 
It is our intent not to disable that in any way.
  Mr. WARNER. To have worked from the beginning with Senator McCain 
then with Senators Graham, Levin and Kyl was a privilege, and, to 
achieve legislation which was needed for all our Nation's citizens was 
a humble, but very fulfilling, experience. We realized both the 
necessity for action in this area and the vital importance of dealing 
with the increasing flow of litigation involving Guantanamo detainees.
  This legislative history should document that the McCain provisions, 
sections 1402 and 1403 of the bill, do not create a private right of 
action. Title XIV of the bill does provide a new affirmative defense 
that may be applied to civil actions brought under other statutes and 
to criminal prosecutions. This is essential to give potential 
defendants fair rights to defend themselves. Further, language was 
included affording the same right to counsel and to payment of 
litigation costs at Government expense for non-military personnel, in 
both foreign and domestic courts, that is presently extended to members 
of the Armed Forces.
  Mr. LEVIN. I am pleased that the conference report contains the full 
text of the McCain amendment on torture, without change. This language 
firmly establishes in law that the United States will not subject any 
individual in our custody, regardless of nationality or physical 
location, to cruel, inhuman, or degrading treatment or punishment. The 
amendment provides a single standard--for ``cruel, inhuman, or 
degrading treatment or punishment''--without regard to what agency 
holds a detainee, what the nationality of the detainee is, or where the 
detainee is held.
  It has never been my understanding that the McCain amendment would, 
by itself, create a private right of action. I do not believe that the 
amendment was intended either to create such a private right of action, 
or to eliminate--or undercut any private right of action such as a 
claim under the Alien Tort Statute--that is otherwise available to an 
alien detainee. Rather, the McCain amendment would establish a legal 
standard applicable to any criminal prosecution or any private right of 
action that is otherwise available under law. That would not be changed 
in any way by the affirmative defense added in the new section.
  Mr. GRAHAM. I was pleased to support this legislation and work toward 
its enactment from the beginning. Under section 1402, our troops now 
have one standard--the Army Field Manual--for their interrogations. In 
section 1403, we close the loophole in the United Nations Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment.

[[Page 30758]]

As National Security Advisor Stephen Hadley said, ``those standards, as 
a technical, legal matter, did not apply abroad. And that is what 
Senator McCain, in the second section of his legislation, wanted to 
address--wanted to make clear that those would apply abroad. We applied 
them abroad as a matter of policy; he wanted to make sure they applied 
as a matter of law. And when this legislation is adopted, it will.'' I 
agree that these sections do not create a new private right of action, 
but that they are binding on the executive and may be applicable to 
actions brought under other statutes.
  Mr. KENNEDY. Mr. President, I ask unanimous consent to have a letter 
from Mr. Ed Tong printed in the Record for the consideration of the 
fiscal year 2006 Defense Authorization Act. The letter reflects the 
view of a supporter of the minority small business contracting program, 
which is reauthorized in this bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   ASIAN, Inc.

