[Congressional Record (Bound Edition), Volume 152 (2006), Part 15]
[Senate]
[Pages 20268-20348]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    MILITARY COMMISSIONS ACT OF 2006

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 3930, which the clerk will report.
  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.

  Pending:

       Specter amendment No. 5087, to strike the provision 
     regarding habeas review.

  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, just for purposes of advising 
colleagues, there remains on the Specter amendment 16 minutes under the 
control of the Senator from Virginia. I desire to allocate about 4 
minutes to Senator Kyl, 2 to 3 minutes to Senator Sessions, and to wrap 
it up, 2 to 3 minutes to Senator Graham. But we will alternate or do as 
the Senator from Michigan--you have 33 minutes, I believe, under the 
control of Senator Specter and those in support of his amendment.
  Mr. LEVIN. Madam President, parliamentary inquiry: How much time is 
remaining to Members on this side, including on the bill?
  The PRESIDING OFFICER. Senator Specter's side controls 33 minutes.
  Mr. LEVIN. On the Democratic side?
  The PRESIDING OFFICER. Senator Warner controls 16 minutes, and the 
proponent of the amendment controls 33.
  Mr. LEVIN. And on the bill itself, is there time left?
  The PRESIDING OFFICER. Senator Reid has allocated the remainder of 
the debate time on the bill itself.
  Mr. LEVIN. All time is allocated?
  The PRESIDING OFFICER. Correct.
  Mr. LEVIN. Madam President, I ask unanimous consent that I be allowed 
to proceed for 30 seconds.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. LEVIN. Madam President, I wish to thank the Senator from 
Connecticut for one of the most passionate statements I have ever heard 
on this floor--heartfelt, right on target. The distinctions made in 
this bill which will allow statements to be admitted into evidence that 
were produced by cruel treatment is unconscionable. It is said that, 
well, statements made after December 30 of 2005 won't be allowed, but 
those that are produced by cruel and inhuman treatment prior to 
December 30 of 2005 are OK. It is unconscionable. It is unheard of. It 
is untenable, and the Senator from Connecticut has pointed it out very 
accurately, brilliantly. I thank him for his statement.
  Mr. WARNER. Madam President, we will proceed on Specter's amendment. 
In due course, I will find the time to comment on my colleague's 30 
seconds. I want to keep this thing in an orderly progression. I would 
like to add the Senator from Texas, Mr. Cornyn, in the unanimous 
consent agreement to be recognized as one of the wrap-up speakers on 
those in opposition to the amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Madam President, yesterday Senator Specter argued that one 
sentence in the Hamdi opinion that refers to habeas corpus rights as 
applying to all ``individuals'' inside the United States indicates that 
alien enemy combatants have constitutional habeas rights when they are 
held inside this country. I believe that Senator Specter is incorrect, 
for the following reasons: (1) The Hamdi plurality repeatedly makes 
clear that ``the threshold question before us is whether the Executive 
has the authority to detain citizens who qualify as `enemy 
combatants.''' The plurality expressly frames the issue before it in 
terms of the rights of citizens no fewer than eight times. It is clear 
that it is only the rights of citizens that the Hamdi plurality studied 
and ruled on. (2) Elsewhere the Hamdi plurality criticized a rule that 
would make the government's right to hold someone as an enemy combatant 
turn on whether they are held inside or outside of the United States. 
The plurality characterized such a rule as creating ``perverse 
incentives,'' noted that it would simply encourage the military to hold 
detainees abroad, and concluded that it should not create a 
``determinative constitutional difference.'' The same effect would, of 
course, be felt if enemy soldiers' habeas rights were made turn on 
whether they were held inside or outside of the United States. The fact 
that the Hamdi plurality rejected this type of geographical 
gamesmanship in one context casts doubt on the theory that it endorsed 
it in a closely related context. (3) Had Hamdi extended habeas rights 
to alien enemy combatants held inside the United States, that would 
have been a major ruling of tremendous consequence. Because courts 
typically do not hide elephants in mouseholes, cf. Whitman v. ATA, it 
is fair to conclude that no such groundbreaking ruling is squirreled 
away in one ambiguous sentence in the Hamdi plurality opinion on the 
floor Wednesday evening, I presented the argument that the 
constitutional writ of habeas corpus does not extend to alien enemy 
soldiers held during wartime. Senator Specter responded by quoting from 
a passage in Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld, 
542 U.S. 507 (2004), that he believes establishes that alien combatants 
are entitled to habeas rights if they are held within the United 
States. That statement, towards the beginning of section III.A of the 
court's opinion, is a part of a statement of general principles noting 
that ``[a]ll agree'' that, absent suspension, habeas corpus remains 
available to every ``individual'' within the United States. Senator 
Specter reads this statement, unadorned by any qualification as to 
whether the individual in question is a U.S. citizen, an illegal 
immigrant, or an alien enemy combatant, to stand for the proposition 
that even the latter has a constitutional right to habeas

[[Page 20269]]

corpus when held within the United States.
  I would suggest that this single, ambiguous statement cannot be 
construed to bear that much weight, for three reasons.
  Elsewhere in its opinion, the Hamdi plurality repeatedly makes clear 
that the only issue it is actually considering is whether a U.S. 
citizen has habeas and due process rights as an enemy combatant. The 
plurality's emphasis on citizenship is repeatedly made clear throughout 
Justice O'Connor's opinion. For example, on page 509, in its first 
sentence, the plurality opinion says: ``we are called upon to consider 
the legality of the detention of a United States citizen on United 
States soil as an `enemy combatant' and to address the process that is 
constitutionally owed to one who seeks to challenge his detention as 
such.'' On page 516, the plurality again notes: ``The threshold 
question before us is whether the Executive has the authority to detain 
citizens who qualify as `enemy combatants.''' On page 524, the 
plurality once again emphasizes: ``there remains the question of what 
process is constitutionally due to a citizen who disputes his enemy-
combatant status.'' On page 531: ``We reaffirm today the fundamental 
nature of a citizen's right to be free from involuntary confinement by 
his own government without due process of law.'' On page 532: ``neither 
the process proposed by the Government nor the process apparently 
envisioned by the District Court below strikes the proper 
constitutional balance when a United States citizen is detained in the 
United States as an enemy combatant.'' On page 533: ``We therefore hold 
that a citizen-detainee seeking to challenge his classification as an 
enemy combatant must receive notice of the factual basis for his 
classification, and a fair opportunity to rebut the Government's 
factual assertion before a neutral decisionmaker.'' On page 535: 
military needs ``are not so weighty as to trump a citizen's core rights 
to challenge meaningfully the Government's case and to be heard by an 
impartial adjudicator.'' And on page 536-37: ``it would turn our system 
of checks and balances on its head to suggest that a citizen could not 
make his way to court with a challenge to the factual basis for his 
detention by his government.''
  Whatever loose language may have been used in the plurality's 
statement of general principles at the outset of its analysis, it is 
apparent that the only issue that the plurality actually studied and 
intended to address is the constitutional rights of the U.S. citizen.
  Another thing that augurs against interpreting the Hamdi plurality 
opinion to extend constitutional habeas rights to alien enemy 
combatants whenever they are held inside the United States is that, 
elsewhere in its opinion, the plurality is quite critical of a 
geographically-based approach to enemy combatant's rights. At page 524, 
the plurality responds to a passage in Justice Scalia's dissent that it 
reads as arguing that the government's ability to hold someone as an 
enemy combatant turns on whether they are held inside or outside of the 
United States. The plurality opinion states that making the ability to 
hold someone as an enemy combatant turn on whether they are held in or 
out of the United States:

     creates a perverse incentive. Military authorities faced with 
     the stark choice of submitting to the full-blown criminal 
     process or releasing a suspected enemy combatant captured on 
     the battlefield will simply keep citizen-detainees abroad. 
     Indeed, the Government transferred Hamdi from Guantanamo Bay 
     to the United States naval brig only after it learned that he 
     might be an American citizen. It is not at all clear why that 
     should make a determinative constitutional difference.

  It is doubtful that this same plurality--one that sees ``perverse'' 
effects in rules that would encourage the government to hold enemy 
combatants outside of the United States in order to avoid burdensome 
litigation--also intended to rule that full constitutional habeas 
rights attach to alien enemy combatants as soon as they enter U.S. 
airspace.
  Finally, Senator Specter's argument that the ambiguous reference to 
``individuals'' on page 525 of Hamdi extends habeas rights to foreign 
enemy combatants held inside U.S. territory is inconsistent with the 
common sense interpretive rule that one does not ``hide elephants in 
mouseholes.'' Whitman v. American Trucking Association, 531 U.S. 457, 
468 (2001). Although this rule of construction typically is applied by 
the court to our enactments, I see no reason why its logic would not 
operate when applied in reverse, by members of this body to the court's 
opinions.
  For the Hamdi court to have extended constitutional habeas rights to 
alien enemy soldiers held inside the United States would have been a 
major decision of enormous consequence to our nation's warmaking 
ability. As the Hamdi plurality itself noted, ``detention to prevent a 
combatant's return to the battlefield is a fundamental incident of 
waging war.'' As I noted yesterday, during World War II the United 
States detained over 425,000 enemy war prisoners inside the United 
States. Yet as Rear Admiral Hutson--no supporter of section 7 of the 
MCA--noted in his testimony at Monday's Judiciary Committee hearing, 
aside from one petition filed by an American of Italian descent, no 
habeas petitions challenging detention were filed by any of these World 
War II enemy combatants. It is simply inconceivable that all of the 
425,000 enemy combatants held inside the United States during this 
period could have been allowed to sue our government in our courts to 
challenge their detention. And were their right to do so made to turn 
on whether they were held inside or outside of the United States, our 
Armed Forces inevitably would have been forced to find some 
accommodations for them in foreign territory. And since holding enemy 
combatants near the war zone is neither practical nor safe, our 
nation's whole ability to fight a war would be made to turn on whether 
we could find some third country where we could hold enemy war 
prisoners. I would submit that this elephant of a result simply will 
not fit in the small space for it created by the one ambiguous passage 
in the Hamdi plurality opinion.
  For these three reasons, I believe that Senator Specter is incorrect 
to interpret the Hamdi plurality opinion to extend constitutional 
habeas corpus rights to alien enemy combatants held inside the United 
States.
  Just to conclude by summarizing the point as follows: On eight 
separate times, the plurality opinion in Hamdi refers to the rights of 
citizens. That is the question before the court. This is what it rules 
on. This is our holding. At no point does it extend it to citizens. 
There is one sentence rather loosely framed that refers to individuals. 
Had the courts in that decision intended to apply the habeas right to 
all individuals in the United States rather than citizens, it would 
most assuredly have said so.
  I don't think, with all due respect to my great friend, the chairman 
of the committee, that relying on that one loose word in one sentence 
of the opinion overrides all of the other reasoning, all of the other 
clear statements, and the obvious intent of the opinion to relate it to 
citizens only. With all due respect, I disagree with the reading of the 
case and conclude that there is nothing wrong with this legislation 
before us limiting the rights of habeas to those who are citizens and 
not extending it to alien enemy combatants.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Madam President, by way of brief reply to the comments 
of the Senator from Arizona, he argues that the Hamdi decision does not 
apply to aliens but only to citizens, trying to draw some inferences. 
But that does not stand up in the face of explicit language by Justice 
O'Connor to this effect:

       All agree that absent suspension the writ of habeas corpus 
     remains available to every individual detained in the United 
     States.

  The Senator from Arizona can argue all he wants about inferences, but 
that hardly stands up to an explicit statement on individuals. And 
Justice O'Connor knows the difference between referring to an 
individual or referring to a citizen or referring to an alien. And 
``individuals'' covers both citizens and aliens.

[[Page 20270]]

  Following the reference to individuals is the citation of the 
constitutional provision that you can't suspend habeas corpus except in 
time of rebellion or invasion.
  Buttressing my argument is the Rasul v. Bush case where it applied 
specifically to aliens; and it is true that the consideration was under 
the statute section 2241. There the Court says that section 2241 
``draws no distinction between Americans and aliens held in Federal 
custody.''
  That again buttresses the argument I have made in two respects. 
First, Rasul specifically grants habeas corpus, albeit statutory, to 
aliens and says there is no distinction. So on the face of the explicit 
language of the Supreme Court of the United States there is a 
constitutional requirement, and it is fundamental that Congress cannot 
legislate in contradiction to a constitutional interpretation of the 
Supreme Court. That requires a constitutional amendment--not 
legislation.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Vermont.
  Mr. LEAHY. Madam President, will the Senator from Pennsylvania yield?
  Mr. SPECTER. Madam President, how much time remains under my control?
  The PRESIDING OFFICER. Thirty minutes.
  Mr. SPECTER. Madam President, I yield 10 minutes to the distinguished 
Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Thank you, Madam President. If I require further time 
beyond 10 minutes I will take time from that reserved to the Senator 
from Vermont.
  Let's understand exactly what we are talking about here. There are 
approximately 12 million lawful permanent residents in the United 
States today. Some came here initially the way my grandparents did or 
my wife's parents did. These are people who work for American firms, 
they raise American kids, they pay American taxes.
  Section 7 of the bill before us represents a choice about how to 
treat them. This bill could have been restricted to traditional notions 
of enemy combatants--foreign fighters captured on the battlefield--but 
the drafters of this bill chose not to do so.
  Let's be very clear. Once we get past all of the sloganeering, all 
the fundraising letters, all the sound bites, all the short headlines 
in the paper, let's be clear about the choice the bill makes. Let's be 
absolutely clear about what it says to lawful permanent residents of 
the United States. Then let's decide if it is the right message to send 
them and if it is really the face of America that we want to show.
  Take an example. Imagine you are a law-abiding, lawful, permanent 
resident, and in your spare time you do charitable fundraising for 
international relief agencies to lend a helping hand in disasters. You 
send money abroad to those in need. You are selective in the charities 
you support, but you do not discriminate on the grounds of religion. 
Then one day there is a knock on your door. The Government thinks that 
the Muslim charity you sent money to may be funneling money to 
terrorists and thinks you may be involved. And perhaps an overzealous 
neighbor who saw a group of Muslims come to your House has reported 
``suspicious behavior.'' You are brought in for questioning.
  Initially, you are not very worried. After all, this is America. You 
are innocent, and you have faith in American justice. You know your 
rights, and you say: I would like to talk to a lawyer. But no lawyer 
comes. Once again, since you know your rights, you refuse to answer any 
further questions. Then the interrogators get angry. Then comes 
solitary confinement, then fierce dogs, then freezing cold that induces 
hypothermia, then waterboarding, then threats of being sent to a 
country where you know you will be tortured, then Guantanamo. And then 
nothing, for years, for decades, for the rest of your life.
  That may sound like an experience from some oppressive and 
authoritarian regime, something that may have happened under the 
Taliban, something that Saddam Hussein might have ordered or something 
out of Kafka. There is a reason why that does not and cannot happen in 
America. It is because we have a protection called habeas corpus, or if 
you do not like the Latin phrase by which it has been known throughout 
our history, call it access to the independent Federal courts to review 
the authority and the legality by which the Government has taken and is 
holding someone in custody. It is a fundamental protection. It is woven 
into the fabric of our Nation.
  Habeas corpus provides a remedy against arbitrary detentions and 
constitutional violations. It guarantees an opportunity to go to court, 
with the aid of a lawyer, to prove that, yes, you are innocent.
  As Justice Scalia stated in the Hamdi case:

       The very core of liberty secured by the Anglo-Saxon system 
     of separated powers has been freedom from indefinite 
     imprisonment at the will of the Executive.

  Of course, the remedy that secures that most basic freedom is habeas 
corpus.
  Habeas corpus does not give you any new rights, it just guarantees 
you have a chance to ask for your basic freedom.
  If we pass this bill today, that will be gone for the 12 million 
lawful, permanent residents who live and work among us, to say nothing 
of the millions of other legal immigrants and visitors who we welcome 
to our shores each year. That will be gone for another estimated 11 
million immigrants the Senate has been working to bring out of the 
shadows with comprehensive immigration reform.
  The bill before the Senate would not merely suspend the great writ, 
the great writ of habeas corpus, it would eliminate it permanently. We 
do not have to worry about nuances, such as how long it will be 
suspended. It is gone. Gone.
  Over 200 years of jurisprudence in this country, and following an 
hour of debate, we get rid of it. My God, have any Members of this 
Senate gone back and read their oath of office upholding the 
Constitution? This cuts off all habeas petitions, not just those 
founded on relatively technical claims but those founded on claims of 
complete innocence.
  We hundred Members in the Senate, we privileged men and women, are 
supposed to be the conscience of the Nation. We are about to put the 
darkest blot possible on this Nation's conscience. It would not be 
limited to enemy combatants in the traditional sense of foreign 
fighters captured in the battlefield, but it would apply to any alien 
picked up anywhere in the world and suspected of possibly supporting 
enemies of the United States.
  We do not need this bill for those truly captured on the battlefield 
who have taken up arms against the United States. That is why the 
definition of enemy combatant has been so expansively redefined behind 
closed doors in the dark of night.
  This bill is designed instead to sweep others into the net. It would 
not even require an administrative determination that the Government's 
suspicions have a reasonable basis in fact. By its plain language, it 
would deny all access to the courts to any alien awaiting--what a 
bureaucratic term, to determine your basic human rights, ``any alien 
awaiting''--a Government determination as to whether the alien is an 
enemy combatant. The Government would be free to delay as long as it 
liked--for years, for decades, for the length of the conflict which is 
so undefined and may last for generations.
  One need only look at Guantanamo. Even our own Government says a 
number of people are in there by mistake, but we will not get around to 
making that determination. Maybe in 5 years, maybe 10, maybe 20, maybe 
30. And we wonder why some of our closest allies ask us, what in 
heaven's name has happened to the conscience and moral compass of this 
great Nation? Are we so terrified of some terrorists around this 
country that we will run scared and hide? Is that what we will do, tear 
down all the structures of liberty in this country because we are so 
frightened?
  It brings to mind that famous passage in ``A Man for All Seasons.''

