[Congressional Record (Bound Edition), Volume 152 (2006), Part 15]
[Senate]
[Pages 19948-19981]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    MILITARY COMMISSIONS ACT OF 2006

  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (S. 3930) to authorize trial by military commission 
     for violations of the law of war, and for other purposes.

  The amendment (No. 5085) was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, for 5 years we have been a nation at war. 
It is a war unlike any we have ever before fought. It is an ideological 
war against radicals and zealots. We are fighting a different kind of 
enemy--an enemy who seeks to destroy our values, to destroy our 
freedom, and to destroy our way of life, people who will kill and who 
will actually stop at nothing to bring America to its knees. It is a 
war against an enemy who won't back down, ever, telling interrogators: 
I will never forget your face. I will kill you. I will kill your 
brothers, your mother, your sisters. It is a war against an enemy who 
undertakes years of psychological training to consciously resist 
interrogation and to withhold information that could be critical to 
thwarting future threats, future attacks. But it is also a physical 
war. On the field of battle, it is a war that demands quick thinking 
and creativity. It demands tactics that entice the enemy to reveal his 
weaknesses.
  As we learned 5 years ago, safety and security aren't static states; 
they are dynamic, constantly shifting, constantly moving. We 
consistently and repeatedly have to be able to adjust and take stock 
and reassess and, when necessary, implement changes in response.
  In the past 5 years alone, in this body we have passed more than 70 
laws and other bills related to the war on terror, but they haven't 
been enough. They haven't kept pace with the ever-changing field of 
battle. There is more we can do and, indeed, we must do. That is why 
over the last month we have focused the Senate agenda on security, and 
that is why today we address our Nation's security by debating one of 
the most serious and most urgent security issues currently facing the 
Nation: the detainment, questioning, and prosecution of enemy 
combatants--terrorists captured on the battlefield.
  A few weeks ago, I traveled with several of my colleagues to 
Guantanamo Bay. That is where the mastermind of 9/11 currently 
resides--Khalid Shaikh Mohammed. This man, the man the 9/11 Commission 
calls the principal architect behind the 9/11 attacks, didn't stop with 
9/11. Not 1 month after 9/11, he was busy again plotting and planning, 
orchestrating, scheming, and conspiring to strike us again while we 
were still down. His next plot targeted the tallest buildings on the 
west coast with hijacked planes, buildings that house businesses and 
organizations absolutely critical to our economic and our financial 
stability, including the Library Tower in Los Angeles, CA. But this 
time, we were ready. We thwarted that plot, and Khalid Shaikh Mohammed 
now resides at Guantanamo. But he wouldn't reside there and we wouldn't 
have stymied his evil designs at that Library Tower if not for the 
ability to question detainees.
  Soon after 9/11, we detained an al-Qaida operative known as Abu 
Zubaydah. Under questioning, he yielded several operational leads. He 
revealed Shaikh Mohammed's role in the 9/11 attacks. Coupled with other 
sources, the information he gave up led

[[Page 19949]]

to Shaikh Mohammed's capture and detainment. Khalid Shaikh Mohammed 
currently awaits prosecution. That prosecution cannot happen until we 
act. Our great Nation will know no justice--and his victims' families 
will know no justice--until Congress acts by passing legislation to 
establish these military commissions.
  Before we recess this week, we will complete this bill. We could 
complete it possibly today but if not, in the morning. The bill itself 
provides a legislative framework to detain, question, and prosecute 
terrorists. It reflects the agreement reached last week: Republicans 
united around the common goal of bringing terrorists to justice. It 
preserves our intelligence programs--intelligence programs that have 
disrupted terrorist plots and saved countless American lives.
  When we capture terrorists on the battlefield, we have a right to 
prosecute them for war crimes. This bill establishes a system that 
protects our national security while ensuring a full and fair trial for 
detainees. The bill formally establishes terrorist tribunals to 
prosecute terrorists engaged in hostilities against the United States 
for war crimes. Terrorist detainees will be tried by a 5- or 12-member 
military commission overseen by a military judge. They will have the 
right to be presumed innocent until proven guilty, the right to 
military and civilian counsel, the right to present exculpatory 
evidence, the right to exclude evidence obtained through torture, and 
the right to appeal.
  The bill also protects classified information--our critical sources 
and methods--from terrorists who could exploit it to plan another 
terrorist attack. It provides a national security privilege that can be 
asserted at trial to prevent the introduction of classified evidence. 
But the accused can be provided a declassified summary of that 
evidence.
  Moreover, the bill provides legal clarity for our treaty obligations 
under the Geneva Conventions. It establishes a specific list of crimes 
that are considered grave breaches of the Geneva Conventions.
  Ultimately, these procedures recognize that because we are at war, we 
should not try terrorists in the same way as our uniformed military or 
common civilian criminals. We must remember that we are fighting a 
different kind of enemy in a different kind of war. We are fighting an 
enemy who seeks to destroy our values, our freedoms, and our very way 
of life.
  To win this war, we must provide our military, intelligence, and law 
enforcement communities the tools they need to keep us safe. By 
formally establishing terrorist tribunals, the bill provides another 
critical tool in fighting the war on terror, and it provides a measure 
of justice to the victims of 9/11.
  Until Congress passes this legislation, terrorists such as Khalid 
Shaikh Mohammed cannot be tried for war crimes, and the United States 
risks fighting a blind war without adequate intelligence to keep us 
safe. That is simply unacceptable, and that is why this bill must be 
passed.
  I look forward over the next few hours to an open and civilized 
debate in the best traditions of the Senate. I urge my colleagues--
Republican, Democrat, and Independent alike--to work together to pass 
this bill. The American people can't afford to wait. Even though we are 
in the midst of an election year, this issue--the safety and security 
of the American people--should transcend partisan politics. The time to 
act is now.
  Mr. President, I yield the floor.
  Mr. LEVIN. Mr. President, I yield myself 15 minutes off the bill 
itself.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, first let me begin by commending our 
colleagues on the Armed Services Committee, Senator Warner, Senator 
McCain, and Senator Graham, for their effort earlier this month to 
produce a military commissions bill that will protect our troops, 
withstand judicial review, and be consistent with American values. The 
administration of their own party had prepared a bill that would 
authorize violations of our obligations under international law, permit 
the abusive treatment of prisoners, and allow criminal convictions 
based on secret evidence. The three Senators drafted a different bill, 
in consultation with our senior military lawyers. When the 
administration objected to this bill, Senator Warner scheduled a markup 
in the Senate Armed Services Committee anyway, and we reported that 
bill out with a bipartisan vote of 15 to 9.
  Unlike the administration bill, the committee bill would not have 
allowed convictions based on secret testimony that is never revealed to 
the accused. The committee bill would not have allowed testimony 
obtained through cruel or inhuman treatment. The committee bill would 
not have allowed the use of hearsay where a better source of evidence 
is readily available. The committee bill would not have attempted to 
reinterpret our obligations under international law to permit the abuse 
of detainees in U.S. custody.
  While the committee bill was not perfect--in particular, it included 
a very problematic provision on the writ of habeas corpus--the military 
commissions it established would have met the test of the Supreme 
Court's decision in the Hamdan case and provided for the trial of 
detainees for war crimes in a manner that is consistent with American 
values and the American system of justice. It provided standards we 
would be able to live with if other countries were to apply similar 
standards to our troops if our troops were captured. And, of course, 
the committee bill provided for the interrogation, for the detention, 
and for criminal trials of detainees.
  Unfortunately, the committee bill was not brought to the Senate. 
Instead, the three Republican Senators entered into negotiations with 
an administration that has been relentless in its determination to 
legitimize the abuse of detainees and to distort military commission 
procedures to ensure criminal convictions. The bill before us now is 
the product of these negotiations. I will be offering the committee-
approved bill as a substitute a little later today. The bipartisan 
committee bill, which came from our committee just about a week ago on 
a vote of 15 to 9, will be offered by me as a substitute to the bill 
which is now before us.
  The bill before us does make a few significant improvements over the 
administration bill. I want to begin by outlining what those 
improvements are.
  First, while the bill before us is not as clear as the committee bill 
in committing us to a standard that will protect our troops by 
conforming to our obligations under the Geneva Conventions, it is far 
preferable to the administration bill in this regard. In particular, 
the bill before us does not reinterpret U.S. obligations for the 
treatment of detainees under Common Article 3 of the Geneva 
Conventions. It does not place a congressional stamp of approval on an 
executive branch reinterpretation of those obligations. All it does in 
this regard is to state the obvious: that the President is responsible 
for administering the laws and that this gives him the authority to 
adopt regulations interpreting the meaning and application of the 
Geneva Conventions in the same manner and to the same extent as he can 
issue such regulations interpreting other laws.
  Common Article 3 of the Geneva Conventions, the Detainee Treatment 
Act, and the new Army Field Manual all prohibit such interrogation 
abuses as forcing a detainee to be naked, to perform sexual acts or 
pose in a sexual manner; prevent such abuses as sensory deprivation, 
placing hoods or sacks over the head of a detainee, applying beatings, 
electric shock, burns, or other forms of physical pain; waterboarding, 
using military working dogs, inducing hypothermia or heat injury, 
conducting mock executions, or depriving the detainee of necessary 
food, water, or medical care. Nothing in this bill would change any of 
the standards of the Geneva Conventions, the Detainee Treatment Act, or 
the Army Field Manual. Nothing in this bill would authorize the 
President to do so.
  Second, the bill does not permit the use of secret evidence that is 
not revealed to the defendant. Instead, the

[[Page 19950]]

bill clarifies that information about sources, methods, or activities 
by which the United States obtained evidence may be redacted before the 
evidence is provided to the defendant and introduced at trial. Any 
material redacted from the evidence provided to the defendant cannot be 
introduced at trial. The defendant would have the right to be present 
for all proceedings and to examine and respond to all evidence 
considered by the military commission.
  This approach is consistent with the approach taken to classified 
information in the Manual for Courts Martial, and it ensures that a 
defendant could not be convicted on the basis of secret evidence, 
evidence that is not known to him.
  Those are two positive changes from the approach which the 
administration has argued for and demanded, in these two cases without 
success.
  Unfortunately, at the insistence of the administration, the bill 
before us contains a great many ill-advised changes from the approved 
bill of the Armed Services Committee. For example, on coerced 
testimony, the committee-approved bill prohibited the admission of 
statements obtained through cruel, inhuman, or degrading treatment. The 
bill before us prohibits the admission of statements obtained after 
December 30, 2005, through ``cruel, inhuman or degrading treatment,'' 
but, inexplicably, contains no such prohibition for statements that 
were obtained before September 30, 2005. As a result, military 
tribunals would be free to admit, for the first time in U.S. legal 
history, statements that were extracted through abusive practices.
  On the question of hearsay, the committee bill permitted the 
admission of hearsay evidence not admissible at trials by court-
martial, if direct evidence, which is inherently more probative, could 
be procured ``through reasonable efforts, taking into consideration the 
unique circumstances of the conduct of military and intelligence 
operations during hostilities.''
  The bill before us makes hearsay evidence admissible unless the 
defendant can demonstrate that it is unreliable or lacking in probative 
value. Hearsay evidence is not only inherently less reliable, its use 
also deprives the accused of the ability to confront witnesses against 
him. The approach taken by this bill not only relieves the Government 
of any obligation to seek direct testimony from its witnesses, it also 
appears to shift the burden to the accused by presuming that hearsay 
evidence is reliable unless the accused can demonstrate otherwise.
  On the question of search warrants, the committee bill, the bill 
which I will be offering as a substitute later on today--the committee 
bill provided that evidence seized outside the United States shall not 
be excluded from trial by military commission on the grounds that the 
evidence was not seized pursuant to a search warrant. The bill before 
us deletes the limitation so that it no longer applies to evidence 
seized outside the United States. As a result, the bill authorizes the 
use of evidence that is seized inside the United States without a 
search warrant. This provision is not limited to evidence seized from 
enemy combatants; it does not even preclude the seizure of evidence 
without a warrant from U.S. citizens. As a result, this provision 
appears to authorize the use of evidence that is obtained without a 
warrant, in violation of the U.S. Constitution.
  On the definition of unlawful combatant, the committee bill defined 
the term ``unlawful combatant'' in accordance with the traditional law 
of war. The bill before us, however, changes the definition to add a 
presumption that any person who is ``part of'' the ``associated 
forces'' of a terrorist organization is an unlawful combatant, 
regardless of whether that person actually meets the test of engaging 
in hostilities against the United States or purposefully and materially 
is supporting such hostilities.
  The bill also adds a new provision which makes the determination of a 
Combatant Status Review Tribunal, or CSRT, that a person is an unlawful 
enemy combatant--it makes that determination dispositive for the 
purpose of the jurisdiction of a military commission, even though the 
CSRT determinations may be based on evidence that would be excluded as 
unreliable by a military commission.
  On the issue of procedures and rules of evidence, the committee bill 
provided that the procedures and rules of evidence applicable in trials 
by general courts martial would apply in trials by military commission, 
subject to such exceptions as the Secretary of Defense determines to be 
``required by the unique circumstances of the conduct of military and 
intelligence operations during hostilities or by other practical 
need.'' That approach, in our committee bill, was consistent with the 
ruling of the Supreme Court in the Hamdan case, but built in 
flexibility to address unique circumstances arising out of military and 
intelligence operations. The bill before us reverses the presumption. 
Instead of starting with the rules applicable in trials by courts 
martial and establishing exceptions, the Secretary of Defense is 
required to make trials by commission consistent with those rules only 
when he considers it practicable to do so. As one observer has pointed 
out, this provision is now so vaguely worded that it could even be read 
to authorize the administration to abandon the presumption of innocence 
in trials by military commission.
  On the issue of habeas corpus, the habeas corpus provision in the 
committee bill stripped alien detainees of habeas corpus rights, even 
if they had no other legal recourse to demonstrate that they were 
improperly detained. It also stripped those detainees of any other 
recourse to the U.S. courts for legal actions regarding their detention 
or treatment in U.S. custody. If the committee bill had been brought to 
the floor, I would have joined in offering an amendment to address the 
obvious problems with this provision. But at least the court-stripping 
provision in the committee bill was limited to aliens who were detained 
outside of the United States. The bill before us expands that provision 
to eliminate habeas corpus rights and all other legal rights for 
aliens, including lawful permanent residents detained inside or outside 
the United States who have been determined by the United States to be 
the enemy. The only requirement is that the United States determine 
that the alien detainee is an enemy combatant--but the bill provides no 
standard for this determination and offers the detainee no ability to 
challenge it in those cases which I have identified.
  Consequently, even aliens who have been released from U.S. custody, 
such as the detainee that the Canadian Government recently found was 
detained without any basis and was subjected to torture, would be 
denied any legal recourse as long as the United States continues to 
claim that they were properly held.
  I yield myself an additional 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. In other words, a determination by the United States could 
not be contested, even if there is overwhelming evidence that the claim 
was incorrect.
  These changes in the committee bill, a bill which was approved on a 
bipartisan basis in our committee, the changes that appear in the bill 
which is now before us, taken together, will put our own troops at risk 
if other countries decide to apply similar standards to our troops if 
they are captured and detained. These changes in the bill before us 
from the committee bill are likely to result in the reversal of 
convictions on appeal, and that means that efforts to convict these 
people of crimes can be readily reversed on appeal because of the 
changes that were made in the committee bill and the fact, which seems 
to me to be quite clear, that they do not comply in many instances with 
the requirements set forth in Hamdan, and the changes in the bill 
before us from the committee bill are inconsistent with American 
values.
  I particularly again highlight the search and seizure requirements of 
our fourth amendment and the way that seems to be abandoned in the bill 
before us.

[[Page 19951]]

  I close by applauding, again, Senators Warner, McCain, and Graham for 
their willingness to stand up to the administration and at least at the 
Armed Services Committee produce a bill that we were able to approve in 
the Armed Services Committee on a strong bipartisan vote.
  However, the administration has been even more relentless in their 
effort to legitimize the mistreatment of detainees and to undermine 
some of the cornerstone principles of our legal system. While the bill 
before us is a modest improvement over the language originally proposed 
by the administration, it has adopted far too many provisions from the 
administration's bill. The substitute which we will be offering later 
on today is the committee-approved bill. That will do a much better 
job, if we adopt it, of protecting our troops who might become 
detainees in the future and does a much better job of upholding our 
values as a nation.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? If no one yields time, time 
will be charged to both sides.
  The Senator from Michigan.
  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I ask unanimous consent that of the time 
under the control of the Democratic leader, Senator Reid, that 45 
minutes be allocated to Senator Leahy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I suggest the absence of a quorum and ask that the time be 
charged equally to both sides.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Parliamentary inquiry: At this time the Senate is now 
proceeding on the Hamdi bill; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. WARNER. Mr. President, I rise to speak in support of the Military 
Commissions Act of 2006 which would authorize military commissions for 
the trial of an alien enemy unlawful combatant.
  I take a moment to say my colleagues and others with whom I have 
served in the Senate for the last 28 years stand at a moment of 
critical importance in the history of our Nation. What we do today will 
impact how we conduct the war on terror for as long as it lasts. In the 
estimate of this humble Senator, that could be for decades. It will 
fundamentally impact our relationships with our allies. It will 
fundamentally impact the image of the United States of America in the 
eyes of the world. It is crucial to our ability to keep America safe. 
It will speak most loudly about the core values, the principles of this 
great Republic known as the United States of America.
  From the outset, I make it clear I respect the views of all 
participants in this dialog, from the President and his team, to those 
particularly in the Congress, but elsewhere in the Congress, on both 
sides of the aisle. I have certain core principles I share with several 
of my colleagues. I have endeavored to see this particular bill 
reflects those principles to the best of my ability, as have they. 
Nevertheless, I respect the views of others who may differ.
  The goal of this legislation, from my point of view, and I think it 
is shared by others, is first and foremost to meet the challenge for 
withstanding review by the Supreme Court. Out of respect for that 
Court, the Hamdan decision, which was quite an interesting decision in 
many of its findings, divided by different panels within that Court, it 
is quite likely in one or more instances, if this becomes law, the bill 
now presently before the Senate, that will likewise be taken to the 
Supreme Court. That is the way we do things in the United States of 
America.
  We hope we who have labored to craft this, and the 100 Senators who 
will finally cast their votes, together with the other body, will give 
to the President a bill that will effectively enable him to do those 
things to keep America free, to fight the war on terrorism and, at the 
same time, pass the Federal court review--whether it is the district, 
appellate, or the Supreme Court--such as likely will take place.
  In late June, the Supreme Court struck down the President's initial 
plan to try detainees by military commissions. In its opinion, Hamdan 
v. Rumsfeld, the Court held by a fractured five-Justice panel that the 
present system for trials by military commission violated both the 
Uniform Code of Military Justice and particularly Common Article 3 of 
the 1949 Geneva Conventions. There were some four conventions put 
together in 1949. In particular, the Common Article 3 was common to all 
four of those conventions.
  That historic moment in world history was a culmination from the 
learning experience of what took place all across our globe during 
World War II in an effort to see that certain injustices, in terms of 
the basic core values of the free world, would never occur again.
  It is my fervent hope and conviction that whatever the Congress does, 
the legislation we produce must be able to withstand further security 
review and scrutiny of the Federal court system, particularly the 
Supreme Court.
  From my own personal perspective, it would be a very serious blow to 
the credibility of the United States--and I have said this a number of 
times in connection with the debate--not only in the international 
community but also at home, if the legislation as prepared by the 
Congress now and enacted by the President failed to meet another series 
of Federal court reviews.
  To meet the mandate of the Court in its decision, Hamdan v. Rumsfeld, 
this legislation provides for a military commission that, in the words 
of Common Article 3, affords ``all the judicial guarantees which are 
recognized as indispensable by civilized peoples.''
  That is what we are striving to obtain. The Military Commissions Act 
of 2006 provides these essential guarantees in the following ways. The 
bill generally follows the current military rule on the use of 
classified information at trial. That has been an area of concern 
probably to each and every Senator but most particularly to this 
Senator and others who worked closely in our group. We have, to the 
satisfaction of all interested parties, resolved that.
  That is a very fundamental thing we must maintain; that is, the 
ability of our continued gathering of evidence, the protection of 
source and methods--nevertheless, to provide, on a real-time basis 
intelligence for our fighting men and women and, indeed, intelligence 
to protect us here at home.
  However, our bill goes further by creating a privilege that protects 
classified information at all stages of a trial and prohibits 
disclosure of classified information, including sensitive intelligence 
sources and methods, to an alleged terrorist accused.
  As a fundamental matter--and one we feel is crucial for this bill to 
survive judicial review--the bill would not allow an accused, however, 
to be tried and sentenced--perhaps even being given the death penalty--
on evidence that the accused has never been allowed to see. That, in my 
judgment, and I think in the judgment of many, would be establishing a 
precedent that is without foundation in American jurisprudence or, 
indeed, the jurisprudence of the vast majority of nations in the world.
  Further, the bill would prohibit the use of evidence that was 
allegedly obtained through the use of torture. A statement obtained 
before the date of enactment of the Detainee Treatment Act of 2005--
December 30, 2005--in which the degree of coercion is in dispute could 
be used only--and I repeat--

[[Page 19952]]

only at trial if the military judge finds that it is reliable and tends 
to prove the point for which it was offered.
  A statement obtained after the date of enactment of the Detainee 
Treatment Act of 2005, in which the degree of coercion is in dispute, 
may only be admitted in evidence if the military judge finds that the 
first two tests are met and finds that the interrogation methods used 
to obtain the statement do not amount to cruel, inhuman, or degrading 
treatment prohibited by the Detainee Treatment Act of 2005.
  The bill would generally follow the rules of evidence that apply to 
courts-martial. However, the Secretary of Defense, in consultation with 
the Attorney General, would be authorized to make substantial 
exceptions due to the unique circumstances presented by the conduct of 
military and intelligence activities so long as those exceptions are 
not inconsistent with the statutory provisions provided by this new 
law.
  Most importantly, this bill achieves the President's benchmark 
objective by clearly defining those grave breaches of Common Article 3 
of the Geneva Conventions that would be a criminal offense under the 
U.S. domestic law in the War Crimes Act.
  That term, ``grave breaches,'' is set forth in that Convention of 
1949. And in conjunction with working on this, we extensively examined 
the legislative history. Doing so allows our military and intelligence 
interrogators to know what conduct is prohibited under U.S. law. 
Moreover, this bill provides that no foreign sources of law may be used 
to define or interpret U.S. domestic criminal law implementing Common 
Article 3.
  This bill does not provide as a matter of law that this legislation 
fully satisfies Common Article 3 of the Geneva Conventions. My 
colleagues and I feel that to make such a statement a matter of statute 
would amount to a reinterpretation of our obligations under the Geneva 
Conventions some 57 years after the United States signed those 
treaties. Such an action could open the door to statutory 
reinterpretation by a host of other nations with less regard for human 
rights than the United States, and would result in possibly our U.S. 
troops being put at greater risk should they become captives in a 
future conflict.
  However, in addition to clearly defining grave breaches of Common 
Article 3 that are war crimes under the War Crimes Act, this bill 
acknowledges the President's authority under the Constitution to 
interpret the meaning and application of the Geneva Conventions, and to 
promulgate administrative regulations for violations of our broader 
treaty obligations which are not grave breaches of the Geneva 
Conventions. To ensure transparency, such interpretations are required 
to be published in the Federal Register and are subject to 
congressional and judicial oversight.
  We have had a robust discussion of these issues among Members and 
with administration officials for some several months, most 
particularly the last few weeks. I strongly believe this bill achieves 
the best balance for our country. It will allow terrorists to be 
brought to justice in accordance with the founding principles and 
values that have made our Nation the greatest democracy in the world.
  This bill will also provide the clarity needed to allow our essential 
intelligence activities to go forward--I repeat: go forward--under the 
law. And this bill is consistent with the Geneva Conventions, which 
have helped protect our own forces in conflicts over the past 57 years.
  I thank my colleagues for their support. I wish at this time to thank 
the many staff members who have worked on this thing tirelessly. And I 
might add, in my 28 years here I have never known the legislative 
counsel's office to literally work 24 hours around the clock. Perhaps 
they have, but certainly they did in this instance. I want to give a 
special recognition and thanks to that office for assisting the Senate 
in preparing this bill.
  Now, Mr. President, my understanding is the Senator from Michigan may 
well have an amendment he would like to bring forward.
  The PRESIDING OFFICER. The Senator from Michigan.


                           Amendment No. 5086

       (Purpose: In the nature of a substitute)

  Mr. LEVIN. Mr. President, I now call up amendment No. 5086, which is 
an amendment in the nature of a substitute.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 5086.