                             San Francisco, CA, December 19, 2005.
     Hon. Edward M. Kennedy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kennedy: I write to urge you to support the 
     reauthorization of the Department of Defense 1207 program. 
     The program has been repeatedly reauthorized since its 
     original enactment, and it remains necessary today. 
     Minorities have historically been disadvantaged with regard 
     to the awarding of federal, state and municipal contracts. 
     The impact of such discrimination and exclusion has been 
     especially felt in Northern California--and specifically 
     within the San Francisco Bay area.
       The 1992 Minority Business Census of the U.S. Census Bureau 
     reported that San Francisco has over 16,353 minority-owned 
     businesses operating in the area. That statistic makes San 
     Francisco the fourth largest business locale in the country 
     for minority-owned businesses. Despite the large number of 
     minority-owned business, discriminatory and harassing 
     treatment is commonly experienced.
       Specifically, Asian American construction firms in San 
     Francisco, have encountered discriminatory and harassing 
     treatment at the hands of the craft unions and city 
     government through the San Francisco's Office of Labor 
     Standards Enforcement (OLSE). OLSE was created in 2000, to 
     enforce the prevailing wages of crafts set by the state's 
     Department of Industrial Relations. In fact, OLSE has 
     differentially chosen to conduct its audits and impose higher 
     penalties against many of San Francisco's minority craft 
     businesses. At its inception of enforcement, the OLSE 
     specifically targeted Chinese businesses. The statistics at 
     that time showed that Chinese businesses had around a 5% 
     chance of obtaining a prime contract they bid on, but a 50% 
     probability of their project being inspected and audited by 
     the OLSE. At present, OLSE still disproportionately targets 
     minority businesses, whether they are union or non-unionized 
     construction companies. Left with no avenue through which to 
     remedy its grievances, many Asian American businesses have 
     turned to ASIAN, Inc. for assistance
       In my role as ASIAN, Inc.'s Program Manager in our Business 
     & Economic Development Division, I have had personal 
     experience in speaking with Asian American businesses dealing 
     with discriminatory treatment. ASIAN, Inc. is a nonprofit 
     technical assistance and research organization that works to 
     strengthen the infrastructure of Asian American communities 
     in Northern California and to assist in their physical, 
     economic, and social development. ASIAN, Inc. has been in 
     operation for 34 years. Over the years, the organization has 
     helped over 500 disadvantaged businesses obtain business 
     loans through partnerships with the City of San Francisco's 
     Office of Community Development, the State of California, the 
     U.S. Department of Commerce Minority Business Development 
     Agency, the U.S. Small Business Administration, and many 
     banks and other private lenders. Still, discrimination 
     continues to pose barriers for many of the businesses with 
     which we work
       Because ASIAN, Inc.'s role has been to provide strategic 
     information and technical assistance in order to promote the 
     ability of Asian Americans to compete in mainstream society--
     including achieving success for their businesses and 
     participating in public decision-making--the organization has 
     been in a position to witness the experiences of Asian 
     American businesses in the San Francisco Bay Area.
       Notably, several Asian American businesses came to ASIAN, 
     Inc. for assistance after the OLSE imposed significant 
     penalties upon their businesses, allowed those businesses no 
     opportunity to rectify any alleged violations prior to making 
     a finding, or to present their sides of the story. Initially 
     there was no appeals process built into the Ordinance. To the 
     presidents and owners of these businesses, it felt as if the 
     OLSE was targeting them because they were minority owned and 
     because of the ongoing disputes between Asian businesses and 
     the trade unions in the area. The targeting of Asian American 
     firms by OLSE for inspection and audits made obtaining 
     contracts difficult when it became known that a business was 
     being inspected by the OLSE.
       ASIAN, Inc.'s work with the OLSE is by no means unique but 
     rather signifies merely one of many types of discrimination 
     experienced by the Asian American businesses that contact our 
     organization. In fact, the OLSE situation is quite emblematic 
     of the larger underlying problems that minority businesses 
     face. Discrimination is not limited to the local or municipal 
     level. Asian American businesses have experienced 
     discrimination in the awarding of local agency contracts, the 
     issuance of bonds and insurance policies, and the provision 
     of necessary materials and material quotes by suppliers.
       For example, I personally have heard of complaints/
     testimonials from minority businesses about:
       The use of racial slurs or epithets against minority owners 
     or employees, One Asian firm owner used workers of Mexican 
     ancestry on a job, and other white subcontractors challenged 
     him and asked ``Why are your illegal workers on my job 
     site.'' Also, an institution's administrator might use the 
     phrase ``Your kind are the majority now.'' For another Asian 
     American owner, when his workers took items from the trash 
     bins he was told to stop his workers from doing so. As ``You 
     may be a nice guy, but you are not one of us.''
       The exclusion of minority businesses from informal business 
     networks such as the Associated General Contractors. Or not 
     invited to go golfing with them, even when the other group 
     was looking for a foursome.
       The refusal to use minority businesses on private jobs even 
     when they are used on government jobs where minority business 
     programs are in place. For example, Nibbi Brothers 
     Construction will use numerous minority firms when doing 
     public works projects (and the locale's program encourages 
     minority participation) but not ask them to bid on their 
     private works projects. This was also true for a general 
     contractor (SJ Amoroso) that uses minority firms in their 
     public works jobs but one white subcontractor almost 
     exclusively for their roofing work, in their private works 
     projects.
       The existence of the old boys network to justify doing 
     business with one's own cronies. For example, with Asian 
     firms that have become prime contractors, white 
     subcontractors often won't bid for the subcontracting work, 
     or will hedge their bids and draw out the bidding process in 
     deciding whether they want to work with a minority prime 
     contractor
       The non-enforcement of nondiscrimination requirements and 
     disparate treatment by government inspectors. For example, 
     when as the prime contractor and your project is audited, all 
     certified payrolls are asked of your minority subs, but your 
     white sub will not be asked to provide a certified payroll. 
     In another case with an institution in the City, the 
     inspector would not approve the work, and make additional 
     demands that were not put it in writing. For example, he 
     demand that a electrical panel be explosion proof though it 
     was not required by the specs. He also demanded that 
     materials be UL (Underwriters Laboratories) listed although 
     the specs did not require it. Also, when the Asian prime 
     contractor reported the error of his white subcontractor to 
     the engineer, he was told that this was not acceptable. 
     However, when the white subcontractor reported his error to 
     the white engineer the error was allowed to stand without 
     correction.
       The bundling of contracts which minority businesses could 
     bid for if not for bundling. For example, when work is 
     required for a number of school sites, a number of 3-4 
     schools may be bundled even when the type of work in each 
     school is different. This will bring the total project and 
     bonding requirements to $10 million dollar when without 
     bundling the individual projects would cost about $2-3 
     million dollars.
       The tendency to pay minority contractors slower or not at 
     all compared to white contractors. For example, San Francisco 
     city departments and institutions have a poor reputation for 
     paying in a timely manner and so the cumulative debt on a 
     number of projects/contracts owed to Asian businesses has 
     been in excess of $1 million dollars.
       The provision of different quotes from suppliers to 
     companies depending upon the race of the business owner, or 
     to provide those supplies at an exorbitant rate to a minority 
     contractor.
       The refusal to provide higher capacity bonds.
       Our nation's small businesses are the backbone of this 
     country's economy and the obstacles that impede the successes 
     of U.S. businesses have enormous impact on the local 
     economies these businesses support as well as the nation at 
     large. This is especially true for minority-owned businesses 
     that not only contribute to the country's economic base but 
     have also traditionally provided jobs for minority youth and 
     adults in ways that majority-owned business have not. As 
     such, removing obstacles facing minority

[[Page 30759]]

     businesses is critical not only for our economy but for our 
     nation's minority youth.
       Minority contractors have a right to expect unbiased 
     treatment in the awarding of contracts. The 1207 Program is a 
     valuable means by which the federal government demonstrates 
     fairness and equity in the area of government contracts. It 
     is vitally important that the federal government recognizes 
     and rectifies some of the problems faced by minority 
     businesses across the country. The government's commitment to 
     equality in the economic marketplace is an ongoing 
     responsibility of our government, and the reauthorization of 
     1207 not only is in keeping with the spirit of that 
     commitment but provides leadership by example to local 
     government, banks, customers and suppliers that interact with 
     minority-owned businesses.
           Respectfully submitted,

                                               Edmund Y. Tong,

                                       Program Manager, Business &
                                    Economic Development Division.