[[Page 20271]]

Thomas More is talking to his protege, William Roper, and says 
something to the effect that England is planted thick like a forest 
with laws. He said, Would you cut down those laws to get after the 
devil? And Roper said, of course I would cut down all the laws in 
England to get the devil. And then More said, Oh, and when the last law 
was down and the devil turned on you, what will protect you?
  This legislation is cutting down laws that protect all 100 of us, and 
now almost 300 million Americans. It is amazing the Senate would be 
talking about doing something such as this, especially after the 
example of Guantanamo. We can pick up people intentionally or by 
mistake and hold them forever.
  How many speeches have I heard in my 32 years in the Senate during 
the cold war and after, criticizing totalitarian governments that do 
things such as that? And we can stand here proudly and say it would 
never happen in America; this would never happen in America because we 
have rights, we have habeas corpus, and people are protected.
  I am not here speculating about what the bill says. This is not a 
critic's characterization of the bill. It is what the bill plainly 
says, on its face. It is what the Bush-Cheney administration is 
demanding. It is what any Member who votes against the Specter-Leahy 
amendment and for the bill today is going to be endorsing.
  The habeas stripping provisions in the bill go far beyond what 
Congress did in the Detainee Treatment Act in three respects. First, as 
the Supreme Court pointed out in Hamdan, the DTA removed habeas 
jurisdiction only prospectively, for future cases. This new bill strips 
habeas jurisdiction retroactively, even for pending cases. This is an 
extraordinary action that runs counter to long-held U.S. policies 
disfavoring retroactive legislation.
  Second, the DTA applied only to detainees at Guantanamo. This new 
legislation goes far beyond Guantanamo and strips the right to habeas 
of any alien living in the United States if the alien has been 
determined an enemy combatant, or even if he is awaiting a 
determination--and that wait can take years and years and years. Then, 
20 years later, you can say: We made a mistake. Tough. It allows 
holding an alien, any alien, forever, without the right of habeas 
corpus, while the Government makes up its mind as to whether he is an 
enemy combatant.
  And third, the impact of those provisions is extended by the new 
definition of enemy combatant proposed in the current bill. The bill 
extends the definition to include persons who supported hostilities 
against the United States, even if they did not engage in armed 
conflict against the United States or its allies. That, again, is an 
extraordinary extension of existing laws.
  If we vote today to abolish rights of access to the justice system to 
any alien detainee who is suspected--not determined, not even charged; 
these people are not even charged, just suspected--of assisting 
terrorists, that will do by the back door what cannot be done up front. 
That will remove the checks in our legal system that provide against 
arbitrarily detaining people for life without charge. It will remove 
the mechanism the Constitution provides to stop the Government from 
overreaching and lawlessness.
  This is so wrong. It grieves me, after three decades in this Senate, 
to stand here knowing we are thinking of doing this. It is so wrong. It 
is unconstitutional. It is un-American. It is designed to ensure the 
Bush-Cheney administration will never again be embarrassed by a U.S. 
Supreme Court decision reviewing its unlawful abuses of power. The 
Supreme Court said, you abused your power. And they said, we will fix 
that. We have a rubberstamp Congress that will set that aside and give 
us power that nobody--no king or anyone else setting foot in this 
land--had ever thought of having.
  In fact, the irony is this conservative Supreme Court--seven out of 
nine members are Republicans--has been the only check on the Bush-
Cheney administration because Congress has not had the courage to do 
that. Congress has not had the courage to uphold its own oath of 
office.
  With this bill, the Congress will have completed the job of 
eviscerating its role as a check and balance on the administration. The 
Senate has turned its back on the Warner-Levin bill, a bipartisan bill 
reported by the Committee on Armed Services, so it can jam through the 
Bush-Cheney bill. This bill gives up the ghost. It is not a check on 
the administration but a voucher for future wrongdoing.
  Abolishing habeas corpus for anyone the Government thinks might have 
assisted enemies of the United States is unnecessary and morally wrong, 
a betrayal of the most basic values of freedom for which America 
stands. It makes a mockery of the Bush-Cheney administration's lofty 
rhetoric about exporting freedom across the globe. We can export 
freedom across the globe, but we will cut it out in our own country. 
What hypocrisy.
  I read yesterday from former Secretary of State Colin Powell's letter 
in which he voiced concern about our moral authority in the war against 
terrorism. The general and former head of the Joint Chiefs of Staff and 
former Secretary of State was right.
  Admiral John Hutson testified before the Judiciary Committee that 
stripping the courts of habeas corpus jurisdiction was inconsistent 
with our history and our tradition. The admiral concluded:

       We don't need to do this. America is too strong.

  When we do this, America will not be a stronger nation. America will 
be a weaker nation. We will be weaker because we turned our back on our 
Constitution. We turned our back on our rights. We turned our back on 
our history.
  I ask unanimous consent to have printed in the Record a letter from 
more than 60 law school deans and professors who state that the 
Congress would gravely disserve our global reputation by doing this.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           September 27, 2006.

     To United States Senators and Members of Congress.
       Dear Senators and Representatives: We, the undersigned law 
     deans and professors, write in our individual capacity to 
     express our deep concern about two bills that are rapidly 
     moving through Congress. These bills, the Military 
     Commissions Act and the National Security Surveillance Act, 
     would make the indefinite detention of those labeled enemy 
     combatants and the executive's program of domestic 
     surveillance effectively unreviewable by any independent 
     judge sitting in public session. While different in 
     character, both bills unwisely contract the jurisdiction of 
     courts and deprive them of the ability to decide critical 
     issues that must be subject to judicial review in any free 
     and democratic society.
       Although the Military Commissions Act of 2006 (S. 3929/S. 
     3930) was drafted to improve and codify military commission 
     procedures following the Supreme Court's June 2006 decision 
     in Hamdan v. Rumsfeld, it summarily eliminates the right of 
     habeas corpus for those detained by the U.S. government who 
     have been or may be deemed to be enemy combatants: Detainees 
     will have no ability to challenge the conditions of their 
     detention in court unless and until the administration 
     decides to try them before a military commission. Those who 
     are not tried will have no recourse to any independent court 
     at any time. Enacting this provision into law would be a 
     grievous error. As several witnesses testified before the 
     Senate Judiciary Committee on Monday, Article I, Section 9 of 
     the Constitution specifies 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,'' 
     conditions that are plainly not satisfied here.
       Similarly, the National Security Surveillance Act of 2006 
     (S. 3876) would strip courts of jurisdiction over pending 
     cases challenging the legality of the administration's 
     domestic spying program and would transfer these cases to the 
     court established by the Foreign Intelligence Surveillance 
     Act of 1978 (FISA). The transfer of these cases to a secret 
     court that issues secret decisions would shield the 
     administration's electronic surveillance program from 
     effective and transparent judicial scrutiny.
       These bills exhibit a profound and unwarranted distrust of 
     the judiciary. The historic role of the courts is to ensure 
     that the legislature promulgates and the executive faithfully 
     executes the law of the land with due respect for the rights 
     of even the most despised. Any protections embodied in these 
     bills would be rendered worthless unless the

[[Page 20272]]

     courts can hold the executive accountable to enacted law. 
     Moreover, the bills ignore a central teaching of the Supreme 
     Court's decision in Hamdan v. Rumsfeld: the importance of 
     shared institutional powers and checks and balances in 
     crafting lawful and sustainable responses to the war on 
     terror. Absent effective judicial review, there will be no 
     way to enforce any of the limitations in either bill that 
     Congress is currently seeking to place upon the executive's 
     claimed power.
       We recognize the need to prevent and punish crimes of 
     terrorism and to investigate and prosecute such crimes. But 
     depriving our courts of jurisdiction to determine whether the 
     executive has acted properly when it detains individuals in 
     this effort would endanger the rights of our own soldiers and 
     nationals abroad, by limiting our ability to demand that they 
     be provided the protections that we deny to others. 
     Eliminating effective judicial review of executive acts as 
     significant as detention and domestic surveillance cannot be 
     squared with the principles of transparency and rule of law 
     on which our constitutional democracy rests.
       The Congress would gravely disserve our global reputation 
     as a law-abiding country by enacting bills that seek to 
     combat terrorism by stripping judicial review. We 
     respectfully urge you to amend the judicial review provisions 
     of the Military Commissions Act and the National Security 
     Surveillance Act to ensure that the rights granted by those 
     bills will be enforceable and reviewable in a court of law.
           Sincerely,
       James J. Alfini, President and Dean, South Texas College of 
     Law.
       Michelle J. Anderson, Dean, CUNY School of Law.
       Katharine T. Bartlett, Dean and A. Kenneth Pye Professor of 
     Law, Duke Law School.
       Molly K. Beutz, Yale Law School.
       Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe 
     Smith Professor of International Law, Yale Law School.
       Harold J. Krent, Dean & Professor, Chicago-Kent College of 
     Law.
       Lydia Pallas Loren, Interim Dean and Professor of Law, 
     Lewis & Clark Law School.
       Dennis Lynch, Dean, University of Miami School of Law.
       John Charles Boger, Dean, School of Law, University of 
     North Carolina at Chapel Hill.
       Jeffrey S. Brand, Dean, Professor and Chairman, Center for 
     Law & Global Justice, University of San Francisco Law School.
       Katherine S. Broderick, Dean and Professor, University of 
     the District of Columbia, David A. Clarke School of Law.
       Brian Bromberger, Dean and Professor, Loyola Law School.
       Robert Butkin, Dean and Professor of Law, University of 
     Tulsa College of Law.
       Evan Caminker, Dean and Professor of Law, University of 
     Michigan Law School.
       Judge John L. Carroll, Dean and Ethel P. Malugen Professor 
     of Law, Cumberland School of Law, Samford University.
       Neil H. Cogan, Vice President and Dean, Whittier Law 
     School.
       Mary Crossley, Dean and Professor of Law, University of 
     Pittsburgh School of Law,
       Mary C. Daly, Dean & John V. Brennan Professor Law and 
     Ethics, St. John's University School of Law.
       Richard A. Matasar, President and Dean, New York Law 
     School.
       Philip J. McConnaughay, Dean and Donald J. Farage Professor 
     of Law, The Pennsylvania State University, Dickinson School 
     of Law.
       Richard J. Morgan, Dean William S. Boyd School of Law, 
     University of Nevada, Las Vegas.
       Fred L. Morrison, Popham Haik Schnobrich/Lindquist & Vennum 
     Professor of Law and Interim Co-Dean, University of Minnesota 
     Law School,
       Kenneth M. Murchison, James E. & Betty M. Phillips 
     Professor of Law, Louisiana State University, Paul M. Hebert 
     Law Center.
       Cynthia Nance, Dean and Professor, University of Arkansas, 
     School of Law.
       Nell Jessup Newton, William B. Lockhart Professor of Law, 
     Chancellor and Dean, University of California at Hastings 
     College of Law,
       Maureen A. O'Rourke, Dean and Professor of Law, Michaels 
     Faculty Research Scholar, Boston University School of Law.
       Margaret L. Paris, Dean, Elmer Sahlstrom Senior Fellow, 
     University of Oregon School of Law.
       Stuart L. Deutsch, Dean and Professor of Law, Rutgers 
     School of Law-Newark.
       Stephen Dycus, Professor, Vermont Law School.
       Allen K. Easley, President and Dean, William Mitchell 
     College of Law.
       Christopher Edley, Jr., Dean and Professor, Boalt Hall 
     School of Law, UC Berkeley.
       Cynthia L. Fountaine, Interim Dean and Professor of Law, 
     Texas Wesleyan University School of Law.
       Stephen J. Friedman, Dean, Pace University School of Law.
       Dean Bryant G. Garth, Southwestern Law School, Los Angeles, 
     California.
       Charles W. Goldner, Jr., Dean and Professor of Law, William 
     H. Bowen School of Law, University of Arkansas at Little 
     Rock.
       Mark C. Gordon, Dean and Professor of Law, University of 
     Detroit Mercy School of Law.
       Thomas F. Guernsey, President and Dean, Albany Law School.
       Don Guter, Dean, Duquesne University School of Law.
       Jack A. Guttenberg Dean and Professor of Law.
       LeRoy Pernell, Dean and Professor, Northern Illinois 
     University College of Law.
       Rex R. Perschbacher, Dean and Professor of Law, University 
     of California at Davis School of Law.
       Raymond C. Pierce, Dean and Professor of Law, North 
     Carolina Central University School of Law.
       Peter Pitegoff Dean and Professor of Law, University of 
     Maine School of Law.
       Efren Rivera Ramos, Dean, School of Law, University of 
     Puerto Rico.
       William J. Rich, Interim Dean and Professor of Law, 
     Washburn University School of Law.
       James V. Rowan, Associate Dean, Northeastern University 
     School of Law, Boston, Massachusetts.
       Edward Rubin, Dean and John Wade-Kent Syverud Professor of 
     Law, Vanderbilt University.
       David Rudenstine, Dean, Cardozo School of Law.
       Lawrence G. Sager, Dean, University of Texas School of Law, 
     Alice Jane Drysdale Sheffield Regents Chair in Law, Capital 
     University Law School.
       Joseph D. Harbaugh, Dean and Professor, Shepard Broad Law 
     Center, Nova Southeastern University.
       Lawrence K. Hellman, Dean and Professor of Law, Oklahoma 
     City University School of Law.
       Patrick E. Hobbs, Dean and Professor of Law, Seton Hall 
     University School of Law.
       Jose Roberto Juarez, Jr., Dean and Professor of Law, 
     University of Denver Sturm College of Law.
       W. H. Knight, Jr., Dean and Professor, University of 
     Washington School of Law, Seattle, Washington.
       Brad Saxton, Dean & Professor of Law, Quinnipiac University 
     School of Law.
       Stewart J. Schwab, the Allan R. Tessler Dean & Professor of 
     Law, Cornell Law School.
       Geoffrey B. Shields, President and Dean and Professor of 
     Law, Vermont Law School.
       Aviam Soifer, Dean and Professor, William S. Richardson 
     School of Law, University of Hawai'i.
       Emily A. Spieler, Dean, Edwin Hadley Professor of Law, 
     Northeastern University School of Law.
       Kurt A. Strasser, Interim Dean and Phillip I. Blumberg 
     Professor, University of Connecticut Law School.
       Leonard P. Strickman, Dean, Florida International 
     University, College of Law.
       Steven L. Willborn, Dean & Schmoker Professor of Law, 
     University of Nebraska College of Law.
       Frank H. Wu, Dean, Wayne State University Law School.
       David Yellen, Dean and Professor, Loyola University Chicago 
     School of Law.

  Mr. LEAHY. Kenneth Starr, the former independent counsel and 
Solicitor General for the first President Bush, wrote that the 
Constitution's conditions for suspending habeas corpus have not been 
met and that doing it would be problematic.
  The post-9/11 world requires us to make adjustments. In the original 
PATRIOT Act five years ago, we made adjustments to accommodate the 
needs of the Executive, and more recently, we sought to fine-tune those 
adjustments. I think some of those adjustments sacrificed civil 
liberties unnecessarily, but I also believe that many provisions in the 
PATRIOT Act were appropriate. I wrote many of the provisions of the 
PATRIOT Act, and I voted for it.
  This bill is of an entirely different nature. The PATRIOT Act took a 
cautious approach to civil liberties and while it may have gone too far 
in some areas, this bill goes so much further than that. It takes an 
entirely dismissive and cavalier approach to basic human rights and to 
our Constitution.
  In the aftermath of 9/11, Congress provided in section 412 of the 
PATRIOT Act that an alien may be held without charge if, and only if, 
the Attorney General certifies that he is a terrorist or that he is 
engaged in activity that endangers the national security. He may be 
held for seven days, after which he must be placed in removal 
proceedings, charged with a crime, or released. There is judicial 
review through habeas corpus proceedings, with appeal to the D.C. 
Circuit.
  Compare that to section 7 of the current bill. The current bill does 
not provide for judicial review. It would preclude it. It does not 
require a certification by the Attorney General that

[[Page 20273]]