  Mr. LEVIN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. LEVIN. Mr. President, the amendment which I have just called up 
would substitute a bill which was adopted by the Senate Armed Services 
Committee on a bipartisan vote of 15 to 9 for the pending language.
  Before I outline the differences between the bill which the committee 
adopted and the bill before us, I want to thank my good friend from 
Virginia for the work he and a number of other colleagues on the 
Republican side put into the committee bill to make it possible for 
that bill to be adopted.
  In my earlier statement, when the Senator was not on the floor, I 
commended him and Senator McCain and Senator Graham for their effort 
earlier this month to produce a military commissions bill that would 
protect our troops in the event they were captured at some point down 
the road that would withstand judicial review and be consistent with 
our values.
  They produced this bill in the committee, despite huge administration 
opposition. The chairman of the committee actually scheduled a markup, 
as I indicated in my prior statement, despite the opposition of the 
administration. The administration did then and continues to want to 
permit the treatment of prisoners which is abusive. They did then and 
they still want to allow criminal convictions to be based on secret 
evidence.
  But what the chairman and a number of other Republican Senators were 
able to do was to make some accomplishments in those two areas: in the 
area of secret evidence, and in the area, to an extent, of coercive 
statements, statements that were obtained by coercion, depending on 
when the statement was obtained. I will get into that in greater detail 
because there is a distinction in the bill that is on the floor now as 
to whether the statement was obtained before or after December 30, 
2005, as to whether certain types of coercive treatment would be 
allowed and that statement, nonetheless, be admitted into evidence. I 
think that distinction between a statement obtained by coercion before 
or after December 30, 2005, is a distinction which is totally 
unsustainable. But I will get into that again in a moment.
  But before I begin, because my friend, Senator Graham, who is also on 
the floor now, and my friend from Virginia were not on the floor 
before--before I list a number of major differences with the pending 
bill that I and a number of others have with the pending bill--I want 
to again compliment my good friend from Virginia, Senator McCain, and 
Senator Graham because they had to withstand a huge amount of 
administration pressure to get the bill out of committee. It is a far 
better bill than the one which is now before us. That is why I am going 
to attempt to substitute it for the bill that is now before us. But, 
nonetheless, their effort has produced some significant gains over the 
administration language. I acknowledge that and I thank them for that 
effort before I proceed to offer the committee bill that is a 
substitute.
  Mr. WARNER. Mr. President, will the Senator kindly yield for me to 
address his comments?
  Mr. LEVIN. I am happy to.
  The PRESIDING OFFICER. Without objection.
  Mr. WARNER. Mr. President, the Senator has recited that our committee 
had a markup on a bill. That was after receiving from the 
administration its own bill. So in a sense, the Senate had before it 
two bills. Perhaps

[[Page 19953]]

the formalities I will not go into. But the Senate had the 
administration's bill and the draft of the committee bill at the time 
we went into the markup.
  The Senator referred to the administration's huge pressure, but those 
are matters we can go into at another time. But I want you to know the 
group I was working with, and other Senators, were working with the 
administration right up until the hours before the markup started.
  As the Senator proceeds with his amendment, I am going to ask that 
the Senator from South Carolina, at the conclusion of your remarks on 
the amendment, be recognized for the purpose of giving his statement 
which, indeed, addresses the current bill in the context of the bill 
that was drafted by the committee, as I understand it from the Senator 
from South Carolina. And then we will proceed further with discussion 
on your bill.
  We have 3 hours to consider matters here. But I point out, we have 
your substitute bill, which is basically a 60-minute proposition; the 
Rockefeller congressional oversight, which is 60 minutes; the Kennedy 
interrogation, which is 60 minutes; the Byrd sunset which is 60 
minutes; and the Specter-Leahy habeas corpus--and I expect you might be 
a part of that habeas corpus amendment--which is 120 minutes.
  Mr. LEVIN. If the Senator will yield?
  Mr. WARNER. Yes.
  Mr. LEVIN. Without losing his right to--
  The PRESIDING OFFICER. Without objection.
  Mr. LEVIN. The time limit on the substitute amendment is also 120 
minutes.
  The PRESIDING OFFICER. Correct.
  Mr. WARNER. Yes, correct. I don't know if I stated that, but it 
should be here as a part of it.
  Mr. LEAHY. Will the Senator yield, without losing his right to the 
floor?
  Mr. WARNER. Yes.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. My understanding is the Senator from Vermont has an hour 
reserved on the bill, with up to 45 minutes of that on the Specter-
Leahy habeas amendment.
  Mr. WARNER. Mr. President, I would have to inquire of the Chair if 
the Chair has knowledge of that.
  The PRESIDING OFFICER. That is not part of the agreement.
  Mr. WARNER. Does the Senator from Michigan wish to address that 
request?
  Mr. LEVIN. I know that I did ask unanimous consent to protect the 
Senator from Vermont for 45 minutes on the habeas amendment.
  The PRESIDING OFFICER. The Senator from Michigan is correct. Under 
the consent agreement, 45 minutes has been reserved to the Senator from 
Vermont out of the leadership time.
  Mr. LEVIN. That is on the bill itself. And on the habeas amendment, 
that would be up to you and Senator Specter--right?--to control.
  Mr. LEAHY. No. Mr. President, I am confused by this. It was my 
understanding the Senator from Vermont had up to 45 minutes 
specifically reserved, not from anybody else's time, but from his own 
time, on the Specter-Leahy, et al., amendment, and a total--out of 
which the 45 minutes would have to come--of 1 hour on the bill. Is that 
incorrect?
  Mr. WARNER. Mr. President, I would suggest the following to work our 
way through this: I call on the Chair to inform the Senate as to the 
time agreement which I understand has been agreed upon by our leaders.
  The PRESIDING OFFICER. Under the previous order, there is to be 2 
hours equally divided for the Levin amendment, 2 hours equally divided 
for the Specter amendment on habeas, 1 hour equally divided on the 
Rockefeller, Kennedy, Byrd amendments each; general debate is 3 hours 
equally divided, 90 minutes on each side, of which 45 minutes on the 
minority side had been allocated to the Senator from Vermont.
  Mr. WARNER. At this time, I advise my colleagues that I would oppose 
any change to that unanimous consent and ask any Members who so desire 
to address the UC to do so to their respective leadership.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. WARNER. Yes.
  Mr. LEAHY. The senior Senator from Virginia has an absolute right to 
object to anything further. This is not what I understood had been 
agreed to. It is the unanimous consent that the Chair has so stated. I 
will not seek to change it. I don't suggest that it is the fault of the 
Senator from Virginia. This is not what I understood the agreement to 
be.
  I ask unanimous consent that the senior Senator from Connecticut, Mr. 
Dodd, be added as an original cosponsor to the Specter-Leahy habeas 
amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Virginia controls the floor.
  Mr. WARNER. Do I see another Senator wishing to speak?
  Mr. DORGAN. Mr. President, I ask unanimous consent to be added as an 
original cosponsor to the Specter-Leahy-Dodd amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I will yield the floor, and the Senator 
from Michigan will regain his right to the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, on September 14, the Senate Armed Services 
Committee favorably reported S. 3901, the Military Commissions Act of 
2006, to the Senate floor with a bipartisan vote of 15 to 9. Supporters 
of the committee bill on both sides of the aisle emphasized that the 
bill met two critical tests:
  First, that we would be able to live with the procedures we 
established if the tables are turned and our own troops were subject to 
similar procedures.
  Second, that the bill was consistent with our American system of 
justice and would stand up to scrutiny on judicial review.
  On the first point, the committee bill did not authorize departure 
from the requirements of the Geneva Conventions, did not authorize the 
abuse of prisoners in U.S. custody, did not authorize the use of 
testimony obtained through abusive practices, because the standards for 
detention, interrogation, and trial in the bill were consistent with 
international norms. The bill contained no procedures that we could not 
live with if they were applied to our own troops who might be captured 
at some future time.
  On the second point, the committee bill established legal procedures 
consistent with basic principles of the American system of justice, 
such as the right to examine and respond to all evidence presented, and 
the exclusion of unreliable categories of evidence, such as coerced 
statements. Because the bill took the approach outlined by the Supreme 
Court in the Hamdan case, a trial process based on rules and procedures 
applicable in trials by courts martial, subject to such exceptions as 
might be required by the unique circumstances of military and 
intelligence operations in an ongoing conflict, committee members could 
have confidence that these provisions would be upheld by the courts on 
appeal.
  The committee bill was not brought to the Senate floor. Indeed, the 
majority leader reacted to the action of the Armed Services Committee 
by telling the press he would filibuster the bill if the Senate Armed 
Services Committee bill was brought to the Senate floor. Consequently, 
the three Republican Senators who had drafted the committee bill, 
Senators Warner, McCain, and Graham, entered into negotiations with an 
administration that has been unrelenting in its determination to 
legitimize the abuse of detainees and to distort military commission 
procedures to ensure convictions.
  The bill before us, which is the product of those negotiations, has 
been changed from the committee bill in so many ways that the bill is a 
very different bill from the one that was adopted by the Armed Services 
Committee. It is the Armed Services Committee bipartisan bill that I 
have now offered as a substitute to this new version that is being 
offered today.

[[Page 19954]]

  Let me give you some examples of the differences between the 
committee-adopted bill and the bill that is before us. On coerced 
testimony, the committee bill prohibited the admission of statements 
obtained through cruel, inhuman, or degrading treatment. The bill 
before us prohibits the admission of statements obtained after December 
30, 2005, through ``cruel, inhuman, or degrading treatment'' but 
inexplicably contained no such prohibition for such statements that 
were obtained before December 30, 2005.
  As a result, military tribunals would presumably be free to admit, 
for the first time in U.S. legal history, statements that were 
extracted through cruel or inhuman practices.
  By the way, on that issue, if anybody wants to read the actual 
difference in the way in which the December 30, 2005, date was provided 
in this bill as a dividing line between statements that could be 
admitted into evidence, although they were obtained through cruel and 
inhuman treatment, they can refer to sections 948(R)(c), on a statement 
obtained before December 30, 2005, the date of the enactment of the 
Detainee Treatment Act of 2005, which says:

       The degree of coercion in dispute may be admitted if the 
     military judge finds the following: Totality of the 
     circumstances renders the statement reliable in possessing 
     sufficient probative value; and, 2, the interest of justice 
     would best be served by the admission of the statement into 
     evidence.

  But subsection (d) reads:

       If the statement is obtained after December 30, 2005, the 
     date of the enactment of the Detainee Treatment Act of 2005, 
     the degree of coercion may be disputed and may be admitted 
     under those same two circumstances.

  It then adds a third finding that is required:

       That the interrogation methods used to obtain the statement 
     do not amount to cruel, inhuman, or degrading treatment, 
     prohibited by section 1003.

  So if the statement is obtained after December 30, 2005, then if it 
is obtained through cruel and inhuman treatment, it is not allowable 
into evidence. But because that requirement is missing relative to 
statements obtained prior to December 30, 2005, presumably, even though 
a statement is obtained through cruel and inhuman treatment, it is 
nonetheless admissible into evidence if it meets the other two tests 
provided. That is an unsustainable provision. It would be the first 
time in American legal history that we would, in effect, be authorizing 
statements that were obtained through that type of coercion--cruel 
treatment, inhuman treatment--to be admitted into evidence. That is 
something we should not accept.
  On the issue of hearsay, the committee bill permitted the admission 
of hearsay not admissible at trials by court-martial if direct 
evidence, which is inherently more probative, could be procured 
``through reasonable efforts,'' taking into consideration the unique 
circumstances of the conduct of military and intelligence operations 
during hostilities.
  The bill before us, unlike the committee bill, makes hearsay evidence 
admissible, unless the defendant can demonstrate that it is unreliable 
or lacking in probative value. Well, hearsay evidence is not only 
inherently unreliable, it is used to deprive the accused of the ability 
to confront the witnesses against him.
  The approach taken by this bill not only relieves the Government of 
any obligation to seek direct testimony from its witnesses, it also 
appears to shift the burden to the accused by presuming that hearsay 
evidence is reliable, unless the accused can demonstrate otherwise.
  Relative to search warrants, the committee bill provided that 
evidence seized outside of the United States shall not be excluded from 
trial by military commission on the grounds that the evidence was not 
seized pursuant to a search warrant. The bill before us deletes the 
limitation to evidence seized outside of the United States. As a 
result, the bill authorizes the use of evidence that is seized inside 
the United States without a search warrant. I note that the chairman of 
the Judiciary Committee is on the floor. I particularly point out this 
provision to him--that because the words ``outside of the United 
States'' were deleted, the bill before us would allow into evidence, 
for the first time in history, I believe--it authorizes the use of 
evidence seized inside the United States without a search warrant. It 
is not limited to evidence seized from enemy combatants. It does not 
even preclude the seizure of evidence without a warrant from U.S. 
citizens. That is a major departure from the committee-adopted bill. It 
would appear to authorize the use of evidence obtained without a 
warrant, in violation of the United States Constitution.
  The next problem I want to address is the definition of ``unlawful 
combatant.'' The committee bill defines the term ``unlawful combatant'' 
in accordance with the traditional law of war. The bill before us 
changes the definition to add a presumption that any person who is 
``part of'' the associated forces of a terrorist organization is an 
unlawful combatant, regardless of whether that person actually meets 
the test of engaging in hostilities against the United States or 
purposefully and materially supporting such hostility.
  In addition, the bill also adds a new provision which makes the 
determination of a Combatant Status Review Tribunal, CSRT, that a 
person is an unlawful enemy combatant, dispositive for the purpose of 
the jurisdiction of a military commission, even though CSRT 
determinations may be based on evidence that would be excluded as 
unreliable by a military commission.
  We should not make those findings dispositive, particularly where the 
CSRT findings can be based on such very unreliable evidence.
  Next is procedures and rules of evidence. The committee bill provided 
that the procedures and rules of evidence applicable in trials by 
general courts-martial would apply in trials by military commissions, 
subject to such exceptions as the Secretary of Defense determines to be 
``required by the unique circumstances of the conduct of military and 
intelligence operations during hostilities or by other practical 
need.''
  So the committee bill starts with the courts-martial, the manual, and 
then says that the Secretary of Defense may make such exceptions as he 
determines are ``required by the unique circumstances of the conduct of 
military and intelligence operations or by practical need.''
  This approach is consistent with the ruling in Hamdan. It builds in 
some flexibility to address unique circumstances arising out of 
military and intelligence operations. The bill before us reverses the 
presumption, and instead of starting with the rules applicable in 
trials by court-martial and establishing exceptions, the Secretary of 
Defense is required to make trials by commission consistent with those 
rules only when he considers it practicable to do so. As one observer 
has pointed out, this provision is now so vaguely worded that it could 
even be read to authorize the administration to abandon the presumption 
of innocence in trials by military commission.
  On the issue of habeas corpus, the habeas corpus provision in the 
committee bill stripped alien detainees of habeas corpus rights, even 
if they have no other legal recourse to demonstrate that they were 
improperly detained. It also stripped those detainees of any other 
recourse to U.S. courts for legal actions regarding their detention or 
treatment in U.S. custody.
  If the substitute amendment we are offering is approved, a further 
amendment will be necessary to address the obvious problems with the 
committee habeas corpus amendment. That habeas corpus amendment is 
going to be offered in either event, whether or not the bill before us 
remains or whether or not the committee bill is substituted for it. But 
at least in the committee bill, the court-stripping provision was 
limited to aliens who were detained outside the United States. The bill 
before us expands that provision to eliminate habeas corpus rights and 
all other legal rights of redress for wrongs committed by aliens, 
including lawful permanent residents detained inside or outside the 
United States who have been determined by the United States to be 
enemies.

[[Page 19955]]

  The only requirement under the bill before us is that the Government 
determines that the alien detainee is an enemy combatant, but the bill 
provides no standard for this determination and offers the detainee no 
ability to challenge it. Consequently, even aliens who have been 
released from U.S. custody, such as the detainee that the Canadian 
Government recently found was detained without any basis and subjected 
to torture, even those kinds of aliens, such as that Canadian citizen, 
would be denied any legal recourse as long as the United States 
continues to claim in a way which cannot be contested that they were 
properly held.
  No matter how overwhelming the evidence, there is no way to contest 
it, and there is no legal recourse under the bill before us. That was 
not true of the committee bill.
  The committee bill had lots of problems, in my judgment, on habeas 
corpus, but the bill before us, for the reasons I just outlined, goes 
way beyond what the committee bill provided.
  As a result of these changes, the bill that is before us does not 
meet either of the two tests used by the majority of members at the 
Armed Services Committee markup. The two tests that are not met: The 
bill before us places our own troops at risk if others apply similar 
standards, and it is likely to result in convictions by military 
commissions that are overturned on appeal.
  For example, the provision in the bill addressing coerced testimony 
would prohibit the use of statements that are obtained through cruel 
and inhuman treatment if those statements were obtained after December 
30, 2005, but again, it inexplicably contains no such prohibition on 
statements obtained through those same methods prior to this date. This 
provision, in other words, expressly authorizes military commissions to 
consider evidence that was obtained through cruel and inhuman treatment 
of defendants and other witnesses.
  By expressly omitting the principle that statements obtained through 
cruel and inhuman treatment of detainees should be precluded from 
evidence--even if they were obtained before December 30, 2005--this 
provision would set an absolutely unacceptable and frightening standard 
if the rest of the world adopts this same standard. This is a standard 
under which our own troops could be subjected to abuse and mistreatment 
of all kinds in order to force them to sign statements that would then 
be used to convict them of war crimes.
  The provision also sets a standard which will be used by our 
terrorist enemies as evidence of U.S. hypocrisy when it comes to 
proclamations of human rights. Our failure to conclusively exclude 
statements obtained through cruel and inhuman methods are all too 
likely to be seen through much of the world as a confirmation of 
negative views of Americans and what we stand for and that have been 
shaped by their views of what happened at Abu Ghraib and Guantanamo.
  The administration and its supporters have argued that our military 
judges can be counted on to exclude statements that are based on 
extreme forms of abuse. That may be; that may be. We have many fine 
military judges, and I share the hope that these judges will be willing 
to stand up for the humane treatment of detainees, even where Congress 
has failed to do so and even when the administration is unwilling to do 
so.
  Indeed, our top military lawyers have told us that evidence obtained 
through coercive techniques is inherently unreliable. The Army Deputy 
Chief of Staff for Intelligence, LTG John Kimmons, said the same thing 
when he released the new Army Field Manual on interrogation procedures. 
He stated:

       No good intelligence is going to come from abusive 
     practice. I think history tells us that. I think the 
     empirical evidence of the last five years, hard years, tell 
     us that. And moreover, any piece of intelligence which is 
     obtained under duress . . . through the use of abusive 
     techniques would be of questionable credibility.

  I am hopeful that our military judges will likewise reject testimony 
that is obtained through abusive techniques as inherently unreliable 
and of questionable credibility.
  However, our military judges cannot protect our troops in future 
conflicts. If an American soldier, sailor, airman, or marine is put on 
trial by a hostile power, he or she will not have an American military 
judge to stand up for his or her rights. Our troops will face foreign 
judges, and if the standard applied by those judges is similar to the 
one proposed in this bill for statements obtained prior to December 30, 
2005, they are a lot less likely to get either fair treatment or fair 
trials.
  If statements obtained through cruel and inhuman treatment of 
detainees are allowed into evidence, as this provision provides, any 
resulting convictions are unlikely to withstand scrutiny on judicial 
review in our own courts.
  The Supreme Court specifically addressed this issue in the Hamdan 
case earlier this year. In that case, the Court pointed out that Common 
Article 3 of the Geneva Conventions prohibits the passing of sentences 
``without previous judgment pronounced by a regularly constituted court 
affording all the judicial guarantees which are recognized as 
indispensable by civilized peoples.''
  The Supreme Court concluded that ``[t]he regular military courts in 
our system are the courts-martial established by congressional 
statutes'' and ``can be `regularly constituted' by the standards of our 
military justice system only if some practical need explains deviations 
from court-martial practice''; and the language requiring ``judicial 
guarantees which are recognized as indispensable by civilized peoples'' 
must require, at a minimum, that any deviation from procedures 
governing courts-martial be justified by ``evident practical need.''
  The rules of evidence reviewed by the Supreme Court in the Hamdan 
case, such as the rules we are considering today, would have permitted 
the admission of statements obtained through coercion--other than 
torture--into evidence if a military commission determines the 
statements to be probative and reliable. The plurality opinion of the 
Court notes that under these procedures, ``evidence obtained through 
coercion [is] fully admissible.'' Similarly, Justice Kennedy's 
concurring opinion observes that the procedures in place ``make no 
provision for exclusion of coerced declarations save those `established 
to have been made as a result of torture.'''
  The Supreme Court expressly rejected those procedures. The procedures 
established by the President, according to the Supreme Court, ``deviate 
from those governing courts-martial in ways not justified by any 
`evident practical need,' and for that reason, at least, fail to afford 
the requisite guarantees'' that are recognized as indispensable by 
civilized peoples.
  Like the procedures previously rejected by the Supreme Court, this 
bill would make evidence obtained through coercion, other than torture, 
admissible, at least in the case of evidence obtained prior to December 
30, 2005. Given that the Supreme Court has already struck down 
procedures that similarly failed to preclude coerced testimony once, it 
is surely likely that the Court will strike them down again. Whatever 
minimal due process may be required in the case of an alien enemy 
combatant, it certainly cannot be met by procedures that, as a majority 
of the Supreme Court has already determined, fail to provide the 
``judicial guarantees which are recognized as indispensable by 
civilized people.''
  We should also reject this provision because it is inconsistent with 
American values and what we stand for as a nation. During the 
Revolutionary War, the British mistreated many American prisoners. But 
as described by David Hackett Fischer in his book ``Washington's 
Crossing,'' General Washington ``ordered that . . . the captives would 
be treated as human beings with the same rights of humanity for which 
Americans were striving,'' and those ``moral choices in the War of 
Independence enlarged the meaning of the American Revolution.''
  We have always believed that we hold ourselves to a higher standard 
than many other nations. Others may abuse prisoners; we do not. Others 
may engage in cruel and inhuman practices;

[[Page 19956]]

we do not. Others may believe that the ends justify the means; we do 
not. It is contrary to what we stand for as a nation.
  Former Navy general counsel Alberto Mora bravely fought against 
efforts by others in this administration to approve cruel and inhuman 
interrogation techniques. Mr. Mora explained his stand when he was 
awarded the 2006 John F. Kennedy Profile in Courage Award on May 22. He 
said:

       We need to be clear. Cruelty disfigures our national 
     character. It is incompatible with our constitutional order, 
     with our laws, and with our most prized values. Cruelty can 
     be as effective as torture in destroying human dignity, and 
     there is no moral distinction between one and the other. To 
     adopt and apply a policy of cruelty anywhere within this 
     world is to say that our forefathers were wrong about their 
     belief in the rights of man because there is no more 
     fundamental right than to be safe from cruel and inhuman 
     treatment. Where cruelty exists, law does not.

  If we enact this provision into law, giving a congressional stamp of 
approval to the use of cruel and inhuman methods to extract testimony 
from detainees, we will diminish ourselves as a people and, as Colin 
Powell stated in a recent letter to Senator McCain, add to the world's 
doubts about the moral basis of our fight against terrorism.
  The bill, as reported by the Armed Services Committee, will protect 
our troops, will be more likely to result in convictions that are 
upheld on appeal, and will be more in keeping with our values as a 
nation. That bill allows for interrogation, it allows for detention, it 
allows for prosecution, and it allows for conviction.
  The issue isn't whether we interrogate or detain people. We are going 
to do it. We need to do it. The question is whether we do it in a way 
which is in keeping with our values, which is in keeping with rules we 
have established in the Army manual, for instance, for the treatment of 
people who are captured by our Army. It is whether we do it in a way 
that is in keeping with what we would insist others follow if they 
capture our people, what we insist upon in the committee substitute--
that committee bill which we adopted on a bipartisan basis--our 
standards and rules for which we will argue if our people are captured 
or detained by others.
  We cannot make the distinction this bill before us makes--that cruel 
and inhuman treatment which leads to a statement or confession is not 
going to be the basis for excluding a statement if that statement is 
made before December 30, 2005. Only after December 30, 2005, are 
statements excluded where they are the product of cruel and inhuman 
treatment. But before December 30, 2005, according to the bill in front 
of us now, those statements are not excluded unless they meet two other 
tests. We have to be very clear on this issue. After December 30, 2005, 
any of three tests, if met, will result in the exclusion of those 
statements but not before December 30, 2005, when we know as a fact 
that so much of the abuse took place.
  So I urge our colleagues to support the substitute amendment. Again, 
I wish to make clear that this substitute amendment is the Senate Armed 
Services Committee bill which the chairman and others labored so hard 
to produce. It is a bill which avoids many of the pitfalls of the bill 
that is before us. I hope our colleagues will vote to substitute that 
bill for the pending language.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Martinez). Twenty-four minutes 10 seconds.
  Mr. LEVIN. I thank the Chair, and I yield the floor.
  Mr. WARNER. Mr. President, I was particularly taken by Senator 
Levin's reference to General Washington and what General Washington 
said with regard to prisoners. But we must be mindful that General 
Washington was facing the King's Army. Those were uniformed 
individuals. Those were individuals acting on behalf of the Crown. That 
is totally different--totally different--from what we as a nation and 
many other nations today are facing with these terrorists.
  Consequently, as a part of the evolution of this extraordinary 
proliferation of terrorism across the world has come the definitions 
and terms relating to the unlawful enemy combatant--I repeat, 
unlawful--because those individuals are not wearing uniforms, they are 
not following any code of laws or conduct that has overseen much of 
warfare in the history of the world. They are not affiliated with any 
state. They are driven, in my judgment, by convictions, much of it 
religious convictions which are totally antithetical to their own 
religion, and willing to sacrifice their own lives to foster their 
ambitions and goals.
  We expanded this definition of ``unlawful enemy combatant'' when we 
went from the committee bill to a bill that was worked on by, again, 
Senator McCain, Senator Graham, and myself, and in conjunction with the 
White House and our leadership and other colleagues.
  It was pointed out to us that perhaps our bill is drawn so narrowly 
that we would not be able to get evidence and support convictions from 
those who are involved in hiding in the safe houses, wherever they are 
in the world, including here in the United States.
  It is wrong to say that this provision captures any U.S. citizens. It 
does not. It is only directed at aliens--aliens, not U.S. citizens--
bomb-makers, wherever they are in the world; those who provide the 
money to carry out the terrorism, wherever they are--again, only aliens 
and those who are preparing and using so many false documents.
  There were a lot of categories which we, with the best of intentions, 
perhaps did not fully comprehend when we were working through that 
markup session. So at this time, I yield the floor because I see my 
distinguished colleague from South Carolina. I thank the Senator. He is 
recognized for his knowledge as an officer in the U.S. Air Force, a 
colonel who has practiced and studied military law for many years, and 
we are fortunate to have had his services and continue to have them in 
addressing this legislation.
  I would also point out to my colleagues that Senator McCain, who 
worked with us throughout this process, is away attending a funeral of 
a very dear and valued colleague, and he will be returning later this 
afternoon and will be fully engaged from that point on.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, I yield such time as he may consume to the 
Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I would like to return the compliment that 
Senator Levin gave to myself, Senator McCain, and Senator Warner. I 
have found Senator Levin and his staff to be very good to work with. 
Sometimes we reach agreement and sometimes we don't, but all the time 
we try. As to my staff, I appreciate the tons of time they have spent 
trying to give us the best product we can get in the legislative 
process that will adhere to our values and allow the war effort to move 
forward in an effective way.
  As to the difference between the committee bill, which we wrote and 
supported, and the compromise we reached with the White House, which we 
wrote and support, there are some differences. I think some of them we 
have addressed with Senator Levin's staff. They were very helpful. He 
found some language which was dropped inadvertently which made the bill 
stronger.
  I would just like to suggest that whatever military experience I have 
had pales in comparison to the men and women who are in charge of 
today's military legal system. I am a reservist. I come in and out of 
military law. I spent 6\1/2\ years on active duty, and I really enjoyed 
my time. I dealt a lot in the court-martial process as a prosecutor and 
a defense attorney. But as a reservist and Guard member, it has been a 
part-time job. But those who do this full time supported the 
administration's proposal when it came to the admission of evidence by 
the military judge. I will, at an appropriate time, introduce that into 
the Record.
  I believe the JAGs are a good source of advice. That doesn't mean 
they are the only source of advice. That doesn't