  Mrs. CLINTON. Mr. President, the Senate is considering today the 
Department of Defense authorization conference report for the 2006 
fiscal year. As a member of the Senate Armed Services Committee, I have 
attended numerous hearings and participated in the markup of this 
legislation. And I want to commend the Chairman of the Senate Armed 
Services Committee, Senator Warner, and the ranking member, Senator 
Levin, for the serious, bipartisan approach they took in preparing the 
Senate version of the bill.
  The DOD authorization bill is critically important, particularly with 
our servicemen and women are serving bravely in Iraq, Afghanistan and 
around the world. We owe it to our men and women in uniform to do 
everything we can to support them.
  While what has emerged from conference is not perfect, the bill 
contains a wealth of positive provisions in keeping with the 
responsibility of Congress to our men and women in uniform.
  When we first considered the DOD authorization bill in July, the 
Senate accepted an amendment Senator Graham and I offered to make 
Tricare available to all National Guard members and reservists during 
the House-Senate conference, we reached a compromise which will offer 
great opportunities for Guard members and reservists to join the 
Tricare Program.
  At a time when approximately 40 percent of the men and women serving 
in Iraq are members of the National Guard and Reserve, and as Guard 
members and reservists are a serving in a new and expanding role in the 
global war on terror, we ought to do all we can to ensure that these 
men and women have the services and support they need and deserve. This 
bill marks further progress in this effort, increasing access to health 
benefits for our National Guard and Reserve and their families in New 
York and around the country. Providing the Guard and Reserves, as well 
as their families, with adequate support and benefits is the least that 
a grateful nation can do. Under the provision, all members of the 
Selected Reserve are eligible to enroll in the military health care 
program.The premiums are based on categories of eligibility:
  Category 1: Members of the Selected Reserve who are called to active 
duty qualify for TRICARE Reserve Select, TRS. Under this program, 
established last year, a reservist would accumulate 1 year of TRS 
coverage for every 90 days of Active-Duty service. Monthly premiums 
during the years of accumulated eligibility are only 28 percent of the 
program cost. The Government picks up the remaining 72 percent. As has 
always been the case, coverage is free of charge while on active duty. 
This bill now permits accumulation of earned periods of coverage for 
frequently deployed personnel. In addition, it authorizes 6 months of 
transitional coverage for family members following the death of the 
Reserve member, if the member dies while in an inactive status.
  Category 2: Members of the Selected Reserve who are not called to 
active duty and who otherwise do not qualify for health insurance due 
to unemployment or lack of employer-provided coverage are eligible to 
enroll in TRICARE for a 50-percent cost-sharing premium. The Government 
will pay the remaining 50-percent.
  Category 3: Members of the Selected Reserve who do not fit into 
either of the above categories but would like to participate in TRICARE 
are eligible to do so for an 85-percent cost share. Employers are 
allowed and encouraged to contribute to the reservist's share. The 
Government contributes 15 percent of the costs.
  This compromise is an important step forward in improving health care 
access for our Nation's guardsmen and reservists.
  It is important to note as well that this expansion was the fruit of 
a bipartisan effort by Senator Graham and myself, along with my 
colleagues Senator Leahy and Senator DeWine.
  The conference report also includes another provision I offered, this 
one with Senator Collins, to improve financial education for our 
soldiers. It is a problem that has plagued military service men and 
women for years: a lack of general knowledge about the insurance and 
other financial services available to them.
  This provision instructs the Secretary of Defense to carry out a 
comprehensive education program for military members regarding public 
and private financial services, including life insurance and the 
marketing practices of these services, available to them. This 
education will be institutionalized in initial and recurring training 
for members of the military. This is important so that we don't just 
make an instantaneous improvement, but a truly lasting benefit to 
members of the military.
  The legislation also requires that counseling services on these 
issues be made available, upon request, to members and their spouses. 
It is very important to include the spouses in this program because we 
all know that investment decisions should be made as a family. Too many 
times, a military spouse has to make these decisions alone, while a 
husband or wife is deployed.
  This amendment requires that during counseling of members or spouses 
regarding life insurance, counselors must include information on the 
availability of Servicemembers' Group Life Insurance, SGLI, as well as 
other available products.
  I am happy that my fellow Senators support this legislation and proud 
that the amendment was adopted in conference.
  The legislation also includes a provision which will ensure the 
availability of special pay for members during rehabilitation from 
wounds, injuries, and illnesses incurred in a combat zone. Earlier this 
year, I learned of the story of Army SPC Jeffrey Loria, who was 
encountering pay problems while recovering at Walter Reed Army Medical 
Center. My inquiry to the Army in this matter corrected Specialist 
Loria's problems and also led to the discovery of pay problems for at 
least 129 other soldiers. I continued to follow up on the plight of 
wounded soldiers when I questioned each of the service secretaries 
about this topic in early March 2005, asking if they would support 
efforts to ensure that wounded Guard members and reservists did not 
lose their combat pay allowance while in a military hospital. Their 
unanimous answer was yes. I am proud to see the provision incorporated 
into the bill.
  In addition, I am pleased that the House and Senate have agreed to 
provide hundreds of members of the National Guard who served at Ground 
Zero after the terrorist attacks the full Federal retirement credit for 
their service that they deserve. Many of the soldiers who served at 
Ground Zero, often for extended periods, were not officially put on 
Federal active duty and so did not receive Federal military retirement 
credit. I was proud to fight for this legislation as a House-Senate 
conferee, and I want to thank Congresswoman Maloney and Congressman 
King for their hard work to see the provision through the House of 
Representatives. I applaud Congress for accepting our arguments for 
those brave men and women of the National Guard who gave their all 
after the September 11 attacks and absolutely deserve this credit.
  I am also glad to see that the final conference report includes no 
language to restrict the role that women can play in our Armed Forces. 
Women have