the alien is a terrorist. It would apply if the alien was ``awaiting'' 
a Government determination whether the alien is an ``enemy combatant.'' 
And it is not limited to seven days. It would enable the Government to 
detain an alien for life without any recourse whatsoever to justice.
  What has changed in the past 5 years that justifies not merely 
suspending but abolishing the writ of habeas corpus for a broad 
category of people who have not been found guilty, who have not even 
been charged with any crime? What has turned us? What has made us so 
frightened as a nation that now the United States will say, we can pick 
up somebody on suspicion, hold them forever, they have no right to even 
ask why they are being held, and besides that, we will not even charge 
them with anything, we will just hold them? What has changed in the 
last 5 years?
  Is our Government is so weak or so inept and our people so terrified 
that we have to do what no bomb or attack could ever do, and that is 
take away the very freedoms that define America? We fought two world 
wars, we fought a civil war, we fought a revolutionary war, all these 
wars to protect those rights.
  And now, think of those people who have given their lives, who fought 
so hard to protect those rights. What do we do? We sit here, privileged 
people of the Senate, and we turn our backs on that. We throw away 
those rights.
  Why would we allow the terrorists to win by doing to ourselves what 
they could never do and abandoning the principles for which so many 
Americans today and throughout our history have fought and sacrificed? 
What has happened that the Senate is willing to turn America from a 
bastion of freedom into a cauldron of suspicion, ruled by a government 
of unchecked power?
  Under the Constitution, a suspension of the writ may only be 
justified during an invasion or a rebellion, when the public safety 
demands it. Six weeks after the deadliest attack on American soil in 
our history, the Congress that passed the PATRIOT Act rightly concluded 
that a suspension of the writ would not be justified.
  But now, 6 weeks before a midterm election, as the fundraising 
letters are running around, the Bush-Cheney administration and its 
supplicants in Congress deem a complete abolition of the writ the 
highest priority, a priority so urgent that we are allowed no time to 
properly review, debate, and amend a bill we first saw in its current 
bill less than 72 hours ago. There must be a lot of fundraising letters 
going out.
  Notwithstanding the harm the administration has done to national 
security--first by missing their chance to stop September 11 and then 
with their mismanaged misadventures in Iraq--there is no new national 
security crisis. Apparently, there is only a Republican political 
crisis. And that, as we know, is why this un-American, unconstitutional 
legislation is before us today.
  We have a profoundly important and dangerous choice to make today. 
The danger is not that we adopt a pre-9/11 mentality. We adopted a 
post-9/11 mentality in the PATRIOT Act when we declined to suspend the 
writ, and we can do so again today.
  The danger, as Senator Feingold has stated in a different context, is 
that we adopt a pre-1776 mentality, one that dismisses the Constitution 
on which our American freedoms are founded.
  Actually, it is worse than that. Habeas corpus was the most basic 
protection of freedom that Englishmen secured from their King in the 
Magna Carta. The mentality adopted by this bill, in abolishing habeas 
corpus for a broad swath of people, is not a pre-9/11 mentality, it is 
a pre-1215--that is the year, 1215--mentality, a mentality we did away 
with in the Magna Carta and our own Constitution.
  Every one of us has sworn an oath to uphold the Constitution. In 
order to uphold that oath, I believe we have a duty to vote for this 
amendment--
the Specter-Leahy amendment--and against this irresponsible and 
flagrantly unconstitutional bill. That is what I will do.
  The Senator from Vermont answers to the Constitution and to his 
conscience. I do not answer to political pressure.
  Madam President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Virginia.
  Mr. WARNER. Madam President, we have colleagues on this side who are 
ready to proceed. Now, there is a great deal of time left on the other 
side, but in order of preference, I say to Senator Sessions, if you are 
ready to proceed.
  Mr. SESSIONS. Madam President, I will be pleased to do so.
  Mr. WARNER. Madam President, might I inquire of the amount of time 
under my control for those in opposition to the amendment?
  The PRESIDING OFFICER. Senator Warner controls 11 minutes.
  Mr. WARNER. Eleven minutes.
  The PRESIDING OFFICER. Senator Specter controls 20 minutes.
  Mr. SESSIONS. Madam President, if the chairman would approve, I would 
ask for 3 minutes.
  Mr. WARNER. Yes. And following that, Senator Cornyn for such time as 
he may need.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, habeas corpus--the right to have your 
complaints heard while in custody--is a part of our Constitution. But 
we have to remember habeas corpus did not mean everything in the whole 
world when it was adopted. So what did ``habeas'' mean? What does it 
mean today and at the time it was adopted? It was never, ever, ever, 
ever intended or imagined that during the War of 1812, if British 
soldiers were captured burning the Capitol of the United States--as 
they did--that they would have been given habeas corpus rights. It was 
never thought to be. Habeas corpus was applied to citizens, really, at 
that time. I believe that is so plain as to be without dispute.
  So to say: Habeas corpus, what does it mean? What did those words 
mean when the people ratified it? They did not intend to provide it to 
those who were attacking the United States of America. We provide 
special protections for prisoners of war who lawfully conduct a war 
that might be against the United States. We give them great 
protections. But unlawful combatants, the kind we are dealing with 
today, have never been given the full protections of the Geneva 
Conventions.
  Second, my time is limited, and I have been so impressed with the 
debate that has gone on with Senators Kyl and Cornyn and Graham, and I 
associate myself generally with those remarks, but I want to recall 
that in a spate of an effort to appease critics and those who had 
``vague concerns,'' not too many years ago, this Congress passed 
legislation that said that CIA-gathered information could not be shared 
with the FBI. We passed a law in this Congress to appease the left in 
America, the critics of our efforts against communism, primarily. And 
we have put a wall between the CIA and FBI.
  So that was politically good. Everybody must have been happy about 
that. I was not in the Senate then. Then they complained that the CIA 
was out talking with people who had criminal records who may have been 
involved in violence, and this was somehow making our CIA complicitous 
in dealing with dangerous people, and we banned that. We passed a 
statute that eliminated that. And everybody felt real good that we had 
done something special.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. Madam President, I ask unanimous consent for an 
additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. After 9/11, we realized both of those were errors of 
the heart perhaps, but of the brain. And so what happened? We reversed 
both of them. We reversed them both. And we need to be sure that the 
legislation we are dealing with today does not create a long-term 
battle with the courts over everybody who is being detained. That is a 
function of the military and the executive branch to conduct a war.
  Madam President, I yield the floor.

[[Page 20274]]


  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, I understand I have 6 minutes on the 
bill in general.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. FEINGOLD. Madam President, I oppose the Military Commissions Act.
  Let me be clear: I welcomed efforts to bring terrorists to justice. 
Actually, it is about time. This administration has too long been 
distracted by the war in Iraq from the fight against al-Qaida. We need 
a renewed focus on the terrorist networks that present the greatest 
threat to this country.
  We would not be where we are today, 5 years after September 11, with 
not a single Guantanamo Bay detainee having been brought to trial, if 
the President had come to Congress in the first place, rather than 
unilaterally creating military commissions that did not comply with the 
law. The Hamdan decision was a historic rebuke to an administration 
that has acted for years as if it is above the law.
  I have hoped that we would take this opportunity to pass legislation 
that allows us to proceed in accordance with our laws and our values. 
That is what separates America from our enemies. These trials, 
conducted appropriately, have the potential to demonstrate to the world 
that our democratic constitutional system of government is our greatest 
strength in fighting those who attack us.
  That is why I am saddened I must oppose this legislation because the 
trials conducted under this legislation may send a very different 
signal to the world, one that I fear will put our troops and personnel 
in jeopardy both now and in future conflicts. To take just a few 
examples, this legislation would permit an individual to be convicted 
on the basis of coerced testimony and hearsay, would not allow full 
judicial review of the conviction, and yet would allow someone 
convicted under these rules to be put to death. That is just simply 
unacceptable.
  Not only that, this legislation would deny detainees at Guantanamo 
Bay and elsewhere--people who have been held for years but have not 
been tried or even charged with any crime--the ability to challenge 
their detention in court. The legislation before us is better than that 
originally proposed by the President, which would have largely codified 
the procedures the Supreme Court has already rejected. And that is 
thanks to the efforts of some of my Republican colleagues, for whom I 
have great respect and admiration. But this bill remains deeply flawed, 
and I cannot support it.
  One of the most disturbing provisions of this bill eliminates the 
right of habeas corpus for those detained as enemy combatants. I 
support an amendment by Senator Specter to strike that provision from 
the bill.
  Habeas corpus is a fundamental recognition that in America the 
Government does not have the power to detain people indefinitely and 
arbitrarily. And in America, the courts must have the power to review 
the legality of executive detention decisions.
  This bill would fundamentally alter that historical equation. Faced 
with an executive branch that has detained hundreds of people without 
trial for years now, it would eliminate the right of habeas corpus.
  Under this legislation, some individuals, at the designation of the 
executive branch alone, could be picked up, even in the United States, 
and held indefinitely without trial and without any access whatsoever 
to the courts. They would not be able to call upon the laws of our 
great Nation to challenge their detention because they would have been 
put outside the reach of the law.
  Some have suggested that terrorists who take up arms against this 
country should not be allowed to challenge their detention in court. 
But that argument is circular. The writ of habeas allows those who 
might be mistakenly detained to challenge their detention in court 
before a neutral decisionmaker. The alternative is to allow people to 
be detained indefinitely with no ability to argue that they are not, in 
fact--that they are not, in fact--enemy combatants.
  There is another reason we must not deprive detainees of habeas 
corpus, and that is the fact that the American system of government is 
supposed to set an example for the world as a beacon of democracy.
  A group of retired diplomats sent a very moving letter to explain 
their concerns about this habeas-stripping provision. Here is what they 
said:

       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.

  Many dedicated patriotic Americans share these grave reservations 
about this particular provision of this bill. Unfortunately, the 
suspension of the Great Writ is not the only problem with this 
legislation. Unfortunately, I do not have time to discuss them all.
  But the bill also appears to permit individuals to be convicted, and 
even sentenced to death, on the basis of coerced testimony. According 
to the legislation, statements obtained through cruel, inhuman, or 
degrading treatment, as long as it was obtained prior to December 2005, 
when the McCain amendment became law, would apparently be admissible in 
many instances in these military commissions.
  Now, it is true that the bill would require the commission to find 
these statements have sufficient and probative value. But why would we 
go down this road of trying to convict people based on statements 
obtained through cruel, inhuman, or degrading interrogation techniques? 
Either we are a nation that stands against this type of cruelty and for 
the rule of law or we are not. We cannot have it both ways.
  In closing, let me do something I do not do very often, and that is 
quote my former colleague, John Ashcroft. According to the New York 
Times, in a private meeting of high-level officials in 2003 about the 
military commission structure, then-Attorney General Ashcroft 
reportedly said:

       Timothy McVeigh was one of the worst killers in U.S. 
     history. But at least we had fair procedures for him.

  How sad that this Congress would seek to pass legislation about which 
the same cannot be said.
  Mr. President, I strongly support Senator Specter's amendment to 
strike the habeas provision from this bill.
  At its most fundamental, the writ of habeas corpus protects against 
abuse of government power. It ensures that individuals detained by the 
government without trial have a method to challenge their detention. 
Habeas corpus is a fundamental recognition that in America, the 
government does not have the power to detain people indefinitely and 
arbitrarily. And that in America, the courts must have the power to 
review the legality of executive detention decisions.
  It goes without saying that this is not a new concept. Habeas corpus 
is a longstanding vital part of our American tradition, and is 
enshrined in the U.S. Constitution, article 1, section 9, where it 
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.

  The Founders recognized the importance of this right. Alexander 
Hamilton in Federalist Paper No. 84 explained the importance of habeas 
corpus, and its centrality to the American system of government and the 
concept of personal liberty. He quoted William Blackstone, who warned 
against the ``dangerous engine of arbitrary government'' that could 
result from unchallengeable confinement, and the ``bulwark'' of habeas 
corpus against this abuse of government power.
  As a group of retired judges wrote to Congress, habeas corpus 
``safeguards the most hallowed judicial role in our constitutional 
democracy--ensuring that no man is imprisoned unlawfully.''
  This bill would fundamentally alter that historical equation. Faced 
with an administration that has detained hundreds of people without 
trial for years now, it would eliminate the right of habeas corpus for 
anyone the executive

[[Page 20275]]

branch labels an alien ``enemy combatant.''
  That's right. It would eliminate the right of habeas corpus for any 
alien detained by the United States, anywhere in the world, and 
designated by the government as an enemy combatant. And it would do so 
in the face of years of abuses of power that--thus far--have been 
reined in primarily through habeas corpus challenges in our Federal 
courts.
  Let me be clear about what it does. Under this legislation, some 
individuals, at the designation of the executive branch alone, could be 
picked up, even in the United States, and held indefinitely without 
trial and without any access whatsoever to the courts. They would not 
be able to call upon the laws of our great Nation to challenge their 
detention because they would have been put outside the reach of the 
law.
  That is unacceptable, and it almost surely violates our Constitution. 
The rule of law is something deeper and more profound than the 
collection of laws that we have on paper. It is a principle that 
undergirds our entire society, and that has been central to our nation 
since its very founding. As Thomas Paine explained at the time of our 
country's birth in 1776, the rule of law is that principle, that 
paramount commitment, ``that in America, the law is king. . . . and 
there ought to be no other.'' The rule of law tells us that no man is 
above the law--and as an extension of that principle--that no executive 
will be able to act unchecked by our legal system.
  Yet by stripping the habeas corpus rights of any individual who the 
executive branch decides to designate as an enemy combatant, that is 
precisely where we end up--with an executive branch subject to no 
external check whatsoever. With an executive branch that is king.
  Now, it may well be that this provision will be found 
unconstitutional as an illegal suspension of the writ of habeas corpus. 
But that determination will take years of protracted litigation. And 
for what? The President has been urging Congress to pass legislation so 
that Khalid Sheikh Mohammed, the alleged mastermind of 9-11, and other 
``high value'' al-Qaida detainees can be tried. This bill is supposed 
to create a framework for prosecuting unlawful enemy combatants for war 
crimes that the Supreme Court can accept following the decision this 
summer in the Hamdan case. There is absolutely no reason why we need to 
restrict judicial review of the detention of individuals who have not 
been charged with any crime.
  That raises another point. People who are actually subject to trial 
by military commission will at least be able to argue their innocence 
before some tribunal, even if I have grave concerns about how those 
military commissions would proceed under this legislation. But people 
who have not been charged with any crime will have no guaranteed venue 
in which to proclaim and prove their innocence. As three retired 
generals and admirals explained in a letter to Congress:

       The effect would be to give greater protections to the 
     likes of Khalid Sheikh Mohammed than to the vast majority of 
     the Guantanamo detainees.

  How does this make any sense? Why would we turn our back on hundreds 
of years of history and our Nation's commitment to liberty?
  We have already, in the Detainee Treatment Act, said that no new 
habeas challenges can be brought by detainees at Guantanamo Bay. The 
Supreme Court found in Hamdan v. Rumsfeld that the Detainee Treatment 
Act did not apply to Hamdan's pending habeas petition, and went forward 
with considering his argument that the President's military commission 
structure was illegal. And I would think that we should all be pleased 
that it did so, because otherwise we would have had to wait for several 
more years for Hamdan's trial to be completed before he would have had 
any chance to challenge the President's military commission system in 
court. The Supreme Court's decision striking down those commissions 
would have occurred several years later. And we would be right back 
where we are now, but with several more years of delay.
  There is another reason why we must not deprive detainees of habeas 
corpus, and that is the fact that the American system of government is 
supposed to set an example for the world, as a beacon of democracy. And 
this provision will only serve to harm others' perception of our system 
of government.
  A group of retired diplomats sent a very moving letter explaining 
their concerns about this habeas-stripping provision. Here is what they 
said:

       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.

  They went on to explain further:

       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.

  That is a direct quote.
  Let's not go down this road. Let's remove this provision from the 
bill.
  As is already clear, I'm not the only one who has serious concerns 
about this provision. There is bipartisan support for this amendment. 
And Congress has received numerous letters objecting to the habeas 
provision, including from Kenneth Starr; a group of former diplomats; 
two different groups of law professors; a group of retired judges; and 
a group of retired generals. Many, many dedicated patriotic Americans 
have grave reservations about this particular provision of the bill.
  They have reservations not because they sympathize with suspected 
terrorists. Not because they are soft on national security. Not because 
they don't understand the threat we face. No. They, and we in the 
Senate who support this amendment, are concerned about this provision 
because we care about the Constitution, because we care about the image 
that America presents to the world as we fight the terrorists. Because 
we know that the writ of habeas corpus provides one of the most 
significant protections of human freedom against arbitrary government 
action ever created. If we sacrifice it here, we will head down a road 
that history will judge harshly and our descendants will regret.
  Let me close with something that this group of retired judges said.

       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. . . 
     .

  Mr. President, we must not imperil our proud history. We must not 
abandon the Great Writ. We must not jeopardize our Nation's proud 
traditions and principles by suspending the writ of habeas corpus, and 
permitting our government to pick people up off the street, even in 
U.S. cities, and detain them indefinitely without court review. That is 
not what America is about.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, I ask unanimous consent for 3 minutes 
from our time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. First of all, Madam President, I would like to point out 
there are many myths about this legislation. We need to get to the 
facts and get to the truth so people can understand what the choices 
are.
  Our distinguished colleague from Wisconsin, in my view, also 
perpetrated another myth by saying this war is all about Iraq, when, in 
fact, the new leader of al-Qaida in Iraq, succeeding al-Zarqawi, just 
reported in an Associated Press story that 4,000 al-Qaida foreign 
fighters have been killed in Iraq due to the war effort there. But this 
is a global war, and it requires a uniformed treatment of the 
terrorists in a way that reflects our values but also the fact that we 
are at war.
  I think our colleagues need to be reminded of legislation which we 
passed in December of 2005, known as the Detainee Treatment Act. When 
people come here and suggest that we are stripping all legal rights 
from terrorists who are detained at Guantanamo

[[Page 20276]]

Bay, they are simply flying in the face of the Detainee Treatment Act 
that we passed in December 2005, which provides not only a review 
through a combatant status review tribunal, with elaborate procedures 
to make sure there is a fair hearing, but then a right to appeal to the 
District of Columbia Circuit Court of Appeals, not only to make sure 
that the right standards were applied--that is, whether the military 
applied the right rules to the facts--but also to attack the 
constitutionality of the system should they choose to do so. So those 
who claim we are simply stripping habeas corpus rights are simply 
flying in the face of the facts as laid out in the Detainee Treatment 
Act.
  Now, the question may be: Are we going to provide what the law 
requires? Are we going to provide additional rights and privileges that 
some would like to confer upon these high-value detainees located at 
Guantanamo Bay? But the fact is, to do what the proponents of this 
amendment propose would be to divert our soldiers from the battlefield 
and to tie their hands in ways with frivolous litigation and appeals. 
And the last thing that I would think any of us would want to do would 
be to provide an easy means for terrorists to sue U.S. troops in U.S. 
courts, particularly when it is not required by the Constitution, laws 
of the United States, not mandated by the Supreme Court, and we have 
provided an adequate substitute remedy, which I believe is entirely 
consistent with the U.S. Supreme Court's decisions in this area.
  We have provided an avenue or a process by which these detainees can 
have their rights protected, such rights as they have being unlawful 
combatants attacking innocent civilians. America is conferring rights 
upon them that we do not have to confer, but we are conferring them 
because we believe there ought to be a fair process and we ought to be 
consistent with our Constitution and with the decisions of the U.S. 
Supreme Court.
  The last thing I would think any of us would want to do would be to 
tie the hands of our soldiers to permit terrorists to sue U.S. troops 
in Federal court at will.
  The PRESIDING OFFICER (Mr. Ensign). The Senator's time has expired.
  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I ask unanimous consent for 10 minutes from 
Senator Warner's side on the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Mr. President, I appreciate the opportunity to talk 
generally about the bill. I have already spoken about the importance of 
not affording habeas corpus to the unlawful combatants when they have 
more protections than international law requires, or than any other 
country provides.
  Speaking on the bill, for the last 5 years, our most important job 
has been to protect our families from another terrorist attack.
  Our children, our mothers, fathers, grandparents, and grandchildren--
none of them deserved to die in the 9/11 attacks; none deserve to die 
in another terrorist attack. That is why we are doing everything we can 
to protect our families by stopping terrorists, capturing them, 
learning their secrets, foiling their plots, and bringing the 
terrorists to justice.
  Through our hard work, there has not been another direct attack on 
U.S. soil since 9/11. We have worked hard to prevent and stop attacks 
in the last 5 years and must continue to prevent future attacks. We 
dramatically boosted airport and airline security. We hired new airport 
screeners, implemented new checks, and even put armed agents on flights 
where necessary.
  We added thousands of new FBI agents, thousands of new intelligence 
officers, and increased their budgets by billions to provide new armies 
against terrorism.
  We passed the PATRIOT Act to provide the tools needed to discover 
terrorist plots and stop them. We reorganized our intelligence agencies 
to bring a single focus and purpose against terrorism.
  We tore down the walls between law enforcement and intelligence to 
get terror planning and plot information to authorities as quick as 
possible.
  All of this is going on as I speak, as we sleep at night, as our 
children go to school, we are fighting the war on terrorism.
  The President recently highlighted some of the successes we have had 
because of our terror fighting tools and efforts. He recounted how we 
have captured terrorists, used new tools to learn their secrets, 
captured additional terrorists, connected the dots of their 
conspiracies, and foiled their terror attack plans.
  But now some want to tie the hands of our terror fighters, they want 
to take away the tools we use to fight terror--handcuff us, hamper us--
in our fight to protect our families.
  It's not new, really. Partisans have slowed our efforts to fight 
terror every step of the way.
  Many on the other side voted against the PATRIOT Act.
  Many blocked reauthorization of the PATRIOT Act for months. The 
Democrat Leader actually boasted, ``We killed the PATRIOT Act.''
  Thank Heavens that wasn't true. Now, I know that they all love our 
country. They are not unpatriotic. They just don't understand the 
terrorist enemies we face.
  These critics are not willing to do what is necessary to protect 
fully our families from terrorists.
  You don't have to take my word for it, just look at their record over 
the last 5 years. Whether or not you would say terror war critics have 
a weak record on terror, they have certainly tried to block, slow down, 
and take away our terror fighting tools.
  Some congressional Democrats voted to cut and run from Iraq. Nothing 
would embolden terrorists more than to see the U.S. turn tail and run 
home.
  Osama bin Laden cited America quitting Somalia, and failing to 
respond to the U.S.S. Cole bombing, as signs of U.S. weakness and 
vulnerability. We all know what happened later.
  Democrats in the Senate have blocked the appointment of senior anti-
terror officials. The 9/11 commission report recommended better 
coordination between law enforcement and intelligence officials. Only 
last week did Democrats stop blocking the appointment of the senior 
Justice Department official for National Security.
  Partisans readily spread classified information leaked to the public 
or the media. They call news conferences to highlight cherry-picked 
intelligence information, or quote newspaper articles betraying our 
Nation's secret terror fighting programs. Don't they think this 
encourages the enemy or demoralizes our troops or allies?
  Some propose to handcuff our ability to discover terrorist plots. 
They propose to make it hard to listen in on a potential terrorist 
calling from a foreign country, or to a foreign country to discuss 
terror plans.
  If al-Qaida calls in, we ought to be listening. That is authorized 
under the Constitution. The Constitution clearly gives the President 
the power to intercept phone calls under the foreign intelligence 
exception in the amendment.
  In my meetings with intelligence officials both abroad and here at 
home I have heard repeatedly how the disclosure, not only of classified 
information, but also of our interrogation techniques, are extremely 
damaging.
  Our personnel have encountered enemy combatants trained to resist 
disclosed interrogation techniques thanks to leakers in our media.
  If we lay out precisely the techniques that will be used and we print 
them in the Federal Register, they will be in an al-Qaida training 
manual within 48 hours.
  I'm pleased that with the current Military Commissions legislation 
moving forward, we have clarified our strict adherence to standards 
that forbid torture in any way, shape or form and we are allowing our 
CIA to move forward with a humane interrogation program whose 
techniques will not be published in the Federal Register, or even 
worse, in another newspaper disclosure.
  Critics support trial procedures that would give terrorists secret 
intelligence information.
  Why on Earth would we hand over classified evidence and information 
to