[[Page 19957]]

mean that because the Judge Advocate Generals of all four branches say 
so, we need to do what they say. It would be wise to just listen, and I 
have tried to listen. Sometimes I agree; sometimes I don't. But they 
have said unanimously, it is my understanding, that the evidentiary 
standards in terms of admission of evidence, where the judge will 
determine whether the evidence is reliable and probative using the 
totality of circumstances to create justice, was a sufficient legal 
standard, and they were supportive of that standard. So this idea that 
we are going to allow coerced evidence into a trial purposely, that we 
made a conscious decision from the committee bill to the compromise to 
change course and take everything we had said before and just throw it 
over in a ditch, quite honestly, makes no sense.
  Whatever motives you would like to attribute to the effort here, I 
can assure my colleagues I want to create a process that would be 
acceptable if our troops found themselves subject to it. And every 
military Judge Advocate, every admiral, and every general, believes the 
evidentiary standard in this committee bill is legally acceptable and 
appropriate.
  Why the difference between December 30, 2005, and before? The reason 
we have a two-tiered system is because in 2005, due to the hard work of 
Senator McCain and Senator Levin--who was a champion in trying to bring 
this about on the Democratic side--we were able to make a policy 
statement of the United States that says: Cruel and inhumane and 
degrading treatment as a policy will be forbidden. And we referenced 
the 5th, 8th, and 14th amendments standard called ``shock the 
conscience'' that existed in the convention on torture. All bills have 
excluded evidence that violates the torture statute. It is a per se 
exclusion. If the military judge, in their discretion, believes that 
the conduct in front of the court amounts to torture, in violation of 
the torture statute, it does not come into evidence.
  The committee bill had a per se exclusion for a violation of the 
Detainee Treatment Act, and it has been changed, and here is why: The 
Detainee Treatment Act is a policy statement, not an evidentiary 
standard. The Detainee Treatment Act says that the Government and its 
agents and agencies will not engage in cruel, inhumane, and degrading 
treatment. I would argue that to exclude evidence in a military 
commission that may run afoul of degrading treatment would create a 
higher standard for a terrorist than our own military members have in 
their own courts-martial. So I think the policy statement ``cruel and 
inhumane and degrading'' should not be an evidentiary standard, and it 
is not.
  But what we did do to bolster that policy statement is we took the 
5th, 8th, and 14th amendment ``shock the conscience test'' and said: 
From the date of the Detainee Treatment Act forward, that will be an 
area that the judge has to make an inquiry into regarding the admission 
of evidence. The reason we didn't want to go backward is because before 
the Detainee Treatment Act passed in 2005, no one had recognized the 
5th, 8th, and 14th amendment concepts applying to enemy combatants. So 
what we are trying to do is start over after Hamdan and incorporate 
into the military commission model as many protections as we can that 
also protect America. So going forward, from the Detainee Treatment Act 
forward, any evidence gathered after the Detainee Treatment Act will 
have to comply with the 5th, 8th, and 14th amendments requirements that 
make up the heart and soul of the Detainee Treatment Act. To make it 
retroactive and exclude statements where that concept was not known, 
was not part of our legal system regarding enemy combatants, in my 
opinion, was unwise.
  So we are going forward, reinforcing the Detainee Treatment Act, and 
the standard of admission of evidence of reliable and probative meets 
the standards of justice and totality of the circumstances test, stays 
in place, covers all statements before and after. Our Judge Advocate 
Generals, to a person, have said that if you take the Detainee 
Treatment Act out of the equation, what is left still is acceptable. 
And the courts will make that decision.
  I am confident that the standard that we had, the administration had 
when it came to the admission of evidence, was acceptable, and the 
judge advocates who have objected to many things did not object to 
that.
  So the idea that we made a conscious decision to allow cruel and 
inhumane treatment to become a player defies what we did in totality.
  The title 18, War Crimes Act, was rewritten. One of the crimes that 
we put in title 18 that would constitute a grave breach of the Geneva 
Conventions, a felony under our own law, is cruel or inhumane 
treatment: The act of a person who commits or conspires or attempts to 
commit an act intended to inflict severe or serious physical or mental 
pain or suffering, other than pain or suffering incidental to lawful 
sanctions, including serious physical abuse upon another within his 
custody or control. And we defined those terms. It is a felony in U.S. 
law to engage in cruel or inhumane treatment, not just torture. It is a 
felony in U.S. law to mutilate or maim.
  What we did--intentionally causing serious bodily harm, rape, sexual 
assault or abuse, taking hostages--what we did is we took what the 
Geneva Conventions have defined as being a grave breach of the 
conventions, we put it in title 18 of the War Crimes Act, and made it a 
felony. So if you are a military member or CIA agent and you run afoul 
of the title 18 War Crimes Act, you can be prosecuted. When it comes 
time for the military judge to rule upon the admissibility of evidence 
in a military commission, the standard that we will be using has been 
blessed by every Judge Advocate General that we have, those in charge 
of our military legal system.
  So I think it is a good standard. I think the fact that we put the 
DTA 5th, 8th and 14th amendment standard into the statute in a 
perfective way enhances and emboldens what we are trying to do with the 
DTA and will make us a better nation.
  The other areas of concerns: enemy combatant definition. The enemy 
combatant definition that is changed from the compromise and committee 
bill allows us to, subject to military commission, try those people who 
intentionally and knowingly aid terrorism; materially support 
terrorism. To me, that makes sense. I want to prosecute the person who 
sells the guns to al-Qaida as much as the people who use the weapons. I 
want to go after the support network that supports terrorism. To me, 
that makes perfect sense. I am glad we expanded the definition because 
those who are assisting terrorists in a knowingly purposeful way should 
be held accountable for their actions.
  Under no circumstance can an American citizen be tried in a military 
commission. The jurisdiction of military commissions does not allow for 
the trial of American citizens or lawful combatants, and those who say 
otherwise, quite frankly, have not read the legislation because there 
is a prohibition to that happening.
  The hearsay rules that are in the compromise very much mirror the 
committee bill, but that we are allowing a burden shift, to me, makes 
sense given the global nature of the war. I can spend a lot of time 
explaining the differences between the two bills, but I will basically 
summarize by saying that the purpose of the committee bill has been met 
by the compromise. If it were not so, I would not vote for it. We are 
not allowing into evidence coerced statements unless the judge makes 
the decision they are reliable, probative, and in the totality of 
circumstances they meet the ends of justice.
  At the end of the day you are going to have a judge applying a legal 
standard to a request to admit evidence. The administration, in my 
opinion, in their first product, was trying to legislate a conviction. 
In many ways they were trying to set up the rules when it came to the 
military commission format that would allow evidence to go to the jury 
never seen by the accused. That would make it very hard to defend 
yourself.
  We have changed that. Anything the jury gets to convict, the accused 
can

[[Page 19958]]

examine and rebut. To me, that was a huge accomplishment that put the 
trials back on sound footing within our value system, and legally I 
think they will pass muster now.
  So at the end of the day, in my opinion we do not need to try to 
legislate how the judge should rule. Everybody has their pet peeve 
about where the administration has failed or succeeded, about how the 
CIA has conducted its business. I have found an effort to tie the 
judges' hands to the point that we have no flexibility when it comes to 
admitting evidence. The judge is in the best place--better than anybody 
here--to make a decision as to what should come into that trial. What 
are we asking the judges to do? To use their experience, their 
knowledge of the law, their sense of right or wrong to determine: Is 
that statement reliable? Is it probative? Given everything around it, 
would the interests of justice be met if it came into the trial?
  That is an acceptable legal standard, not only to every Judge 
Advocate General who serves today in our military, it should be a 
standard that every American is proud of because I am proud of it.
  I bet you dollars to doughnuts when the Supreme Court gets hold of 
our work product they are going to approve it.
  Finally, Hamdan is about applying the Geneva Conventions to the war 
on terror. Everybody I know of in the administration believed that the 
Geneva Conventions did not apply to these unlawful enemy combatants. I 
shared that belief. We were wrong. The Supreme Court--whether I agree 
or not--ruled. After their ruling, we had two things that we had to 
accomplish to get this country back on track within the rule of law. We 
had a challenge: to take the CIA interrogation program that existed and 
will exist and make sure that it was Geneva Conventions compliant.
  What do the Geneva Conventions require of every country that signs 
the document? It requires that, domestically, that country will outlaw, 
within its own domestic law, grave breaches of the treaty. Every 
country has an affirmative duty to set out within their laws and 
prosecute their own people for grave breaches of the Geneva 
Conventions.
  Title 18 is the War Crimes Act. Under title 18 we have listed nine 
crimes that would be considered grave breaches of the Geneva 
Conventions. To the CIA: Your program, whatever it may be in classified 
form, must comply with the War Crimes Act. And the War Crimes Act runs 
the gamut from torture to cruel, inhumane treatment, intentional 
infliction of serious bodily injury, or mental pain.
  We have taken nine well-defined felonies and told the CIA and every 
other agency in the country: Whatever you do, if you violate these 
statutes you will be subject to being prosecuted.
  I want a CIA program to be classified when it comes to interrogating 
high-value terrorist targets. I think it would be foolhardy to tell the 
terrorist community everything that comes your way when you join al-
Qaida or some other terrorist organization. But it is important to tell 
every American, every CIA agent, their family, and the international 
community what we do will not only be within the Geneva Conventions, it 
is going to be beyond what the Conventions require, and I think we have 
accomplished that.
  There are six specified events in article 129 and article 130 of the 
Geneva Conventions that constitute grave breaches. We have adopted all 
six, and we have added to that list. Whatever the CIA is doing and 
wherever they do it, whatever the Department of Defense is doing and 
wherever they do it, they now have the notice and the clarity that they 
did not have before to do their job within the law.
  This idea that we have rewritten the statute and given immunity to 
people who have violated the statute is absurd. There is nothing in the 
compromise or the committee bill that would give immunity or amnesty to 
someone who violated the felony provisions. But what we did do, that I 
am proud of, is that we took a 1997 War Crimes Act that was so ill-
defined that no one understood it and gave clarity and purpose to it so 
those whom we are asking to defend us from the most vicious people in 
the world will have a chance to know the law.
  Abu Ghraib was about policies that cut legal corners, that migrated 
from one side of the Government to the other, that got everybody 
involved confused as to what you could and could not do. It was a 
mixture of individual deviance and bad policy, poorly trained people, 
not enough folks to do the job, and not trained well enough to 
understand what the job was. It was a mess. For 2 years we have been 
trying--and I have been as helpful as I know how to be--to create some 
sense of balance to bring order out of chaos, and we are on the verge 
of doing it.
  This is a product, not only that I support, that I had but one that I 
am proud of. Every military lawyer who sits on the top of our military 
legal system has had input on every issue. They have had the guts to go 
to the House and Senate and say some things about the President's 
proposal are flat wrong. That took a lot of guts, and I am here to tell 
you the final product took their input and what their concerns were and 
has been changed.
  But if you want a CIA program that is not classified, you lost. I 
want the program to be classified. But I want it to run within the 
obligations of the Geneva Conventions, and we have accomplished that.
  Finally, what did we do in the compromise that we didn't do in the 
committee bill? We said that every obligation under the Geneva 
Conventions that our country has, outside of the War Crimes Act, will 
be fulfilled by our President. Under our constitutional democracy, it 
is the obligation of the executive branch to implement and interpret 
treaties. This whole debate, what I have been working on for 2 weeks 
and getting beat up on in every talk radio show in the country, was 
about how can you comply with the Geneva Conventions in a way that will 
be seen by the world as not getting out of the Conventions.
  The proposal for the Congress to redefine the treaty terms, in my 
opinion, would have created a precedent for every other country, in a 
war that they are in the middle of, to change the treaty in the middle 
of a war. The conventions have been closed for years. It would have 
been wrong, ill-advised for the Congress to sit down with the President 
and rewrite the treaty obligations for domestic purposes because 
clearly then we would have been changing the treaty terms without 
notifying the other parties.
  What we did to avoid that is we, Congress, defined nine crimes that 
would constitute grave breaches, honoring our commitment under the 
Geneva Conventions, to outlaw grave breaches, felonies. We have done 
our job, and we turned to the Executive and said in this legislation: 
It is your job, Mr. President, consistent with our constitutional 
democracy, to implement and fulfill the obligations of the treaty 
outside of title 18. And when you make a decision, publish what you 
have decided. And any decision you make cannot take power away from the 
courts or the Congress that we have in the same arena.
  Those people who want to overturn the election, who do not like 
President Bush, are upset that we recognized he has a role to play. Let 
me tell you, he does have a role to play. Any President has the same 
role that we are going to give President Bush--to implement a treaty, 
not change a treaty.
  So I think we have done a very good job of putting into law our 
obligations under the Geneva Conventions defining, constitutionally, 
who has what responsibility so that no reasonable person could say the 
United States has abandoned its longstanding obligations to the Geneva 
Conventions because we have not. And that is what we have been sweating 
over for weeks. No reasonable person can say that this compromise 
condones torture, cruel, or inhumane treatment because we make it a 
felony. What we have done is given the military judge the tools he or 
she will need to render justice. And I have tried to embolden and 
strengthen the Detainee Treatment Act in a way that I think makes 
sense.

[[Page 19959]]

  The military court-martial system will be the model. The military 
commission will deviate. And the authority given to the Secretary is 
the same authority given to the President: to make differences between 
the district courts and the military justice system as a whole. It is 
compliant with article 36 of the Uniform Code of Military Justice. This 
compromise is compliant with Hamdan. It is compliant with the values we 
are fighting for. And it has the flexibility we need to fight an enemy 
that knows no bounds.
  The work product is the result of give and take, is the result of 
being more than one branch of Government, is the result of having to 
deal with a court decision that was new and novel. I can say from my 
point of view that not only will I vote for the compromise, I am very 
proud of it.
  I yield the floor.
  Mr. WARNER. Mr. President, my distinguished colleague from South 
Carolina will be placing in today's Record the correspondence from the 
judge advocate generals. I think that is very important. I think for 
those following this debate, it would be of great interest to give an 
example of how in response to the letter sent by the distinguished 
Senator from Michigan to a judge advocate they respond. I ask unanimous 
consent to have printed in the Record first at this juncture a letter 
from Senator Levin to Bruce MacDonald, Judge Advocate General of the 
Navy, on this point of what we call the two categories of evidence.
  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, September 25, 2006.
     Rear Admiral Bruce MacDonald,
     The Judge Advocate General, Department of the Navy, 
         Washington, DC.
       Dear Admiral MacDonald: The Senate will soon begin 
     consideration of a bill entitled the Military Commissions Act 
     of 2006, which would add a new Chapter 47A to title 10, 
     United States Code, addressing trials by military commission. 
     Section 948r of the proposed new chapter would address the 
     issue of compulsory self-incrimination and statements 
     obtained by torture or other methods of coercion.
       Under this provision, a copy of which is attached, a 
     statement obtained on or after December 30, 2005 through 
     coercion that is less than torture would be admissible if the 
     military judge finds that: (1) the totality of the 
     circumstances renders it reliable and possessing sufficient 
     probative value; (2) the interests of justice would best be 
     served by admission of the statement into evidence; and (3) 
     the interrogation methods used do not violate the cruel, 
     unusual, or inhumane treatment of punishment prohibited by 
     the 5th, 8th, and 14th Amendments to the United States 
     Constitution.
       Under the same provision, a statement obtained before 
     December 30, 2005 would be subject to the first two 
     requirements, but not the third. Consequently, a statement 
     obtained before December 30, 2005 through cruel, unusual or 
     inhumane treatment prohibited by the U.S. Constitution would 
     be admissible into evidence, as long as the other conditions 
     in the provision are met.
       I would appreciate if you would provide your personal views 
     and advice as a military officer on the merits of this 
     provision and the impact that it would have on our own 
     troops, should they be captured by hostile forces in the 
     future. Because this issue will be debated on the Senate 
     floor this week, I request that you provide your views by no 
     later than the close of business on Tuesday, September 26, 
     2006.
       Thank you for your assistance in this matter.
           Sincerely,
                                                       Carl Levin,
     Ranking Member.
                                  ____

         Department of the Navy, Office of the Judge Advocate 
           General
                               Washington, DC, September 26, 2006.
     Hon. Carl Levin,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Levin: Thank you for your letter of September 
     25, 2006, requesting my personal views on the admissibility 
     of coerced statements at military commissions.
       My consistent position before the Congress is and has been 
     that the presiding military judge should have the discretion 
     and authority to inquire into the underlying factual 
     circumstances and exclude any statement derived from unlawful 
     coercion, in order to protect the integrity of the 
     proceeding.
       This approach is consistent with the practice of 
     international war crimes tribunals sanctioned by the United 
     States and United Nations and addresses the concern regarding 
     reciprocal treatment of U.S. armed forces personnel in 
     present or future conflicts.
           Sincerely,
                                                  Bruce MacDonald,
                                    Rear Admiral, JAGC, U.S. Navy.

  Mr. WARNER. Mr. President, it is a clear indication by those who are 
currently given the responsibility of defending the men and women of 
the United States military how this provision in the bill now before 
the Senate is consistent with their understanding of international and 
domestic law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. WARNER. Mr. President, I inquire of our distinguished colleague, 
is he now drawing time on the Levin amendment?
  The PRESIDING OFFICER. The Senator's time is from the Democratic 
leader's time on the measure itself.
  Mr. LEAHY. Mr. President, how much time is there to the Democratic 
leader on this?
  The PRESIDING OFFICER. The Senator from Vermont has 47 minutes; 45 
minutes of the 57 minutes remaining to the Democratic leader.
  Mr. LEAHY. Mr. President, as I said earlier, I understood that the 
consent agreement was to give me 45 minutes on the Specter-Leahy-Dodd 
amendment and 15 minutes on the bill. That seems to not have been the 
agreement entered into by leadership. I ask that I take 10 minutes from 
the Democratic leader's time and the remaining time from my own 45 
minutes of time.
  I see the concern by the Senator from Michigan. I will take it from 
my 45 minutes. I also note that I will not consent to any other time 
agreements on this bill insofar as the time agreement I understood I 
had was not entered into. I will take the 45 minutes.
  Mr. President, this administration has yet to come clean to the 
Congress or the American people in connection with the secret legal 
justifications it has generated and secret practices it has employed in 
detaining and interrogating hundreds if not thousands of people in the 
war on terror. Even they cannot dismiss the practices at Guantanamo as 
the actions of a few ``bad apples.'' With Senate adoption of the anti-
torture amendment last year and the recent adoption of the Army Field 
Manual, I had hoped that 5 years of administration resistance to the 
rule of law and to the U.S. military abiding by its Geneva obligations 
might be drawing to a close. Despite the resistance of the Vice 
President and the administration, the new Army Field Manual appears to 
outlaw several of what the administration euphemistically calls 
``aggressive'' tactics and that much of the world regards as torture 
and cruel and degrading treatment. Of course, the President in his 
signing statement undermined enactment of the anti-torture law, and now 
the administration is seeking still greater license to engage in harsh 
techniques in connection with the military tribunal legislation before 
us now.
  What is being lost in this debate is any notion of accountability. 
Where are the facts of what has been done in the name of the United 
States? Where are the legal justifications and technicalities the 
administration's lawyers have been seeking to exploit? Senator Levin's 
amendment, which restores the bipartisan legislation passed by the 
Senate Armed Services Committee, would maintain some accountability for 
this administration's actions and some standards of justice and 
decency. The Republican leadership's legislation which is before us now 
strips away all accountability and erodes our most basic national 
values.
  If the administration had answered me when I asked over and over 
about the Convention Against Torture and about rendition, we could have 
come to grips with those matters before they degenerated, as they have, 
into international embarrassment for the United States. As Secretary 
Colin Powell wrote recently, ``The world is beginning to doubt the 
moral basis of our fight against terrorism.'' It did not need to come 
to that.
  If FBI Director Mueller had been more forthcoming with me at or after 
the May 2004 hearing in which I asked him about what the FBI had 
observed at Guantanamo, we could have gotten to a detention and 
interrogation policy befitting the U.S. years sooner than we have.

[[Page 19960]]

  If the administration would have responded to my many inquiries over 
the years regarding the rendition of Maher Arar, I would not have had 
to send yet another demand for information to the Attorney General this 
week, and we would not have been embarrassed by the Canadian commission 
report about his being sent by U.S. authorities to Syria where he was 
tortured. Mr. Arar is the Canadian citizen who was returning to Canada 
through New York when he was arrested by American authorities at JFK 
airport and held for 12 days without access to a Canadian consular 
official or lawyer. He was then rendered, not to Canada, but to Syria, 
without the knowledge or approval of Canadian officials, where he was 
tortured. Last week, a Canadian commission inquiry determined that Mr. 
Arar had no ties to terrorists, he was arrested on bad intelligence, 
and his forced confessions in Syria reflected torture, not the truth. 
Sadly, the administration is still seeking to avoid accountability by 
hiding behind legal doctrines. The administration continues to thwart 
every effort to get to the facts, to get to the truth and to be 
accountable. I am worried that the legislation before us is one more 
example of that trend.
  Unfortunately, Senator Levin's amendment, like the Armed Services 
Committee's bill, retains the extremely troubling habeas provision. I 
will be submitting an amendment to strip that provision.
  We are rushing through legislation that would have a devastating 
effect on our security and on our values, and we need to step back and 
think about what we are doing. The President recently said that ``time 
is of the essence'' to pass legislation authorizing military 
commissions. Time was of the essence when this administration took 
control and did not act on the dire warnings of terrorist action. Time 
was of the essence in August and early September 2001 when the 9/11 
attacks could still have been prevented. This administration ignored 
warnings of a coming attack and even proposed cutting the anti-terror 
budget. It focused on Star Wars, not terrorism. Time was of the essence 
when Osama bin Laden was trapped in Tora Bora.
  After 5 years of unilateral actions by this administration that have 
left us less safe, time is now of the essence to take real steps to 
keep us safe from terrorism like those in the Real Security Act, S. 
3875. Instead, the President and the Republican Senate leadership call 
for rubberstamping more flawed White House proposals in the run up to 
another election. I hope that this time the U.S. Senate will act as an 
independent branch of the government and finally serve as a check on 
this administration.
  We need to pursue the war on terror with strength and intelligence, 
but also to do so consistent with American values. The President says 
he wants clarity as to the meaning of the Geneva Conventions and the 
War Crimes Act. Of course, he did not want clarity when his 
administration was using its twisted interpretation of the law to 
authorize torture, cruel and inhumane treatment of detainees and spying 
on Americans without warrants and keeping those rationales and programs 
secret from Congress. The administration does not seem to want clarity 
when it refuses even to tell Congress what its understanding of the law 
is following the withdrawal of a memo that said the President could 
authorize and immunize torture. That memo was withdrawn because it 
could not stand up in the light of day.
  It seems that the only clarity this administration wants is a clear 
green light from Congress to do whatever it wants. That is not clarity; 
it is immunity. That is what the current legislation would give to the 
President on interrogation techniques and on military commissions. 
Justice O'Connor reminded the nation before her retirement that even 
war is not a ``blank check'' when it comes to the rights of Americans. 
The Senate should not be a rubberstamp for policies that undercut 
American values and make Americans around the world less safe.
  In reality, we already have clarity. Senior military officers tell us 
they know what the Geneva Conventions require, and the military trains 
its personnel according to these standards. We have never had trouble 
urging other countries around the world to accept and enforce the 
provisions of the Geneva Conventions. There was enough clarity for 
that. What the administration appears to want, instead, is to use new 
legislative language to create loopholes and to narrow our obligations 
not to engage in cruel, degrading, and inhuman treatment.
  In fact, the new legislation muddies the waters. It saddles the War 
Crimes Act with a definition of cruel or inhuman treatment so oblique 
that it appears to permit all manner of cruel and extreme interrogation 
techniques. Senator McCain said this weekend that some techniques like 
waterboarding and induced hypothermia would be banned by the proposed 
law. But Senator Frist and the White House disavowed his statements, 
saying that they preferred not to say what techniques would or would 
not be allowed. That is hardly clarity; it is deliberate confusion.
  Into that breach, this legislation throws the administration's 
solution to all problems: more Presidential power. It allows the 
administration to promulgate regulations about what conduct would and 
would not comport with the Geneva Conventions, though it does not 
require the President to specify which particular techniques can and 
cannot be used. This is a formula for still fewer checks and balances 
and for more abuse, secrecy, and power-grabbing. It is a formula for 
immunity for past and future abuses by the Executive.
  I worked hard, along with many others of both parties, to pass the 
current version of the War Crimes Act. I think the current law is a 
good law, and the concerns that have been raised about it could best be 
addressed with minor adjustments, rather than with sweeping changes.
  In 1996, working with the Department of Defense, Congress passed the 
War Crimes Act to provide criminal penalties for certain war crimes 
committed by and against Americans. The next year, again with the 
Pentagon's support, Congress extended the War Crimes Act to violations 
of the baseline humanitarian protections afforded by Common Article 3 
of the Geneva Conventions. Both measures were supported by a broad 
bipartisan consensus, and I was proud to sponsor the 1997 amendments.
  The legislation was uncontroversial for a good reason. As I explained 
at the time, the purpose and effect of the War Crimes Act as amended 
was to provide for the implementation of America's commitment to the 
basic international standards we subscribed to when we ratified the 
Geneva Conventions in 1955. Those standards are truly universal: They 
condemn war criminals whoever and wherever they are.
  That is a critically important aspect of the Geneva Conventions and 
our own War Crimes Act. When we are dealing with fundamental norms that 
define the commitments of the civilized world, we cannot have one rule 
for us and one for them, however we define ``us'' and ``them.'' As 
Justice Jackson said at the Nuremberg tribunals, ``We are not prepared 
to lay down a rule of criminal conduct against others which we would 
not be willing to have invoked against us.''
  In that regard, I am disturbed that the legislation before us narrows 
the scope of the War Crimes Act to exclude certain violations of the 
Geneva Conventions and, perhaps more disturbingly, to retroactively 
immunize past violations. Neither the Congress nor the Department of 
Defense had any problem with the War Crimes Act as it now stands when 
we were focused on using it to prosecute foreign perpetrators of war 
crimes. I am concerned that this is yet another example of this 
administration overreaching, disregarding the law and our international 
obligations, and seeking to immunize others to break the law. It also 
could well prevent us from prosecuting rogues who we all agree were out 
of line, like the soldiers who mistreated prisoners at Abu Ghraib.
  The President said on May 5, 2004 about prisoner mistreatment at Abu

[[Page 19961]]