[[Page 30760]]

a long history of proud service in our Armed Forces, and more than 
200,000 women currently serve, making up approximately 17 percent of 
the total force. Thousands of women are currently serving bravely in 
Iraq, Afghanistan, and elsewhere. During my own visits to Iraq--as I am 
sure that many of my colleagues who have also visited Iraq can also 
attest--I witnessed women performing a wide range of tasks in a 
dangerous environment.
  Our soldiers, both men and women, volunteered to serve their Nation. 
They are performing magnificently. There should be no change to 
existing policies that would decrease the roles or positions available 
to women in the Armed Forces. Earlier this year, I introduced, along 
with several of my colleagues, a sense-of-the Senate resolution stating 
that there should be no change to existing laws, policies, or 
regulations that would decrease the roles or positions available to 
women in the Armed forces.
  Finally, I want to highlight several other provisions in the 
legislation that honor the commitment of this Congress to our men and 
women in uniform. The final bill includes a 3.1-percent pay raise for 
all military personnel as well as increases to the maximum amount of 
assignment incentive pay and hardship duty pay that our servicemen and 
servicewomen receive. The bill also calls for an increase of $60 
million for childcare and family assistance services to support Active-
Duty and Reserve military families.
  Also included were measures to bolster the support and gratitude our 
Nation shows for the families of our men and women in uniform who have 
lost their lives in service to our country. The bill increases the 
survivor benefits to $100,000 for all Active Duty military decedents; 
payments would be retroactive, to include all those lost since the 
commencement of Operation Enduring Freedom. In addition, the conference 
report increases TRICARE benefits for the surviving children of those 
who have lost their lives while on active duty and calls for the 
establishment of a uniform policy on casualty assistance to improve the 
services provided to survivors and next of kin.
  I am proud to support these provisions and proud to do all I can for 
these families.
  Despite the positive sections of the conference report, many of which 
I have outlined above, there are also portions of the authorization 
bill that are deeply troubling. I fear that included in a bill that 
does so much to support our men and women in uniform are provisions 
that might also do a disservice to these brave Americans.
  One in particular is the Graham-Levin-Kyl amendment, included in the 
conference report, governing the treatment of detainees at Guantanamo 
Bay.
  Like all of my colleagues, I am deeply troubled by the circumstances 
that have opened our Federal courts to enemy combatants. Senator Graham 
is correct that the present level of accessibility to our courts by 
individuals who would do us harm is unprecedented in our Nation's 
history.
  However, the seeds of this situation were sown when the President 
chose our course for the war against terror. Rather than treating our 
detainees in accordance with the governing principles of military 
engagement, he chose to institute policies that demonstrate disrespect 
for the rule of law and have resulted in lowering our country's moral 
standing in the world. Had the President chosen instead to respect 
international conventions that provide due process protections, we 
would not be facing the unprecedented problem of having to make our 
courts open to our enemies.
  I agree that this is an area long overdue for reform. Although it 
left much to be desired, I voted in favor of the Graham-Levin-Kyl 
amendment in its original form because it was an improvement over a 
harsh measure that would have eliminated almost entirely a detainee's 
ability to challenge his or her detention. In conference, however, 
House negotiators once again undermined much of the thoughtful 
deliberation that went into crafting the Graham-Levin-Kyl compromise, 
stripping out important provisions that would have prohibited the 
admission of evidence obtained through ``undue coercion'' and further 
limiting legal recourse available to detainees.
  We must work toward a system that corrects the missteps made by the 
President and adopt a well-thought-out set of procedures that respects 
the rule of law and restores our Nation to its proper standing in the 
world. The system outlined by the Graham-Levin-Kyl amendment as 
provided in the DOD Authorization conference report falls short of this 
measure.
  The Defense authorization conference report contains a great deal 
that we in this body can look to with pride. That is why I support the 
bill as a whole and why I voted in favor of it. We face real challenges 
and threats as a nation, and our men and women in uniform are, every 
single day, serving with courage on the front lines in defense of our 
values and our way of life. I do not vote without concern, however, in 
light of a few troubling provisions which I fear do not serve the 
interests of our country or our troops.
  Mr. KERRY. Mr. President, the fiscal year 2006 Defense Authorization 
Act contains a number of provisions that take an important step towards 
the Military Family Bill of Rights I believe we need.
  Among the final provisions, the legislation authorizes an increase of 
the death gratuity to $100,000 for all active-duty service members. I 
was pleased to originally offer this provision as an amendment to the 
fiscal year 2005 supplemental appropriations act earlier this year. I 
was happy to work with Senator Levin on this bill to bring this 
provision into reality.
  I offered another amendment on the supplemental last spring to 
increase to 1 year the length of time surviving families of service 
members may reside in Government housing or receive the basic allowance 
for housing. It was signed into law then, but because it was part of 
the supplemental, it expired with the end of the fiscal year. The 
fiscal year 2006 National Defense Authorization Act makes this 
extension permanent.
  I am also pleased that the final bill includes authorization for 
increased funding for Project Sheriff--an initiative of the Office of 
Force Transformation to provide our soldiers and marines with a full 
spectrum of lethal and nonlethal weapons when engaging enemies in an 
urban environment.
  The Defense authorization bill includes other important provisions 
for our country: a 3.1-percent pay raise for military personnel; 
increased Army and Marine Corps end strength, and an expansion of 
TRICARE benefits for members of the Selected Reserve and their 
families.
  Taken together, these provisions are important milestones. They are 
further testament of this Congress's and this country's determination 
to maintain the best trained, best equipped, best prepared, and most 
capable military on earth. It is also a recognition of the important 
contributions made by military families--families who give so much to 
this country.
  When I voted for this legislation on the Senate floor, one essential 
aspect was that the limitations placed on the review of habeas corpus 
claims of Guantanamo Bay detainees were prospective only. I am pleased 
to say that the bill's effective date was not altered in conference. As 
a result, as the Supreme Court held in Lindh v. Murphy, it still 
employs the normal rule that our laws operate prospectively.
  Mr. FEINGOLD. Mr. President, I am pleased that the Senate was finally 
able to debate and pass the Defense Authorization Act. It is 
indefensible that this important legislation was put on the backburner 
for so long; held back until the eleventh hour by the majority for 
various special interests and political reasons. The American people 
and the troops deserve better than that.
  I am pleased that this bill includes important provisions for our men 
and women in uniform and their families. I am very pleased that we were 
able to include a 3.1 percent pay raise for all of our men and women in 
uniform as well as a host of bonus and incentive pays to help the 
military in its recruiting and retention efforts. The conference report 
also contains an important provision that permanently increases the