[[Page 20277]]

terrorists so that information could be used against us in the future?
  Remember the 1993 World Trade Center bombing? The prosecution of 
terror suspects there involved giving over 200 names of terror suspects 
to the attorneys representing the terrorists. They gave them that in a 
trial, and some months later, after an investigation of the bombings in 
Africa, we captured the al-Qaida documents which had all of that 
information that had been given to the attorneys. So once you give it 
to a detainee or the detainee's attorney, you can count on it getting 
out.
  One other thing is important. Some would propose exposing our terror 
fighters to legal liability. They oppose giving our terror fighters 
certainty and clarity in how to go about their jobs. They leave them 
vulnerable to prosecution and handcuff their efforts and leave the rest 
of us vulnerable to terror plots that went undiscovered.
  Right now, these people are worried and they are buying insurance. 
People who are trying to carry out the very important intelligence 
missions of the United States, if they ask any questions, or if they 
don't give them four square meals a day and keep them in a comfortable 
motel, they are afraid they are going to get sued. We need to give 
protection to the people who are operating within the law as we are 
laying it out to make sure they don't cross over the line.
  The problem we have is that if the critics take away the valuable 
tools we have in breaking apart terror plots, we are going to be 
significantly less safe. As the President said, the CIA interrogation 
program has already succeeded in breaking apart terror conspiracies and 
preventing several terror attacks. Critics within the program are 
preventing us from punishing terrorists and gaining valuable 
information that could prevent future attacks.
  One thing I, along with the President and my Republican colleagues, 
share with the war critics is a strong opposition to torture. It is 
abhorrent, evil, and has no place in the world. What I oppose is how 
terror war critics would go soft on terror suspects, allowing them 
comforts they surely don't deserve.
  Critics are being tough on targets. Terrorists argue that we should 
treat them like prisoners of war under the Geneva Conventions. Article 
72 of the Geneva Conventions on treatment of prisoners of war says POWs 
shall be allowed to receive parcels containing foodstuffs. Is that what 
critics think the 9/11 Commission conspirators deserve? Cookie care 
packages?
  Article 71 says POWs shall be allowed to send and receive letters and 
cards. Is that what opponents of the bill believe people who conspire 
to cut off our heads deserve--letters from home? ``Mail call Ramzi bin 
al-Shibh.''
  Article 60 requires us to grant all POWs monthly advances of pay. It 
even says how much: below sergeant, 8 Swiss francs; officers, 50 Swiss 
francs; generals, 75 Swiss francs.
  Do the critics think Khalid Sheik Mohammed deserves 50 Swiss francs 
or 75?
  Critics of being tough on terrorists say that we should adhere to 
international standards of decency. Where was the decency when 
international troops withdrew without a fight from Srebenica, Bosnia 
allowing the genocide of its men and boys?
  Where was the decency when the U.N. allowed Sudan, guilty of genocide 
in Darfur, to serve on the Human Rights Commission, and allowed Cuba to 
help monitor international human rights? This was neither moral nor 
decent.
  Some say that the tough treatment we are debating will lead to bad 
treatment of America's soldiers in the future. That is a close cousin 
to the argument that if we leave the terrorists alone they will stop 
attacking us, or that America made them do it.
  Do we need a reminder of how badly they are already treating us? The 
Wall Street Journal reporter kidnapped by terrorists, Daniel Pearl, had 
his head cut off long before the criminal acts of Abu Grahib or news of 
the CIA prisons.
  The charred bodies of our Special Forces dragged through the streets 
of Mogadishu tell us what the vague standards of the Geneva Convention 
got us.
  As I said before, I support a torture ban. I also support provisions 
that clearly ban cruel, inhuman treatment or intentionally causing 
great suffering or serious injury. These are serious felonies, as they 
should be. But what we cannot do is give up tough treatment short of 
this that protects our families from attack.
  What do critics think would happen if we went soft on terrorists? 
Would they be satisfied with only name, rank and serial number? Would 
they have us say to our terror suspects, ``Oh gosh darn, I was so 
hoping you would willingly tell us your terror plots. Oh well, here's 
your 50 Swiss franc advance pay, don't eat too much from your cookie 
care package, we've scheduled a dentist appointment for you for 
Tuesday.''
  Of course not, that would be absurd to think that terrorists will 
willingly tell us their plots. Terror war critics have been watching 
too many Law and Order TV shows if they think some hokey good cop--bad 
cop law enforcement approach will work on al-Qaida.
  These people flew airplanes into buildings for heaven's sake, or 
should I say for hell's sake.
  America must fight with honor. We must fight from the moral high 
ground.
  But do not tell me we lack a moral basis for our fight against 
terror. Show me someone who doubts America's moral basis in this fight 
against terror and I will show you someone who has lost their own moral 
compass.
  The compass of America's future points to this bill. We live in an 
age where we must fight terror. To win, we must fight tough in that 
fight against terror. We must give our terror fighters the tools they 
need and the protections they require to protect our families from 
terror.
  We cannot fall into the traps our terror war critics suggest: 
handcuffing our law enforcement and intelligence agents, blocking our 
terror fighting leadership, releasing and spreading our terror war 
secrets, giving terror suspects our terror fighting methods and 
techniques, granting terrorists overly-comfortable protections, going 
soft on terrorists who hold the secrets of their plots, their attacks.
  Our agents deserve better, our soldiers deserve better, our families 
deserve better.
  To start where I began, this is what all our efforts are about. 
Protecting our vulnerable families. Protecting our children, protecting 
our mothers and fathers, protecting grandparents and grandchildren. 
None of the vulnerable it protects deserved to die in the 9/11 attacks, 
and none deserve to die again in another terrorist attack.
  I urge my colleagues to support this legislation.
  Mr. WARNER. Mr. President, we are anxious to move to a vote on the 
Specter amendment to accommodate a number of colleagues. Therefore, I 
urge that the remaining time on the Specter amendment under the control 
of Senator Specter, and the time in opposition under my control, be now 
utilized by colleagues, such that we can move to that vote.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. That is not a unanimous consent request, is it?
  Mr. WARNER. No.
  Mr. LEVIN. We have three Senators who have been allocated time 
specifically, and that time may be used relative to the amendment or in 
general debate on the bill. I will not agree to any restriction on the 
use of time that the Senator has been allocated.
  Mr. WARNER. I recognize that. It is in our mutual interests to the 
move ahead on the bill. There will be time after the vote for Senators 
to speak. You have 18 minutes on the bill. I have 47 under my control 
on general debate.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mr. WARNER. Mr. President, the time for the Senator from California 
is under which category?
  The PRESIDING OFFICER. General debate time.
  Mrs. FEINSTEIN. Mr. President, I strongly believe the true test of a 
nation comes when we face hard decisions and hard times. It is really 
not the easy decisions that test our character

[[Page 20278]]

and our commitment to fundamental principles and values. It is when the 
easy answer is not the right answer, but is politically expedient.
  We face one of those times right now. The war against terror has 
challenged our country to fight a nontraditional enemy--one that is not 
part of any State or military. The enemy does not wear a uniform, it 
has no code of ethics, and it relishes in the killing of innocents. It 
strikes in cowardly ways. They have also challenged us as to whether we 
can continue during this period in fighting this enemy to abide by the 
bedrock of our justice system, the Constitution.
  Before us on the floor of the Senate is a bill to address how our 
country will interpret the Geneva Conventions, and how we will treat 
those we apprehend and detain in this nontraditional, asymmetric war.
  I truly believe that how we answer these challenges will not only 
test our commitment to our Constitution, but it will also test our very 
foundation of justice. It sends a message, also, to other countries--a 
message that will ultimately dictate how our soldiers and personnel are 
treated should they be captured by others.
  Earlier this month, a bipartisan group of Senators worked together to 
develop a solution to these complex issues, and the Armed Services 
Committee reported a compromise military commissions bill to the Senate 
by a vote of 15 to 9.
  Unfortunately, that is not the bill that is before this body today. 
Instead, House and Senate Republicans met with the White House and made 
changes that significantly altered the impact of this legislation and 
changed the bill in such a manner that I cannot at present support its 
passage without substantial amendment.
  I do not believe the bill before us is constitutional. It is being 
rushed through a month before a major election in which the leadership 
of this very body is challenged.
  The first of my concerns is the issue of habeas corpus. I very much 
support the amendment offered by the chairman of the Judiciary 
Committee. The bill before us eliminates a basic right of the American 
justice system, and that is the right of habeas corpus review. It is 
constitutionally provided to ensure that innocent people are not held 
captive or held indefinitely.
  Habeas corpus has been a cornerstone of our legal system. It goes 
back, as it has been said, to the days of the Magna Carta. Our Founding 
Fathers enshrined this right in the Constitution because they 
understood mistakes happen and there is need for someone to appeal a 
mistake or a wrong conviction.
  Just a few weeks ago, a man named Abu Bakker-Qassim, who was held at 
Guantanamo, described how he was held for years, even though he had 
never been a terrorist or a soldier. He was never even on a 
battlefield. He had been sold by Pakistani bounty hunters to the United 
States military for $5,000. Qassim said it was only because of the 
availability of habeas corpus that this mistake was able to be 
corrected. That is why Senator Specter's amendment is right.
  If innocent people are at Guantanamo--and they presumably are and 
have been--or if abuses are taking place--and its likely some have--
there must be an avenue to address these problems. Eliminating habeas 
corpus rights is a serious mistake and it will open the door to other 
efforts to remove habeas corpus.
  Next, I am very concerned about the ability to use coerced testimony. 
This will be the first time in modern history that United States 
military tribunals will be free to admit evidence that was obtained 
through abusive tactics so long as the judge determines it is reliable 
and relevant or so long as it was obtained before December 30, 2005.
  We have heard from countless witnesses that coerced testimony is 
inherently unreliable. We don't want to send the message that coercion 
is an acceptable tactic to use on Americans as well.
  The fact is we had testimony in the Judiciary Committee from the head 
of all of the Judge Advocate Corps who said they did not believe 
torture worked.
  I am very concerned about the definition of torture and the lack of 
clarity on cruel and inhumane treatment--especially combined with 
giving the President discretion to decide what he believes 
interrogation methods are permissible.
  We have already seen through press reports that this administration 
pushes the boundaries on allowable interrogation techniques and these 
abuses cannot continue.
  Finally, I am concerned about the rules for what evidence may be used 
to convict someone and then their limited ability to have a court 
review their case.
  If one is not allowed to know what the basis of conviction was and 
then is only given limited judicial review of their conviction, how can 
we be confident that we are not holding innocent people who were caught 
in the wrong place at the wrong time--such an outcome severely harms 
our standing in the global community.
  I believe these issues are too important for us to rush through a 
bill of this magnitude.
  These are difficult times and difficult issues. However, I do not 
believe the expediency of the moment or the political winds of an 
impending election should lead us to abandon our core values as a 
Nation.
  The Founding Fathers created specific constitutional limitations. And 
since that time the United States has been at the forefront of 
demanding humane treatment of all people. We must not turn our back on 
these fundamental principles.
  I am disappointed to be voting against this bill. I had hoped a real 
bipartisan compromise could be reached.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished 
Senator from Oregon.
  The PRESIDING OFFICER. The distinguished Senator is recognized for 10 
minutes.
  Mr. SMITH. Mr. President, this is a most difficult issue we are 
engaged in. We are arguing about what I believe is a cornerstone 
principle of the rule of law, and that is the issue of habeas corpus.
  I know this is an unusual war, and I don't know its duration. No one 
fully does. But I do know if we are going to be true to our 
Constitution and to the rule of law, we have to be true to that law.
  I have traveled as a Senator all over this globe and have spoken with 
great pride about our rule of law and the superiority of democracy to 
other means of government. While I support this bill in providing due 
process for these detainees, I rise because I am concerned about the 
provisions relating to habeas corpus.
  I am reminded of the words of Thomas Jefferson who once said:

       The habeas corpus secures every man here, alien or citizen, 
     against everything which is not law, whatever shape it may 
     assume.

  On another occasion he said:

       I would rather be exposed to the inconveniences attending 
     too much liberty than to those attending too small a degree 
     of it.

  What we are talking about is section 7 of this bill, which will 
further strip the Federal courts of jurisdiction to hear pending Gitmo 
cases as it applies to all pending and future cases. Had this proposal 
been law earlier this year, the Supreme Court may not have had 
jurisdiction to hear the Hamdan case, which is what brings us here 
today.
  At the heart of the habeas issue is whether the President should have 
the sole authority to indefinitely detain unlawful enemy combatants 
without any judicial restraints. Congress will provide the President 
with this unilateral authority by enacting legal restrictions aimed at 
stripping courts of jurisdiction to hear habeas claims. In doing so, 
the President does not have to show any cause for detaining an 
individual labeled an ``unlawful enemy combatant.''
  Stripped of jurisdiction by recent legislation, U.S. courts will not 
have the ability to hear an individual's request to learn why he is 
even being detained. Providing detainees with the

[[Page 20279]]

right to ask a court to evaluate the legality of their detention I 
believe would not cost U.S. lives. However, it will test American laws.
  Claims have been made that providing detainees the right to hear why 
they are being detained necessitates providing them with classified 
information. I do not believe this to be true. Similar to the military 
commission legislation, it would only allow a judge or an attorney with 
security clearance to see the evidence against the defendant to 
evaluate its reliability and probative value.
  Permanent detention of foreigners without reason damages our moral 
integrity regarding international rule of law issues. To quote: 
``History shows that in the wrong hands, the power to jail people 
without showing cause is a tool of despotism.'' A responsibility this 
Nation has always assumed is to ensure that no one is held prisoner 
unjustly.
  Stripping courts of their authority to hear habeas claims is a 
frontal attack on our judiciary and its institutions, as well as our 
civil rights laws. Habeas corpus is a cornerstone of our constitutional 
order, and a suspension of that right, whether for U.S. citizens or 
foreigners under U.S. control, ought to trouble us all. It certainly 
gives me pause.
  The right to judicial appeal is enshrined in our Constitution. It is 
part and parcel of the rule of law. The Supreme Court has described the 
writ of habeas corpus as ``the fundamental instrument for safeguarding 
individual freedom against arbitrary and lawless State action.''
  Some of the darkest hours in our Nation's history have resulted from 
the suspension of habeas corpus, notably the internment of Japanese 
Americans during World War II.
  Obviously, I am not here to question the wisdom of Abraham Lincoln. 
We have had no wiser President. But one of the most controversial 
decisions of his administration was the suspension of habeas corpus for 
all military-related cases, ignoring the ruling of a U.S. circuit court 
against this order. He, in fact, I believe, if my memory of history 
serves me, imprisoned the entire Maryland Legislature because of their 
attempts to secede from the Union. He did it. It happened. It is not 
necessarily the proudest moment of his administration. But it is 
something that has been raging with controversy ever since.
  Habeas petitions are not clogging the courts and are not frivolous. 
The administration claims that the approximately 200 pending habeas 
claims are clogging our courts and are for the most part frivolous. 
These petitions are not an undue administrative burden. Judges always 
have the discretion to dismiss frivolous claims, and indefinite 
detainment of a foreigner without showing cause, Mr. President, is not 
frivolous.
  I suppose what brings me to the floor today is my memory of my study 
of the law. While I was in law school, I was particularly taken with 
the study of the Nuremberg trials. The words of Justice Robert H. 
Jackson inspired me then and inspire me still. He was our chief counsel 
for the allied powers. What he said on that occasion in his closing 
address to the international military tribunal is an inspiration. Said 
he:

       That four great nations, flushed with victory and stung 
     with injury stay the hand of vengeance and voluntarily submit 
     their captive enemies to the judgment of the law is one of 
     the most significant tributes that Power has ever paid to 
     Reason.