Ghraib: ``I view those practices as abhorrent.'' He continued: ``But in 
a democracy, as well, those mistakes will be investigated, and people 
will be brought to justice.'' The Republican leader of the Senate said 
on the same day: ``I rise to express my shock and condemnation of these 
despicable acts. The persons who carried them must face justice.''
  Many of the despicable tactics used in Abu Ghraib the use of dogs, 
forced nudity, humiliation of various kinds do not appear to be covered 
by the narrow definitions this legislation would graft into the War 
Crimes Act; of course, despite the President's calls for clarity, the 
new provisions are so purposefully ambiguous that we cannot know for 
sure. If the Abu Ghraib abuses had come to light after the perpetrators 
left the military, they might not have been able to be brought to 
justice under the administration's formulation.
  The President and the Congress should not be in the business of 
immunizing people who have broken the law, making us less safe, turning 
world opinion against us, and undercutting our treaty obligations in 
ways that encourage others to ignore the protections those treaties 
provide to Americans. We should be very careful about any changes we 
make.
  If we lower our standards of domestic law to allow outrageous 
conduct, we can do nothing to stop other countries from doing the same. 
This change in our law does not prevent other countries from 
prosecuting our troops and personnel for violations of the Geneva 
Convention if they choose; it only changes our domestic law. But it 
could give other countries a green light to change their own law to 
allow them to treat our personnel in cruel and inhuman ways.
  Let me be clear. There is no problem facing us about overzealous use 
of the War Crimes Act by prosecutors. In fact, as far as I can tell, 
the Ashcroft Justice Department and the Gonzales Justice Department 
have yet to file a single charge against anyone for violation of the 
War Crimes Act. Not only have they never charged American personnel 
under the act, they have never used it to charge terrorists either.
  We can address any concerns about the War Crimes Act with reasonable 
amendments, as the Warner-Levin bill did, without gutting the Act in a 
way that undermines our moral authority and makes us less safe. Senator 
Levin's amendment goes back to the Warner-Levin bill's formulation, and 
I urge Senators of both parties to support it.
  The proposed legislation would also allow the admission into military 
commission proceedings of evidence obtained through cruel and inhuman 
treatment. This provision would once again allow this administration to 
avoid all accountability for its misguided policies which have 
contributed to the rise of a new generation of terrorists who threaten 
us. Not only would the military commission legislation before us 
immunize those who violated international law and stomped on basic 
American values, but it would allow them then to use the evidence 
gotten in violation of basic principles of fairness and justice.
  Allowing in this evidence would violate our basic standards of 
fairness without increasing our security. Maher Arar, the Canadian 
citizen sent by our government to Syria to be tortured, confessed to 
attending terrorist training camps. A Canadian commission investigating 
the case found that his confessions had no basis in fact. They merely 
reflected that he was being tortured, and he told his torturers what 
they wanted to hear. It is only one of many such documented cases of 
bad information resulting from torture. We gain nothing from allowing 
such information. The Armed Services Committee bill, which the Levin 
amendment restores, would not allow the use of this tainted evidence.
  The military commissions legislation departs in other unfortunate 
ways from the Warner-Levin bill. Early this week, apparently at the 
White House's request, Republican drafters added a breathtakingly broad 
definition of ``unlawful enemy combatant'' which includes people--
citizens and non-citizens--alike--who have ``purposefully and 
materially supported hostilities'' against the United States or its 
allies. It also includes people determined to be ``unlawful enemy 
combatant'' by any ``competent tribunal'' established by the President 
or the Secretary of Defense. So the government can select any person, 
including a U.S. citizen, whom it suspects of supporting hostilities--
whatever that means--and begin denying that person the rights and 
processes guaranteed in our country. The implications are chilling. We 
should go back to the reasonable definition the Senate Armed Services 
Committee came up with. That is what the Levin amendment does.
  I hope that we will take the opportunity before us to consider and 
pass bipartisan legislation that will make us safer and help our fight 
on terrorism, both by giving us the tools we need and by showing the 
world the values we cherish and defend, the same values that make us a 
target. We should amend the legislation before us to keep the War 
Crimes Act strong and to require some accountability from the 
administration. The Levin amendment does just that, and I urge all 
senators to vote for it. Let us join together on behalf of real 
security for Americans.
  Mr. President, before we stand here congratulating ourselves too much 
about all the wonderful things we did in these closed-door meetings and 
these back-room meetings and the Bush-Cheney statements about what we 
are allowed to do or not allowed to do in what has become an 
increasingly rubberstamp Congress--the most rubberstamp Congress I have 
ever seen in 32 years here--I want to talk about the habeas stripping 
provisions, what I call un-American provisions, which are regrettably 
in the bill before us and unfortunately contained in the committee 
bill, and even included in the amendment before us now. The Specter-
Leahy-Dodd amendment will eliminate those provisions from the bill 
pending before the Senate.
  It will be interesting to see whether the Bush-Cheney administration 
will allow Republican Senators to vote for it. Lord knows there have 
not been many votes made here that have been by independent Senators.
  As currently drafted, section 7 of the military commissions bill 
would wrongfully, and in my view, unconstitutionally eliminate the writ 
of habeas corpus for anyone detained by this administration on 
suspicion of being what they call an ``enemy combatant,'' which is a 
dangerous concept that is being expanded by a vague and ever-expanding 
definition.
  The President could basically say I think you are an enemy combatant, 
and lock you up, and you can't even contest it.
  I think of the hundreds of pages of statements made by Senators on 
both sides of the aisle when other countries have done something this 
arbitrary, or this vague, and locked up people inside their borders, 
and we said how un-American it is. If we pass this, we can no longer 
call it un-American. We can call it codified American law.
  Important as the rules for military commissions are, they will apply 
to only a few cases. In this war on terror, you may wonder how many 
people have been brought to justice. We are holding about 500 people in 
Guantanamo. We are so committed to this war that we have charged a 
total of 10 people in the nearly 5 years that the President declared 
his intention to use military commissions. That is two a year. They 
just announced plans to charge an additional 14 men. At this rate, I 
will be about 382 years old when they get around to charging all the 
people they are detaining. But for the vast majority of the almost 500 
prisoners at Guantanamo, and the thousands it has detained over the 
last 5 years, the administration's position remains as stated by 
Secretary of Defense Donald Rumsfeld 3 years ago: There is no interest 
in trying them.
  It is not just a question of we have no interest in trying those we 
have determined to be enemy combatants. If we have dozens and dozens or 
even hundreds of people who are picked up by mistake or turned over by 
bounty hunters to get the bounty and not because they might have done 
something,

[[Page 19962]]

we are not going to try them either. Sorry, we are just going to lock 
them up.
  Perhaps the single most consequential provision of the so-called 
military commissions bill can now be found buried nearly 100 pages in 
to curtail judicial review and any meaningful accountability. This 
provision would perpetuate the indefinite detention of hundreds of 
individuals against whom the Government has brought no charges and 
presented no evidence, without any recourse to justice whatsoever. 
Maybe some of them are guilty. If they are, try them. But we have to 
understand that there may be people in there who have no reason to be 
there and there are no charges and no evidence. This is un-American, it 
is unconstitutional, and it is contrary to American interests. This is 
not what a great and wonderful nation should be doing.
  Going forward, the bill departs even more radically from our most 
fundamental values. I am proud to be an American, and I am proud to be 
a Senator. But mostly I am proud of what has been in the past our 
American values. Provisions that were profoundly troubling a week ago 
when the Armed Services Committee marked up the bill have gotten much 
worse in the course of the closed-door revisions over the past 5 days, 
including the last round of revisions, which were put in behind closed 
doors and sent around late yesterday, and that the majority now demands 
we pass immediately. Five years they sit, doing nothing, and then all 
of sudden, whoops, the polls look bad this fall for the election: 
Quick, pass anything, no matter how unconstitutional it might be.
  For example, the bill has been amended to eliminate habeas corpus 
review even for people inside the United States, and even for people 
who have not been determined to be enemy combatants. Quick, pass it; 
quick, do it now; quick, pass it out of here so we can rubberstamp it 
in a signing ceremony before anybody reads the fine print.
  We have done this in the past. As a witness said before our committee 
this week, we did this in the past. We did it with the Tonkin Gulf 
Resolution. We did it with the internment of Japanese Americans. Now we 
are about to do it again.
  As the bill now stands, it would permit the President to detain 
indefinitely--even for life--any alien, whether in the United States or 
abroad, whether a foreign resident or a lawful permanent resident, 
without any meaningful opportunity for that person to challenge his 
detention. The administration would not even need to assert, much less 
prove, that the alien was an enemy combatant; it would suffice to say 
that the alien was awaiting a determination on that issue, even though 
they may wait 20, 30, 40 years and wait until the grave gives them 
their escape.
  In other words, the bill would send a message to the millions of 
legal immigrants living in America, participating in American families, 
working for American businesses, and paying American taxes. Its message 
would be that our Government may at any minute pick them up and detain 
them indefinitely without charge and without any access to the courts 
or even to military tribunals unless and until the Government 
determines that they are not enemy combatants--even though they have no 
ability to help in that determination themselves. In turn, the bill now 
defines the term enemy combatants in a tortured and unprecedented broad 
manner.
  Detained indefinitely, and unaccountably, until they are proven 
innocent; even though they have no right to stand up and offer proof. 
It is like the Canadian citizen Maher Arar, shipped off to a torture 
cell in Syria by the Bush-Cheney administration, despite what the 
Canadian Government recently concluded, that there is no evidence that 
he ever committed a crime or posed a threat to either the United States 
or Canadian security. Pick him up. He looks bad. Ship him to Syria. 
Torture him. Maybe he will confess to something and prove we were 
right.
  Now it has been documented the Bush-Cheney administration did the 
wrong thing to the wrong man. When asked about it, what do they do? As 
usual, they evade all accountability. This is an administration that 
makes no mistakes. A rubberstamp Congress will never ask them what they 
did, they make no mistakes, and they hide behind a purported State 
secrets privilege.
  The administration's defenders would like to believe Mr. Arar's case 
is an isolated blunder, but it is not. We have numerous press accounts 
that have quoted administration officials themselves who believe a 
significant percentage of those detained at Guantanamo Bay have no 
connection to terrorism. They have been held by the Bush-Cheney 
administration for several years and the administration intends to hold 
them indefinitely without trial or any recourse to justice, even though 
a substantial number of them are innocent people who were turned in by 
anonymous bounty hunters or picked up by mistake in the fog of war.
  The most important purpose of habeas corpus is not to give people 
extra rights. No one is asking to give people special rights. Habeas 
corpus does not do that. Habeas corpus is intended to correct errors 
such as this to protect the innocent. It is precisely to prevent such 
abuses that the Constitution prohibits the suspension of the writ of 
habeas corpus ``unless when in cases of rebellion or invasion public 
safety may require it.''
  I would assume the Bush-Cheney administration is not saying we are 
handling this question of terrorists so poorly that we are under 
invasion now. And I have no doubt this bill, which will permanently 
eliminate the writ of habeas corpus for all aliens within and outside 
the United States whenever the Government says they might be enemy 
combatants, violates that prohibition. I believe even the present 
Supreme Court, seven of the nine members now Republican, would hold it 
unconstitutional.
  When former Secretary of State Colin Powell wrote of his concerns 
with the administration's bill, he wrote: ``The world is beginning to 
doubt the moral basis of our fight against terrorism.''
  Talk to anyone who travels around the world anywhere, even among some 
of our closest allies, our best friends. We are asked, What are you 
doing? Have you lost your moral compass? And these are countries that 
faced terrorist attacks long before we did.
  General Powell, former head of the Joint Chiefs of Staff, was right.
  We have heard from current and former diplomats, military lawyers, 
Federal judges, law professors, law school deans, and even a former 
Solicitor General under the first President Bush, Kenneth Starr, that 
they have grave concerns with the habeas corpus stripping provisions of 
this bill. I have letters that come from across the political and legal 
spectrum saying this is wrong.
  I ask unanimous consent that some of these letters be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 25, 2006.
     To United States Senators and Members of Congress.

       Dear Madams/Sirs: This letter is written in the name of the 
     former members of the diplomatic service of the United States 
     listed below.
       We urge that the Congress, as it considers the pending 
     detainee legislation, not eliminate the jurisdiction of the 
     courts to entertain habeas corpus petitions filed on behalf 
     of those detainees.
       There is no more central principle of democracy than that 
     an officer of the executive branch of government may restrain 
     no one except at sufferance of the judiciary. The one branch 
     is vital to insure the legitimacy of the actions of the 
     other. Habeas corpus is the ``Great Writ.'' It is by habeas 
     corpus that a person--any person--can insure that the 
     legality of his or her restraint is confirmed by a court 
     independent of the branch responsible for the restraint. 
     Elimination of judicial review by this route would undermine 
     the foundations of our democratic system.
       We are told that the central purpose of our engagement in 
     that ``vast external realm'' today is the promotion of 
     democracy for others. All nations, we urge, should embrace 
     the principles and practices of freedom and governance that 
     we have embraced. But to

[[Page 19963]]

     eliminate habeas corpus in the United States as an avenue of 
     relief for the citizens of other countries who have fallen 
     into our hands cannot but make a mockery of this pretension 
     in the eyes of the rest of the world. The perception of 
     hypocrisy on our part--a sense that we demand of others a 
     behavioral ethic we ourselves may advocate but fail to 
     observe--is an acid which can overwhelm our diplomacy, no 
     matter how well intended and generous. Pretensions are one 
     thing; behavior another, and quite the more powerful message. 
     To proclaim democratic government to the rest of the world as 
     the supreme form of government at the very moment we 
     eliminate the most important avenue of relief from arbitrary 
     governmental detention will not serve our interests in the 
     larger world.
       This is the first and primary reason for rejecting the 
     proposal. But the second is almost as important, and that is 
     its potential for a reciprocal effect. Pragmatic 
     considerations, in short, are in this instance at one with 
     considerations of principle. Judicial relief from arbitrary 
     detention should be preserved here else our personnel serving 
     abroad will suffer the consequences. To deny habeas corpus to 
     our detainees can be seen as prescription for how the 
     captured members of our own military, diplomatic and NGO 
     personnel stationed abroad may be treated.
       As former officials in the diplomatic service of our 
     nation, this consideration weighs particularly heavily for 
     us. The United States now has a vast army of young Foreign 
     Service officers abroad. Many are in acute and immediate 
     danger. Over a hundred, for example, are serving in 
     Afghanistan. Foreign service in a high-risk post is 
     voluntary. These officers are there willingly. The Congress 
     has every duty to insure their protection, and to avoid 
     anything which will be taken as justification, even by the 
     most disturbed minds, that arbitrary arrest is the acceptable 
     norm of the day in the relations between nations, and that 
     judicial inquiry is an antique, trivial and dispensable 
     luxury.
       We urge that the proposal to curtail the reach of the Great 
     Writ be rejected.
           Respectfully submitted,
         William D. Rogers, former Under Secretary of State; 
           Ambassador J. Brian Atwood; Ambassador Harry Barnes; 
           Ambassador Richard E. Benedick; Ambassador A Peter 
           Burleigh; Ambassador Herman J. Cohen; Ambassador Edwin 
           G. Corr; Ambassador John Gunther Dean; Ambassador 
           Theodore L. Eliot, Jr.; Ambassador Chas W. Freeman, 
           Jr.; Ambassador Robert S. Gelbard.
         Ambassador Lincoln Gordon; Ambassador William C. Harrop; 
           Ambassador Ulric Haynes, Jr.; Ambassador Robert E. 
           Hunter; Ambassador L. Craig Johnstone; Ambassador 
           Robert V. Keeley; Ambassador Bruce P. Laingen; Anthony 
           Lake, former National Security Advisor; Ambassador 
           Princeton N. Lyman; Ambassador Donald McHenry; 
           Ambassador George Moore.
         Ambassador George Moose; Ambassador Thomas M. T. Niles; 
           Ambassador Robert Oakley; Ambassador Robert H. 
           Pelletreau; Ambassador Pete Peterson; Ambassador Thomas 
           R. Pickering; Ambassador Anthony Quainton; Helmut 
           Sonnenfeldt, former Counselor of the Department of 
           State; Ambassador Roscoe S. Suddarth; Ambassador 
           Phillips Talbot; Ambassador William Vanden Heuvel; 
           Ambassador Alexander F. Watson.
                                  ____

       To Members of Congress: The undersigned retired federal 
     judges write to express our deep concern about the lawfulness 
     of Section 6 of the proposed Military Commissions Act of 2006 
     (``MCA''). The MCA threatens to strip the federal courts of 
     jurisdiction to test the lawfulness of Executive detention at 
     the Guantanamo Bay Naval Station and elsewhere outside the 
     United States. Section 6 applies ``to all cases, without 
     exception, pending on or after the date of the enactment of 
     [the MCA] which relate to any aspect of the detention, 
     treatment, or trial of an alien detained outside of the 
     United States . . . since September 11, 2001.''
       We applaud Congress for taking action establishing 
     procedures to try individuals for war crimes and, in 
     particular, Senator Warner, Senator Graham, and others for 
     ensuring that those procedures prohibit the use of secret 
     evidence and evidence gained by coercion. Revoking habeas 
     corpus, however, creates the perverse incentive of allowing 
     individuals to be detained indefinitely on that very basis by 
     stripping the federal courts of their historic inquiry into 
     the lawfulness of a prisoner's confinement.
       More than two years ago, the United States Supreme Court 
     ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees 
     at Guantanamo have the right to challenge their detention in 
     federal court by habeas corpus. Last December, Congress 
     passed the Detainee Treatment Act, eliminating jurisdiction 
     over future habeas petitions filed by prisoners at 
     Guantanamo, but expressly preserving existing jurisdiction 
     over pending cases. In June, the Supreme Court affirmed in 
     Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal 
     courts have the power to hear those pending cases. These 
     cases should be heard by the federal courts for the reasons 
     that follow.
       The habeas petitions ask whether there is a sufficient 
     factual and legal basis for a prisoner's detention. This 
     inquiry is at once simple and momentous. Simple because it is 
     an easy matter for judges to make this determination--federal 
     judges have been doing this every day, in every courtroom in 
     the country, since this Nation's founding. Momentous because 
     it safeguards the most hallowed judicial role in our 
     constitutional democracy--ensuring that no man is imprisoned 
     unlawfully. Without habeas, federal courts will lose the 
     power to conduct this inquiry.
       We are told this legislation is important to the ineffable 
     demands of national security, and that permitting the courts 
     to play their traditional role will somehow undermine the 
     military's effort in fighting terrorism. But this concern is 
     simply misplaced. For decades, federal courts have 
     successfully managed both civil and criminal cases involving 
     classified and top secret information. Invariably, those 
     cases were resolved fairly and expeditiously, without 
     compromising the interests of this country. The habeas 
     statute and rules provide federal judges ample tools for 
     controlling and safeguarding the flow of information in 
     court, and we are confident that Guantanamo detainee cases 
     can be handled under existing procedures.
       Furthermore, depriving the courts of habeas jurisdiction 
     will jeopardize the Judiciary's ability to ensure that 
     Executive detentions are not grounded on torture or other 
     abuse. Senator John McCain and others have rightly insisted 
     that the proposed military commissions established to try 
     terror suspects of war crimes must not be permitted to rely 
     on evidence secured by unlawful coercion. But stripping 
     district courts of habeas jurisdiction would undermine this 
     goal by permitting the Executive to detain without trial 
     based on the same coerced evidence.
       Finally, eliminating habeas jurisdiction would raise 
     serious concerns under the Suspension Clause of the 
     Constitution. The writ has been suspended only four times in 
     our Nation's history, and never under circumstances like the 
     present. Congress cannot suspend the writ at will, even 
     during wartime, but only in ``Cases of Rebellion or Invasion 
     [when] the public Safety may require it.'' U.S. Const. art. 
     I, Sec. 9, cl. 2. Congress would thus be skating on thin 
     constitutional ice in depriving the federal courts of their 
     power to hear the cases of Guantanamo detainees. At a 
     minimum, Section 6 would guarantee that these cases would be 
     mired in protracted litigation for years to come. If one goal 
     of the provision is to bring these cases to a speedy 
     conclusion, we can assure you from our considerable 
     experience that eliminating habeas would be 
     counterproductive.
       For two hundred years, the federal judiciary has maintained 
     Chief Justice Marshall's solemn admonition that ours is a 
     government of laws, and not of men. The proposed legislation 
     imperils this proud history by abandoning the Great Writ to 
     the siren call of military necessity. We urge you to remove 
     the provision stripping habeas jurisdiction from the proposed 
     Military Commissions Act of 2006 and to reject any 
     legislation that deprives the federal courts of habeas 
     jurisdiction over pending Guantanamo detainee cases.
           Respectfully,
       Judge John J. Gibbons, U.S. Court of Appeals for the Third 
     Circuit (1969-1987), Chief Judge of the U.S. Court of Appeals 
     for the Third Circuit (1987-1990).
       Judge Shirley M. Hufstedler, U.S. Court of Appeals for the 
     Ninth Circuit (1968-1979).
       Judge Nathaniel R. Jones, U.S. Court of Appeals for the 
     Sixth Circuit (1979-2002).
       Judge Timothy K. Lewis, U.S. District Court, Western 
     District of Pennsylvania (1991-1992), U.S. Court of Appeals 
     for the Third Circuit (1992-1999).
       Judge William A. Norris, U.S. Court of Appeals for the 
     Ninth Circuit (1980-1997).
       Judge George C. Pratt, U.S. District Court, Eastern 
     District of New York (1976-1982), U.S. Court of Appeals for 
     the Second Circuit (1982-1995).
       Judge H. Lee Sarokin, U.S. District Court for the District 
     of New Jersey (1979-1994), U.S. Court of Appeals for the 
     Third Circuit (1994-1996).
       William S. Sessions, U.S. District Court, Western District 
     of Texas (1974-1980), Chief Judge of the U.S. District Court, 
     Western District of Texas (1980-1987).
       Judge Patricia M. Wald, U.S. Court of Appeals for District 
     of Columbia Circuit (1979-1999), Chief Judge of the U.S. 
     Court of Appeals for District of Columbia Circuit (1986-
     1991).
                                  ____



                                                   Malibu, CA,

                                               September 24, 2006.
     Hon. Arlen Specter,
     Chairman, Senate Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Specter: I write to express my concerns about 
     the limitations on the writ of habeas corpus contained in the 
     compromise military commissions bill, The Military 
     Commissions Act of 2006 (S. 3930). Although S. 3930 contains 
     many laudable improvements to military commission procedure, 
     section 6 of the bill effectively bars detainees at the U.S. 
     Naval Base at Guantanamo Bay, Cuba from applying for habeas

[[Page 19964]]

     corpus review of their executive detention. I am concerned 
     that limitation may go too far in limiting habeas corpus 
     relief, especially in light of the apparent conflict between 
     the holdings of Rasul v. Bush, 124 S. Ct. 2684 (2004), and 
     Johnson v. Eisentrager, 339 U.S. 763 (1950).
       Although the Rasul Court limited its holding to statutory 
     habeas rights, which may be limited by the Congress, the 
     Supreme Court nevertheless viewed Guantanamo Bay, Cuba as a 
     territory within the control and jurisdiction of the United 
     States. Accordingly, the Eisentrager case may no longer be 
     relied upon with confidence to rule out constitutional habeas 
     protections for Guantanamo detainees. One of the Eisentrager 
     factors that limited constitutional habeas rights for aliens 
     in military custody was whether the detainee was held outside 
     of the United States. Based on the finding of the Rasul case 
     that Guantanamo Bay falls within U.S. territorial 
     jurisdiction, Guantanamo detainees likely have a different 
     constitutional status than the alien detainees in 
     Eisentrager, who were held in Landsberg, Germany.
       Article 1, section 9, clause 2 of the United States 
     Constitution provides that ``[t]he Privilege of the Writ of 
     Habeas Corpus shall not be suspended, unless when in Cases of 
     Rebellion or Invasion the public Safety may require it.'' The 
     United States is neither in a state of rebellion nor 
     invasion. Consequently, it would problematic for Congress to 
     modify the constitutionally protected writ of habeas corpus 
     under current events.
       I encourage the Senate Judiciary Committee to study the 
     constitutional implications of S. 3930 on the habeas corpus 
     rights of detainees in United States territory. Although no 
     one wants the War on Terror to be litigated in the courts, 
     Congress should act cautiously to strike a balance between 
     the need to detain enemy combatants during the present 
     conflict and the need to honor the historic privilege of the 
     writ of habeas corpus. I thank you for holding a hearing on 
     this topic and hope that it helps to strike that balance.
           Sincerely,
                                                 Kenneth W. Starr.

  Mr. LEAHY. Monday we rushed to hold a hearing before the Judiciary 
committee on this important issue, and what happens? The surrogate for 
the administration, former White House associate counsel Brad Berenson, 
who testified before us, defends the habeas corpus stripping provisions 
of this bill by arguing that the United States has been and still is 
suffering from an invasion that requires the suspension of habeas 
corpus.
  What are we doing? What is going on? That is outrageous. That is 
running scared. That is so wrong. Is he saying that for 5 years this 
administration has been allowing an ongoing invasion in the United 
States and we are not aware of it? Are we going to suspend the great 
writ on this basis?
  To quote Kenneth Starr:

       The United States is neither in a state of rebellion nor 
     invasion. Consequently, it would [be] problematic for 
     Congress to modify the constitutionally protected writ of 
     habeas corpus under current events.