[[Page 30761]]

death gratuity for those killed on active duty. Although the Senate's 
strong bipartisan efforts to make TRICARE available for the Guard and 
Reserve were again watered down in the conference report, the final 
bill still includes significant improvements in TRICARE access for all 
of our citizen-soldiers. These are just a few examples of the important 
provisions contained in this bill.
  I am proud that the Congress has finally, definitively, sent such a 
strong message to the administration about the treatment of detainees 
by enacting the amendment of the senior Senator from Arizona. The lack 
of a clear policy regarding the treatment of detainees has been 
confusing and counter-productive. It has left our men and women in 
uniform in the lurch with no clear direction about what is and is not 
permissible. This failure on the part of the administration has sullied 
our reputation as a Nation, and hurt our efforts to promote democracy 
and human rights in the Arab and Muslim worlds. I have been proud to 
support Senator McCain's amendment on interrogation policy because it 
should help to bring back some accountability to the process and 
restore our great Nation's reputation as the world's leading advocate 
for human rights.
  Although I voted for the Department of Defense authorization bill, I 
am disappointed with the mixed messages that the Senate continues to 
send to the administration and the country on issues related to the 
detainees held at Guantanamo Bay. Even as we enact the important McCain 
amendment on torture, the conference report also includes the Graham 
amendment, which remains deeply troubling because of the restrictions 
it places on judicial review of detainees held at Guantanamo. However, 
it is important to note that the provision is limited in critical ways. 
The provision on judicial review of military commissions covers only 
``final decisions'' of military commissions, and only governs 
challenges brought under that provision. In addition, the language in 
section 1405(e)(2) that prohibits ``any other action against the United 
States'' applies only to suits brought relating to an ``aspect of 
detention by the Department of Defense.'' Therefore, it is my 
understanding that this provision will not affect the ongoing 
litigation in Hamdan v. Rumsfeld before the Supreme Court because that 
case involves a challenge to trial by military commission, not to an 
aspect of a detention, and of course was not brought under this 
provision. Furthermore, it is important to make clear that this 
provision should not be read to endorse the current system of trial by 
military commission for those at Guantanamo Bay. This provision 
reflects, but certainly does not endorse, the existing status of those 
military commissions, which is that they are currently legal under a 
decision of the DC Circuit. However, the Supreme Court has not yet 
addressed the legality of such military commissions, and this amendment 
should not be read as any indication that Congress is weighing in on 
that issue. While I would have strongly preferred that this amendment 
not be included in the conference report, I think it is important to 
note these limitations on its practical effect.
  I am pleased that the conference report contained a number of 
provisions I authored, including my amendment to enhance and strengthen 
the transition services that are provided to our military personnel by 
making a number of improvements to the existing transition and 
postdeployment/predischarge health assessment programs. The conference 
report also includes my amendment that corrects a flaw in the law that 
unintentionally restricted the number of families of injured 
servicemembers who qualify for travel assistance. The change in the law 
now ensures that families of injured servicemembers evacuated to a U.S. 
hospital get at least one trip paid for so that these families can 
quickly reunite and begin recovering from the trauma they have 
experienced.
  The military's high operational tempo over the last 4 years led it to 
keep thousands of troops beyond their contractual separation dates 
through a policy often referred to as ``stop-loss.'' The Pentagon did a 
poor job of clearly disclosing to volunteers that they could be stop-
lossed and so many who thought they had completed their military 
service found themselves deployed to a combat zone. It is not difficult 
to understand how this policy turned upside down the lives of the 
impacted troops and their families. The conference report includes an 
amendment I authored requiring the Department of Defense to report on 
the steps it is taking to clearly communicate the stop-loss policy to 
potential enlistees and re-enlistees. I hope that, by pushing the 
Department to report on the actions it is taken to ensure that 
potential recruits know the terms of their service, the Department will 
take quick action to address this problem.
  Despite the unprecedented levels of defense spending, the Government 
Accountability Office recently found that the Department of Defense is 
not only doing a poor job in replacing equipment that is being rapidly 
worn out but is not even tracking its equipment needs. Military 
readiness has suffered as a result. I authored an amendment retained in 
the conference report requiring DOD to submit a comprehensive report in 
conjunction with the President's annual budget request that details 
DOD's program strategies and funding plans to ensure that DOD's budget 
decisions address these equipment deficiencies. Such a report will make 
DOD's equipment needs more transparent and will allow Congress to 
provide more effective oversight and hold the Department accountable.
  I am disappointed that the conference report did not maintain the 
bipartisan amendment I authored establishing the Civilian Linguist 
Reserve Corps, CLRC, pilot project. Our Government is in desperate need 
of people with critical language skills and the CLRC model, which is 
strongly supported by the Defense Department, has the potential of 
addressing this need in a fiscally responsible manner. It is 
unfortunate that the conferees chose to go another route.
  In conclusion, I must note, as I have in all of the 13 years I have 
served in the Senate, my disappointment that we continue the wasteful 
trend of spending billions of dollars on Cold War-era weapons systems 
while not fully funding our current needs. This enormous bill could 
have been better. However, on balance this legislation contains many 
good provisions for our men and women in uniform and their families and 
that is why I support it.
  Mr. CORNYN. Mr. President, I express my concern regarding the 
adoption of the McCain amendment as part of the National Defense 
Authorization Act. Although I am pleased the legislation now includes 
important protections for the brave men and women who are interrogating 
terrorists around the world, I am nevertheless concerned that this 
legislation may hinder our intelligence collection activities.
  Many supporters of the amendment, including the mainstream media, 
claim that the legislation ``bans'' torture--leaving the impression 
that torture was somehow legal under our current laws. This is 
incorrect. Torture is prohibited under current U.S. law and treaty 
obligations, and President Bush has unequivocally stated that the 
United States will not engage in torture, and we will treat all 
detainees in a humane fashion. In fact, this legislation will likely 
prohibit current legal interrogation techniques that stop well short of 
torture and are providing valuable intelligence information.
  We all agree that in order to achieve victory in the war on terror, 
the United States must have the very best intelligence we can acquire 
through technical means and the interrogation of captured terrorists. 
Many of these terrorists are highly trained to resist U.S. 
interrogation techniques. Although I adamantly oppose torture, I 
believe we must use every legal means--including aggressive 
interrogation methods that some may find objectionable--to get 
intelligence that will save American lives. I voted against the McCain 
amendment out of a deep concern that it would potentially limit certain 
interrogation methods that may be necessary to save American lives.