  On the fairness of the Nuremberg proceedings, he said in his closing 
statement:

       Of one thing we may be sure. The future will never have to 
     ask with misgiving, what could the Nazis have said in their 
     favor. History will know that whatever could be said, they 
     were allowed to say. They have been given the kind of a Trial 
     which they, in the days of their pomp and power, never gave 
     to any man. But fairness is not weakness. The extraordinary 
     fairness of these hearings is an attribute to our strength.

  I simply feel this particular provision in this bill ought to be 
taken out. We ought not to suspend the writ of habeas corpus. We should 
go the extra mile, not as a sign of weakness, but as evidence of our 
strength.
  I intend to vote for the underlying bill and ultimately will leave 
the judgment of its constitutionality without habeas to the judgment of 
the judiciary, but I believe we are called upon to go the extra mile to 
show our strength and not our weakness, and ultimately our Nation will 
be stronger if we stand by the rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the distinguished Senator from 
Oregon for those very cogent remarks, especially in the context of 
additional Republican support, stated bluntly, and in light of more 
moderate Republican support.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, the Democratic leader has yielded 2 minutes 
of his leadership time to me. I ask unanimous consent that I be allowed 
to proceed on that basis.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I support the Specter-Leahy amendment on 
the writ of habeas corpus. The habeas corpus language in this bill is 
as legally abusive of the rights guaranteed in the U.S. Constitution as 
the actions at Abu Ghraib, Guantanamo, and the CIA's secret prisons 
were physically abusive of the detainees themselves.
  The Supreme Court has long held that all persons inside the United 
States, including lawful permanent residents and other aliens, have a 
constitutional right to the writ of habeas corpus. Yet, this provision 
purports to apply even to aliens who are detained inside the United 
States, including lawful permanent residents.
  Unlike the provision that was included in the Detainee Treatment Act 
last year, this court-stripping provision would apply on a world-wide 
basis, not just at Guantanamo. It would apply to detainees of all 
Federal agencies, not just the Department of Defense. It would attempt 
to expressly strip the courts of jurisdiction over all pending cases.
  This provision goes beyond stripping the courts of habeas corpus 
jurisdiction. It also prohibits the U.S. courts from hearing or 
considering ``any other action against the United States or its agents 
relating to any aspect of the detention, treatment, or trial'' of an 
alien detainee. As a result, this provision would leave many detainees 
without any alternative legal remedy at all, even after released, even 
if there is every reason to believe that the detention was in error, 
and even if the detainee was tortured or abused while in U.S. custody.
  For example, the Canadian Government recently concluded, after a 
comprehensive review, that one of its citizens had been handed over by 
U.S. authorities to a foreign country which subjected him to torture 
and cruel and inhuman treatment, without any evidence that he was an 
enemy combatant or that he supported any terrorist group. Under this 
habeas corpus court-stripping provision, this individual would have no 
legal remedy in the U.S. courts even after he was finally released from 
illegal detention, unless the United States acknowledges that it made a 
mistake when it determined that he was an enemy combatant.
  The fundamental premise of last year's Detainee Treatment Act, DTA, 
was that we could restrict future habeas corpus suits, because we were 
providing an alternative course of access to the courts.
  The language in the bill before us would deprive many detainees of 
the right to file a writ of habeas corpus without providing any 
alternative form of relief. For example: The provision applies on a 
worldwide basis, not just at Guantanamo. DOD detainees outside 
Guantanamo do not have access to Combatant Status Review Tribunals--
CSRTs--so they can't get to court to review CSRTs. Because this bill 
would deprive them of the writ of habeas corpus or any other legal 
remedy, they would have no access to the courts at all.
  The provision applies to detainees of all Federal agencies, not just 
DOD. Detainees of other Federal agencies do

[[Page 20280]]

not get CSRTs, so they can't get to court to review CSRTs. Because this 
bill would deprive them of the writ of habeas corpus or any other legal 
remedy, they would have no access to the courts at all.
  The provision even applies to lawful resident aliens who are detained 
and held inside the United States. Because this bill would deprive them 
of the writ of habeas corpus or any other legal remedy, they would have 
no access to the courts at all.
  Even in cases where DOD regulations provide detainees a right to 
Combatant Status Review Tribunals--CSRTs--such tribunals may not be an 
adequate substitute for judicial review under a writ of habeas corpus. 
CSRTs are permitted to use coerced testimony, hearsay evidence, and 
evidence that is never disclosed to the accused. Detainees before those 
status review tribunals are denied access to witnesses and documents 
needed to rebut allegations made by the government. Courts reviewing 
CSRT determinations are not authorized to make an independent 
determination whether there is a lawful basis for the detention.
  The court stripping provision in the bill does more than just 
eliminate habeas corpus rights for detainees. It also prohibits the 
U.S. courts from hearing or considering ``any other action against the 
United States or its agents relating to any aspect of the detention, 
treatment, or trial'' of an alien detainee.
  A separate provision in the bill adds that no person--whether 
properly held as an alien detainee or not--may invoke the Geneva 
Conventions as a source of rights in any court of the United States. 
Other provisions establish new defenses for individuals who may be 
accused of violating standards for the treatment of detainees under 
U.S. and international law.
  Taken together, these provisions do not just deprive detainees of the 
ability to challenge the basis on which they have been detained--they 
are an effort to insulate the United States from any judicial review of 
our treatment detainees, an effort to ensure that there will be no 
accountability for actions that violate the laws and the standards of 
the United States.
  Last year, this Congress took an important stand for the rule of law 
by enacting the Detainee Treatment Act, which prohibits the cruel, 
inhuman or degrading treatment of detainees in the custody of any U.S. 
agency anywhere in the world. That landmark provision is at risk of 
being rendered meaningless, if we establish rules ensuring that it can 
never be enforced.
  Earlier this month, we received a letter from three retired Judge 
Advocates General, who urged us not to strip the courts of habeas 
corpus jurisdiction. That letter, signed by Admiral Hutson, Admiral 
Guter, and General Brahms, stated:

       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.

  We have received similar letters from nine distinguished retired 
Federal judges, from hundreds of law professors from around the United 
States, and from many others.
  If we don't strike this court-stripping language in the bill before 
us, if instead of Congress being a check on excessive executive power, 
Congress attempts to write a blank check to the executive branch, our 
expectation is that the courts will find this provision to be a 
legislative excess and strike it down as unconstitutional. We have a 
chance to do the right thing and not just to rely on the courts. This 
body is the body of last resort legislatively when it comes to 
protecting that great writ of habeas corpus which is in the 
Constitution. I hope we live up to that responsibility today.
  Mr. BYRD. Mr. President, the military commissions bill before us 
would strip from the U.S. Constitution of one of its most precious 
protections: the writ of habeas corpus. The Great Writ. The bill would 
deny those who are detained indefinitely--even those who may be 
innocent--the opportunity to challenge their detention in court.
  Habeas corpus is a procedure whereby a Federal court may review 
whether an individual is being improperly detained. The concept of 
habeas corpus is deeply rooted in the English common law and was 
specifically referenced in the Magna Carta of 1215, which stated:

       No Freeman shall be taken, or imprisoned, or be disseised 
     of his Freehold, or Liberties, or free Customs, or be 
     outlawed, or exiled, or any otherwise destroyed; nor will we 
     pass upon him, nor condemn him, but by lawful Judgment of his 
     Peers, or by the Law of the Land.

  The legal procedure for issuing writs of habeas corpus was codified 
by the English Parliament in response to concerns by the British people 
that no monarch should be permitted to hold innocent people against 
their will without due process of law.
  It is precisely because the Founders of the United States feared 
elimination of the writ that, when they enumerated the powers of the 
Congress in the very first article of the U.S. Constitution, they 
included specific reference to the writ of habeas corpus and sought to 
protect it. The language they included in article I, section 9, clause 
2 of the Constitution, also known as the ``Suspension Clause,'' reads 
as follows. It 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.

  I wonder whether those who drafted the provision in this bill to 
eliminate habeas corpus have read this clause of the Constitution. 
Inconceivably, the U.S. Senate is being asked to abolish a fundamental 
right that has been central to democratic societies, including our own, 
for centuries. The outrageous provision we debate today could imprison 
indefinitely, without access to the courts, not just suspects picked up 
overseas but even those taken into custody on U.S. soil.
  Some persons detained at Guantanamo may be terrorists guilty of 
plotting against the people and the Government of these United States. 
Of course terrorists must be properly detained and prosecuted for their 
evil deeds. But some detainees may be innocent. Some may be persons 
simply swept up because they were in the wrong place at the wrong time. 
How can we know which truly deserve to be held and tried as enemy 
combatants if we abolish the legal right of the incarcerated to fairly 
challenge their detention in court?
  The provision in the bill before us deprives Federal courts of 
jurisdiction over matters of law that are clearly entrusted to them by 
the Constitution of the United States. The Constitution is clear on 
this point: The only two instances in which habeas corpus may be 
suspended are in the case of a rebellion or an invasion. We are not in 
the midst of a rebellion, and there is no invasion. It is notable that 
those who drafted the Constitution deliberately used the word 
``suspended.'' They did not say that habeas corpus could be forever 
denied, abolished, revoked, or eliminated. They said that, in only two 
instances, it could be ``suspended,'' meaning temporarily. Not forever. 
Not like in this bill.
  How can we, the U.S. Senate, in this bill abolish habeas corpus by 
approving a provision that so clearly contravenes the text of the 
Constitution? Where is our respect for the checks and balances that 
were built into our system by the Framers? They included an explicit 
prohibition against blanket suspension of the writ of habeas corpus 
precisely to protect innocent persons from being subject to arbitrary 
and unfair action by the state.
  This flagrant attempt to deny a fundamental right protected by the 
Constitution reveals how White House and Pentagon advisers continue to 
chip away at the separation of powers. They relentlessly pursue their 
dangerous goal of consolidating power in the hands of the Executive at 
the expense of the Congress, the judiciary, and, sadly, the People. How 
can we even contemplate such an irresponsible and dangerous course as 
this de facto canceling of the writ of habeas corpus.

[[Page 20281]]

  The Constitution of the United States is a time-tested contract 
between our people and their Government, for which thousands of 
American military men and women have died. Why would we seek to violate 
its terms? Aren't we fighting the terrorists precisely to preserve 
individual liberties and the rule of law? If we as a people jettison 
the very democratic ideals that have made our Nation great and we 
become, instead, exactly like those whom we seek to imprison--standing 
for nothing and capable of anything--then what are we fighting for? And 
if we indefinitely and illegally detain innocent parties of other 
nations, with what credibility can we request that they release our 
own?
  Mr. President, I ask my colleagues to join me in support of the 
amendment that has been offered to preserve the writ of habeas corpus.
  Mr. REID. Mr. President, I have received a letter from over 100 law 
professors and other distinguished citizens expressing their opposition 
to the habeas corpus provisions in the military tribunal bill. They 
urge support for the Specter-Leahy amendment to remedy that flaw. I ask 
unanimous consent that the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Dennis Hastert,
     Speaker, House of Representatives, Washington, DC.
     Hon. Harry Reid,
     Democratic Leader, U.S. Senate, Washington, DC.
     Hon. Nancy Pelosi,
     Democratic Leader, House of Representatives, Washington, DC.
       Dear Senator Frist, Senator Reid, Speaker Hastert and Rep. 
     Pelosi: We agree with the views set forth in the undated 
     letter sent this month to Members of Congress from Judge John 
     J. Gibbons, Judge Shirley M. Hufstedler, Judge Nathaniel R. 
     Jones, Judge Timothy K. Lewis, Judge William A. Norris, Judge 
     George C. Pratt, Judge H. Lee Sarokin, Judge William S. 
     Sessions, and Judge Patricia M. Wald.
       These nine distinguished, retired federal judges expressed 
     deep concern about the lawfulness of a provision in the 
     Military Commissions Act of 2006 stripping the courts of 
     jurisdiction to test the lawfulness of Executive detention 
     outside the United States.
       This matter is even more urgent now. The provision would 
     eliminate habeas for all alleged alien enemy combatants, 
     whether lawful or unlawful, even if they are detained in the 
     United States.
       We concur with the request made by the judges that Congress 
     remove the provision stripping habeas jurisdiction from the 
     proposed Military Commissions Act.
       Respectfully, (100 Signatures)

  The PRESIDING OFFICER. Who yields time?
  Mr. GRAHAM. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. On which side?
  Mr. GRAHAM. On the Warner side.
  The PRESIDING OFFICER. Senator Warner has 4 minutes in opposition to 
the Specter amendment.
  Mr. WARNER. Mr. President, I yield that to the Senator from South 
Carolina.
  The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
  Mr. GRAHAM. Mr. President, this has been a very spirited debate and I 
am going to give you a spirited answer to what I am proposing with my 
vote. No. 1, my moral compass is very much intact, and when people 
mention moral compasses and the conscience of the Senate, I am going to 
sleep very good casting my vote. I think I have a decent moral compass 
about what we should be doing to people: What is humane, what is not; 
what is right, what is wrong. I have tried to balance the interests of 
our troops and the interests of our country when it comes to dealing 
with people who find themselves in our capture.
  Why not habeas for noncitizen, enemy combatant terrorists housed at 
Gitmo? No. 1, the whole Congress has agreed prospectively habeas is not 
available; the Detainee Treatment Act will be available. The only 
reason we are here is because of the Hamdan decision. The Hamdan 
decision did not apply to the Detainee Treatment Act retroactively, so 
we have about 200 and some habeas cases left unattended and we are 
going to attend to them now.
  Why do we--I and others--want to take habeas off the table and 
replace it with something else? I don't believe judges should be making 
military decisions in a time of war. There is a reason the Germans and 
the Japanese and every other prisoner held by America have never gone 
to Federal court and asked the judge to determine their status. That is 
not a role the judiciary should be playing. They are not trained to 
make those decisions.
  Under the Geneva Conventions article 5, the combatant tribunal 
requirement is a military decision. So I believe very vehemently that 
the military of our country is better qualified to determine who an 
enemy combatant is over a Federal judge. That is the way it has been, 
that is the way it should be and, with my vote, that is the way it is 
going to be.
  What is the problem? Why am I worried about having Federal judges 
turning every enemy combatant decision into a trial? In 1950 the 
Supreme Court, denying habeas rights to German and Japanese prisoners, 
said:

       Such trials would hamper the war effort and bring aid and 
     comfort to the enemy.

  I agree with that.

       They would diminish the prestige of our commanders not only 
     with enemies, but wavering neutrals.

  I agree with that.

       It would be difficult to devise a more effective fettering 
     of a field commander than to allow the very enemies he has 
     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.

  I agree with that. That is why we shouldn't be doing habeas cases in 
a time of war. Nor is it unlikely that the result of such enemy 
litigiousness would be conflict between judicial and military opinion--
highly comforting to the enemies of the United States.
  These trials impede the war effort. It allows a judge to take what 
has historically been a military function.
  What I am proposing for this body and our country is to allow the 
military to do what they are best at doing: controlling the 
battlefield. Let them define who an enemy combatant is under the Geneva 
Conventions requirements, under the Combatant Status Review Tribunal 
system, which is Geneva Conventions compliant, in my opinion, and let 
the Federal courts come in after they made their decision to see if the 
military applied the correct law, the procedures were followed, and the 
evidence justifies the decision of the military.
  To substitute a judge for the military in a time of war to determine 
something as basic as who our enemy is is not only not necessary under 
our Constitution, it impedes the war effort, it is irresponsible, it 
needs to stop, and it should never have happened. I am confident 
Congress has the ability, if we choose to redefine the rights of an 
enemy combatant, noncitizen--what rights they have in a time of war and 
what has happened.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM. Mr. President, I will ask unanimous consent to have 
printed in the Record, if I may, examples of the habeas petitions filed 
on behalf of detainees against our troops.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Examples of Habeas Petitions Filed of Behalf of Detainees

       1. Canadian detainee who threw a grenade that killed an 
     Army medic in firefight and who comes from family with 
     longstanding al Qaeda ties moves for preliminary injunction 
     forbidding interrogation of him or engaging in ``cruel, 
     inhuman, or degrading'' treatment of him (n.b. this motion 
     was denied by Judge Bates).
       2. ``Al Odah motion for dictionary internet security 
     forms''--Kuwaiti detainees seek court orders that they be 
     provided dictionaries in contravention of GTMO's force 
     protection policy and that their counsel be given high-speed 
     internet access at their lodging on the base and be allowed 
     to use classified DoD telecommunications facilities, all on 
     the theory that otherwise their ``right to counsel'' is 
     unduly burdened.
       3. ``Alladeen--Motion for TRO re transfer''--Egyptian 
     detainee who Combatant Status Review Tribunal adjudicated as 
     no longer an enemy combatant, and who was therefore due to be 
     released by the United States, files motion to block his 
     repatriation to Egypt.

[[Page 20282]]


       4. ``Paracha--Motion for PI re Conditions''--Motion by high 
     level al Qaeda detainee complaining about base security 
     procedures, speed of mail delivery, and medical treatment; 
     seeking an order that he be transferred to the ``least 
     onerous conditions'' at GTMO and asking the court to order 
     that GTMO 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, 
     worship, etc.''
       5. ``Motion for PI re Medical Records''--Motion by detainee 
     accusing military's health professionals of ``gross and 
     intentional medical malpractice'' in alleged violation of the 
     4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and 
     unspecified international agreements.
       6. ``Abdah--Emergency Motion re DVDs''--``emergency'' 
     motion seeking court order requiring GTMO to set aside its 
     normal security policies and show detainees DVDs that are 
     purported to be family videos.
       7. ``Petitioners' Supp. Opposition''--Filing by detainee 
     requesting that, as a condition of a stay of litigation 
     pending related appeals, the Court involve itself in his 
     medical situation and set the stage for them to second-guess 
     the provision of medical care and other conditions of 
     confinement.
       8. ``Al Odah Supplement to PI Motion''--Motion by Kuwaiti 
     detainees unsatisfied with the Koran they are provided as 
     standard issue by GTMO, seeking court order that they be 
     allowed to keep various other supplementary religious 
     materials, such as a ``tafsir'' or 4-volume Koran with 
     commentary, in their cells.