  I suppose the administration would say we are not modifying it. Heck, 
no, we are eliminating it. We are not modifying the writ of habeas 
corpus, we are knocking it out for all aliens.
  I agree with those from the right to the left, we should not modify, 
and we certainly should not eliminate, the great writ of habeas corpus. 
I agree with hundreds of law professors who described an earlier, less 
extreme version of the habeas provisions of this bill as ``unwise and 
contrary to the most fundamental precepts of American constitutional 
tradition.'' And I agree with the former ambassadors and other senior 
diplomats who wrote to us saying that eliminating habeas corpus for 
aliens does not help America, it does not make America safer, but 
rather it harms our interests abroad and makes us less safe.
  Maybe some of those who want to pretend how powerful they have been 
in military matters ought to talk to those who have been in the 
military and actually understand a time when we are reaping the 
mistakes of our folly in Iraq. Let us not expand it further. The United 
States, especially since World War II and the Marshall Plan, has been a 
beacon of hope and freedom for the world. How do we spread a message of 
freedom abroad if our message to those who come to America is that they 
may be detained indefinitely without any recourse to justice?
  In the wake of the attack of September 11, and in the fact of the 
continuing terrorist threat, now is not the time for the United States 
to abandon its principles. Admiral Hutson was right to point out that 
when we do, there would be little to distinguish America from a banana 
republic or the repressive regimes against which we are trying to rally 
the world and the human spirit.
  Now is not the time to abandon American values and to shiver and 
quake as though we are a weak country and we have to rely on secrecy 
and torture. We are too great a nation for that. Those are the ways of 
weakness. Those are the ways of repression and oppression. Those are 
not the ways of America. Those are not the ways of this Nation I love.
  The habeas provisions of this bill are wrongheaded. They are 
flagrantly unconstitutional. Tinkering with them would not make them 
less wrongheaded but might make them less flagrantly unconstitutional. 
I see no reason to save the administration from itself and from the 
inevitable defeat when the Supreme Court strikes them down.
  Why should those who take our oath to uphold the Constitution 
seriously, who understand the fundamental importance of habeas to 
freedom, find ourselves compromising with such an irresponsible 
provision?
  That is why at the appropriate point the chairman of the Senate 
Judiciary Committee and I will offer just one amendment, to remove the 
habeas provisions from the bill in their entirety. That is the right 
thing to do. I should also add, that is the American thing to do. We 
would still be left with the disgraceful but less extreme habeas 
stripping provisions that we enacted earlier this year in the Detainee 
Treatment Act. But we would at least not make one bad mistake even 
worse. By not totally eliminating habeas for all aliens, we can reduce 
the damage to America's credibility as a champion of freedom and show 
the American people and the courts that Congress is not entirely 
cavalier when it comes to its constitutional obligations. We can show 
the world that this great Nation is not so frightened and so shaky and 
so quaky that we are going to have to give up the principles that made 
us a great nation.
  Our amendment would reduce the grave harm that will be done if the 
bill before the Senate passes. It was not too late last night for the 
Republicans to make yet more revisions to this unconstitutional bill. 
It is not too late today for the Senate to make the bill a little less 
bad, a little less offensive to the values and freedom for which 
America stands.
  This is one American who is not going to run and hide. This is one 
American who is not willing to cut down the laws of our Nation. This is 
one American who thinks these laws and our protections have made us 
great not only here but abroad. This is one American who thinks that 
our freedoms, our laws, our protections, are what attracted people from 
other countries, people from other countries who have fled oppression 
in their own country and fled a lack of rule of law in their own 
country, to come to America, where we have a rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, we are anxious to go on with the matters 
before the Senate this afternoon in connection with this pending bill.
  As I understand it, the amount of time remaining on the Levin 
substitute amendment is how much?
  The PRESIDING OFFICER. The Senator from Michigan has 24 minutes 10 
seconds; the Senator from Virginia has 24 minutes.
  Mr. WARNER. It had been my hope we could set this amendment aside 
pending instructions from the leadership as to a time of vote and 
proceed to another amendment.
  At this point in time, I see another colleague who is seeking 
recognition.
  I yield the floor.
  Mr. REED. Mr. President, I ask for 12 minutes from the time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, we are engaged in a very important debate 
about

[[Page 19965]]

the way we will bring to justice very heinous individuals who committed 
terrorism. I will put in context first what I think the situation is.
  First, our most essential mission in the war on terror is to find 
these individuals, to attempt to capture them, and if they have refused 
to be captured, to take extreme measures to eliminate them as terrorist 
threats to the United States.
  If they are in our hands as detainees or in any capacity, we have an 
obligation to interrogate them and we have to be consistent with 
international norms while also recognizing that as we treat people in 
our custody we can expect if our military personnel fall in the hands 
of a military power, they will be similarly treated. We must be very 
conscious of this.
  But an important point that is often overlooked in the entire debate, 
all of the individuals we are talking about today--the 14 detainees at 
Guantanamo Bay and others--are enemy combatants. Under international 
law, they can be held indefinitely. There is a big difference between 
an individual who is an enemy combatant and someone who is in a 
criminal justice situation someplace else. Even if these individuals 
are acquitted of their crimes, they are still in the custody of the 
United States and still will remain in the custody of the United 
States.
  So as we debate this issue of military tribunals, we have to 
recognize what we are talking about is not allowing people to walk out 
the door because our procedures are inadequate, because some clever 
attorney can take advantage of the rules of evidence. They will never 
walk out the door. What we are talking about is whether we will have 
legitimacy to impose the most difficult sanction on an individual, the 
most severe sanction. To be consistent with our value as a nation, I 
believe we have to have procedures that are procedurally legitimate, 
that are fair and are perceived that way.
  There is another issue here, not just in terms of our moral standing. 
It is a very practical one. I have suggested it before. How we treat 
these people will be the standard with which our military personnel 
will be treated overseas. We will surrender the right to condemn those 
people who may in the future hold our soldiers if they choose to use 
procedural gimmicks, if they want to stage show trials rather than real 
trials, if they want to punish an American fighting man or woman 
without any regard for the principles and practices of international 
law. That is, I think, the issue before us today.
  The substitute Senator Levin has offered today is one we supported on 
a bipartisan basis in the committee. It was a strong, good bill. It 
represented not only our best principles, but it recognized that these 
principles could also and would also be applied in the future--we hope 
not--but certainly we have to recognize the possibility that American 
military personnel will be in the hands of hostile forces in the 
future.
  The bill we had in the Armed Services Committee did things this 
legislation before us undoes. For example, the committee bill 
prohibited the admission of statements obtained through cruel, inhuman, 
or degrading treatment. The bill before us prohibits the admission of 
statements obtained after December 30, 2005, through ``cruel, inhuman 
or degrading treatment,'' but it contains no prohibition against using 
statements so obtained prior to December 30, 2005.
  I do not think the Geneva Conventions were in abeyance up until 
December 30, 2005. I do not think the standards we should insist upon 
did not exist there. And very practically speaking, ask yourself, would 
we accept the response from a foreign power who said: Oh, of course, we 
are going to follow the Geneva Conventions. Of course we are not going 
to use abusive treatment to obtain a confession, prior to December 30, 
2020 or 2015? I think this seriously weakens not only the legitimacy of 
this approach but also our ability to argue with compelling legal and 
moral force in the future that other nations have to play by the rules.
  There are other provisions here in this bill, and there are many of 
them that I think alter dramatically what we accomplished on a 
bipartisan basis, what was applauded by General Powell and General 
Vessey and others.
  For example, the committee bill provided that evidence seized outside 
of the United States shall not be excluded from trial by military 
commissions on the grounds the evidence was not seized pursuant to a 
search warrant. That was a very practical provision. We are not going 
to require a soldier, a special forces operator who is running through 
the woods of some foreign land, to produce a search warrant when he 
picks up valuable intelligence material.
  But the bill before us deletes the limitation to evidence seized 
outside the United States. As a result, the bill authorizes the use of 
evidence that is seized inside the United States without a search 
warrant. This provision is not limited to evidence seized from enemy 
combatants. It does not even preclude the seizure of evidence without a 
warrant when that evidence is seized from United States citizens.
  If you want an invitation to irresponsible conduct within the United 
States, disregarding our principles of justice and the Constitution of 
the United States, it might be found here because, frankly, we have the 
obligation to establish rules we can live with. No one is arguing with 
trying to create some type of situation in which a soldier has to pull 
out his Black's Law Dictionary and have his warrant and do all these 
things, but it is quite a bit different from police authorities here in 
the United States.
  Additional problems with this bill: The committee bill, the one we 
supported in the Armed Services Committee, provided that the procedures 
and rules of evidence applicable in trials by general courts martial 
would apply in trials by military commissions, subject to such 
exceptions as the Secretary of Defense determines to be ``required by 
the unique circumstances of the conduct of military and intelligence 
operations during hostilities or by other practical need.'' Establish a 
rule saying: Listen, we are going to use the procedures for courts 
martial except if the Secretary says there is some expedient 
circumstance. Because of hostilities, we have to make changes. This 
approach is consistent with Hamdan and the Supreme Court.
  The bill before us reverses the presumption. Instead of starting with 
the rules applicable in trials by courts martial as the governing 
provision, and then establishing exceptions, the Secretary of Defense 
is required to make trials by commission consistent with those rules 
only when he considers it is practical. The exception has swallowed up 
the rule.
  As one observer has pointed out, this provision is now so vaguely 
worded that it could even be read to authorize the administration to 
abandon the presumption of innocence in trials by military commissions, 
with the claim that military expedience requires a determination that 
the individual is guilty, and then he or she may prove their innocence. 
That, I think, is a significant retreat from the standards we 
established.
  There is another major issue here that is so important, and it is 
often confused; and that is with respect to Common Article 3. In 
Hamdan, the Supreme Court held that Common Article 3 applies to all 
members of al-Qaida, terrorists, anyone who comes into our control, not 
only in the areas of fair trials, but also in the areas of treatment.
  But I want to clarify this because this is often, I think, distorted 
and perhaps deliberately so. Many opponents of this legislation have 
stated that ``terrorists should not be given the same rights as our 
military personnel.'' What they are, I think, imprecisely but 
deliberately, perhaps, suggesting is that we are attempting to treat 
these individual terrorists as prisoners of war. And that is not the 
case. There are four Geneva Conventions. The first two protect sick and 
injured soldiers. The fourth protects civilians in areas of 
hostilities.
  The third convention--not the third Common Article--the third Geneva 
Convention deals with prisoners of war, our soldiers who fall into the 
hands of

[[Page 19966]]

hostile forces. These provisions are very clear about how POWs must be 
treated. You only have to give your name, rank, and serial number. That 
is it. Beyond that, there is no question. You cannot have any mental or 
physical coercion. ``[P]risoners of war who refuse to answer may not be 
threatened, insulted, or exposed to any unpleasant or disadvantageous 
treatment of any kind.''
  That is the way soldiers should be treated--all of our soldiers. But 
the Supreme Court never said that is the way we have to treat these 
terrorists. What they said is Common Article 3, which is in every 
Convention. It establishes a general baseline of the treatment of 
individuals. POWs are treated at a much higher status because of their 
uniformed participation in armed conflict, because of their discipline, 
because of the fact that we expect them to follow rules, too. But 
people who fall into our hands who are enemy combatants do not deserve 
that treatment. They are not going to get it here. But they have to be 
afforded Common Article 3 protection. It has been described as ``a 
convention within a convention.''
  Common Article 3 of the Geneva Conventions mandates that all persons 
taking no active part in hostilities, including those who have laid 
down their arms or been incapacitated by capture or injury, are to be 
treated humanely and protected from ``violence to life and person,'' 
and any ``outrages upon personal dignity, in particular, humiliating 
and degrading treatment.'' Anyone in our custody has to be afforded the 
protections of Common Article 3.
  The PRESIDING OFFICER. The Senator has used 12 minutes.
  Mr. REED. Mr. President, I know there are others who wish to speak. I 
ask unanimous consent for 2 additional minutes to simply summarize.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. We have to follow Common Article 3. However, the bill we 
are considering today authorizes the President to interpret the Geneva 
Conventions and provides that such interpretations ``shall be 
authoritative . . . as a matter of U.S. law, in the same manner as 
other administrative regulations.'' I think we are verging on a 
situation where the President, by definition, by clarification, and by 
regulation, could eviscerate these Common Article 3 protections.
  As I mentioned before, Secretary Powell and others have stated this 
is the core ideal, principle, we have to use in dealing with all of 
these individuals.
  Let me simply conclude, there is, I think, the presumption here that 
if we do not establish procedures that basically make it a slam dunk 
case, that we somehow are going to see these terrorists walk away, snub 
their noses at us, and start actively conspiring against us again.
  They will never see the light of day. No President will release these 
individuals. And no President will be forced under any international 
law to do so. But we will be judged whether, when we impose 
punishment--not detention, punishment--on these individuals, we have 
done it according to our principles that we can argue before the world 
and the American people represent our values; and we can insist that 
other nations that may hold our forces or civilians abide by the same 
principles. That is the issue here today. That is why I support Senator 
Levin's substitute amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coburn). Who yields time?
  Mr. LEVIN. Mr. President, how much time do I have?
  The PRESIDING OFFICER. Ten minutes 16 seconds.
  Mr. LEVIN. Mr. President, I yield 9 minutes to the Senator from New 
Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized for 
9 minutes.
  Mr. BINGAMAN. Mr. President, I thank my colleague from Michigan for 
yielding me time and I also thank him for bringing forth this 
amendment.
  I strongly support his proposal, essentially, to take the 
legislation, the agreement that was worked out in the Armed Services 
Committee by our colleagues, and to substitute that for what is now 
before us.
  This overall military commissions bill has three general areas of 
focus: first, the rules pertaining to the interrogation of prisoners; 
second, the procedures we should have in place for the trial of 
individuals who are brought before military commissions; and, third, 
the rights of those prisoners who under this bill will continue to be 
held without being charged at Guantanamo or elsewhere in the world, or 
even in this country.
  Let me take a moment to briefly comment on these first two issues 
before I discuss the third issue, which I believe has not received the 
attention that it deserves.
  With regard to interrogation techniques, I have been deeply troubled 
by the administration's insistence on weakening the prohibition on the 
use of torture and cruel and inhumane treatment. I strongly believe 
that we can give our military and intelligence officers the tools they 
need to protect the American public without abandoning our basic 
decency. The use of torture and other abusive techniques are not only 
morally repugnant, but they are ineffective and do great damage to our 
Nation's credibility with respect to our commitment to human rights. 
They also put our soldiers at risk of being subjected to similar 
treatment.
  Rather than redefining the Geneva Conventions to permit harsh 
interrogation techniques by the CIA, as the administration had 
proposed, the Republican compromise legislation retroactively revises 
the War Crimes Act so that criminal liability does not result from 
techniques that the United States may have employed, such as simulated 
drowning, exposure to hypothermia, and prolonged sleep deprivation.
  Under the Detainee Treatment Act, which we passed last year to 
reaffirm the prohibition on torture, the military is clearly prohibited 
from engaging in torture or cruel, degrading or inhumane treatment, as 
specified in the recently issued Army Field Manual. However, under the 
bill we are debating today, the CIA would be allowed to continue to 
subject detainees to harsh interrogation techniques without fear of 
criminal liability. As the President has stated, the ``program'' can 
continue.
  In essence, the legislation defines prisoner abuse and criminal 
liability in such a way that the administration is able to argue that 
it is complying with international and domestic legal restraints while 
at the same time continue to use techniques that amount to abuse under 
international treaty obligations.
  There is also a fundamental lack of clarity with respect to what 
conduct this legislation forbids. For example, when asked if water-
boarding is permitted under this bill, Senator McCain has said that it 
would not be allowed. But if one asks the administration, it will only 
say CIA interrogation techniques are classified and that the bill 
allows the CIA to continue to use so-called alternative interrogation 
techniques--techniques which our military is prohibited from employing.
  I think there is little doubt that these disturbing practices 
continue. This type of legal ambiguity has not served us well with 
respect to the treatment of detainees, and we should be taking this 
opportunity to provide greater legal clarity, not further muddying the 
water.
  I am also concerned about the rules and procedures of the newly 
constituted military commissions. The bill permits statements allegedly 
derived through coercive means to be used if the statements are 
probative and were obtained prior to December 2005, which coincides 
with the enactment of the Detainee Treatment Act. Statements obtained 
after the enactment of the Detainee Treatment Act cannot be admitted as 
evidence if they have been derived through interrogation techniques 
that amount to cruel, unusual, or inhumane treatment as prohibited by 
the fifth, eighth, and fourteenth amendments to the U.S. Constitution. 
Essentially we are saying that you can't admit statements derived from 
coercive methods except for those statements derived when we were using 
coercive methods. Having these two

[[Page 19967]]

different standards may be beneficial from the prosecution's 
perspective in terms of increasing the likelihood that statements will 
be found admissible, but it is not exactly the clarity we should have 
with regard to standards of justice.
  There are also a variety of problems regarding the rules on hearsay, 
the appeals process, the definition and retroactive application of 
crimes, and the admission of secret evidence, among others. Overall, 
the rules and procedures contained in the proposed legislation fall 
short of the basic fairness required in any criminal trial.
  I wish to talk about the provisions that relate to habeas corpus. One 
of the most disturbing provisions in the underlying legislation 
pertains to the disposition of those prisoners who will never be 
charged before a military commission or any court but who, instead, 
will be held indefinitely--or at least that option exists for our 
executive and our military to hold those individuals indefinitely in 
confinement.
  The current bill endorses the administration's practice of 
designating people, including U.S. citizens, I would point out, as 
``enemy combatants.'' It eliminates the ability of aliens--non-U.S. 
citizens--to bring habeas claims or other claims related to their 
detention or their treatment or their conditions of confinement.
  Whereas the previous attempt to strip the Federal courts of 
jurisdiction over these individuals under the Detainee Treatment Act 
applied only to individuals held by the Department of Defense at 
Guantanamo, this current legislation applies to any alien who is 
detained by the United States anywhere in the world, including those 
who are held within the United States. The current language also makes 
it clear that the elimination of judicial review is retroactive. It 
applies to all cases involving the detention of individuals since 
September 11, 2001.
  Various of my colleagues have already talked about the right of 
habeas corpus and its importance in our system of justice. Simply 
stated, the ability to file a writ of habeas corpus is the right of a 
person to challenge the legal basis for their detention.
  Habeas, which is also known as the Great Writ, is one of the most 
fundamental protections against arbitrary governmental power. This 
right dates back to the Magna Carta of 1215, and is enshrined in 
Article I, section 9, clause 2 of the U.S. Constitution. Filing a 
habeas petition doesn't entitle a person to a full-blown trial, but it 
does provide a means to ask whether the person's confinement is in 
compliance with the law. It doesn't confer any additional 
constitutional rights; it simply allows a person to ask whether their 
depravition of liberty is consistent with the Constitution.
  One of the principal arguments proponents for removing this 
protection have put forward in the past was that maintaining habeas 
rights leads to unnecessary and frivolous litigation. The fact is that 
these arguments misconstrue the nature of habeas petitions. The reality 
is, in my view, that court-stripping provisions will not, in fact, lead 
to less litigation. For example, if this measure is passed, the courts 
will be forced to consider whether this provision amounts to a 
suspension of the writ of habeas corpus. If it is determined that it 
does suspend the writ of habeas corpus, the courts will determine 
whether the suspension clause of the Constitution has been satisfied. 
Our Constitution is very clear. It says Congress is afforded the 
authority to suspend habeas in cases of rebellion and invasion. At a 
time when our courts are open and functioning, I think a person would 
be hard-pressed to argue that public safety requires removing judicial 
review. One would be hard-pressed to argue that we are in a period of 
rebellion, or that we have suffered an invasion, as that phrase was 
intended by our Founding Fathers.
  The one other issue, of course, that I think is important is that the 
Constitution gives Congress the power to suspend the writ. Here we are 
not just suspending the writ; this proposal is to abolish the writ, to 
permanently eliminate this right, this protection for this group of 
individuals. In my view, it makes more sense to simply allow the courts 
to hear the cases that are pending in the courts and determine the 
legality of the detention that is occurring. It makes more sense to do 
that than it does to litigate over whether those individuals who are 
incarcerated, in fact, have a right to have their cases heard.
  If what the administration says is true and the indefinite 
imprisonment of individuals at Guantanamo or elsewhere is legal, then 
why does the administration continue to fight so hard to eliminate the 
ability of the courts to hear those cases? If these individuals are in 
fact ``the worst of the worst,'' which we have been assured, then why 
is it so difficult to provide some factual basis for continuing to 
detain them?
  The likelihood is that some, and maybe many, of these prisoners have 
very little to do with terrorism. According to a 2002 CIA report, most 
of the Guantanamo prisoners ``did not belong there.'' According to a 
Wall Street Journal article earlier this year, an estimated 70 percent 
of the individuals held at Guantanamo were wrongfully imprisoned. BG 
Jay Hood, the former commander at Guantanamo, was quoted as saying, 
``Sometimes, we just didn't get the right folks.''
  I don't believe that all of those being held at Guantanamo are 
innocent. Clearly, they are not. Those who are a threat need to be held 
accountable for their actions, need to be tried before properly 
constituted military commissions or criminal courts. Those who are not 
a threat need to be released and returned to their country of origin. 
The point is that judicial review allows us to sort the good from the 
bad and focus our efforts on those who in fact do pose a threat to our 
country.
  It is during times like these that our Founding Fathers envisioned 
habeas corpus rights needed to be preserved. If judicial review is not 
required as a matter of law, it makes sense from a policy standpoint to 
preserve these essential rights in the law. Having a court determine 
whether a person's detention by the executive branch is consistent with 
our Constitution and laws does not inhibit this Nation's ability to 
fight terrorism. To the contrary, ensuring that we are holding the 
right people not only allows us to focus on those who truly pose a 
threat, it also will help to reduce criticism in the world community 
that the United States is not complying with its own laws and 
Constitution.
  In a letter I received from over 30 former diplomats, they stated:

       To proclaim democratic government to the rest of the world 
     as the supreme form of government at the very time that we 
     eliminate the most important avenue of relief from arbitrary 
     governmental detention will not serve our interest in the 
     larger world.

  I agree with that statement.
  It is also important to note that should the current habeas language 
be removed from the bill, Guantanamo prisoners would still be 
prohibited from bringing habeas claims in the future under current law. 
In the Rasul decision, the Supreme Court held that U.S. courts have 
jurisdiction to hear habeas claims of Guantanamo prisoners. Congress 
subsequently passed the Detainee Treatment Act, which contained the 
Graham-Levin compromise language regarding the elimination of habeas. 
Graham argued that the language was retroactive and barred all pending 
cases, and Levin argued that the language only eliminated cases 
initiated after the enactment of the act.
  In assessing whether the Supreme Court had jurisdiction to hear the 
Hamdan case, the Court found that because congressional intent was 
unclear it would be inappropriate to view the statute as retroactive. 
As such, if the status quo is maintained, we would still have language 
on the books that prohibits any future habeas claims from being filed 
on behalf of Guantanamo prisoners. Although I disagree with the law as 
it currently stands, Senators should know that if the language in the 
existing bill is removed, this Congress has already drastically limited 
judicial review.
  It is important to look at the big picture. As general matter, this 
bill puts in place procedures to try suspected terrorist by military 
commissions whereby the only ones who will have

[[Page 19968]]

an opportunity to prove their innocence will be the high-level 
prisoners. The suspected low-level prisoners will continue to linger in 
indefinite imprisonment without charges. Before the previous military 
commissions were found unconstitutional, the administration charged 
approximately 10 detainees with crimes. None were ever tried. The 
President has indicated that he now intends to charge the 14 CIA 
prisoners, or at least some of them, under the newly constituted 
military commissions.
  Therefore, the reality is that of the approximately 450 prisoners now 
at Guantanamo only about 25 will likely receive trials. Under the 
compromise legislation, the remaining prisoners, many of whom have been 
imprisoned for more than 4 years, will not be held accountable nor will 
they be able to prove their innocence--instead, they will be denied the 
right to challenge the legality of their continued confinement.
  As Rear Admiral John Hutson, Rear Admiral Guter, and Brigadier 
General Brahms, pointed out in a letter to the Senate Armed Services 
Committee, the effect of this legislation would be to give greater 
protections to the likes of Khalid Sheikh Mohammed than to the vast 
majority of the Guantanamo detainees, who claim that they have nothing 
to do with al-Qaida or the Taliban.
  Mr. President I ask unanimous consent that this letter be printed in 
the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 1.)
  Mr. BINGAMAN. Most troubling of all, with this legislation Congress 
is giving its consent to the executive branch to continue to 
unilaterally designate individuals as enemy combatants and imprison 
them indefinitely. We are saying that the President can pick up whoever 
he wants, designate them an enemy combatant and hold them without 
substantive judicial review.
  I know that many of my colleagues have worked to ensure that the 
military commission procedures comply with our international legal 
obligations under the Geneva Conventions and that our Nation's soldiers 
are not put at risk by diminished standards. I support these efforts, 
and believe that the trial of these suspected terrorists is long 
overdue. However, passing this flawed bill is not the solution.
  Mr. President, this debate is about who we are as a people and 
whether we are going to continue to adhere to the rule of law and basic 
human rights. It is about our fundamental values as a people. The U.S. 
Constitution was crafted by men who were keenly aware of the potential 
abuse that could result from providing the executive branch with 
unrestrained powers with respect to individuals' liberties. The 
Constitution was crafted to be relevant in the good times, as well as 
in the times when our Nation faces domestic or foreign threats.
  It deeply concerns me that with this bill we are sanctioning the 
indefinite imprisonment of people without charges. This is wrong. 
Should this legislation pass as currently drafted, history will not 
look kindly on this mistaken endeavor.
  Frankly, the notion that Congress is willing to provide the President 
with the authority to indefinitely imprison people without ever having 
to charge them is quite astonishing. What is more amazing is that the 
Senate appears prepared to do so after one brief hearing in the Senate 
Judiciary Committee on the issue and with little substantive debate on 
the Senate floor.
  We must also remember that in establishing these military commissions 
we are not solving the Guantanamo problem. This legislation will result 
in a flurry of legal challenges. The administration's handling of 
detainee issues has brought us Guantanamo, Abu Griab, and a series of 
Supreme Court decisions rejecting the administration's legal positions. 
Let us not complicate the problem by enacting the provisions.
  Mr. President, I yield the floor.

                               Exhibit 1

                                               September 12, 2006.
     Senator John Warner,
     Chairman, U.S. Senate Committee on Armed Services, U.S. 
         Senate, Washington, DC.
     Senator Carl Levin,
     Ranking Member, U.S. Senate Committee on Armed Services, U.S. 
         Senate, Washington, DC.
       We find it necessary yet again to communicate with you 
     about issues arising out of our policies concerning detainees 
     held at Guantanamo Bay. It would appear that each time the 
     U.S. Supreme Court speaks, efforts are taken to reverse by 
     legislation the decision of the Court. We refer, of course, 
     to the Supreme Court's Rasul and Hamdan decisions and to the 
     provision in the Administration's proposed Military 
     Commissions Act of 2006 that would strip the federal courts 
     of jurisdiction over even the pending habeas cases that have 
     been brought by the detainees at Guantanamo to challenge the 
     basis for their detention. We urge you to reject any such 
     habeas-stripping provision.
       As we have argued and agreed since 9/11, it is necessary 
     for Congress to enact legislation to create military 
     commissions that recognize both the basic notions of due 
     process and the need for specialized rules and procedures to 
     deal with the new paradigm we call the war on terror. This 
     effort must cover those already charged with violating the 
     laws of war and those newly transferred to Guantanamo Bay.
       But the military commissions we are now fashioning will 
     have no application to the vast majority of the detainees who 
     have never been charged, and most likely never will be 
     charged. These detainees will not go before any commissions, 
     but will continue to be held as ``enemy combatants.'' It is 
     critical to these detainees, who have not been charged with 
     any crime, that Congress not strip the courts of jurisdiction 
     to hear their pending habeas cases. The habeas cases are the 
     only avenue open for them to challenge the bases for their 
     detention--potentially life imprisonment--as ``enemy 
     combatants.''
       We strongly agree with those who have argued that we must 
     arrive at a position worthy of American values, i.e., that we 
     will not allow military commissions to rely on secret 
     evidence, hearsay, and evidence obtained by torture. But it 
     would be utterly inconsistent, and unworthy of American 
     values, to include language in the draft bill that would, at 
     the same time, strip the courts of habeas jurisdiction and 
     allow detainees to be held, potentially for life, based on 
     CSRT determinations that relied on just such evidence. The 
     effect would be to give greater protections to the likes of 
     Khalid Sheikh Mohammed than to the vast majority of the 
     Guantanamo detainees, who claim that they had nothing to do 
     with al Qaeda or the Taliban.
       We are on a course that should have been plotted and 
     navigated years ago, and we might be close to consensus. We 
     ask that, in the closing moments of your consideration of 
     this vital bill, you restore the faith of those who long have 
     been a voice for simple commitment to our longstanding basic 
     principles, to our integrity as a nation, and to the rule of 
     law. We urge you to oppose any further erosion of the proper 
     authority of our courts and to reject any provision that 
     would strip the courts of habeas jurisdiction.
       As Alexander Hamilton and James Madison emphasized in the 
     Federalist Papers, the writ of habeas corpus embodies 
     principles fundamental to our nation. It is the essence of 
     the rule of law, ensuring that neither king nor executive may 
     deprive a person of liberty without some independent review 
     to ensure that the detention has a reasonable basis in law 
     and fact. That right must be preserved. Fair hearings do not 
     jeopardize our security. They are what our country stands 
     for.
           Sincerely,
     John D. Hutson,
       Rear Admiral, JAGC, USN (Ret.).
     Donald J. Guter,
       Rear Admiral, JAGC, USN (Ret.).
     David M. Brahms,
       Brigadier General, USMC (Ret.).