[[Page 30762]]

  We know that aggressive--yet humane--interrogation techniques were 
instrumental in gaining valuable information from Khalid Sheikh 
Mohammed, a key architect of the 9/11 attacks, and other terrorists in 
U.S. custody. We must not abandon these important and legal questioning 
methods for the sake of political correctness. We must send a strong 
signal to terrorists everywhere that if they are captured by the United 
States, while they will be treated humanely, we will use every legal 
method to force them to reveal their designs on the United States.
  Torture does not produce good intelligence. People who are tortured 
will tell their captors anything they want to hear and not the truth. 
More importantly, torture does not represent the values of America and 
all that we stand for as a Nation. However, we should not unnecessarily 
limit our military and intelligence agencies from aggressively 
interrogating those individuals who wish to kill innocent Americans. We 
must always remember that the terrorists who attacked America on 9/11 
are relentless in their efforts to destroy us.
  Finally, some have argued that the passage of the McCain amendment 
would have somehow prevented the heinous abuses that we saw at Abu 
Ghraib prison. This is patently false. The individuals who committed 
the abuses at Abu Ghraib knew their actions were against the law, yet 
they violated core American values. The perpetrators of these crimes 
are now being prosecuted, and the military has undertaken comprehensive 
reforms to prevent future abuses. As noted by the independent 
Schlesinger Panel in its report on detainee operations: ``There is no 
evidence of a policy of abuse promulgated by senior officials or 
military authorities.'' Our military has detained over 80,000 
individuals and the instances of detainee abuse are extremely rare and 
they are prosecuted when discovered. To imply that our military or 
intelligence services are torturing detainees as a matter of policy is 
a distortion of reality.
  In our efforts to demonstrate to the world that the United States 
does not torture terrorists, we must not weaken our ability to 
prosecute the war on terror. Our military and intelligence personnel 
must have the tools--including aggressive interrogation techniques--to 
question captured terrorists. I remain concerned that the McCain 
amendment, although admirable in its intent, may hinder our efforts to 
collect vital intelligence, and I make no apologies for endorsing all 
legal means of obtaining actionable intelligence that will save 
American lives.
  Mr. GRAHAM. Mr. President, today I rise to comment upon the recently 
passed Defense authorization bill. That bill contained a Graham-Levin-
Kyl amendment which dealt with the Combatant Status Review Tribunals 
and Military Commissions at Guantanamo Bay. I was very pleased to join 
with Senators Levin and Kyl and others to offer this amendment, and I 
want to thank them for working so hard on this issue.
  In rising today, I address one particular section of our amendment, 
the requirement that the tribunals consider whether evidence was 
coerced. In drafting this section, we were compelled to recognize three 
basic facts.
  First, we were compelled to recognize the impracticality of importing 
domestic criminal protections into a forum constructed to administer 
what are essentially enemy soldiers; combatants for a very unique 
enemy, an enemy without uniforms, capitals, or cohesive command 
structures, but combatants nonetheless.
  Second, we were forced to address the necessity of relying on 
evidence without a complete picture of how it was obtained; evidence 
that might be obscured by the fog of war, derived from battlefield 
intelligence, from classified sources, or even through unknown 
circumstances.
  Lastly, we were required by our constitutional responsibilities to 
err on the side of protecting the American people. In instances where 
there is some doubt as to the evidence or the status of the detainee, 
the benefit of the doubt must go to the government as it seeks to 
discharge its first duty, providing for the common defense of our 
people.
  In our efforts to balance these interests, we initially included an 
exclusionary rule for evidence obtained through ``undue coercion.'' We 
felt that the term ``undue coercion'' reflected the reality that, in 
the national security context, there is some level of coercive 
interrogation that is acceptable. We also understand that, at some 
point, the reliability of the information can be questioned as a result 
of the methods used to obtain it. I believe Guantanamo Bay serves a 
unique and necessary purpose in the war on terror, but we need to 
ensure that we are holding the right people.
  However, upon reconsideration, we came to believe that the term 
``undue coercion,'' being a new term without legal precedent, might not 
be as instructive as we required. Furthermore, a number of the military 
judge advocates we consulted were concerned that the exclusionary rule 
could limit them from considering evidence tainted by only an 
allegation of mistreatment.
  Therefore, after much consultation with legal professionals, we 
decided to eliminate the ``undue'' qualifier. Unfortunately, striking 
the qualifier also eliminated the consideration of whether the 
information was obtained by acceptable sources and methods. 
Accordingly, we decided to refrain from mandating the exclusionary 
rule. Instead, our language requires, for the first time, the panels to 
consider the source of the information and the information's 
reliability. I am very confident our language provides for the proper 
consideration.
  Now, to be sure, our language also provides for the benefit of the 
doubt to go to the government. In granting this benefit, however, we 
recognize that we are fundamentally different from our adversaries. 
Though we may fail at times, we strive to be fair and just and 
honorable. And because our military men and women exemplify those 
values, we can trust them to fairly administer this process. In the 
end, we must remember that this is a military administrative process, 
and, with the proper congressional and judicial oversight provided by 
our amendment, we must trust our professional military officers to do 
their jobs.
  In our amendment as a whole, we sought to protect our national 
security while still striking the proper balance between aggressively 
interrogating detainees and providing a competent military 
administrative process for their status determination. I am confident 
that this new evidentiary standard serves that goal.
  Mr. DURBIN. Mr. President, I rise to speak about the Detainee 
Treatment Act of 2005, which is included in the Defense authorization 
conference report.
  The Detainee Treatment Act includes two provisions that were adopted 
in the Senate version of the Defense authorization bill: the McCain 
antihuman torture amendment and the Graham-Levin Detainee Amendment.
  I was an original cosponsor of the McCain Antitorture amendment. I 
have spoken at length about the vital importance of this amendment on 
several other occasions. At this time, I simply want to reiterate a 
couple of points.
  Twice in the last year and a half, I have authored amendments to 
affirm our Nation's long standing position that torture and cruel, 
inhuman, or degrading treatment are illegal. Twice, the Senate 
unanimously approved my amendments. Both times, the amendments were 
killed behind the closed doors of a conference committee--at the 
insistence of the Bush administration.
  I am pleased that the administration has changed its position. As a 
result, it will now be absolutely clear that under U.S. law all U.S. 
personnel are prohibited from subjecting any detainee anywhere in the 
world to torture or cruel, inhuman, or degrading treatment.
  The amendment defines cruel, inhuman, or degrading treatment as any 
conduct that would constitute the cruel, unusual, and inhumane 
treatment or punishment prohibited by the U.S. Constitution if the 
conduct took place in the United States. Under this standard, abusive 
treatment that would be unconstitutional in American