  Mr. SPECTER. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. There is 12 minutes remaining.
  Mr. SPECTER. Mr. President, I think it would be appropriate, if I may 
have Senator Warner's concurrence, to tell our colleagues that this 
will be the end of the time allocated for this amendment and we could 
expect to vote at about 11:45 or 11:50?
  Mr. WARNER. Mr. President, very definitely. As soon as all time on 
this amendment is allocated or yielded back, my intention is to move to 
a vote.
  Mr. SPECTER. I thank my distinguished colleague.
  Mr. President, I fully realize it is unpopular to speak for aliens, 
unpopular to speak on what might be interpreted to be in favor of enemy 
combatants, but that is not what this Senator is doing. What I am 
trying to establish is a course of judicial procedure to determine 
whether they are enemy combatants.
  I submit that the materials produced on this floor and in the 
hearings of the Judiciary Committee show conclusively that the 
Combatant Status Review Tribunals do not have an adequate way of 
determining whether these individuals are enemy combatants. What we are 
doing is defending the jurisdiction of the Federal courts to maintain 
the rule of law. If the Federal courts are not open, if the Federal 
courts do not have jurisdiction to determine constitutionality, then 
how are we to determine what is constitutional?
  My own background is one of a reverence for the law, a reverence for 
the independence of the judiciary, and a reverence for the rule of law 
as interpreted by our Constitution. If it hadn't been for the Federal 
courts, the Supreme Court of the United States, we would not have seen 
the decision in Brown v. Board of Education in 1954. The legislative 
branches were too mired in politics, the executive was too mired in 
politics, and it was only the Supreme Court which could recognize the 
injustice of segregation and it led to that decision.
  Similarly, it was the Federal courts which changed the criminal 
procedure in this country as a matter of basic fairness. Prior to the 
decision of the case of Brown v. Mississippi in 1936, the Federal 
courts did not establish standards for State criminal courts. It was 
determined as a matter of States rights that States could establish 
their own determinations. But in that case, the evidence was 
overwhelming about a brutal, coerced confession and, for the first 
time, the Supreme Court of the United States stepped in and said: 
States may not take an individual, take him across State lines, have a 
feigned hanging, extract a confession, and use that to convict him. 
That was done by the Federal courts.
  I had the occasion when I was in the Philadelphia district attorney's 
office to witness firsthand on a daily basis a revolution in 
constitutional criminal procedure. I was litigating the issues in the 
criminal courts when Mapp v. Ohio came down, imposing the rule of 
exclusion of evidence in State courts if obtained in violation of the 
fourth amendment and, when Escobedo came down, limiting admissions and 
confessions if not in conformity with rules. Then Miranda v. Ohio came 
down. I found those decisions as a prosecutor very limiting and 
impeding. But the course of time has demonstrated that those decisions 
have improved the quality of justice in America. Chief Justice 
Rehnquist, a recognized conservative, sought to eliminate or limit 
Miranda when he came to the Supreme Court of the United States. Later 
in his career, he said in Miranda that the protections of those 
warnings were appropriate and were helpful in our society.
  There are four fundamental, undeniable principles and facts involved 
in the issue we are debating today. The first undeniable principle is 
that a statute cannot overrule a Supreme Court decision on 
constitutional grounds, and a statute cannot contradict an explicit 
constitutional provision. That is point No. 1.
  Point No. 2, the Constitution is explicit in the statement that 
habeas corpus may be suspended only with rebellion or invasion.
  Fact No. 3, uncontested. We do not have a rebellion or an invasion.
  Fact and principle No. 4, the Supreme Court says that aliens are 
covered by habeas corpus.
  We have already had considerable exposition of the opinion by Justice 
O'Connor that the constitutional right of habeas corpus applies to 
individuals, which means citizens and aliens. The case of Rasul v. 
Bush, which explicitly involved an alien, says this in the opinion of 
Justice Stevens speaking for the Court:

       Habeas corpus received explicit recognition in the 
     Constitution, which forbids the suspension of--

Then Justice Stevens cites the constitutional provision.
  The privilege of the writ of habeas corpus cannot be suspended unless 
in the cases of rebellion or invasion, and neither is present here. So 
you have the express holding of the Supreme Court in Rasul v. Bush that 
habeas corpus applies to aliens.
  Justice Stevens went on to say that:

       Executive imprisonment has been considered oppressive and 
     lawless since John, at Runnymede.

  What this bill would do in striking habeas corpus would take our 
civilized society back some 900 years to King John at Runnymede which 
led to the adoption of the Magna Charta in 1215, which is the 
antecedent for habeas corpus and was the basis for including in the 
Constitution of the United States the principle that habeas corpus may 
not be suspended.
  I believe it is unthinkable, out of the question, to enact Federal 
legislation today which denies the habeas corpus right which would take 
us back some 900 years and deny the fundamental principle of the Magna 
Charta imposed on King John at Runnymede.
  Mr. President, how much time do I have?
  The PRESIDING OFFICER. There is 3\1/2\ minutes remaining.
  Mr. SPECTER. Mr. President, the argument has been made that there is 
an alternative procedure which passes constitutional muster. But the 
provisions of the statute which set up the Combatant Status Review 
Tribunal are conclusively insufficient on their face. The statute 
provides that the Combatant Status Review Tribunal may be reviewed by 
the Court of Appeals for the District of Columbia only to the extent 
that the ruling was consistent with the standards and procedures 
specified by the Secretary of Defense.
  Now, to comply with the standards of procedures determined by the 
Secretary of Defense does not mean exclude on its face a factual 
determination as to what happens to the detainees.
  When the Senator from South Carolina argues that judges should not 
make military decisions, I agree with him totally. But the converse of 
that is that judges should make judicial decisions, to decide whether 
due process is

[[Page 20283]]

decided. The converse, that judges should not make military decisions, 
is the principle that the Secretary of Defense ought not to decide what 
the constitutional standards are. The Secretary of Defense should not 
decide what the constitutional standards are. That is up to the Supreme 
Court of the United States, and the Supreme Court of the United States 
has decided that aliens are entitled to the explicit constitutional 
protection of habeas corpus.
  The argument is made that the Swain case allows for alternative 
procedures. The Swain case involved a District of Columbia habeas 
corpus proceeding which was virtually identical with habeas corpus 
provided under Federal statute 2241, so of course it was satisfactory.
  A number of straw men have been set up: One, that we could not apply 
these principles to the 18,000 detainees in Iraq--nobody seeks to do 
that; the straw man that we should not give search and seizure 
protections of the fourth amendment--no one seeks to do that; or the 
fifth amendment protection against the privilege of self-incrimination.
  In essence and in conclusion, what this entire controversy boils down 
to is whether Congress is going to legislate to deny a constitutional 
right which is explicit in the document of the Constitution itself and 
which has been applied to aliens by the Supreme Court of the United 
States.
  The distinguished chairman of the Armed Services Committee has said 
that he does not want to have this matter come back to Congress. But 
surely as we are standing here, if this bill is passed and habeas 
corpus is stricken, we will be on this floor again rewriting the law.
  The PRESIDING OFFICER. The time of the Senator has expired. All time 
has expired.
  Is there further debate on the amendment?
  Mr. WARNER. Mr. President, may I inquire, the distinguished Senator 
from Michigan seeks a little additional time on leader time, is that 
correct?
  Mr. LEVIN. I have already accomplished that. I thank my friend.
  Mr. WARNER. At this time I would like to yield to the Senator from 
South Carolina 3 minutes off of the time under my control on the bill.
  The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
  Mr. GRAHAM. What I am trying to stress to the body is that this is a 
war we are fighting, not crime, and habeas corpus rights have not been 
given to any other prisoners under U.S. control in the past, for very 
good reason. It impedes the war effort.
  Let me give you a flavor of what is coming out of Guantanamo Bay. 
This is what is happening to the troops defending America by the people 
who are incarcerated, determined by our military to be an enemy 
combatant. 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 or engaging in cruel, inhuman or degrading treatment. In other 
words, he was going to ask the judge to take over running the jail and 
his interrogation.
  A Kuwaiti detainee sought a court order that would provide 
dictionaries in contravention of Gitmo force protection policy and that 
their counsel have high-speed Internet access.
  Another one applied for a motion that would allow them to change the 
base security procedures to allow speedy mail delivery medical 
treatment. He sought an order transferring him to the least onerous 
condition at Gitmo. He asked the court to allow him to keep any books 
and reading materials sent to him and report to the court over his 
opportunities for exercise, communication, recreation and worship.
  We are not going to turn this war over to a series of court cases, 
where our troops are having to account for a bunch of junk by people 
trying to kill Americans. They will have their day in court, but they 
are not going to turn this whole war into a mockery with my vote.
  I yield back.
  Mr. WARNER. Mr. President, I believe there is no time remaining?
  The PRESIDING OFFICER. There is no time remaining.
  Mr. WARNER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Maine (Ms. Snowe).
  The PRESIDING OFFICER (Mr. Graham). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 48, nays 51, as follows:

                      [Rollcall Vote No. 255 Leg.]

                                YEAS--48

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

                                NAYS--51

     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
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Stevens
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

      
     Snowe
       
  The amendment (No. 5087) was rejected.
  Mr. WARNER. I move to reconsider the vote.
  Mr. BOND. 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 of the bill have been 
notified there are still three amendments remaining, one by Senator 
Rockefeller, one by Senator Kennedy, one from Senator Byrd. If I 
understand from my distinguished ranking member, we will proceed to the 
amendment of Senator Rockefeller.
  Mr. ROCKEFELLER. I have yielded 5 minutes to the Senator from 
Massachusetts, if that is okay, on a separate matter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, the ranking member is about to advise the 
Senator with regard to which amendment might be forthcoming.
  Mr. LEVIN. If Senator Rockefeller is ready, I understand there is a 
time agreement of 1 hour equally divided.
  The PRESIDING OFFICER. That is correct.
  Five minutes of the time of the Senator from West Virginia has been 
previously allocated to the Senator from Massachusetts, Mr. Kerry.
  Mr. KERRY. If I could correct that, my time is not supposed to come 
from the Senator from West Virginia. I believe I have time already 
allocated, so it would be separate.
  Mr. ROCKEFELLER. If the situation is it is deducted from this 
Senator's time, I would object.
  The PRESIDING OFFICER. It is the understanding of the Chair that the 
Senator from Massachusetts, the unanimous consent was obtained at 10 
o'clock with 5 minutes coming from the time of the Senator from West 
Virginia.
  Mr. LEVIN. Mr. President, that unanimous consent request was 
apparently agreed to and is in place right now?
  The PRESIDING OFFICER. That is correct.
  The Senator from West Virginia.

[[Page 20284]]




                           Amendment No. 5095

  Mr. ROCKEFELLER. Mr. President, I send an amendment to the desk on 
behalf of myself, and Senators Clinton, Wyden, Mikulski and Feingold.
  The PRESIDING OFFICER. The clerk will report.

       The Senator from West Virginia, [Mr. Rockefeller], for 
     himself, Mrs. Clinton, Mr. Wyden, Ms. Mikulski, and Mr. 
     Feingold, proposes an amendment numbered 5095.

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To provide for congressional oversight of certain Central 
                     Intelligence Agency programs)

       At the end, add the following:

     SEC. 11. OVERSIGHT OF CENTRAL INTELLIGENCE AGENCY PROGRAMS.

       (a) Director of Central Intelligence Agency Reports on 
     Detention and Interrogation Program.--
       (1) Quarterly reports required.--Not later than three 
     months after the date of the enactment of this Act, and every 
     three months thereafter, the Director of the Central 
     Intelligence Agency shall submit to the congressional 
     intelligence committees a report on the detention and 
     interrogation program of the Central Intelligence Agency 
     during the preceding three months.
       (2) Elements.--In addition to any other matter necessary to 
     keep the congressional intelligence committees fully and 
     currently informed about the detention and interrogation 
     program of the Central Intelligence Agency, each report under 
     paragraph (1) shall include (but not be limited to), for the 
     period covered by such report, the following:
       (A) A description of any detention facility operated or 
     used by the Central Intelligence Agency.
       (B) A description of the detainee population, including--
       (i) the name of each detainee;
       (ii) where each detainee was apprehended;
       (iii) the suspected activities on the basis of which each 
     detainee is being held; and
       (iv) where each detainee is being held.
       (C) A description of each interrogation technique 
     authorized for use and guidelines on the use of each such 
     technique.
       (D) A description of each legal opinion of the Department 
     of Justice and the General Counsel of the Central 
     Intelligence Agency that is applicable to the detention and 
     interrogation program.
       (E) The actual use of interrogation techniques.
       (F) A description of the intelligence obtained as a result 
     of the interrogation techniques utilized.
       (G) Any violation of law or abuse under the detention and 
     interrogation program by Central Intelligence Agency 
     personnel, other United States Government personnel or 
     contractors, or anyone else associated with the program.
       (H) An assessment of the effectiveness of the detention and 
     interrogation program.
       (I) An appendix containing all guidelines and legal 
     opinions applicable to the detention and interrogation 
     program, if not included in a previous report under this 
     subsection.
       (b) Director of Central Intelligence Agency Reports on 
     Disposition of Detainees.--
       (1) Quarterly reports required.--Not later than three 
     months after the date of the enactment of this Act, and every 
     three months thereafter, the Director of the Central 
     Intelligence Agency shall submit to the congressional 
     intelligence committees a report on the detainees who, during 
     the preceding three months, were transferred out of the 
     detention program of the Central Intelligence Agency.
       (2) Elements.--In addition to any other matter necessary to 
     keep the congressional intelligence committees fully and 
     currently informed about transfers out of the detention 
     program of the Central Intelligence Agency, each report under 
     paragraph (1) shall include (but not be limited to), for the 
     period covered by such report, the following:
       (A) For each detainee who was transferred to the custody of 
     the Department of Defense for prosecution before a military 
     commission, the name of the detainee and a description of the 
     activities that may be the subject of the prosecution.
       (B) For each detainee who was transferred to the custody of 
     the Department of Defense for any other purpose, the name of 
     the detainee and the purpose of the transfer.
       (C) For each detainee who was transferred to the custody of 
     the Attorney General for prosecution in a United States 
     district court, the name of the detainee and a description of 
     the activities that may be the subject of the prosecution.
       (D) For each detainee who was rendered or otherwise 
     transferred to the custody of another nation--
       (i) the name of the detainee and a description of the 
     suspected terrorist activities of the detainee;
       (ii) the rendition process, including the locations and 
     custody from, through, and to which the detainee was 
     rendered; and
       (iii) the knowledge, participation, and approval of foreign 
     governments in the rendition process.
       (E) For each detainee who was rendered or otherwise 
     transferred to the custody of another nation during or before 
     the preceding three months--
       (i) the knowledge of the United States Government, if any, 
     concerning the subsequent treatment of the detainee and the 
     efforts made by the United States Government to obtain that 
     information;
       (ii) the requests made by United States intelligence 
     agencies to foreign governments for information to be 
     obtained from the detainee;
       (iii) the information provided to United States 
     intelligence agencies by foreign governments relating to the 
     interrogation of the detainee;
       (iv) the current status of the detainee;
       (v) the status of any parliamentary, judicial, or other 
     investigation about the rendition or other transfer; and
       (vi) any other information about potential risks to United 
     States interests resulting from the rendition or other 
     transfer.
       (c) CIA Inspector General and General Counsel Reports.--
       (1) Annual reports required.--Not later than one year after 
     the date of the enactment of this Act, and annually 
     thereafter, the Inspector General of the Central Intelligence 
     Agency and the General Counsel of the Central Intelligence 
     Agency shall each submit to the congressional intelligence 
     committees a report on the detention, interrogation and 
     rendition programs of the Central Intelligence Agency during 
     the preceding year.
       (2) Elements.--Each report under paragraph (1) shall 
     include, for the period covered by such report, the 
     following:
       (A) An assessment of the adherence of the Central 
     Intelligence Agency to any applicable law in the conduct of 
     the detention, interrogation, and rendition programs of the 
     Central Intelligence Agency.
       (B) Any violations of law or other abuse on the part of 
     personnel of the Central Intelligence Agency, other United 
     States Government personnel or contractors, or anyone else 
     associated with the detention, interrogation, and rendition 
     programs of the Central Intelligence Agency in the conduct of 
     such programs.
       (C) An assessment of the effectiveness of the detention, 
     interrogation, and rendition programs of the Central 
     Intelligence Agency.
       (D) Any recommendations to ensure that the detention, 
     interrogation, and rendition programs of the Central 
     Intelligence Agency are conducted in a lawful and effective 
     manner.
       (3) Construction of reporting requirement.--Nothing in this 
     subsection shall be construed to modify the authority and 
     reporting obligations of the Inspector General of the Central 
     Intelligence Agency under section 17 of the Central 
     Intelligence Agency Act of 1949 (50 U.S.C. 403q) or any other 
     law.
       (d) Certification of Compliance.--Not later than three 
     months after the date of the enactment of this Act, and 
     promptly upon any subsequent approval of interrogation 
     techniques for use by the Central Intelligence Agency, the 
     Attorney General shall submit to the congressional 
     intelligence committees--
       (1) an unclassified certification whether or not each 
     approved interrogation technique complies with the 
     Constitution of the United States and all applicable 
     treaties, statutes, Executive orders, and regulations; and
       (2) an explanation of why each approved technique complies 
     with the Constitution of the United States and all applicable 
     treaties, statutes, Executive orders, and regulations.
       (e) Form of Reports.--Except as provided in subsection 
     (d)(1), each report under this section shall be submitted in 
     classified form.
       (f) Availability of Reports.--Each report under this 
     section shall be fully accessible by each member of the 
     congressional intelligence committees.
       (g) Definitions.--In this section:
       (1) Congressional intelligence committees.--The term 
     ``congressional intelligence committees'' means--
       (A) the Select Committee on Intelligence of the Senate; and
       (B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       (2) Law.--The term ``law'' includes the Constitution of the 
     United States and any applicable treaty, statute, Executive 
     order, or regulation.

  Mr. ROCKEFELLER. Mr. President, for 4 years the Central Intelligence 
Agency's program was kept from the full membership of the Senate and 
House Intelligence Committees.
  For 4 years the CIA imprisoned and interrogated suspected terrorists 
at secret black sites under a policy that prevented Congress from not 
only knowing about the program but from acting on it and regulating it.
  For 4 years, the White House refused to brief Intelligence Committee 
members about the program's legal business and operations, as is 
required by law.