  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, we are prepared to yield back the time on 
this side. First, I simply say to my colleagues that this has been a 
good debate. But I assure colleagues that the bill now before them has 
been very carefully reviewed by the Department of Justice, and I have 
even reached out to scholars--lawyers who I know have a considerable 
depth of knowledge about international matters as well as our own 
fabric of law as it relates to criminal prosecution. I myself served as 
assistant U.S. attorney for close to 5 years.
  We bring before this Chamber a work product which we believe is 
consistent with international as well as domestic law. It strikes a 
balance. We have no intention to try to accord aliens engaged as 
unlawful combatants with all the rights and privileges of American 
citizens, but we recognize that they are human beings, and this country 
has standards that respect life and human

[[Page 19969]]

beings. But at the same time, we are engaged in a war on terror. Let 
there be no mistake about that.
  One of the challenges in this war on terror is with these individuals 
who are willing to act as human bombs. It doesn't have a lot of 
precedent. We have been very careful to try to strike a balance between 
the standards and principles that guide this Nation, at the same time 
recognizing that we need the tools to fight this war on terror--
fighting it in a way that not only enables our men and women in the 
Armed Forces in forward deployments to carry out their missions but to 
preserve and protect us here at home from tragic incidents like we 
experienced on 9/11.
  As I have worked through each of these provisions and consulted with 
my colleagues, I always bring up the images of 9/11. I think our 
President has done his best to try to prepare this Nation, in many 
ways, to protect ourselves from the repetition of that or any incident 
like it--a lesser incident or a greater incident. It is a constant 
challenge.
  But the bill before this body represents our best product that we 
could achieve, working together and in consultation with a wide range 
of individuals who have an expertise in these complicated legal matters 
and can provide to us their own corroboration of our judgments as to 
how best to structure this legal document and strike the balance that 
we must between our standards of law and our recognition of 
international law. I think that is the hallmark of what Senators 
McCain, Graham, and myself set out to do--to make sure this Nation 
cannot be perceived as trying to rewrite in any way Common Article 3, 
which is the law of our land, I remind citizens who are following this 
debate. It is the international treaties to which we, with the advice 
and consent of the Senate and that of the President, acceded and 
signed, and it has become part of the law of the land. I am proud of 
the work we have done, certainly, in that complicated area, as well as 
others.
  Mr. President, at this time, I am prepared to yield back all the time 
on this side and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  Mr. LEVIN. Mr. President, there is no question that we have to fight 
the war on terrorism, and we can win that war, but we can do so without 
compromising the very principles that govern this Nation and have given 
us strength and attract us to so many other nations. Those principles 
are compromised in the bill before us. They were not compromised in the 
committee bill that passed on a bipartisan vote.
  Here are two quick examples of how our basic principles are 
compromised in this bill: Evidence shall not be excluded from trial by 
military commission on the grounds that the evidence was not seized 
pursuant to a search warrant. In other words, in the United States of 
America, evidence can be seized from an American citizen, not an enemy 
combatant--it can be seized from any one of us without a search warrant 
and used in one of these trials. This language in the bill which is 
before us would authorize the use of that evidence so seized. That is a 
fundamental compromise with the principles that have governed this 
Nation. We have never allowed testimony and statements that have been 
obtained through cruel and inhuman treatment to be introduced into 
evidence. Yet that is the way the bill is written.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEVIN. Mr. President, I ask unanimous consent for 30 additional 
seconds to finish that statement.
  Mr. WARNER. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I thank the Chair.
  A second example of how a fundamental principle is compromised in the 
bill before us is, if a statement is obtained through cruel and inhuman 
treatment of somebody, for the first time in American jurisprudence, 
this bill would apparently say that statement is allowable in evidence 
if it was acquired before December 30, 2005. That is unlike statements 
that are acquired after December 30, 2005, where there are no ifs, 
ands, or buts, there are no other tests that need to be applied--if it 
was obtained through cruel and inhuman treatment, it is not admissible 
into evidence. That is a fundamental principle which is not followed 
for statements obtained before December 30, 2005, in the bill before 
us. That is another example of why the substitute, I hope, will be 
adopted, which is the committee bill--a bipartisan bill--that is now 
before us.
  Mr. WARNER. Mr. President, I ask to reclaim about 6 minutes of my 
time so that I can engage my colleague in a colloquy.
  The PRESIDING OFFICER. The Senator has that right and may reclaim his 
time.
  Mr. WARNER. Mr. President, I wish to make clear that category of 
evidence cannot reach those established standards of torture. No 
evidence that was gained by means that are tantamount to the torture 
can be admitted.
  Mr. President, I ask my colleague, am I not correct in that 
statement?
  Mr. LEVIN. That is correct. That is not in dispute.
  Mr. WARNER. Does the Senator concur in that statement?
  Mr. LEVIN. I surely do. We are talking here about cruel and inhuman 
treatment.
  Mr. WARNER. Correct, but the judge of the court is going to look at 
that evidence. We have set forth certain standards that have to be met, 
but one standard that judge cannot violate is the standard of torture. 
If that case can be made, then that judge has no ability to admit any 
evidence which is tantamount to torture. I ask my colleague, is that 
not correct?
  Mr. LEVIN. The statement is correct. The issue, of course, which we 
are debating is why, relative to statements obtained prior to December 
30, 2005, is another test omitted, which is present for statements 
obtained after December 30, 2005, which are statements that are 
obtained through cruel and inhuman treatment. That is the issue which I 
raised.
  Mr. WARNER. Lastly, Mr. President, I ask my colleague, he makes 
reference to the illegal searches and seizures, which is the fourth 
amendment to the U.S. Constitution. That Constitution does not give 
protection to aliens who are the subject of these trials; am I not 
correct in that?
  Mr. LEVIN. I think that is true. It may or may not protect aliens, 
but it does protect American citizens. And the language on page 21 does 
not protect American citizens from seizures that are illegal. It says:

       Anything which is seized without a search warrant is 
     allowable into these trials.

  It is not limited to material that is seized from aliens or material 
which is seized from enemy combatants. It says illegally obtained 
material can be admitted into this trial, period.
  We had such a restriction in the bill which came out of committee so 
that it was limited to evidence which was seized abroad, for instance. 
That would be fine because they may not have the fourth amendment that 
we do. But in the bill which is now before us, there is no such 
limitation.
  I will read the one sentence:

       Evidence shall not be excluded--

  Shall not be excluded--

     from trial by military commission on the grounds that the 
     evidence was not seized pursuant to a search warrant or other 
     authorization.

  In the substitute bill, that allowance of illegally seized evidence 
is limited to evidence which is not seized from American citizens here. 
So that distinction has been obliterated in the bill which is before 
us.
  Mr. WARNER. Mr. President, we have clearly debated it, but I want to 
make, in conclusion, the observation that no evidence which is the 
consequence of torture can be admitted. The aliens are not entitled to 
the constitutional provisions of the fourth amendment and, therefore, I 
urge our colleagues to think carefully through those arguments which we 
believe we have fully answered and carefully written this bill to be in 
conformity with our Constitution.
  Mr. President, I yield back the remainder of my time.

[[Page 19970]]

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
5086. The yeas and nays have been ordered. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Arizona (Mr. McCain) and the Senator from Maine (Ms. 
Snowe).
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 43, nays 54, as follows:

                      [Rollcall Vote No. 254 Leg.]

                                YEAS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Conrad
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--54

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Landrieu
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--3

     Inouye
     McCain
     Snowe
  The amendment (No. 5086) was rejected.
  Mr. WARNER. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. Mr. President, the managers, working with our leadership, 
of course, have a designated number of amendments. My understanding at 
this time is that the Senator from Pennsylvania will be recognized for 
the purpose of proposing an amendment.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.


                           amendment no. 5087

       (Purpose: To strike the provision regarding habeas review)

  Mr. SPECTER. Mr. President, I call up amendment No. 5064.
  The PRESIDING OFFICER. The Senator is advised we have No. 5087 at the 
desk?
  Mr. SPECTER. The amendment which I seek to call up, Mr. President, is 
one which proposes to strike section 7 of the Military Commission Act 
entirely.
  Mr. WARNER. Mr. President, if the Senator will yield for a moment, I 
ask the Chair to recite the unanimous consent agreement with regard to 
the amendment of Senator Specter, the time limitation being?
  The PRESIDING OFFICER. The amendment has 2 hours equally divided on 
it.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter], for himself 
     and Mr. Leahy, Mr. Dodd, and Mr. Feingold, proposes an 
     amendment numbered 5087:

       On page 93 strike line 9 and all that follows through page 
     94, line 13.

  Mr. LEAHY. Mr. President, will the Senator yield for a couple of 
clarifications?
  Mr. SPECTER. I do yield.
  Mr. LEAHY. Mr. President, in stating the time, isn't there also the 
remainder of the time? I did not use my full 45 minutes this afternoon. 
Doesn't the Senator from Vermont have some remaining time on this 
amendment?
  The PRESIDING OFFICER. The Senator from Vermont has remaining time on 
the bill.
  Mr. LEAHY. How much time is that?
  The PRESIDING OFFICER. The Senator from Vermont has 23 minutes on the 
bill.
  Mr. LEAHY. Mr. President, am I correct that the amendment is offered 
on behalf of the distinguished senior Senator from Pennsylvania and 
myself, the distinguished senior Senator from Connecticut, and the 
distinguished Senator from Wisconsin, Mr. Feingold?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I ask and also the distinguished Senator from North 
Dakota, Mr. Dorgan.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. If the Senator from Pennsylvania will yield just for a 
question?
  Mr. SPECTER. I do.
  Mr. REID. I have had conversations--I have not spoken with the 
Senator from Pennsylvania, but I have spoken with his staff on a number 
of occasions. I had the understanding that the Senator would be able to 
give Senator Leahy a few minutes off of his time to speak on this 
amendment?
  Mr. SPECTER. I will consider that, depending on how the argument 
goes. I appreciate very much the contribution of the distinguished 
ranking member. I do not know how many people on this side are going to 
seek time, but I do believe we can accommodate the request of Senator 
Leahy. But I want to see how the argument goes before making a 
commitment.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, substantively, my amendment would retain 
the constitutional right of habeas corpus for people detained at 
Guantanamo. The bill before the Senate strips the Federal district 
court of jurisdiction to hear these cases. The right of habeas corpus 
was established in the Magna Carta in 1215 when, in England, there was 
action taken against King John to establish a procedure to prevent 
illegal detention.
  What the bill seeks to do is to set back basic rights by some 900 
years. This amendment would strike that provision and make certain that 
the constitutional right and the statutory right--but fundamentally the 
constitutional right of habeas corpus--is maintained. The core 
provision is contained in article I, section 9, clause 2 of the U.S. 
Constitution, which states:

       The privilege of the Writ of Habeas Corpus shall not be 
     suspended, unless when in Cases of Rebellion or Invasion the 
     public Safety may require it.

  We do not have either rebellion or invasion, so it is a little hard 
for me to see, as a basic principle of constitutional law, how the 
Congress can suspend the writ of habeas corpus in the face of that flat 
language. When you have an issue of constitutionality, how can 
constitutionality be determined and interpreted except in the Court?
  We had a very extended discussion of this in the confirmation of 
Chief Justice Rehnquist, and the Chief Justice said that the Congress 
of the United States lacked the authority to remove the jurisdiction of 
the Federal courts on issues involving the first amendment.
  The same thing would apply generally. It is a constitutional 
question. But here you have it buttressed in addition by an express 
provision by the Framers, focusing on the writ of habeas corpus in and 
of itself, and saying you can't suspend it, so that anyone who can make 
an argument about stripping jurisdiction--I don't think it lies on a 
constitutional issue generally because if it does, who is going to 
interpret the Constitution if the Court does not have jurisdiction? But 
the writ of habeas corpus is so important and so fundamental and so 
deeply ingrained in our tradition, going back to 1215 against King 
John, that the Framers made it expressed and explicit.
  It appears to me that this is really dispositive and you don't really 
need several hours to develop it. But I shall proceed on the matter as 
to how we got where we are and what the Supreme Court has had to say in 
four major cases in the course of the last 18 months.
  The Congress of the United States has the express responsibility 
under article I, section 8 of the U.S. Constitution to establish rules 
governing people

[[Page 19971]]

captured on land and sea. But the Congress of the United States did not 
act after 9/11, and we had people detained at Guantanamo. Legislation 
was introduced by many Senators. Senator Durbin and I introduced a 
bill. Senator Leahy introduced a bill. Many Senators introduced 
legislation, but the Congress did not act on it. Congress did not act 
on it because it was too hot to handle. What resulted is what results 
many times--Congress punted. It didn't act, left it to the Supreme 
Court of the United States. That took a long time, to have these cases 
come through the judicial process.
  Finally, in June of 2005 the Supreme Court ruled in three major 
cases: Hamdan v. Rumsfeld, Rasul v. Bush, and Rumsfeld v. Padilla. The 
Supreme Court of the United States rejected the argument of the 
Government that the President had inherent power under article 2 and 
could act on that constitutional authority, and the Supreme Court said 
that habeas corpus was effective.
  In Rasul v. Bush, the Supreme Court said that it applied even to 
aliens. It didn't have to be a citizen; that the Constitution draws no 
distinction between Americans and aliens held in custody and said the 
writ of habeas corpus applied.
  In the case of Hamdi v. Rumsfeld, Justice O'Connor had this to say: 
All agree that absent suspension, the writ of habeas corpus remains 
available to every individual detained within the United States.
  That was held to apply to Guantanamo, since the United States 
controlled Guantanamo.
  Justice O'Connor went on to say that under the U.S. Constitution, 
article I, section 9, clause 2:

       The privilege of the Writ of Habeas Corpus shall not be 
     suspended, unless when in Cases of Rebellion or Invasion the 
     public Safety may require it.
  Justice O'Connor then goes on to delineate statute 2241, which sets 
the outline of the procedures, and then says habeas petitioners would 
have the same opportunity to present and rebut facts that court cases 
like this retain some ability to vary the ways in which they do so as 
mandated by due process.
  What has happened in Guantanamo with respect to the proceedings under 
the Combat Status Review Tribunal, referred to as CSRT, demonstrates 
the importance of having some impartial judicial review to find what, 
in fact, has happened. These tribunals operate with very little 
information. Somebody is picked up on the battlefield. There is no 
record preserved as to what that individual did. If there was a weapon 
involved, it has been placed with many other weapons, and it can't be 
identified. The proceedings simply do not comport with basic fairness 
because the individuals do not have the right to know what evidence 
there is against them.
  Repeatedly, the Combat Status Review Tribunal said the information is 
classified and the individual can't have it.
  There was specific reference to the proceedings in the CSRT in the 
case action en re: Guantanamo Detainee Cases, 355 Fed. Sup. Section 
443, 2005. The U.S. District Court for the District of Columbia 
criticized the way CSRTs required detainees to answer allegations based 
on information that cannot be disclosed to the detainees. The Court 
described what might be referred to as a comical scene, where the 
detainee said he couldn't answer the allegations whether the detainee 
associated with a known al-Qaida operative because the tribunal could 
not provide the alleged operative's name.
  The detainee said: Give me his name.
  The tribunal said: I do not know.
  The detainee said: How can I answer this?
  The detainee's frustration reportedly led to laughter among all of 
the tribunal's participants. And the District Court then said:

       The laughter reflected in the transcript is understandable, 
     and this exchange might have been humorous had the 
     consequences of the detainee's enemy combatant status not 
     been so terribly serious and had the detainee's criticism of 
     the process not been so piercingly accurate.

  How can you sanction that kind of a proceeding? If it is not a sham, 
it certainly is insufficient. As I reflect on it, it is more than 
insufficient. It is, in fact, a sham.
  When it was apparent that both the committee bill and the 
administration's position was going to strike habeas corpus, the 
Judiciary Committee held on short notice a hearing on Monday. We had a 
distinguished array of witnesses appear. LCDR Charles Swift was 
present. The attorney who represented Hamdan before the Supreme Court 
gave very compelling evidence as to why habeas corpus was indispensable 
in order to have basic justice. Bruce Fein, ranking member of the 
Reagan administration in the Justice Department, was emphatic on his 
conclusion about the need to retain habeas corpus. The very 
distinguished retired U.S. Navy rear admiral, John Hutson, who is now 
the dean of the Franklin Pierce Law Center, testified about his 
experience and the importance of retaining habeas corpus. We called, as 
a matter of balance, other witnesses: David Rivkin and Bradford A. 
Berenson.
  I commend to my colleagues the testimony of Thomas P. Sullivan, LCDR 
Charles D. Swift, Bruce Fein, David B. Rivkin, Jr., Bradford A. 
Berenson, and John D. Hutson.
  Mr. President, the testimony that was given by Thomas P. Sullivan was 
especially poignant. Mr. Sullivan is a man in his late seventies. He 
was U.S. Attorney for 4 years in the late 1970s. He has a distinguished 
law practice with Jenner & Block. He has been to Guantanamo on many 
occasions and has represented many people who are detained in 
Guantanamo.
  His testimony was, as I say, especially poignant when he said that 
long after all of those in the hearing room are dead, there would be an 
apology made if habeas corpus is denied, just as the apology was made 
after the detention of the Japanese in World War II being a denial of 
basic and fundamental fairness, where we in the United States pride 
ourselves on the rule of law.
  He made reference to a number of individual cases where the 
proceedings before the Combat Status Review Tribunal were just totally 
insufficient, reflecting hearings where individuals were called in, 
they did not speak the language, they did not have an attorney, they 
did not have access to the information which was presented against 
them, and they were detained.
  Mr. President, documentation presented to the committee speaks 
eloquently and emphatically about the procedures which lack the most 
fundamental of due process. These individuals did not know what their 
charges were; they were so vague and illusory, just like the detainee 
who was alleged to have an al-Qaida associate. They wouldn't even 
produce the man's name. How do you know what the charge is? Then they 
don't have attorneys. Then they don't know what the evidence is. It is 
classified, and they are not told what the evidence is.
  This goes back, again, to Justice O'Connor's opinion where she says:

       Habeas petitioners would have some opportunity to present 
     and rebut facts.

  Well, how can you rebut facts when you do not know what the facts 
are? How can you rebut facts when the material is classified and you 
are not told what the alleged facts are? That is why it is so important 
that the courts be open.
  I have had considerable experience with habeas corpus when I was a 
prosecuting attorney. When a habeas corpus petition is presented, it 
requires the government--the Commonwealth of Pennsylvania when I was 
DA--to take a close look at the case and to focus on it.
  One of the matters that was inserted into the Record from Mr. 
Sullivan, after he filed the petition for a writ of habeas corpus and 
was proceeding to gather evidence to present it, he says:

       Several months ago without notice to me and without 
     explanation, compensation, or apology, the United States 
     Government returned Mr. Abdul-Hadi al Siba to Saudi Arabia.

  So when the Government had to defend, apparently they found out what 
the case was about. When they had to find out what the case was about, 
they sent the detainee back to Saudi Arabia.

[[Page 19972]]

  But here we have a very explicit statement by Justice O'Connor about 
the right to rebut the facts. It simply is not present in the 
proceedings which happened before the Combat Status Review Tribunal.
  Kenneth Starr, formerly Solicitor General, formerly judge on the 
Court of Appeals for the District of Columbia, could not be present at 
our hearing on Monday but submitted this letter dated September 24. I 
will not read it in its entirety but only the first sentence where he 
says:

       I write to express my concerns about the limitation on writ 
     of habeas corpus contained in the comprehensive military 
     commissions bill.

  Then, in the third paragraph, he cites article I, section 9, clause 
2, which I have referred to, about the privilege being suspended only 
in the case of invasion or rebellion, and again notes the obvious--that 
we do not face either an invasion or rebellion.
  Mr. President, how much time of my hour remains?
  The PRESIDING OFFICER. The Senator has consumed 21 minutes.
  Mr. SPECTER. Mr. President, that states the essence of the 
proposition.
  I reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, if I could just use such time as I want, I 
will not take much because I am anxious for my colleagues to address 
this issue.
  The distinguished Senator from Pennsylvania made the statement that 
they have constitutional rights. I wish to respectfully sort of differ 
with the Senator. The Supreme Court, in the Rasul case, ruled that 
rights of aliens held at Guantanamo Bay, Cuba, 28 U.S.C. 2241--the 
Court did not reach the question of the constitutional right of habeas 
corpus that applies to a U.S. citizen; of course, they being aliens. In 
the Rasul case, the Court interpreted the habeas corpus statute, 
section 2241, to apply to an alien held at Guantanamo Bay. That holding 
is based in large part due to the unique long-term lease that the Court 
took judicial notice of and other evidence brought before the Court, 
the long-term lease tantamount to U.S. territory.
  For more than 50 years, the Court held that aliens in military 
detention outside the United States had no right to petition the 
Federal courts for review of their military detention. So I question 
whether you can elevate that to a constitutional status.
  Mr. SPECTER. If I may respond, Mr. President, I didn't cite Rasul v. 
Bush for a constitutional proposition. I cited Hamdan v. Rumsfeld, and 
I cited the opinion of Justice O'Connor. But let me repeat it because 
it is the core consideration. She said:

       All agree that absent suspicion the writ of habeas corpus 
     remains available to every individual detained within the 
     United States. Of course, that does include Guantanamo.

  Then Justice O'Connor goes on to say:

       United States Constitution, article I, section 9, clause 2, 
     privilege of writ of habeas corpus shall not be suspended 
     unless when in cases of rebellion or invasion the public 
     safety requires it.

  Then she says that all agree that suspension of the writ has not 
occurred here. Then she deals with the statute, 2241, and makes the 
comment that it sets the procedures, but Justice O'Connor puts 
detention in the Hamdi case squarely on constitutional grounds.
  Mr. WARNER. There are a variety of divided opinions on that point.
  At this time, I will regain the floor and discuss this issue. I am 
anxious to hear from my two colleagues, one from South Carolina and one 
from Texas, who seek recognition.
  Mr. SPECTER. If I might be recognized.
  Mr. WARNER. I yield the floor on my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, what the distinguished chairman says is 
accurate about Rasul, but you have Hamdi, which puts it on 
constitutional grounds. It is that simple.
  I yield the floor.
  Mr. WARNER. I yield such time as the distinguished Senator from South 
Carolina desires.
  Mr. GRAHAM. Mr. President, this debate is a strength, not a weakness, 
in our country.
  In my opinion, the fundamental question for the Senate to answer when 
it comes to determining enemy combatant status is, Who should make that 
determination? Should that be a military decision or should it be a 
judicial decision?
  I am firmly in the camp that when it comes to determining who an 
enemy of the United States is, one who has taken up arms and who 
presents a threat to our Nation, that is not something judges are 
trained to do, nor should they be doing. That is something our military 
should do.
  For as long as I have been a military lawyer, Geneva Conventions 
article 4, where it talks about a competent tribunal to decide whether 
a person is a civilian--lawful, unlawful, combatant--that competent 
tribunal has been seen in terms of military people making those 
decisions.
  I have a tremendous respect for our courts. We will follow whatever 
they tell Congress to do because we are a rule-of-law nation, but this 
Congress has a role to play.
  Unlike my chairman, Senator Specter, I believe the question before 
the Congress is not whether an enemy combatant noncitizen alien has a 
constitutional right to habeas corpus because I don't believe that is 
what the court has said. The issue for the Congress is whether habeas 
corpus rights should be given to an enemy combatant noncitizen under 
section 2241 and whether the military should make the determination of 
who an enemy combatant is versus judiciary.
  What happens now is that when someone is brought to Guantanamo Bay, 
very shortly after they arrive, the military will create a combat 
status review tribunal that is supposed to be compliant with article 4 
of the Geneva Conventions, a competent tribunal.
  When we look at the history of competent tribunals, normally they are 
one person. We will have three people. Of the three people will be a 
military intelligence officer--and it could be other officers within 
our military who have expertise in determining what the battlefield 
situation is and who is involved with the enemy forces and who is not. 
That tribunal has an evidentiary standard to meet. The tribunal must 
make a finding by a preponderance of the evidence that the person 
before them indeed fits within the definition ``enemy combatant.'' 
There is a rebuttal of presumption in favor of the Government's 
evidence.
  Our Federal courts will have the opportunity shortly to determine 
whether the combat status review tribunal is constitutional due 
process. The reason I say that is because under the Detainee Treatment 
Act we passed last year, every detainee at Guantanamo Bay will have 
their day in Federal court.
  After the military renders their decision that they are an enemy 
combatant, as a matter of right each person can go to the DC Circuit 
Court of Appeals, and the Federal DC Circuit Court of Appeals will look 
at that case with two issues before them: Does this CSRT process, the 
annual review board, does it constitutionally pass muster as being 
adequate due process not only under the Geneva Conventions but under 
our Constitution to the extent it applies? Second, was the decision 
rendered by that board finding the person enemy combatant by the 
preponderance of the evidence--the standards and procedures involved, 
do they pass muster? And in the individual case, did they get it right? 
That is the structure for them to decide the issue set up in a 
constitutionally sound manner.
  The reason I oppose my chairman, for whom I have great respect, is 
because the habeas process is a doctrine that is normally associated 
with criminal law, and we are in a war. The Japanese and German 
prisoners we interred in World War II never had access to our Federal 
courts to bring lawsuits against the people who confined them--our own 
troops--for a reason: it was a right not given in international law to 
an enemy prisoner, and it was not a right we gave