[[Page 30763]]

prisons will not be permissible anywhere in the world.
  Let me give you some examples of conduct that is clearly prohibited 
by the McCain amendment.
  ``Waterboarding'' or simulated drowning is a technique that was used 
during the Spanish Inquisition. It is clearly a form of torture. It 
creates an overwhelming sense of imminent death. It amounts to a clear-
cut threat of death akin to a mock execution, which is expressly called 
mental torture in the U.S. Army Field Manual.
  Sleep deprivation is another classic form of torture which is 
explicitly called mental torture in the U.S. Army Field Manual. It has 
been banned in the United Kingdom and by a unanimous Israeli Supreme 
Court, and the U.S. Supreme Court has repeatedly declared it 
unconstitutional, once citing a report that called it ``the most 
effective form of torture.''
  The amendment also clearly bans so-called stress positions or 
painful, prolonged forced standing or shackling. Again, the U.S. Army 
Field Manual expressly calls these techniques ``physical torture.'' 
Moreover, one of the most recent Supreme Court cases on the extent of 
the prohibitions on ``cruel and unusual'' punishments expressly 
outlawed the use of painful stress positions, denouncing their 
``obvious cruelty'' as ``antithetical to human dignity.''
  The amendment bans the use of extreme cold, or hypothermia, as an 
interrogation tactic. Hypothermia can be deadly. Clearly it is capable 
of causing severe and lasting harm, if not death, and consequently is 
banned by both the Field Manual and the Constitution.
  The amendment bans punching, striking, violently shaking, or beating 
detainees. Striking prisoners is a criminal offense and clearly 
unconstitutional. Moreover, while assaults like slapping and violent 
shaking may not seem as dangerous as beatings, shaking did, in fact, 
kill a prisoner in Israel, and the tactic has been banned by the 
Israeli Supreme Court. Numerous U.S. Supreme Court cases likewise 
prohibited striking prisoners.
  The amendment bans the use of dogs in interrogation and the use of 
nakedness and sexual humiliation for the purpose of degrading 
prisoners.
  No reasonable person, given the text of the amendment, the judicial 
precedents, and common sense, would consider these techniques to be 
permitted. Any U.S. official or employee who receives legal advice to 
the contrary should think twice before defying the will of the Congress 
on this issue.
  The McCain antitorture amendment will make the rules for the 
treatment of detainees clear to our troops and will send a signal to 
the world about our Nation's commitment to the humane treatment of 
detainees.
  I want to express again my opposition to the Graham-Levin amendment.
  The amendment would essentially eliminate habeas corpus for detainees 
at Guantanamo Bay. In so doing, it would apparently overturn the 
Supreme Court's landmark decision in Rasul v. Bush.
  No one questions the fact that the United States has the power to 
hold battlefield combatants for the duration of an armed conflict. That 
is a fundamental premise of the law of war.
  However, over the objections of then-Secretary of State Colin Powell 
and military lawyers, the Bush administration has created a new 
detention policy that goes far beyond the traditional law of war. The 
administration claims the right to seize anyone, including an American 
citizen, anywhere in the world, including in the United States, and to 
hold him until the end of the war on terrorism, whenever that may be. 
They claim that a person detained in the war on terrorism has no legal 
rights. That means no right to a lawyer, no right to see the evidence 
against him, and no right to challenge his detention.
  In fact, the Government has argued in court that detainees would have 
no right to challenge their detentions even if they claimed they were 
being tortured or summarily executed.
  U.S. military lawyers have called this detention system ``a legal 
black hole.''
  Defense Secretary Rumsfeld has described the detainees as ``the 
hardest of the hard core'' and ``among the most dangerous, best 
trained, vicious killers on the face of the Earth.'' However, the 
administration now acknowledges that innocent people are held at 
Guantanamo Bay. In late 2003, the Pentagon reportedly determined that 
15 Chinese Muslims held at Guantanamo are not enemy combatants and were 
mistakenly detained. Almost 2 years later, those individuals remain in 
Guantanamo Bay.
  Last year, in the Rasul decision, the Supreme Court rejected the 
administration's detention policy. The Court held that detainees at 
Guantanamo have the right to habeas corpus to challenge their 
detentions in Federal court. The Court held that the detainees' claims 
that they were detained for years without charge and without access to 
counsel ``unquestionably describe custody in violation of the 
Constitution, or laws or treaties of the United States.''
  The Graham amendment would protect the Bush administration's 
detention system from legal challenge. It would effectively overturn 
the Supreme Court's decision. It would prevent innocent detainees, like 
the Chinese Muslims, from challenging their detention.
  However, I do want to note some limitations on the scope of the 
Graham-Levin Amendment.
  A critical feature of this legislation is that it is forward looking. 
A law purporting to require a Federal court to give up its jurisdiction 
over a case that is submitted and awaiting decision would raise grave 
constitutional questions. The amendment's jurisdiction-stripping 
provisions clearly do not apply to pending cases, including the Hamdan 
v. Rumsfeld case, which is currently pending before the Supreme Court. 
In accordance with our traditions, this amendment does not apply 
retroactively to revoke the jurisdiction of the courts to consider 
pending claims invoking the Great Writ of Habeas Corpus challenging 
past enemy combatant determinations reached without the safeguards this 
amendment requires for future determinations. The amendment alters the 
original language introduced by Senator Graham so that those pending 
cases are not affected by this provision.
  The amendment also does not legislate an exhaustion requirement for 
those who have already filed military commission challenges. As such, 
nothing in the legislation alters or impacts the jurisdiction or merits 
of the Hamdan case.
  Nothing in the legislation affirmatively authorizes, or even 
recognizes, the legal status of the military commissions at issue in 
Hamdan. That is the precise question that the Supreme Court will decide 
in the next months. Right now, the military commissions are legal under 
a decision of the DC Circuit, and this amendment reflects but in no way 
endorses that present status. It would be a grave mistake for our 
allies around the world to think that we are endorsing this system at 
Guantanamo Bay--a system that has produced not a single conviction in 
the 4 years since the horrible attacks of September 11, 2001.
  This provision attempts to address problems that have occurred in the 
determinations of the status of people detained by the military at 
Guantanamo Bay and elsewhere. It recognizes that the Combatant Status 
Review Tribunal, CSRT, procedures applied in the past were inadequate 
and must be changed going forward. As the former chief judge of the 
U.S. Foreign Intelligence Surveillance Court found, in In Re Guantanamo 
Detainee Cases, the past CSRT procedures ``deprive[d] the detainees of 
sufficient notice of the factual bases for their detention and den[ied] 
them a fair opportunity to challenge their incarceration,'' and allowed 
``reliance on statements possibly obtained through torture or other 
coercion.'' Her review ``call[ed] into serious question the nature and 
thoroughness'' of the past CSRT process. The former CSRT procedures 
were not issued by the Secretary of Defense, were not reported to or 
approved by Congress, did not provide for final determinations by