[[Page 20285]]

  For 4 years, the members of the Senate and the House Intelligence 
Committees, whose duty it is to authorize the funding of every CIA 
program, were kept in the dark by an administration which ignored the 
legal requirement to keep the Congress fully and currently informed on 
all intelligence activities.
  The amendment I have offered reverses the executive branch's 4-year 
policy of indifference toward Congress.
  My amendment corrects a serious omission in the pending bill: the 
need for Congress to reassert its fundamental right to understand the 
intelligence activities it authorizes and funds.
  My amendment would subject the CIA's detention and interrogation to 
meaningful congressional oversight for the first time in 4 years by 
requiring a series of reviews and reports that will enable the Congress 
to evaluate the program's scope and legality, as well as its 
effectiveness.
  The amendment establishes this absent congressional oversight in four 
ways. First, my amendment requires the Director of the CIA to provide a 
quarterly report to all members of the Intelligence Committees in both 
the House and the Senate detailing the detention facilities, how they 
are operated, and how they are used by the CIA.
  It requires that the detainees held at these facilities be listed by 
name as well as the basis for their detention and the description of 
interrogation techniques used on them and the accompanying legal 
rationale.
  This quarterly report also requires the recording of any violation or 
abuse under the CIA program as well as an assessment of the 
effectiveness of the detention and interrogation program.
  This issue of the effectiveness of interrogation techniques is 
incredibly important and often overlooked as an aspect of the debate 
over the CIA program. Interrogations that coerce information can 
produce bad intelligence--not necessarily, but they can produce 
misleading intelligence--fabricated intelligence to get out of the 
treatment, information that can harm, not help, our efforts to locate 
and capture terrorists.
  Second, my amendment would require the Director of the CIA to provide 
a quarterly report to all members of the Intelligence Committees on the 
disposition of each detainee transferred out of the CIA prisons, 
whether the detainee was transferred to the Department of Defense for 
prosecution before a military commissioner for further detention, 
whether the detainee was transferred to the custody of the Attorney 
General to stand trial in civilian court, or whether the detainee was 
rendered or otherwise transferred to the custody of another nation.
  There needs to be a comprehensive and accurate accounting of 
detainees held by the CIA. Congress has a responsibility to know who is 
held by the CIA, why they are held and for how long they are held.
  The CIA detention and interrogation program cannot function as a 
black hole into which people disappear for years on end.
  We have been told by CIA leaders that the agency does not want to 
be--they say this constantly to us--they do not want to be the prison 
warden for the United States Government. The goal of the CIA program 
should be to obtain, through lawful means, intelligence information 
that can identify other terror suspects to prevent further terrorist 
attacks and then to bring to justice those who we believe to be 
criminals. This is the so-called endgame that everyone talks about.
  If the CIA detention program is allowed to function as some sort of 
prisoner purgatory, we have then failed.
  Also of concern to me is the lack of existing oversight in how the 
United States transports or renders detainees to other countries for 
imprisonment and interrogation.
  The limited information the administration has shared with the Senate 
Intelligence Committee on the CIA's rendition program does not by any 
means assure, at least this Senator, that the intelligence community 
has a program in place, so to speak, to assert what happens to these 
individuals when they are transferred to foreign custody, such as how 
they are treated, how they are interrogated, whether they divulge 
intelligence information of value, and whether this information is then 
provided to the CIA.
  The CIA's rendition program deserves far greater scrutiny and 
congressional oversight than it has been given to date.
  The third way in which this amendment establishes a meaningful 
oversight of the CIA detention and interrogation program is to require 
the CIA Inspector General and the CIA general counsel each separately 
review the program on an annual basis to report their findings to the 
Intelligence Committees. These independent Agency reviews would assess 
the CIA's compliance with any applicable law or regulation and the 
conduct of detention, interrogation and rendition activities as well as 
to report to Congress any violations of law or other abuse on the part 
of personnel involved in the program.
  The annual reviews of the Inspector General and the general counsel 
also would evaluate the effectiveness of the detention and 
interrogation program; effectiveness at obtaining valuable and reliable 
intelligence.
  Finally, my amendment requires the Attorney General to submit to 
Congress an unclassified certification whether or not each 
interrogation technique approved for use by the CIA complies with the 
United States Constitution and all applicable treaties, statutes and 
regulations. I believe this is a very important certification.
  All Americans, not just the Congress, need an ironclad assurance from 
our Nation's top enforcement officer that the CIA program and the 
interrogation techniques it employs are lawful in all respects. The CIA 
officers in the field, I might say, above all, need this assurance.
  I do not believe there is anything particularly controversial about 
this amendment, and I hope that Democrats and Republicans alike can 
embrace the need for restoring respect for the oversight role of the 
Intelligence Committees of the Congress over intelligence.
  Only through reports that will be provided under this amendment will 
the Congress have the information it lawfully deserves to understand 
the CIA's detention and interrogation program and determine whether the 
program is producing the unique intelligence mission that justifies its 
continued operation.
  Only when the President works with the Congress are we able to craft 
intelligence programs that are legally sound and operationally 
effective. Only when the President works with the Congress can America 
stand strong in its fight against terrorism.
  Intelligence gathering through interrogation is one of the most 
important tools we have in the war on terrorism. My amendment would 
provide the congressional oversight necessary to assure that our 
intelligence officers in the field have clear guidelines for effective 
and legal interrogation.
  Before yielding the floor, I will address two other matters very 
briefly.
  Those who have taken the time to read through the bill we are 
debating will find the word ``coercion'' repeatedly in the text of the 
legislation. Coercion is a fitting word when considering how the Senate 
finds itself rushed into voting on a bill with far-reaching legal and 
national security implications.
  The final text of the underlying bill was negotiated by a handful of 
Republican Senators, many of whom I respect, and the White House. 
Democrats were not consulted. I was not consulted. This Senator was not 
consulted. Senator Levin was not consulted. We were kept out of these 
closed-door sessions.
  I say that because the Senate Intelligence Committee is the only 
Senate committee responsible for authorizing CIA activities and the 
only committee briefed on classified details of the CIA's detention and 
interrogation program. We were denied an opportunity to consider this 
bill, in fact, on sequential referral, which is our due.
  In the mad dash to pass this bill before the Senate recesses, 
Senators are being given only five opportunities, I believe, to amend 
the bill, effectively

[[Page 20286]]

preventing the Senate from trying to produce the best bill possible on 
the most important subject possible with respect to the gathering of 
intelligence. It does not have to be this way.
  Finally, I am troubled by what I view as misleading statements about 
the current state of the CIA detention and interrogation program made 
by President Bush and senior administration officials. I say this for 
the record, and strongly.
  The President and others have stated in recent weeks that the CIA 
program was halted as a result of the Supreme Court's Hamdan decision 
on June 29, 2006. This assertion is false.
  Significant aspects of this program were halted following the passage 
of the Detainee Treatment Act in 2005, prohibiting cruel, inhuman, or 
degrading treatment of detainees, well before the Supreme Court 
decision.
  The President has also been very forceful in his public statements 
asserting that the post-Hamdan application of Geneva Conventions Common 
Article 3 has created legal uncertainties about the CIA interrogation 
procedures that the Congress must resolve through legislation--only 
us--in order for the CIA program to continue. This assertion is 
misleading, and it is false as well.
  Concerns over the legal exposure of CIA officers have existed since 
the program's inception and did not begin with the Supreme Court's 
Hamdan decision. These mischaracterizations illustrate to me why it is 
important for Congress to understand all facts about the CIA program.
  Congress cannot and should not sit on the sidelines blithely ignorant 
about the details of a critical intelligence program that has been 
operating without meaningful congressional scrutiny for years.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. LEVIN. Mr. President, will the Senator from Massachusetts yield 
for a unanimous consent request?
  Mr. KERRY. Yes.
  Mr. LEVIN. Mr. President, I ask unanimous consent that I be added as 
a cosponsor to the Rockefeller amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts is recognized.
  Mr. KERRY. Mr. President, the last week before we leave for a long 
recess has always been extraordinarily busy--particularly when an 
election is only 42 days away. But, sadly, this has become too much the 
way the Senate does business and often its most important business.
  Today, the leadership of the Senate has decided that legislation that 
will directly impact America's moral authority in the world merits only 
a few hours of debate. What is at stake is the authority that is 
essential to winning and to waging a legitimate and effective war on 
terror, and also one that is critical to the safety of American troops 
who may be captured.
  If, in a few hours, we squander that moral authority, blur lines that 
for decades have been absolute, then no speech, no rhetoric, and no 
promise can restore it.
  Four years ago, we were in a similar situation. An Iraq war 
resolution was rushed through the Senate because of election-year 
politics--a political calendar, not a statesman's calendar. And 4 years 
later, the price we are paying is clear for saying to a President and 
an administration that we would trust them.
  Today, we face a different choice--to prevent an irreversible 
mistake, not to correct one. It is to stand and be counted so that 
election-year politics do not further compromise our moral authority 
and the safety of our troops.
  Every Senator must ask him or herself: Does the bill before us treat 
America's authority as a precious national asset that does not limit 
our power but magnifies our influence in the world? Does it make clear 
that the U.S. Government recognizes beyond any doubt that the 
protections of the Geneva Conventions have to be applied to prisoners 
in order to comply with the law, restore our moral authority, and best 
protect American troops? Does it make clear that the United States of 
America does not engage in torture, period?
  Despite protests to the contrary, I believe the answer is clearly no. 
I wish it were not so. I wish this compromise actually protected the 
integrity and letter and spirit of the Geneva Conventions. But it does 
not. In fact, I regret to say, despite the words and the protests to 
the contrary, this bill permits torture. This bill gives the President 
the discretion to interpret the meaning and application of the Geneva 
Conventions. It gives confusing definitions of ``torture'' and ``cruel 
and inhuman treatment'' that are inconsistent with the Detainee 
Treatment Act, which we passed 1 year ago, and inconsistent with the 
Army Field Manual. It provides exceptions for pain and suffering 
``incidental to lawful sanctions,'' but it does not tell us what the 
lawful sanctions are.
  So what are we voting for with this bill? We are voting to give the 
President the power to interpret the Geneva Conventions. We are voting 
to allow pain and suffering incident to some undefined lawful 
sanctions.
  This bill gives an administration that lobbied for torture exactly 
what it wanted. And the administration has been telling people it gives 
them what they wanted. The only guarantee we have that these provisions 
will prohibit torture is the word of the President. Well, I wish I 
could say the word of the President were enough on an issue as 
fundamental as torture. But we have been down this road.
  The administration said there were weapons of mass destruction in 
Iraq, that Saddam Hussein had ties to al-Qaida, that they would exhaust 
diplomacy before they went to war, that the insurgency was in its last 
throes. None of these statements were true.
  The President said he agreed with Senator McCain's antitorture 
provisions in the Detainee Treatment Act. Yet he issued a signing 
statement reserving the right to ignore them. Are we supposed to trust 
that word?
  He says flatly that ``The United States does not torture,'' but then 
he tries to push the Congress into allowing him to do exactly that. And 
even here he has promised to submit his interpretations of the Geneva 
Conventions to the Federal Register. Yet his Press Secretary announced 
that the administration may not need to comply with that requirement. 
And we are supposed to trust that?
  Obviously, another significant problem with this bill is the 
unconstitutional limitation of the writ of habeas corpus. It is 
extraordinary to me that in 2 hours, and a few minutes of a vote, the 
Senate has done away with something as specific as habeas corpus, of 
which the Constitution says: ``[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.''
  Well, we are not in a rebellion, nor are we being invaded. Thus, we 
do not have the constitutional power to suspend the writ. And I believe 
the Court will ultimately find it unconstitutional.
  The United States needs to retain its moral authority to win the war 
on terror. We all want to win it. We all want to stop terrorist 
attacks. But we need to do it keeping faith with our values and the 
Constitution of the United States.
  Mr. President, a veteran of the Iraq War whom I know, Paul Rieckhoff, 
wrote something the other day that every Senator ought to think about 
as they wrestle with this bill. He wrote that he was taught at Fort 
Benning, GA, about the importance of the Geneva Conventions. He didn't 
know what it meant until he arrived in Baghdad. Paul wrote:

       America's moral integrity was the single most important 
     weapon my platoon had on the streets of Iraq. It saved 
     innumerable lives, encouraged cooperation with our allies and 
     deterred Iraqis from joining the growing insurgency. But 
     those days are over. America's moral standing has eroded, 
     thanks to its flawed rationale for war and scandals like Abu 
     Ghraib, Guantanamo and Haditha. The last thing we can afford 
     now is to leave Article 3 of the Geneva Conventions open to 
     reinterpretation, as President Bush proposed to

[[Page 20287]]

     do and can still do under the compromise bill that emerged 
     last week.

  We each need to ask ourselves, in the rush to find a ``compromise'' 
we can all embrace, are we strengthening America's moral authority or 
eroding it? Are we on the sides of the thousands of Paul Rieckhoffs in 
uniform today, or are we making their mission harder and even worse, 
putting them in greater danger if they are captured?
  Paul writes eloquently:

       If America continues to erode the meaning of the Geneva 
     Conventions, we will cede the ground upon which to prosecute 
     dictators and warlords. We will also become unable to protect 
     our troops if they are perceived as being no more bound by 
     the rule of law than dictators and warlords themselves. The 
     question facing America is not whether to continue fighting 
     our enemies in Iraq and beyond but how to do it best. My 
     soldiers and I learned the hard way that policy at the point 
     of a gun cannot, by itself, create democracy. The success of 
     America's fight against terrorism depends more on the 
     strength of its moral integrity than on troop numbers in Iraq 
     or the flexibility of interrogation options.

  I wish I could say this compromise serves America's moral mission and 
protects our troops, but it doesn't. No eloquence we can bring to this 
debate can change what this bill fails to do.
  We have been told in press reports that it is a great compromise 
between the White House and my good friends, Senator McCain, Senator 
Warner, and Senator Graham. We have been told that it protects the 
``integrity and letter and spirit of the Geneva Conventions.''
  I wish that what we are being told is true. It is not. Nothing in the 
language of the bill supports these claims. Let me be clear about 
something--something that it seems few people are willing to say. This 
bill permits torture. This bill gives the President the discretion to 
interpret the meaning and application of the Geneva Conventions. This 
bill gives an administration that lobbied for torture exactly what it 
wanted.
  We are supposed to believe that there is an effective check on this 
expanse of Presidential power with the requirement that the President's 
interpretations be published in the Federal Register.
  We shouldn't kid ourselves. Let's assume the President publishes his 
interpretation of permissible acts under the Geneva Convention. The 
interpretation, like the language in this bill, is vague and 
inconclusive. A concerned Senator or Congresswoman calls for oversight. 
Unless he or she is in the majority at the time, there won't be a 
hearing. Let's assume they are in the majority and get a hearing. Do we 
really think a bill will get through both houses of Congress? A bill 
that directly contradicts a Presidential interpretation of a matter of 
national security? My guess is that it won't happen, but maybe it will. 
Assume it does. The bill has no effect until the President actually 
signs it. So, unless the President chooses to reverse himself, all the 
power remains in the President's hands. And all the while, America's 
moral authority is in tatters, American troops are in greater jeopardy, 
and the war on terror is set back.
  Could the President's power grab be controlled by the courts? After 
all, it was the Supreme Court's decision in Hamdan that invalidated the 
President's last attempt to consolidate power and establish his own 
military tribunal system. The problem now is that the bill strips the 
courts the power to hear such a case when it says ``no person may 
invoke the Geneva Conventions . . . in any habeas or civil action.''
  What are we left with? Unfettered Presidential power to interpret 
what--other than the statutorily proscribed ``grave violations''--
violates the Geneva Conventions. No wonder the President was so 
confident that his CIA program could continue as is. He gets to keep 
setting the rules--rules his administration have spent years now trying 
to blur.
  Presidential discretion is not the only problem. The definitions of 
what constitute ``grave breaches'' of Article 3 are murky. Even worse, 
they are not consistent with either the Detainee Treatment Act or the 
recently revised Army Field Manual. These documents prohibit ``cruel, 
inhumane, or degrading treatment'' defined as ``the cruel, unusual, and 
inhumane treatment or punishment prohibited by the Fifth, Eighth, and 
Fourteenth Amendments.'' The definition is supported by an extensive 
body of case law evaluating what treatment is required by our 
constitutional standards of ``dignity, civilization, humanity, decency, 
and fundamental fairness.'' And, I think quite tellingly, it is 
substantially similar to the definition that my good friend, Senator 
McCain, chose to include in his bill. And there is simply no reason why 
the standard adopted by the Army Field Manual and the Detainee 
Treatment Act, which this Congress has already approved, should not 
apply for all interrogations in all circumstances.
  In the bill before us, however, there is no reference to any 
constitutional standards. The prohibition of degrading conduct has been 
dropped. And, there are caveats allowing pain and suffering 
``incidental to lawful sanctions.'' Nowhere does it tell us what 
``lawful sanctions'' are.
  So, what are we voting for with this bill? We are voting to give the 
President the power to interpret the Geneva Conventions. We are voting 
to allow pain and suffering incident to some undefined lawful 
sanctions. The only guarantee we have that these provisions really will 
prohibit torture is the word of the President.
  The word of the President. I wish I could say the words of the 
President were enough on an issue as fundamental as torture. Fifty 
years ago, President Kennedy sent his Secretary of State abroad on a 
crisis mission--to prove to our allies that Soviet missiles were being 
held in Cuba. The Secretary of State brought photos of the missiles. As 
he prepared to take them from his briefcase, our ally, a foreign head 
of state said, simply, ``put them away. The word of the President of 
the United States is good enough for me.''
  We each wish we lived in times like those--perilous times, but times 
when America's moral authority, our credibility, were unquestioned, 
unchallenged.
  But the word of the President today is questioned. This 
administration said there were weapons of mass destruction in Iraq, 
that Saddam Hussein had ties to Al Qaeda, that they would exhaust 
diplomacy before we went to war, that the insurgency was in its last 
throes. None of these statements were true, and now we find our troops 
in the crossfire of civil war in Iraq with no end in sight. They keep 
saying the war in Iraq is making us safer, but our own intelligence 
agencies say it is actually fanning the flames of jihad, creating a 
whole new generation of terrorists and putting our country at greater 
risk of terrorist attack. It is no wonder then that we are hesitant to 
blindly accept the word of the President on this question today.
  The President said he agreed with Senator McCain's antitorture 
provisions in the Detainee Treatment Act. Yet, he issued a signing 
statement reserving the right to ignore them. He says flatly that ``The 
United States does not torture''--and then tries to bully Congress into 
allowing him to do exactly that. And even here, he has promised to 
submit his interpretations of the Geneva Convention to the Federal 
Register--yet his Press Secretary announced that the administration may 
not need to comply with that requirement.
  We have seen the consequences of simply accepting the word of this 
administration. No, the Senate cannot just accept the word of this 
administration that they will not engage in torture given the way in 
which everything they have already done and said on this most basic 
question has already put our troops at greater risk and undermined the 
very moral authority needed to win the war on terror. When the 
President says the United States doesn't torture, there has to be no 
doubt about it. And when his words are unclear, Congress must step in 
to hold him accountable.
  The administration will use fear to try and bludgeon anyone who 
disagrees with them.
  Just as they pretended Iraq is the central front in the war on terror 
even as their intelligence agencies told them their policy made 
terrorism

[[Page 20288]]

worse, they will pretend America needs to squander its moral authority 
to win the war on terror.
  They are wrong, profoundly wrong. The President's experts have told 
him that not only does torture put our troops at risk and undermine our 
moral authority, but torture does not work. As LTG John Kimmons, the 
Army's deputy chief of staff for intelligence, put it:

       No good intelligence is going to come from abusive 
     practices. I think history tells us that. I think the 
     empirical evidence of the last five years, hard years, tell 
     us that. Any piece of intelligence which is obtained under 
     duress, through the use of abusive techniques, would be of 
     questionable credibility. And additionally, it would do more 
     harm than good when it inevitably became known that abusive 
     practices were used. We can't afford to go there.