[[Page 19973]]

to any prisoner we have held in the history of our country consciously 
as Congress.
  The problem in this case is the Government argued that Guantanamo Bay 
was outside the jurisdiction of the United States. Why is it important? 
It is clear that our habeas statutes do not apply overseas. The 
Government lost that argument. Chairman Specter is absolutely right. 
The court said that for legal purposes, Guantanamo Bay falls within the 
confines of the United States. Section 2241, the habeas statute, unless 
Congress says otherwise, will apply to this environment.
  Now it is time for Congress to decide, in its wisdom, whether the 
Federal courts should be determining who an enemy combatant is through 
a habeas action. Do we want that to reside in the military, where it 
has been for our whole history, and allow Federal courts to review the 
military decision, not substitute their judgment for the military?
  It is not about who loves America and who is un-American. Mr. 
Sullivan came to my office yesterday. He is a lawyer representing 
detainees at Guantanamo Bay. He is a great American. He gave me four or 
five stories about how his client appeared before the Combat Status 
Review Tribunal, and he had nothing but bad things to say about the way 
his client was treated and the procedures in place.
  Once a week, I get a call from somebody from South Carolina who says 
their family member was screwed in court. And then what I try to do is 
to make sure we listen to them respectfully but understand that there 
are a lot of complaints about any system.
  Mr. Sullivan's complaints got me thinking, and I think there is a way 
to provide some remedies that do not exist now without substituting 
judges for military officers when it comes to wartime decisions. I will 
privately talk to him about that.
  I urge this Senate to think in broad terms. Do we really want to 
allow the Federal judiciary to have trials over every decision about 
who an enemy combatant is or is not, taking that away from the 
military? Do we really want the people who have been housed by our 
military to bring every known lawsuit to man against the people 
fighting the war and protecting us?
  I compliment Senator Specter because in this new version they take 
the conditions of confinement lawsuits off the table. There are 400-
something cases that have been filed arising from Guantanamo Bay 
detention. There is a $300 million lawsuit against Secretary Rumsfeld. 
There are allegations that people do not get enough exercise. It goes 
on and on and on. Never in the history of warfare has the host country 
allowed an enemy prisoner to bring a court case against those people 
who are fighting the enemy on behalf of the host country. That needs to 
stop.
  I am urging this Senate to dismiss under 2241 the right of habeas 
actions by enemy prisoners so that judges will not take the role of the 
military. Adopt anew what we did last year, allowing the military to 
use a process that I believe is Geneva Conventions compliant, and then 
some, and have as a backstop judicial review, where the DC Circuit 
Court of Appeals can review the military's decision. That way, we will 
have due process unknown to any other war. That will keep the roles of 
the responsible parties intact. The role of the military in a time of 
war, I earnestly believe, is to control the battlefield and to 
designate who is in bounds and out of bounds when it comes to the 
battlefield. The role of the courts in a time of war is to pass muster 
and judgment over the processes we create--not substituting their 
judgment for the military but passing judgment over the infrastructure 
the military uses to make these decisions.
  The problem with this war--there is no capital to conquer, no navy to 
sink, no army to defeat. The people we are fighting owe an allegiance 
to an idea, not to a piece of property. They have no home to defend. 
They have an idea they would like to sell, and they are selling that 
idea, whether you want to buy it or not. They are selling it in a very 
brutal way. They are trying to get good and decent people accepting 
their view of the world because they are terrified of the way the enemy 
behaves. This is a war unlike other wars in this regard. People do not 
wear uniforms, but the ideas the terrorists represent are not unknown 
to mankind. Hitler wore a uniform. He had the same view of mankind as 
these people do: there are some people not worth living because they 
are different.
  We have to adjust, but we do not need to change who we are. I am not 
asking this Senate to change who America is because we are fighting 
barbarians. Quite honestly, we will never win this war if we move in 
their direction. Our goal is to get the world to move in our direction 
by practicing what we preach.
  I believe the way to balance the interests of our need to protect 
ourselves and to adhere to the rule of law is to apply the law of armed 
conflict, not criminal law.
  The act of 9/11, in my opinion, was an act of war, not a crime. And 
the problem with this country is the people we are fighting were at war 
with us a long time before we knew we were at war with them. Now we are 
at war.
  This administration, on occasion, in my opinion, has tried to cut the 
corners of the law of armed conflict. I embrace the law of conflict. I 
want to fully apply the actions of the United States. I embrace the 
Geneva Conventions. I want to apply it fully to the war we are fighting 
even though our enemy will not. But I am insistent, with my vote and 
with my time in this Senate, that we fight the war and not criminalize 
the war.
  No enemy prisoner should have access to Federal courts--a noncitizen, 
enemy combatant terrorist--to bring a lawsuit against those fighting on 
our behalf. No judge should have the ability to make a decision that 
has been historically reserved to the military. That does not make us 
safer.
  There is due process in place for the enemy combatants at Guantanamo 
Bay, Afghanistan, and Iraq that I believe is Geneva Conventions 
compliant. There is judicial review consistent with the military being 
the lead agency. I urge this Senate to adopt that and to reject this 
amendment.
  I yield the floor.
  Mr. SPECTER. Will the Senator from South Carolina respond to a 
question?
  Mr. GRAHAM. I will try.
  Mr. SPECTER. I direct an inquiry to my colleague from South Carolina. 
Would the Senator respond to the question?
  Mr. GRAHAM. Yes. I will try my best.
  Mr. SPECTER. I didn't want you to yield for a question because I 
didn't want to interrupt your presentation.
  I begin by complimenting the Senator from South Carolina for his 
excellent work. He and Senator Warner and Senator McCain have done 
exemplary work in maintaining the Geneva Conventions and appropriate 
rules and to classify evidence.
  When you talk about constitutional issues and you talk about section 
2241, I agree with the Senator, but how do you deal with the flat terms 
of the Constitution, ``the privilege of the writ of habeas corpus shall 
not be suspended unless when in cases of rebellion or invasion public 
safety may require it''? How do you deal with that if you do not have 
rebellion?
  Mr. GRAHAM. Mr. Chairman, I guess one could make that argument. I 
have been assuming something from the beginning--that the Court's 
decision in Rasul and Hamdi is a statement by the Court that because 
Guantanamo Bay falls within the jurisdiction of the United States, it 
is section 2241 that we are dealing with. It is a statutory right of 
habeas that has been granted to enemy combatants. And if there is a 
constitutional right of habeas corpus given to enemy combatants, that 
is a totally different endeavor, and it would change in many ways what 
I have said.
  I do not know what the Court will decide, but if the Court does say 
in the next round of legal appeals there is a constitutional right to 
habeas corpus by those detained at Guantanamo Bay, then the Senator is 
absolutely right. We would have to make a different legal 
determination. We would have to make a different legal analysis. And if 
the Court does that, I will sit down with the Senator and we will 
figure out how to work through that.

[[Page 19974]]

  I am just being as honest with the Senator as I know how to be. I 
think this is a statutory problem, not a constitutional problem.
  Mr. SPECTER. Well, Mr. President, the distinguished chairman of the 
Armed Services Committee says he does not want to come back and 
legislate again. If this bill is passed, we will be right back here at 
a later date.
  When the Senator from South Carolina says it is not on constitutional 
grounds, the plain English of the decision says it is. But let me ask 
the Senator one further question; that is, you fought hard to have 
classified evidence available in the trials, albeit a war crimes trial. 
And you have Justice O'Connor saying they have to have the opportunity 
to rebut facts. When these proceedings are handled so much on 
classified information the detainees cannot see, would it not be 
consistent with your approach on classified information generally to at 
least have them know something about the charge so they can rebut the 
facts?
  Mr. GRAHAM. If I may, I would invite the chairman--I cannot remember 
what paragraph the language is in, but Justice O'Connor gave some 
guidance to the military--I think it is Army Regulation 190-dash-
something--that she indicated would be a proper mechanism or at least a 
guide of how to set up due process rights for this administrative 
determination. So after that decision, I know the military looked at 
the Army regulation that she cited and built the CSRT process off that 
concept. I am of the opinion that the Combat Status Review Tribunal 
does afford the rights Justice O'Connor indicated and is more than the 
Army regulation would allow that she cited, and it is fully compliant 
with article 5 of the Geneva Conventions--competent tribunal--but if 
you look in that decision, she mentions an Army regulation as a guide 
as to how to do this. I think the military, the Department of Defense, 
has gone beyond that.
  Mr. SPECTER. Well, Mr. President, there is flexibility, I agree, but 
the determination as to whether that flexibility is adequate is up to 
the Court. That is what the Supreme Court has said.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. I thank the Chair.
  I would say to my colleague, there is an interesting thing we best 
watch here as we are trying to determine the rights of these people 
because it seems to me if there is such a fundamental right of 
constitutionality attached to this thing, then someone might argue: 
Well, if it is actionable in Guantanamo--this lease thing is to me a 
fairly weak basis on which to do it--what about 18,000 in our custody 
in Iraq now? So we just better exercise a little caution as we begin to 
use that because if we begin to extend habeas corpus to 18,000 in Iraq, 
we have a problem.
  Mr. President, I yield the floor.
  Mr. SPECTER. Mr. President, I stipulate that Senator Warner is right 
about Iraq on this point.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I have a longer presentation, but what I 
would like to do is respond specifically to the argument Senator 
Specter is now making, and then Senator Cornyn has longer remarks to 
make.
  Let me begin by saying that I have the utmost respect for the 
chairman of the committee, my friend, the Senator from Pennsylvania. 
And he is entitled to be wrong once in a while. In this matter, he is 
wrong. It was testimony before the committee on Monday that verifies 
that this is not a constitutional issue with respect to aliens. It is 
only a constitutional issue with respect to citizens.
  This legislation has nothing to do with citizens. The decision cited 
by the Senator from Pennsylvania is the Hamdi decision, which dealt 
with a U.S. citizen. And, of course, the writ of habeas corpus applies 
to U.S. citizens. Our legislation does not.
  Here is what David Rivkin, a partner at Baker & Hostetler law firm, 
testified to on Monday. He said in this legislation:

       We are giving [alien enemy combatants] a lot more . . . 
     than they are legally entitled to under either international 
     [law] or the law in the U.S. constitution.

  Now, let me just proceed from that. Our Supreme Court has held that 
U.S. constitutional protections do not apply to aliens held outside of 
our borders. The Johnson v. Eisentrager case, for example, rejected the 
view that the U.S. Constitution applies to enemy war prisoners held 
abroad, saying:

       No decision of this Court supports such a view. None of the 
     learned commentators on our Constitution has ever hinted at 
     it. The practice of every modern government is opposed to it.

  In 1990, the Supreme Court reaffirmed this view in the Verdugo case, 
saying:

       [W]e have rejected the claim that aliens are entitled to 
     Fifth Amendment rights outside the sovereign territory of the 
     United States.

  That case also makes it clear that constitutional protections do not 
extend to aliens detained in this country who have no substantial 
connection to this country. The Supreme Court there said that aliens 
``receive constitutional protections when they have come within the 
territory of the United States and developed substantial connections 
with this country.''
  The Verdugo Court further clarified that ``lawful but involuntary'' 
presence in the United States ``is not of the sort to indicate any 
substantial connection with our country.''
  Now, the Rasul case took great pains to emphasize that its extension 
of habeas to Guantanamo Bay was only statutory. Some Justices may have 
wanted to make Rasul a constitutional holding, but there was no 
majority for such a ruling.
  So both Eisentrager and Verdugo are still the governing law in this 
area. These precedents hold that aliens who are either held abroad or 
held here but have no other substantial connection to this country are 
not entitled to invoke the U.S. Constitution.
  As committee witness Brad Berenson noted at Monday's hearing:

       [N]othing in the Constitution, including the Suspension 
     Clause, confers rights of access to our courts for alien 
     enemy combatants being held in the ordinary course of armed 
     conflict.

  He also refuted the argument that constitutional rights of habeas for 
enemy combatants is embedded in the Rasul decision. As he explained 
before, going through the logic of that opinion and its dependence on 
the 1973 Braden case, and I am quoting:

       If there were a constitutional right to habeas corpus 
     relief for alien enemies held abroad, the implication would 
     thus be that it sprang into existence some time after 1973, 
     if not just two years ago in 2004, and received no mention in 
     Rasul. No matter how robust a concept of the ``living 
     Constitution'' one embraces, this sort of Miracle-Gro 
     Constitution cannot fit within it.

  He was trying to be clever there to point out the fact that never has 
the Court come close to holding that for alien enemy combatants there 
is a constitutional right of habeas. And no decision of the Supreme 
Court has ever grounded its decision on the Constitution--only the case 
with respect to U.S. citizens.
  So I do not fear the Supreme Court overturning what we are trying to 
do here. One never knows what the Court might do. And Senator Specter 
certainly is correct that if it did, we would have to revisit this 
issue. I am totally confident, however, that this legislation would be 
upheld and certainly not be declared unconstitutional based upon a view 
that the habeas provisions apply to alien enemy combatants.
  Mr. President, the Specter amendment strikes at the heart of the 
litigation reforms in this bill--it undercuts the entire bill. The 
amendment would undercut and override the carefully calibrated 
accountability and supervision mechanisms negotiated by the Armed 
Services committee. And it would give enemy soldiers challenging their 
detention unprecedented access to our courts. It should be strongly 
opposed.
  Under the MCA, detainees already receive extremely generous process 
without habeas corpus lawsuits.
  Every detainee held at Guantanamo currently receives a Combatant 
Status Review Tribunal (CSRT) review of his

[[Page 19975]]

detention. The CSRT process is modeled on and closely tracks the 
Article 5 hearings conducted under the Geneva Conventions. In the 2004 
Hamdi decision, the Supreme Court cited Article 5 hearings as an 
example of the type of hearing that would be adequate to justify 
detention of even an American citizen who has engaged in war against 
the United States. Moreover, under the Geneva Conventions, Article 5 
hearings are given to detainees only when there is substantial doubt as 
to their status. In all American wars, only a small percentage of 
detainees have ever been given Article 5 hearings. Yet at Guantanamo, 
we have given a CSRT hearing to every detainee who has been brought 
there. And finally, it bears emphasis that the CSRT gives unlawful 
enemy combatants even more procedural protections than the Geneva 
Conventions' Article 5 hearing give to lawful enemy combatants. For 
example:

       A CSRT provides a detainee with a personal representative 
     to help him prepare his case. An Article 5 tribunal does not.
       Under the CSRT procedure, the hearing officer is required 
     to search government files for ``evidence to suggest that the 
     detainee should not be designated as an enemy combatant.'' An 
     Article 5 tribunal provides no such right.
       CSRTs give the detainee a summary of the evidence 
     supporting his detention in advance of the hearing. Article 5 
     tribunals do not.
       CSRTs are subject to review by supervising authorities and 
     may be remanded for further review. Article 5 provides no 
     such rights.

  Finally, after a CSRT is completed, the Detainee Treatment Act, DTA, 
and the Military Commissions Act, MCA, give an al-Qaida detainee the 
right to appeal the result to the DC Circuit. That circuit--staffed by 
some of the best judges in this country--is then authorized to make 
sure that all proper procedures were followed in the CSRT hearing, and 
to judge whether the CSRT process is consistent with the Constitution 
and with federal statutes--though no treaty lawsuits are authorized, 
pursuant to long-standing precedent.
  Now I would grant, the DTA does not allow re-examination of the facts 
underlying a prisoner's detention, and it limits the review to the 
administrative record. I commented on these provisions more extensively 
in remarks submitted for the Record on December 21. But as committee 
witness Brad Berenson noted at Monday's Judiciary Committee hearing, 
quoting the Supreme Court's 2001 decision in St. Cyr, ``the traditional 
rule on habeas corpus review of non-criminal executive detentions was 
that `the courts generally did not review the factual determinations 
made by the executive.''' And under the original common-law writ of 
habeas corpus, the facts in the custodian's return could not be 
contested. Thus, although the DTA does not allow sufficiency-of-the-
evidence challenges, neither did the common law writ of habeas corpus--
especially for noncriminal executive detentions. DTA review is 
limited--it has to be, or we would face the same litigation burdens as 
under the Rasul-inspired litigation. But common-law habeas itself is a 
limited remedy. Under the DTA, prisoners are not denied anything that 
they would have been entitled to under the original common-law writ of 
habeas corpus.
  Moreover, the fact that we are letting detainees go to court to 
challenge their conviction is totally unprecedented. At a hearing held 
on Monday before the Judiciary Committee, one of the witnesses who 
opposes the MCA, Rear Admiral John Hutson, nevertheless conceded in his 
testimony that ``[i]n World War II, when thousands and thousands of 
German and Italian POWs were imprisoned in various camps throughout the 
United States . . . there is only one recorded case of a POW using 
habeas to test his imprisonment. He was an Italian American and his 
petition was denied.''
  Just to be clear: there were 425,000 enemy combatants held in the 
United States during World War II. Yet according to Senator Specter's 
own witness at his Judiciary Committee hearing, only one habeas 
petition challenging detention was filed--and that was filed by an 
American citizen. The MCA only applies to aliens--not American 
citizens, so even that case would not have been affected by this bill.
  World War II did see several petitions challenging military trials, 
but the MCA and the DTA also allow judicial review of military 
commissions.
  At Senator Specter's September 25, 2006, hearing on the MCA before 
the Judiciary Committee, committee witness Brad Berenson, a partner at 
the Sidley & Austin law firm, testified that ``[n]o nation on the face 
of the earth in any previous conflict has given people they have 
captured anything like [the procedures provided by CSRTs and the DTA], 
and none does so today.'' Mr. Berenson reiterated: The MCA's procedures 
``are in fact more generous than anything we or any other nation in the 
history of the world has previously afforded to our military 
adversaries.''
  At the same hearing--Senator Specter's hearing on the MCA on Monday--
we also heard from David Rivkin, a partner at the Baker & Hostetler law 
firm. This is what he had to say: ``[t]he level of due process that 
these detainees are getting [under CSRTs and the DTA] far exceeds the 
level of due process accorded to any combatants, captured combatants, 
lawful or unlawful, in any war in human history.'' Mr. Rivkin added: 
``We are giving [alien enemy combatants] a lot more . . . than they are 
legally entitled to under either international [law] or the law in the 
U.S. Constitution.''
  The Supreme Court has held that U.S. constitutional protections do 
not apply to aliens held outside of our borders. For example, in 
Johnson v. Eisentrager (1950), the Supreme Court rejected the view that 
the U.S. Constitution applies to enemy war prisoners held abroad, 
noting that ``[n]o decision of this Court supports such a view. None of 
the learned commentators on our Constitution has ever hinted at it. The 
practice of every modern government is opposed to it.'' In 1990, the 
Supreme Court reaffirmed this view in the Verdugo case, holding that 
``we have rejected the claim that aliens are entitled to Fifth 
Amendment rights outside the sovereign territory of the United 
States.''
  The Verdugo case also makes clear that constitutional protections do 
not extend to aliens detained in this country who have no substantial 
connection to this country. The Supreme Court noted that aliens 
``receive constitutional protections when they have come within the 
territory of the United States and developed substantial connections 
with this country.'' The Verdugo Court further clarified that ``lawful 
but involuntary'' presence in the United States ``is not of the sort to 
indicate any substantial connection with our country.'' That is United 
States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
  Rasul v. Bush took great pains to emphasize that its extension of 
habeas to Guantanamo Bay was only statutory. Some Justices may have 
wanted to make Rasul a constitutional holding, but there clearly was no 
majority for such a ruling.
  Eisentrager and Verdugo are still the governing law in this area. 
These precedents hold that aliens who are either held abroad, or held 
here but have no other substantial connection to this country, are not 
entitled to invoke the U.S. Constitution. As committee witness Brad 
Berenson noted at Monday's hearing, ``nothing in the Constitution, 
including the Suspension Clause, confers rights of access to our courts 
for alien enemy combatants being held in the ordinary course of an 
armed conflict.'' Berenson also refuted the argument that a 
constitutional right of habeas for enemy combatants is embedded in the 
Rasul decision. As he explained, going through the logic of that 
opinion and its dependence on the 1973 Braden case:

       If there were a constitutional right to habeas corpus 
     relief for alien enemies held abroad, the implication would 
     thus be that it sprang into existence some time after 1973, 
     if not just two years ago in 2004, and received no mention in 
     Rasul. No matter how robust a concept of the ``living 
     Constitution'' one embraces, this sort of Miracle-Gro 
     Constitution cannot fit within it.

  The Specter amendment would have led to a nightmare of litigation in 
other wars.
  During World War II, the United States held millions of axis enemy 
combatants. During some periods,

[[Page 19976]]

enemy war prisoners were shipped into this country at the rate of 
60,000 a month. By the end of the war, over 425,000 enemy war prisoners 
were detained in prison camps inside the United States. Overall, the 
United States detained over two million enemy combatants during World 
War II. Prisoner camps for these combatants existed in all but three of 
the then-48 states.
  If the Specter amendment had been law during World War II, all of 
these 2 million enemy combatants would have been allowed to file habeas 
corpus lawsuits in Federal district court against our Armed Forces. 
Just try to imagine what that would have meant. The vast majority of 
these 2 million enemy prisoners were not familiar with the American 
legal system and did not speak English. If they had habeas corpus 
rights, they surely would have had to be provided with a lawyer in 
order to effectuate those rights. Also, should each of these 2 million 
prisoners also have been given access to the classified evidence that 
might be used against them to justify their detention? Should all 2 
million of these prisoners have been entitled to call witnesses on 
their behalf? Should they have been allowed to recall the U.S. soldiers 
at the front who captured them, and to cross examine them?
  The consequences of the Specter amendment are unimaginable. We cannot 
allow enemy war prisoners to sue us in our own courts. Such a system 
would make it simply impossible for the United States to fight a war. 
But don't take my word for it. The United States Supreme Court came to 
the same conclusion in its landmark decision in Johnson v. Eisentrager. 
The Supreme Court in that case clearly and eloquently explained why we 
cannot allow alien enemy combatants to sue our military 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.

  The Specter Amendment would disrupt the operation of Guantanamo and 
undermine the war on terror. We already know that habeas litigation at 
Guantanamo has consumed enormous resources and disrupted day-to-day 
operation of the base. The United States February 17, 2006 Supplemental 
Brief in the Al Odah case in the DC circuit describes the burdens 
imposed on the military by the Guantanamo litigation and the frivolous 
nature of some of the claims being pursued. At pages 12-14, the brief 
describes the following:

  According to the Justice Department: ``The detainees have urged 
habeas courts to dictate conditions on [Guantanamo Naval] Base ranging 
from the speed of Internet access afforded their lawyers to the extent 
of mail delivered to the detainees;'' More than 200 cases have been 
filed on behalf of 600 purported detainees. This number exceeds the 
number of detainees actually held at Guantanamo, which is near 500; 
Also according to the Justice Department: ``The Department of Defense 
has been forced to reconfigure its operations at Guantanamo Naval Base 
to accommodate hundreds of visits by private habeas counsel. . . . This 
habeas litigation has consumed enormous resources and disrupted the 
day-to-day operation of Guantanamo Naval Base;'' The United States also 
notes that this litigation has had a serious negative impact on the war 
with Al Qaeda. According to the U.S. brief:

       Perhaps most disturbing, the habeas litigation has 
     imperiled crucial military operations during a time of war. 
     In some instances, habeas counsel have violated protective 
     orders and jeopardized the security of the base by giving 
     detainees information likely to cause unrest. Moreover, 
     habeas counsel have frustrated interrogation critical to 
     preventing further terrorist attacks on the United States. 
     One of the coordinating counsel for the detainees boasted 
     about this in public:
       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 the 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?

  Brad Berenson, who testified at the September 25 Judiciary Committee 
hearing on this bill, offers what I think is a fitting comment on the 
habeas corpus litigation at Guantanamo Bay thus far. He concluded his 
testimony by noting, ``All freedom-loving people cherish the Great 
Writ. But we debase the writ, rather than honor it, if we extend it 
into realms where neither history nor tradition support its use.''
  At Monday's Judiciary Committee hearing, some witness suggested that 
the bulk of the detainees held at Guantanamo are innocent. One witness 
at Monday's Judiciary Committee hearing, a lawyer who represents 10 
Saudis held at Guantanamo, went so far as to assert that ``none of the 
ten . . . are enemies of the United States.'' This lawyer even told us 
that the men at Guantanamo ``do not appear any more dangerous . . . 
than my younger grandchild, who is 12.'' Another witness at the 
Judiciary Committee's September 25 hearing asserted that ``[n]ot a 
crumb of evidence has been adduced suggesting that the writ would risk 
freeing terrorists to return to fight against the United States.''
  This characterization, and similar assertions that the bulk of the 
detainees at Guantanamo are innocent, simply do not comport with 
reality. The United States has already released a number of detainees. 
These are detainees who our own Armed Forces decided were not enemy 
combatants or were no longer dangerous. Our Armed Forces are obviously 
very cautious about whom they release--they have great reason to be 
cautious, since they bear the consequences of releasing anyone who is a 
threat. Yet we already know that even among those detainees whom our 
Armed Forces thought were not dangerous, a significant number instead 
turned out to remain committed to war against the United States and its 
allies. According to a October 22, 2004 story in the Washington Post, 
at least 10 detainees released from Guantanamo have been recaptured or 
killed fighting U.S. or coalition forces in Afghanistan or Pakistan. 
This is what the Washington Post described:

       One of the repatriated prisoners is still at large after 
     taking leadership of a militant faction in Pakistan and 
     aligning himself with al Qaeda, Pakistani officials said. In 
     telephone calls to Pakistani reporters, he has bragged that 
     he tricked his U.S. interrogators into believing he was 
     someone else.
       Another returned captive is an Afghan teenager who had 
     spent two years at a special compound for young detainees at 
     the military prison in Cuba, where he learned English, played 
     sports and watched videos, informed sources said. U.S. 
     officials believed they had persuaded him to abandon his life 
     with the Taliban, but recently the young man, now 18, was 
     recaptured with other Taliban fighters near Kandahar, 
     Afghanistan, according to the sources, who asked for 
     anonymity because they were discussing sensitive military 
     information.

                           *   *   *   *   *

       The latest case emerged two weeks ago when two Chinese 
     engineers working on a dam project in Pakistan's lawless 
     Waziristan region were kidnapped. The commander of a tribal 
     militant group, Abdullah Mehsud, 29, told reporters by 
     satellite phone that his followers were responsible for the 
     abductions.
       Mehsud said he spent two years at Guantanamo Bay after 
     being captured in 2002 in Afghanistan fighting alongside the 
     Taliban. At

[[Page 19977]]

     the time he was carrying a false Afghan identity card, and 
     while in custody he maintained the fiction that he was an 
     innocent Afghan tribesman, he said. U.S. officials never 
     realized he was a Pakistani with deep ties to militants in 
     both countries, he added.
       I managed to keep my Pakistani identity hidden all these 
     years,'' he told Gulf News in a recent interview. Since his 
     return to Pakistan in March, Pakistani newspapers have 
     written lengthy accounts of Mehsud's hair and looks, and the 
     powerful appeal to militants of his fiery denunciations of 
     the United States. ``We would fight America and its allies,'' 
     he said in one interview, ``until the very end.''
       Last week Pakistani commandos freed one of the abducted 
     Chinese engineers in a raid on a mud-walled compound in which 
     five militants and the other hostage were killed.
       The 10 or more returning militants are but a fraction of 
     the 202 Guantanamo Bay detainees who have been returned to 
     their homelands. Of that group, 146 were freed outright, and 
     56 were transferred to the custody of their home governments. 
     Many of those men have since been freed.
       Mark Jacobson, a former special assistant for detainee 
     policy in the Defense Department who now teaches at Ohio 
     State University, estimated that as many as 25 former 
     detainees have taken up arms again. ``You can't trust them 
     when they say they're not terrorists,'' he said.

                           *   *   *   *   *

       Another former Guantanamo Bay prisoner was killed in 
     southern Afghanistan last month after a shootout with Afghan 
     forces. Maulvi Ghafar was a senior Taliban commander when he 
     was captured in late 2001. No information has emerged about 
     what he told interrogators in Guantanamo Bay, but in several 
     cases U.S. officials have released detainees they knew to 
     have served with the Taliban if they swore off violence in 
     written agreements.
       Returned to Afghanistan in February, Ghafar resumed his 
     post as a top Taliban commander, and his forces ambushed and 
     killed a U.N. engineer and three Afghan soldiers, Afghan 
     officials said, according to news accounts.
       A third released Taliban commander died in an ambush this 
     summer. Mullah Shahzada, who apparently convinced U.S. 
     officials that he had sworn off violence, rejoined the 
     Taliban as soon as he was freed in mid-2003, sources with 
     knowledge of his situation said.