[[Page 30764]]

a civilian official answerable to Congress, did not provide for the 
consideration of new evidence, and did not address the use of 
statements possibly obtained through coercion.
  To address these problems, this provision requires the Secretary of 
Defense to issue new CSRT procedures and report those procedures to the 
appropriate committees of Congress; it requires that going forward, the 
determinations be made by a Designated Civilian Official who is 
answerable to Congress; it provides for the periodic review of new 
evidence; it provides for future CSRTs to assess whether statements 
were derived from coercion and their probative value; and it provides 
for review in the DC Circuit Court of Appeals for these future CSRT 
determinations.
  Mr. REID. In a statement on November 15 of this year, I explained my 
vote on amendments offered by Senators Graham, Levin, and Bingaman 
regarding access to the Federal courts for detainees at Guantanamo Bay. 
Now that a conference report containing a revised version of these 
provisions is before us, I want to reiterate a few points.
  I voted in favor of the Graham-Levin amendment because I believed it 
was better than the original Graham amendment. Similarly, I will vote 
in favor of this conference report because I favor the bill as a whole. 
But I have mixed views on the detainee provisions of the conference 
report, now in title X as the ``Detainee Treatment Act of 2005.''
  On the one hand, I oppose stripping the courts of jurisdiction to 
hear habeas corpus petitions. The writ of habeas corpus is one of the 
pillars of the Anglo-American legal system, and limiting the Great Writ 
interferes with the independence of the judiciary and violates 
principles of separation of powers. The action we take today fails to 
address adequately the Bush administration's flawed policy of detaining 
suspects indefinitely, in secret, and without access to meaningful 
judicial oversight.
  On the other hand, I support provisions in this bill that require 
improvements in the procedures and oversight of the Combatant Status 
Review Tribunals. It is important to ensure that status determinations 
of those detained at Guantanamo Bay and elsewhere are conducted in 
accordance with basic requirements of due process and fairness. The 
Defense Department must address the serious problems identified earlier 
this year by Judge Green, the former chief judge of the U.S. Foreign 
Intelligence Surveillance Court.
  I am also pleased that the final law would allow courts to consider 
whether the standards and procedures used by the Combatant Status 
Review Tribunals are consistent with the Constitution and U.S. laws, 
that it does not apply retroactively to pending habeas claims that 
challenge past enemy combatant determinations reached without the 
safeguards this amendment requires, and that it would allow for court 
review of the actions of military commissions. I commend Senator Levin 
for his work on these issues.
  On balance, I support the final detainee provisions with the 
following understandings:
  First, I am pleased that Senator Graham's original language was 
altered so that the Supreme Court would not be divested of jurisdiction 
to hear the pending case of Hamdan v. Rumsfeld. In fact, subsection (h) 
of section 1005 makes clear that the DC Circuit and other courts will 
maintain jurisdiction to hear all pending habeas cases, in accordance 
with the Supreme Court's decision in Lindh v. Murphy.
  Second, on a related but distinct point, I believe this act has no 
impact on the Supreme Court's ability to consider Hamdan's challenge at 
this pre-conviction stage of the military commission proceedings. As 
the DC Circuit held in Hamdan earlier this year, Ex Parte Quirin is a 
compelling historical precedent for the power of civilian courts to 
entertain challenges that are raised during a military commission 
process. Nothing in these sections requires the courts to abstain at 
this point in the litigation. Paragraph 3 of subsection 1005(e) governs 
challenges to ``final decisions'' of the military commissions and does 
not impact challenges like Hamdan's other cases not brought under that 
paragraph.
  Third, this legislation does not represent congressional acquiescence 
in or authorization of the military commissions unilaterally 
established by the executive branch at Guantanamo Bay. Whether these 
commissions are legal is precisely the question the Supreme Court will 
soon decide in the Hamdan case. Rather, this legislation reflects the 
fact that the military commissions are currently legal under the DC 
Circuit's decision in Hamdan. We legislate against this backdrop in 
setting up a procedure to challenge the commissions, but we do not 
necessarily endorse the use of such commissions in this manner.
  I hope that the Judiciary Committee soon considers legislation to 
define the rights of the detainees at Guantanamo with greater care and 
to develop sensible procedures for enforcing those rights. Congress 
should be guided by principles of human rights and the rule of law upon 
which this Nation was founded.
  The PRESIDING OFFICER. The question is on agreeing to the conference 
report.
  The conference report was agreed to.
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________