  I urge that anyone consider these facts before contending that the 
bulk of the detainees at Guantanamo are ``innocent.''
  I would also like to respond to some of the attacks that have been 
made on the underlying DTA. One of the complaints made is that there is 
no mandate in the DTA, or in the MCA, that the military conduct CSRTs 
for enemy combatants that it captures. In a September 25 letter to 
Senators, for example, the ACLU urges opposition to the MCA on the 
ground, among other things, that ``[w]hile the bill does allow limited 
appeals for those who do go before a military commission or a Combatant 
Status Review Tribunal, CSRT, there is no guarantee that any person 
detained by our government be provided with either a trial or a CSRT.'' 
Similarly, at the September 25 hearing before the Judiciary Committee, 
committee witness Bruce Fein argued against the MCA on the ground ``the 
fact is that the statute would enable the executive branch to simply 
decline to hold CSRT proceedings . . . [I]t gives the executive branch, 
if it wishes, [the right] to hold detainees indefinitely without any 
access to the Federal courts. [Military commanders could] say, we do 
not want to hold a Combatant Status Review Tribunal, it is so clear 
that they [the detainees] are enemy combatants. If they do not hold the 
tribunal hearing, there is no access to Federal courts under the 
statute.''
  My response to these critics is that what they have described does 
accurately describes the DTA and MCA--and also the Geneva Conventions. 
As I noted earlier, the Geneva Conventions require an Article 5 hearing 
on the status of a detainee, but only if there is doubt as to his 
status. Under the Geneva Conventions, I would submit, there is no need 
for any Article 5 hearing for any of the al-Qaida and Taliban 
detainees, because there is simply no question that these detainees are 
not entitled to privileged status under the Geneva Conventions. The 
Conventions allow the military to make blanket determinations, and our 
nation would certainly be within its rights to do so here. What the 
military currently is doing for Guantanamo detainees goes well beyond 
the process to which they are entitled. What these critics want 
Congress to apply to our Armed Forces is a rule of no good deed goes 
unpunished. Because the military, in response to criticism of 
Guantanamo, started giving everyone at Guantanamo a CSRT hearing, these 
critics contend, it should be compelled to do so for all future 
detainees, and for all future wars. What is now given as a matter of 
executive grace, they contend, should be transformed into a legislative 
mandate.
  This the Armed Services committees and this congress declined to do. 
Aside from the fact that these detainees, aliens all, are not entitled 
to CSRTs or any Article 5 type hearing under the Geneva Conventions, it 
would be absurdly impractical to require the military to provide such 
hearings in all future conflicts. Consider, for example, the case of 
World War II. As I mentioned earlier, the United States detained over 
2,000,000 enemy combatants during that conflict. How on earth could we 
possibly expect the military to conduct CSRTs for 2 million people? And 
how could the DC Circuit be expected to handle 2 million appeals from 
CSRTs, even under the de minimis facial challenge authorized by the 
DTA? It is simply inconceivable.
  The CSRTs and DTA review, I concede, would be insufficient to justify 
detention of a United States citizen accused of a crime. This is not 
civilian criminal justice due process. But these detainees are not 
entitled to civilian criminal justice due process. Nor are they 
entitled to such hearings under the Geneva Conventions.
  What the DTA review standards do offer is judicial review that is 
consistent with military needs and with the executive branch's primacy 
among the branches of government in the conduct of war. It is judicial 
review in keeping with the traditional limited role of the courts in 
reviewing the conduct of war. As others have noted, DTA judicial review 
is limited to two narrow inquiries: 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 statutes? 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 whether a judge agrees that the evidence meets 
some particular standard of evidence. The inquiry is simply whether the 
correct rule was employed.
  Former United States Attorney General Bill Barr, in his testimony 
before the Senate Judiciary Committee on June 15 of last year, 
described the understanding of judicial review of military decisions 
that the DTA's review standards are 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.

  I think that last point is worth emphasizing. The DTA is not an 
invitation for the courts to substitute their judgment for that of the 
military. It is not for the courts to decide if someone is an enemy 
combatant, regardless of the standard of review. It is simply not the 
role of the courts to make that decision. It is not the courts, after 
all,

[[Page 19978]]

who bear the burden of capturing an enemy combatant again if he is 
released and rejoins the battle. The only thing the DTA asks the courts 
to do is check that the record of the CSRT hearings reflect that the 
military has used its own rules. It is up to the military to decide 
what the result should be under those rules, or even how those rules 
should be modified in the future.
  I would also reiterate a few words about the legality review that the 
DTA provides. This provision authorizes, in effect, a facial challenge 
to the CSRTs. I anticipate that once the District of Columbia circuit 
decides these questions with regard to a particular set of CSRT 
procedures in use, that decision will operate as circuit precedent 
unless and until the CSRT procedures are changed. Based on the long 
body of Supreme Court precedent governing judicial review of military 
affairs, I do not anticipate that any type of hearing is required by 
the Constitution or by Federal statute in order for the military to be 
allowed to detain alien enemy combatants. The Geneva Conventions do 
require hearings when there is doubt as to a detainee's privileged 
status, but those Conventions are not enforced through the courts, and 
the DTA does not disturb that limit on judicial enforceability. Allow 
me to quote the previous understanding of the scope of judicial review 
of military-commission trials that the DTA is designed to embody, as 
expressed in the Supreme Court's landmark decision 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.''

  Finally, I would like to reiterate the most important reason why I 
believe that Congress needs to bring an end to the habeas litigation 
involving war-on-terror detainees. Keeping captured terrorists out of 
the court system is a prerequisite for conducting effective and 
productive interrogation. And it is interrogation of terrorist 
detainees that has proved to be an important source of critical 
intelligence that has saved American lives.
  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.
  Navy Vice-Admiral Lowell Jacoby addressed this matter in a 
declaration attached to the United States's 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.

  In remarks that I submitted for the Record when the original DTA was 
enacted, I described some of the valuable intelligence that the United 
States has gained as a result of the interrogation of al-Qaida 
detainees. The President made a similar case in a speech that he 
delivered on September 6, but much better than I had done. I would like 
to simply quote at length, so that it is available in the Record, what 
the President described--why it is important that our intelligence 
agents be able to conduct effective interrogations of al-Qaida members. 
On the sixth of this month, the President stated:

       Within months of September the 11th, 2001, we captured a 
     man known as Abu Zubaydah. We believe that Zubaydah was a 
     senior terrorist leader and a trusted associate of Osama bin 
     Laden. Our intelligence community believes he had run a 
     terrorist camp in Afghanistan where some of the 9/11 
     hijackers trained, and that he helped smuggle al Qaeda 
     leaders out of Afghanistan after coalition forces arrived to 
     liberate that country. Zubaydah was severely wounded during 
     the firefight that brought him into custody--and he survived 
     only because of the medical care arranged by the CIA.
       After he recovered, Zubaydah was defiant and evasive. He 
     declared his hatred of America. During questioning, he at 
     first disclosed what he thought was nominal information--and 
     then stopped all cooperation. Well, in fact, the ``nominal'' 
     information he gave us turned out to be quite important. For 
     example, Zubaydah disclosed Khalid Sheikh Mohammed--or KSM--
     was the mastermind behind the 9/11 attacks, and used the 
     alias ``Muktar.'' This was a vital piece of the puzzle that 
     helped our intelligence community pursue KSM. Abu Zubaydah 
     also provided information that helped stop a terrorist attack 
     being planned for inside the United States--an attack about 
     which we had no previous information. Zubaydah told us that 
     al Qaeda operatives were planning to launch an attack in the 
     U.S., and provided physical descriptions of the operatives 
     and information on their general location. Based on the 
     information he provided, the operatives were detained--one 
     while traveling to the United States.
       We knew that Zubaydah had more information that could save 
     innocent lives, but he stopped talking. As his questioning 
     proceeded, it became clear that he had received training on 
     how to resist interrogation. And so the CIA used an 
     alternative set of procedures. These procedures were designed 
     to be safe, to comply with our laws, our Constitution, and 
     our treaty obligations. The Department of Justice reviewed 
     the authorized methods extensively and determined them to be 
     lawful. I cannot describe the specific methods used--I think 
     you understand why--if I did, it would help the terrorists 
     learn how to resist questioning, and to keep information from 
     us that we need to prevent new attacks on our country. But I 
     can say the procedures were tough, and they were safe, and 
     lawful, and necessary.
       Zubaydah was questioned using these procedures, and soon he 
     began to provide information on key al Qaeda operatives, 
     including information that helped us find and capture more of 
     those responsible for the attacks on September the 11th. For 
     example, Zubaydah identified one of KSM's accomplices in the 
     9/11 attacks--a terrorist named Ramzi bin al Shibh. The 
     information Zubaydah provided helped lead to the capture of 
     bin al Shibh. And together these two terrorists provided 
     information that helped in the planning and execution of the 
     operation that captured Khalid Sheikh Mohammed.
       Once in our custody, KSM was questioned by the CIA using 
     these procedures, and he soon provided information that 
     helped us stop another planned attack on the United States. 
     During questioning, KSM told us about another al Qaeda 
     operative he knew was in CIA custody--a terrorist named Majid 
     Khan. KSM revealed that Khan had been told to deliver $50,000 
     to individuals working for a suspected terrorist leader named 
     Hambali, the leader of al Qaeda's Southeast Asian affiliate 
     known as ``J-I''. CIA officers confronted Khan with this 
     information. Khan confirmed that the money had been delivered 
     to an operative named Zubair, and provided both a physical 
     description and contact number for this operative.

[[Page 19979]]

       Based on that information, Zubair was captured in June of 
     2003, and he soon provided information that helped lead to 
     the capture of Hambali. After Hambali's arrest, KSM was 
     questioned again. He identified Hambali's brother as the 
     leader of a ``J-I'' cell, and Hambali's conduit for 
     communications with al Qaeda. Hambali's brother was soon 
     captured in Pakistan, and, in turn, led us to a cell of 17 
     Southeast Asian ``J-I'' operatives. When confronted with the 
     news that his terror cell had been broken up, Hambali 
     admitted that the operatives were being groomed at KSM's 
     request for attacks inside the United States--probably [sic] 
     using airplanes.
       During questioning, KSM also provided many details of other 
     plots to kill innocent Americans. For example, he described 
     the design of planned attacks on buildings inside the United 
     States, and how operatives were directed to carry them out. 
     He told us the operatives had been instructed to ensure that 
     the explosives went off at a point that was high enough to 
     prevent the people trapped above from escaping out the 
     windows.
       KSM also provided vital information on al Qaeda's efforts 
     to obtain biological weapons. During questioning, KSM 
     admitted that he had met three individuals involved in al 
     Qaeda's efforts to produce anthrax, a deadly biological 
     agent--and he identified one of the individuals as a 
     terrorist named Yazid. KSM apparently believed we already had 
     this information, because Yazid had been captured and taken 
     into foreign custody before KSM's arrest. In fact, we did not 
     know about Yazid's role in al Qaeda's anthrax program. 
     Information from Yazid then helped lead to the capture of his 
     two principal assistants in the anthrax program. Without the 
     information provided by KSM and Yazid, we might not have 
     uncovered this al Qaeda biological weapons program, or 
     stopped this al Qaeda cell from developing anthrax for 
     attacks against the United States.
       These are some of the plots that have been stopped because 
     of the information of this vital program. Terrorists held in 
     CIA custody have also provided information that helped stop a 
     planned strike on U.S. Marines at Camp Lemonier in Djibouti--
     they were going to use an explosive laden water tanker. They 
     helped stop a planned attack on the U.S. consulate in Karachi 
     using car bombs and motorcycle bombs, and they helped stop a 
     plot to hijack passenger planes and fly them into Heathrow or 
     the Canary Wharf in London.
       We're getting vital information necessary to do our jobs, 
     and that's to protect the American people and our allies.
       Information from the terrorists in this program has helped 
     us to identify individuals that al Qaeda deemed suitable for 
     Western operations, many of whom we had never heard about 
     before. They include terrorists who were set to case targets 
     inside the United States, including financial buildings in 
     major cities on the East Coast. Information from terrorists 
     in CIA custody has played a role in the capture or 
     questioning of nearly every senior al Qaeda member or 
     associate detained by the U.S. and its allies since this 
     program began. By providing everything from initial leads to 
     photo identifications, to precise locations of where 
     terrorists were hiding, this program has helped us to take 
     potential mass murderers off the streets before they were 
     able to kill.
       This program has also played a critical role in helping us 
     understand the enemy we face in this war. Terrorists in this 
     program have painted a picture of al Qaeda's structure and 
     financing, and communications and logistics. They identified 
     al Qaeda's travel routes and safe havens, and explained how 
     al Qaeda's senior leadership communicates with its operatives 
     in places like Iraq. They provided information that allows 
     us--that has allowed us to make sense of documents and 
     computer records that we have seized in terrorist raids. 
     They've identified voices in recordings of intercepted calls, 
     and helped us understand the meaning of potentially critical 
     terrorist communications.
       The information we get from these detainees is corroborated 
     by intelligence, and we've received--that we've received from 
     other sources--and together this intelligence has helped us 
     connect the dots and stop attacks before they occur. 
     Information from the terrorists questioned in this program 
     helped unravel plots and terrorist cells in Europe and in 
     other places. It's helped our allies protect their people 
     from deadly enemies. This program has been, and remains, one 
     of the most vital tools in our war against the terrorists. It 
     is invaluable to America and to our allies. Were it not for 
     this program, our intelligence community believes that al 
     Qaeda and its allies would have succeeded in launching 
     another attack against the American homeland. By giving us 
     information about terrorist plans we could not get anywhere 
     else, this program has saved innocent lives.

  I don't think that it can be seriously doubted that this intelligence 
would not have been obtained if these men--Khalid Sheikh Muhammed and 
Abu Zubaydah--had been given the right to file a habeas petition and 
access to a lawyer immediately after they were captured. And had we not 
obtained this information, lives of Americans and other innocent people 
would have been lost.
  The DTA and the MCA create a balanced and appropriate mechanism for 
managing the detention of alien enemy combatants. They are consistent 
with military tradition and our Nation's security needs. The Specter 
amendment would upend that system. I urge the Specter amendment's 
defeat.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I only need one sentence to refute the 
arguments of the Senator from Arizona, and it comes back to Justice 
O'Connor's opinion again. She says:

       All agree that, absent suspension, the writ of habeas 
     corpus remains available to every individual--

  Every individual--

     detained within the United States.

  Guantanamo is held to be within that concept. But she talks about 
``every individual.'' That includes citizens and noncitizens.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I congratulate the distinguished chairman 
of the Senate Judiciary Committee and my other colleagues who serve on 
the Judiciary Committee--Senator Graham and Senator Kyl--for the 
quality of the discussion and debate. This is the kind of debate I came 
to the Senate and hoped to participate in.
  I want to try to address the concerns raised by the distinguished 
chairman of the Judiciary Committee about this constitutional issue. I 
happen to agree with what the Senator from Arizona said about the way 
the U.S. Supreme Court has interpreted the rights of an alien with 
regard to their constitutional rights.
  The difference is, the Hamdi case the chairman was citing really had 
to do with whether Guantanamo Bay--leased property in Cuba--was within 
the jurisdiction of the Court. It held because it was under a lease and 
under the control of the United States that it was subject to the laws 
pertaining to habeas corpus. But the way I read the case--and I believe 
this is correct and consistent with the way the Senator from Arizona 
interpreted it--it does not apply, they did not hold that it applied to 
an alien. But I want to say, even if he is right--and I disagree that 
he is--that aliens, particularly unlawful combatants captured on the 
battlefield, have all the rights an American citizen does under the 
Constitution, I believe his concerns are answered by the Swain case, 
decided by the U.S. Supreme Court, which held that if, in fact, there 
is an adequate substitute remedy, that in fact that satisfies any 
constitutional concerns with regard to the writ of habeas corpus.
  I believe the Detainee Treatment Act, which we passed just last year, 
provides an adequate substitute remedy sufficient to meet Supreme Court 
scrutiny. Even if the Supreme Court woke up and decided that all of a 
sudden it would overrule all of its old cases and hold that an unlawful 
combatant, an alien--not a citizen of this country--was somehow 
entitled to the whole panoply of constitutional rights, that would 
satisfy the Supreme Court's concerns about the process to which that 
alien was due.
  But I also want to question sort of the logic of applying the 
Constitution to unlawful combatants captured on the battlefield. Are we 
saying they are entitled to a fourth amendment right against 
unreasonable searches and seizures? Are we saying they have a fifth 
amendment right not to incriminate themselves? Well, surely not. We 
have all acknowledged the importance of being able to capture 
actionable intelligence through the interrogation process. And much of 
the debate we have been having in these last few weeks has been: How do 
we preserve this important intelligence-gathering tool which has 
allowed us to detect and disrupt terrorist attacks? How do we preserve 
that and at the same time meet our other legal obligations, 
constitutional and statutory?
  I believe the Senator from South Carolina had a question. I would be 
happy to yield to him for a question.

[[Page 19980]]


  Mr. GRAHAM. Mr. President, I appreciate that, and I am sorry to 
interrupt. But I went back to the Hamdi decision that referenced the 
exchange we had with the chairman in reference to the point the Senator 
just made.
  Justice O'Connor said:

       Hamdi has received no process. An interrogation by one's 
     captor, however effective an intelligence-gathering tool, 
     hardly constitutes a constitutionally adequate factfinding 
     before a neutral decisionmaker.

  When you turn to the next page, she says:

       There remains the possibility that the standards we have 
     articulated could be met by an appropriately authorized and 
     properly constituted military tribunal. Indeed, it is notable 
     that military regulations already provide for such process in 
     related instances, dictating that tribunals be made available 
     to determine the status of enemy detainees who assert 
     prisoner-of-war status under the Geneva Convention.

  She is referring to Army regulation 190-8. And my question to Senator 
Cornyn is, do you agree that Justice O'Connor was telling the 
Department of Defense that if you will model a tribunal on Army 
regulation 190-8, you will have met your obligation to have a competent 
tribunal under the Geneva Conventions to make an enemy combatant status 
determination?
  Mr. CORNYN. Mr. President, I say to the Senator from South Carolina, 
I think that is certainly a reasonable construction of what the opinion 
says.
  Let me describe for our colleagues the kind of petitions for writ of 
habeas corpus we are talking about that are being filed at Guantanamo 
Bay.
  A Canadian detainee who threw a grenade that killed an Army medic in 
a firefight and who comes from a family with longstanding al-Qaida ties 
moved for a preliminary injunction forbidding interrogation of him. 
That is one example.
  Another one is a Kuwaiti detainee who seeks a court order that they 
must be provided dictionaries in contravention of the force protection 
policy at Guantanamo Bay, and that their lawyer be given high-speed 
Internet access at their lodging on the base and be allowed to use 
classified Department of Defense telecommunications facilities, all 
under the theory that otherwise their ``right to counsel'' is unduly 
burdened.
  Then there is the motion by a high-level al-Qaida detainee 
complaining about base security procedures, speed of mail delivery, and 
medical treatment--even though they have abundant medical treatment and 
medical facilities at Guantanamo Bay. They further seek an order that 
he be transferred to the ``least onerous conditions'' at Guantanamo Bay 
and is asking the court to order that Guantanamo Bay authorities allow 
him to keep any books and reading materials sent to him and to ``report 
to the court'' on his opportunities for exercise, communication, 
recreation, and worship, among other things.
  Then there is the ``emergency'' motion seeking a court order 
requiring the authorities at Guantanamo Bay to set aside its normal 
security practices and show detainees DVDs that are purported to be 
family videos.
  Finally, I will mention, by way of absurd examples, the motion by 
Kuwaiti detainees who are unsatisfied with the Koran they are provided 
as standard issue by the Guantanamo authorities, and they seek a court 
order that they be able to keep various other supplemental religious 
material, such as a ``tafsir,'' or 4-volume Koran with commentary, in 
their cells.
  To say there is ``no meaningful judicial review'' or adequate 
substitute remedy afforded unlawful combatants flies in the face of the 
facts.
  The Senator from South Carolina described the fact that these 
detainees are, under current law, entitled to a combat status review 
tribunal, whose decision could then be appealed to the DC Circuit Court 
of Appeals to make sure the officials have actually provided the 
process to which these detainees are due, to make sure they have not 
been swept up in the fog of war and were innocent bystanders. This 
provides a fair process for them and adequate judicial review.
  We also have an annual administrative review board that determines, 
on an annual basis, whether this remains a necessity to keep these 
individuals in detention. I will point out that sometimes we are too 
lenient in terms of who we let go. I will cite to you a story of 
October 22, 2004, in the Washington Post, entitled ``Released Detainees 
Rejoining the Fight.'' There are at least 10 detainees who were 
released from Guantanamo Bay that have been recaptured or killed while 
fighting U.S. or coalition forces after they were released.
  The Supreme Court of the United States has talked about the 
impracticality of providing enemy combatants of the U.S. the full 
privilege of litigation. The Eisentrager court explained clearly and 
eloquently why we don't let enemy combatants sue the U.S. military and 
our soldiers in our own Federal courts. This is what the court said:

       Such trials would hamper the war effort and bring aid and 
     comfort to the enemy. . . . It would be difficult to devise a 
     more effective fettering of a field commander than to allow 
     the very enemies he is ordered to reduce to submission to 
     call him into 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.

  Those burdens placed on our military by enemy combatant litigation 
against our military effort persist today, and we have it within our 
power to eliminate that burden, to allow our men and women in uniform 
to fight the fight they volunteered to do on our behalf, to keep us 
safe and, at the same time, provide an adequate substitute remedy 
through the Detainee Treatment Act, as I have described a moment ago.
  More than 200 cases have been filed on behalf of a purported 600 
detainees. Strangely, that exceeds the number of detainees who are 
actually at Guantanamo Bay. So we have lawsuits for people who don't 
even exist, apparently.
  According to the Department of Justice:

       This habeas litigation has consumed enormous resources and 
     disrupted the day-to-day operation at Guantanamo Naval Base.

  The United States of America, in a brief filed in the Al Odah case, 
said:

       Perhaps most disturbing, the habeas litigation has 
     imperiled crucial military operations during a time of war. 
     In some cases, habeas counsel have violated protective orders 
     and jeopardized the security of the base by giving detainees 
     information likely to cause unrest. Moreover, habeas counsel 
     have frustrated interrogation critical to preventing further 
     terrorist attacks on the United States.

  This seems to have been validated--these criticisms--by the U.S. in 
briefs filed in Federal court by a lawyer who has filed those lawsuits 
on behalf of enemy combatants held at Guantanamo Bay. He boasted about 
disrupting U.S. war efforts in a magazine, where he said:

       The litigation is brutal for [the United States.] It's 
     huge. We have over 100 lawyers now from big and small firms 
     working to represent detainees. Every time an attorney goes 
     down there, it makes it that much harder [for the United 
     States 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?

  I know time is precious and I want to yield back to the chairman of 
the Armed Services Committee, but I believe those who argue for an 
extension of full habeas corpus rights, such as would be provided to an 
American citizen in civilian courts, are making a fundamental mistake 
by confusing two different realms of constitutional law. One would 
apply to an American citizen accused of a crime, where certainly the 
desire and the order of business is to protect that individual against 
unjust charges, and to make sure that the full panoply of the Bill of 
Rights applies to that individual. Different considerations apply when 
you are talking about a declared enemy of the U.S., and particularly an 
unlawful combatant, someone who doesn't wear the uniform, someone who 
doesn't respect the law of wars, and who targets innocent civilians in 
the pursuit of their ideology.
  I don't think we should make that mistake. So I reluctantly oppose 
the amendment.

[[Page 19981]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I address the Senate on this issue and 
pose a question to my distinguished colleague, the senior Senator from 
Pennsylvania. I will put into the Record, following the conclusion of 
my remarks and my colloquy with the Senator from Pennsylvania, 
additional material.
  Before I yield the floor, it is my desire to conclude the time on our 
side with the Senator from Missouri, and then reserve the remainder of 
my time for tomorrow. It would be my hope that the Senator from 
Pennsylvania, likewise, would save such remarks he may wish to make for 
tomorrow. As he knows, there is a function going on now, which I think 
most of us are trying to attend.
  With that, I yield the floor.
  Mr. SPECTER. Mr. President, that is satisfactory to me. How much time 
do I have remaining?
  The PRESIDING OFFICER. The Senator has 33 minutes remaining.
  Mr. SPECTER. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, the amendment to give unlawful combatant 
habeas corpus rights to mirror U.S. domestic procedures is unnecessary 
and inappropriate.
  The amendment is unnecessary because the U.S. is already giving enemy 
unlawful combatants more rights to question their continued 
incarceration than they are entitled to under international law.
  Under Geneva Conventions Article 5, combatants captured during 
wartime are due a hearing to determine their lawful status only if such 
status is in doubt.
  The United States goes beyond this requirement to give every 
combatant a status hearing, even when there is no doubt as to their 
status.
  The U.S. gives combatants Combat Status Review Tribunal hearings, 
known as CSRTs, to determine their status and review the need for their 
continued incarceration.
  If this were not enough, there is a review process under the Detainee 
Treatment Act, passed last year, to which detainees are also subjected.
  There is no need for further review processes for these enemy 
combatant detainees. An enemy combatant detainee sounds a little 
sterile, but take a look at the name that is often referred to dealing 
with this. The Supreme Court case which brought about the need for this 
legislation deals with Hamdan. Let's be clear, Hamdan was Osama bin 
Laden's body guard and driver. This is the kind of person about whom we 
are talking. Giving unlawful enemy combatants such as these U.S. 
domestic habeas rights is inappropriate. These people are not U.S. 
citizens, arrested in the U.S. on some civil offense; they are, by 
definition, aliens engaged in or supporting terrorist hostilities 
against the U.S., and doing so in violation of the laws of the war.
  Some may not have been around long enough to remember that the U.S. 
detained hundreds of thousands of German and Japanese soldiers, 
captured on World War II battlefields. We didn't give these enemy 
combatants access to U.S. domestic courts or habeas corpus rights. Not 
only would that have been absurd, it would have totally bogged down the 
legal system.
  There has never been a legal question over the appropriateness of a 
separate military process for enemy combatants. We should not now start 
admitting them to the U.S. domestic legal process.
  Current military review processes are more than adequate. Indeed, 
they exceed international standards. Granting enemy combatants 
additional U.S. domestic habeas corpus rights is unnecessary and 
inappropriate.
  I urge my colleagues to oppose this amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Virginia is 
recognized.
  Mr. WARNER. Mr. President, at this time, I observe no other Senators 
desiring to address the subject with regard to the pending bill. Having 
said that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Vitter). Without objection, it is so 
ordered.

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