  Neither justice nor good intelligence comes at the hands of torture. 
In fact, both depend on the rule of law. It would be wrong--tragically 
wrong--to authorize the President to require our sons and daughters to 
use torture for something that won't even work.
  Another significant problem with this bill is the unconstitutional 
elimination of the writ of habeas corpus. No less a conservative than 
Ken Starr got it right:

       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.

  Ken Starr says, ``Congress should act cautiously.'' How cautiously 
are we acting when we eliminate any right to challenge an enemy 
combatant's indefinite detention? When we eliminate habeas corpus 
rights for aliens detained inside or outside the United States so long 
as the Government believes they are enemy combatants? When we not only 
do this for future cases but apply it to hundreds of cases currently 
making their way through our court system?
  The Constitution is very specific when it comes to habeas corpus. It 
says, ``[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.'' We are not in a case of rebellion, nor are we 
being invaded. Thus, we really don't have the constitutional power to 
suspend the Great Writ. And, even if we did, the Constitution allows 
only for the writ to be suspended. It does not allow the writ to be 
permanently taken away. Yet, this is exactly what the bill does. It 
takes the writ away--forever--from anyone the administration determines 
is an ``enemy combatant,'' even if they are lawfully on U.S. soil and 
otherwise entitled to full constitutional protections, and even if they 
have absolutely no other recourse.
  Think of what this means. This bill is giving the administration the 
power to pick up any non-U.S. citizen inside or outside of the United 
States, determine in their sole and unreviewable discretion that he is 
an unlawful combatant, and hold him in jail--be it Guantanamo Bay or a 
secret CIA prison--indefinitely. Once the Combatant Status Review 
Tribunal determines that person is an enemy combatant, that is the end 
of the story--even if the determination is based on evidence that even 
a military commission would not be allowed to consider because it is so 
unreliable. That person would never get the chance to challenge his 
detention; to prove that he is not, in fact, an enemy combatant.
  We are not talking about whether detainees can file a habeas suit 
because they don't have access to the Internet or cable television. We 
are talking about something much more fundamental: whether people can 
be locked up forever without even getting the chance to prove that the 
Government was wrong in detaining them. Allow this to become the policy 
of the United States and just imagine the difficulty our law 
enforcement and our Government will have arranging the release of an 
American citizen the next time our citizens are detained in other 
countries.
  Mr. President, we all want to stop terrorist attacks. We all want to 
effectively gather as much intelligence as humanly possible. We all 
want to bring those who do attack us to justice. But, we weaken--not 
strengthen--our ability to do that when we undermine our own 
Constitution; when we throw away our system of checks and balances; 
when we hold detainees indefinitely without trial by destroying the 
writ of habeas corpus; and when we permit torture. We endanger our 
moral authority at our great peril. I oppose this legislation because 
it will make us less safe and less secure. I urge my colleagues to do 
the same.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. WARNER. Mr. President, I yield 5 minutes to our colleague from 
Missouri.
  The PRESIDING OFFICER. The Senator from Missouri is recognized for 5 
minutes.
  Mr. BOND. Mr. President, I thank the manager of the bill for yielding 
me 5 minutes.
  There is no question that this bill, this military commissions bill, 
is absolutely essential if we are going to continue to have good 
intelligence and move forward with the program of interrogating and 
containing detainees in an appropriate manner that will maintain our 
standing, our honor, and puts tighter control on the United States than 
other countries do on their unlawful combatants.
  I respectfully suggest that the Rockefeller amendment is not only 
unnecessary, but the simple fact is, the unintended effect is it would 
complicate the passage of this important military commissions bill. It 
would either delay or perhaps even derail this bill, which is 
absolutely essential if we are to get our CIA agents back in the field 
doing appropriately limited interrogation techniques to find out what 
attacks are planned against the United States.
  The President has pointed out, the interrogation is the thing that 
has uncovered plots that could have been very serious. We need to have 
our CIA professionals under carefully controlled circumstances doing 
the interrogation that gets the information.
  As to the question about whether this is about oversight, well, our 
committee should be all about oversight. We need to be looking at these 
things. We need to be looking every day at what the agencies are doing, 
what the intelligence community is doing. But as I have said here on 
the floor before, unfortunately, for the last 4 years, we have been 
looking in the rearview mirror. It has been our fault, not the fault of 
the agencies, that we have not done enough oversight because when we 
spent 2 years in the Phase I investigation, we found out the 
intelligence was flawed, the intelligence was inadequate because our 
intelligence assets were cut 20 percent in the 1990s. We had no human 
intel on the ground.
  But, most of all, there was no pressure, no coercion by 
administration officials of the intelligence agencies, and there was no 
misrepresentation of the findings of the intelligence community--same 
intelligence that we in the Congress relied upon in supporting the 
decision to go to war against the hotbed of terrorism, Iraq.
  Now, I do not take issue with that first phase. But Phase II has cost 
us another 2 years, and we have not learned anything more than we 
learned in the first phase and with the WMD and the 9/11 Commission.
  If we would get back to looking out the front windshield, instead of 
looking in the rearview mirror, we should be doing precisely this kind 
of interrogation in the oversight committee. And I take no issue with 
many of the questions the Senator from West Virginia raises. As a 
matter of fact, I probably would have some of my own. But I do question 
the need for a very lengthy, detailed report every 3 months. If you 
read all of the requirements, this is a paperwork nightmare. They are 
going to have to comply and tell us how they are going to comply, and 
we are going to oversee them.
  I believe putting out this lengthy report gets us nowhere. Frankly, 
if our past experience is any guide, we will probably see those reports 
leaked to the press because reports have a way, regrettably, of being 
leaked and being disclosed.
  I think there is one big problem with the Rockefeller amendment. In 
the

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amendment, he requires every 3 months the Attorney General--any time 
there are any new interrogation techniques, the Attorney General shall 
submit an unclassified certification whether or not each approved 
interrogation technique complies with the Constitution of the United 
States, applicable treaty statutes, Executive orders, relations, and an 
explanation of why it complies.
  Mr. President, what we would just order in this amendment is to 
spread out for the world--and especially for al-Qaida and its related 
organizations--precisely what interrogation techniques are going to be 
used. Let me tell you something. I visited with intelligence agents 
around the world, some of whom have been in on the most sensitive 
interrogations we have had. I have asked them about that, and they have 
explained to me how they interrogate people. These interrogations I 
have learned about comply--even though they were before the passage of 
this law--with the detainee treatment law. They do comply, and I think 
they are appropriate. The important thing, they say, is that what the 
terrorists don't know is most important. They don't know how they are 
going to be questioned or what is going to happen to them. The 
uncertainty is the thing that gets them to talk. If we lay out, in an 
unclassified version, a description of the techniques by the Attorney 
General, that description will be in al-Qaida and Hezbollah and all of 
the other terrorist organizations' playbook. They will train their 
assets that: This is what you must be expected to do, and Allah wants 
you to resist these techniques.
  Mr. ROCKEFELLER. Will the Senator yield for a question?
  Mr. BOND. Yes, I am happy to.
  Mr. ROCKEFELLER. Is the Senator aware, when he talks about delaying 
implementation of this program, that there are no CIA detainees? What 
are we holding up?
  Mr. BOND. Mr. President, we are passing this bill so that we can 
detain people. If we catch someone like Khalid Shaikh Mohammed, we have 
no way to hold him, no way to ask him the questions and get the 
information we need, because the uncertainty has brought the program to 
a close. It is vitally important to our security, and unfortunately the 
Rockefeller amendment would imperil it.
  General Hayden promised to come before the committee, and I look 
forward, in our oversight responsibilities, to hearing how they are 
implementing this act.
  I thank the Chair.
  Mr. ROCKEFELLER. That is simply not true.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, at this juncture, I ask unanimous consent 
that we step off of this amendment and allow the distinguished Senator 
from New Mexico to speak for up to 10 minutes regarding the bill.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized for 
10 minutes.
  Mr. DOMENICI. Mr. President, I will speak on this vital subject. I 
rise to speak in support of the Military Commission Act of 2006.
  First off, we must all ask ourselves a very simple question: Do we 
believe the United States must have a terrorist attack prevention 
program?
  I submit that the answer is a clear and resounding yes. I believe the 
American people expect us to have a strong terrorist attack prevention 
program and that they believe if we don't, we are derelict in our duty. 
They know that we are at risk, that this is a war, and that there are 
many people out there who are waiting to do damage and harm to our 
people. To have anything less than a terrorist prevention program, 
which is the best we can put together, is shameful. I cannot support 
any legislation that would prevent the CIA from protecting America and 
its citizens.
  The legislation before us allows the Federal Government to continue 
using one of the most valuable tools we have in our war on terror--the 
CIA terrorist interrogation program.
  The global war on terror is a new type of war against a new type of 
enemy, and we must use every tool at our disposal to fight that war--
not just some tools, but all of them. These tools include interrogation 
programs that help us prevent new terrorist attacks.
  The CIA interrogation program is such a program. It is helping us 
deny terrorists the opportunity to attack America. It has allowed us to 
foil at least eight terrorist plots, including plans to attack west 
coast targets with airplanes, blow up tall buildings across our Nation, 
use commercial airliners to attack Heathrow Airport and bomb our U.S. 
Marine base in Africa.
  Mr. President, clearly, this program is valuable. Clearly, this 
program is necessary in the global war on terror. We must take 
legislative action that will allow the program to continue. The CIA 
must be allowed to continue going after those who have information 
about planned terrorist attacks against our Nation and our friends. The 
CIA must be allowed to go after those who are in combat with us.
  I applaud the White House, the Senate leadership, and the Armed 
Services Committee for working together to craft a bill that, No. 1, 
authorizes military tribunals and establishes the trial and evidentiary 
rules for such tribunals; and No. 2, clarifies the standards the CIA 
must comply with in conducting terrorist interrogations. We must keep 
the bill in its current form, fending off amendments that would put the 
CIA's program in jeopardy.
  Regarding the Byrd sunset amendment, we don't know when the global 
war on terror will end, so we cannot arbitrarily tie one hand behind 
the CIA's back by suddenly terminating the interrogation program with a 
sunset provision.
  We have already voted on the habeas corpus amendment, and I am glad 
we did not add habeas provisions to this bill. We cannot give 
terrorists the right to bring a habeas corpus petition that seeks 
release from prison on the grounds of unlawful imprisonment, as the 
Specter amendment would. Such legislation will clog our already 
overburdened courts.
  Additionally, such petitions are often frivolous and disrupt 
operations at Guantanamo Bay. Examples of the frivolous petitions that 
have been filed include an al-Qaida terrorist complaining about base 
security procedures, speed of mail delivery, and medical treatment; as 
well as a detainee asking that normal security policies be set aside so 
that he could be shown DVDs that are alleged to be family videos. Such 
petitions are not necessary.
  The underlying bill allows appeals of judgments rendered by military 
commissions to the District of Columbia Circuit Court of Appeals--a 
very significant court. These are appeals of judgments rendered by the 
military commissions. That is a totally appropriate way to do it. When 
I finally understood that, I could not believe that some would come to 
the floor and argue as they did. My colleagues have said we are 
abandoning habeas corpus; we have never done anything like this before. 
They act as if we have decided to be totally unjust and unfair when, as 
a matter of fact, this is about as fair a treatment as you could give 
terrorist suspects and still have an orderly process. I think we have 
done the right thing. Giving terrorist suspects access to the court 
known as the second highest court in America provides an adequate 
opportunity for review of detainees' cases.
  I laud the occupant of the chair for explaining this matter early on 
to many of us who did not understand the issue, and it has become clear 
to many of us that we have done the right thing in terms of the habeas 
corpus rule that we have adopted. It will be upheld, in my opinion, 
after I have read some other cases, by the courts.
  Mr. President, my primary standard in determining whether to support 
this legislation is whether the legislation will allow the CIA 
interrogation program to continue. The answer to that question must be 
yes. If the answer to that question is no, then we are foolhardy, at a 
minimum, and totally stupid at a maximum, if we decide that the kinds 
of enemies we have will not be subject to the CIA terrorist 
interrogation program we have now. The program must continue.

[[Page 20290]]

  The administration has informed me that this bill, in its current 
form, will allow the CIA terrorist interrogation program to continue. I 
sought that information as a critical piece of information before I 
started looking at all of the amendments to see where we were. 
Therefore, this bill must pass, and it must pass in its current form.
  We must remember that we are dealing with terrorists, not white-
collar criminals. We are not even dealing with the types of prisoners 
of war there were in the Second World War, some of whom, from the 
German area, might have been severely abusing the rights of prisoners-
of-war. But we still did not in any way have the situation we have now 
with reference to prisoners of war in the Second World War.
  We must remember that we are dealing with terrorists who know no 
limits, follow no rules, have no orderliness about them. They are just 
going to do what we let them do. We must give our best--the CIA--the 
tools they need to do their job to fight this war on terror against 
these terrorists.
  It is my privilege to be on the side of this bill. I believe the 
American people will be on the side of this bill. Some thought early 
that it was the wrong thing to do. Just as it happens with many bills, 
we got off on the wrong foot. But we are back straight, with both feet 
on the right path, and we must pass the bill as is.
  I wonder if those who want to destroy this bill or make it 
ineffective would really ask the American people in honesty and 
sincerity, do they want the CIA program to continue or are they really 
trying to say we should not allow the program? If my colleagues are on 
the side of the latter, they ought to tell us and tell the American 
people. Then we would understand whom they are for and there would be 
no question in the American people's minds.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, I yield to the chairman of the 
Intelligence Committee, the Senator from Kansas, such time as he needs.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. ROBERTS. Mr. President, I thank the chairman of the Armed 
Services Committee, who is an ex officio member of the Intelligence 
Committee and does extremely valuable work as we try to work in a 
commensurate fashion on national security.
  I rise in opposition to the amendment being offered by my good friend 
from West Virginia, Senator Rockefeller, who is vice chairman of our 
committee. The amendment calls for yet another unnecessary and 
repetitious requirement of reporting.
  Now, I do not take issue with some of the numerous questions the 
Senator from West Virginia seeks. Some of these questions should be 
answered in the context of our regular committee oversight.
  The issue is not if reasonable questions are answered, but how and 
how often. I really question the need for a formal quarterly report--
four times a year--unreasonable in scope and length that will be a very 
unnecessary burden on the hard-working men and women at the CIA.
  The simple fact is that the vice chairman and other members of the 
committee have been fully briefed in the past, present, and prospective 
future about CIA's detention and interrogation operations and will 
continue to be briefed. The vice chairman and other members of the 
Intelligence Committee can get answers to their questions and more 
through the course of the committee's normal oversight activities. They 
only need to ask.
  I just mentioned the prospective future of the CIA's interrogation 
program. That is because without this legislation, there will be no CIA 
program. Let's be clear. If we adopt what I believe is an unnecessary 
amendment, contrary with the House, this bill will end up in conference 
with the House. If that happens, I fear the bill will languish 
throughout the fall while Members are out campaigning. Meanwhile, the 
CIA will be unable to interrogate captured unlawful alien combatants.
  Forgive me, Mr. President, but I think the American people deserve 
better than to have this Nation's efforts against al-Qaida bog down 
because some in this body--and I don't question their intent--are 
insisting on an unnecessary symbolic and redundant series of reporting 
requirements that could and will be answered through the regular 
committee oversight. All we have to do is ask and then to listen and 
then to respond. Where are our priorities? Where should they be?
  As I have listened to the debate on this bill in the relative safety 
and comfort of Capitol Hill, I cannot help but wonder whether some of 
us have lost our perspective. While we must do our duty as elected 
officials--and we will do that--we cannot forget that we are a nation 
at war. Consequently, our first and foremost duty should be to support 
our troops and intelligence officers at home and abroad, not to mandate 
four times a year reporting requirements that are unprecedented in 
scope and detail. The CIA will not be detecting and interdicting 
unlawful alien combatants; it will be writing one report after another.
  I am on the side of our hard-working intelligence officers and 
against the terrorists. I think that is an obvious choice. I think most 
Members would think they would be in that position. But I do not 
believe in making their job more difficult by legislating additional 
reporting requirements which are needless and burdensome and which will 
likely delay enactment of this vital national security legislation.
  If this were to pass, we can be reasonably certain that it will have 
a chilling effect on interrogation operations. We are sending a signal 
to our intelligence officers to be risk averse, the very thing we don't 
want to do. In fact, the very implication of this amendment is they are 
unable to carry out their duties with honor and respect for the law, 
and that, my colleagues, is just not true.
  So let us do our duty, as we should, and get this bill done and to 
the President.
  Mr. President, I oppose the amendment and I urge my colleagues to do 
the same.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from Virginia is 
recognized.
  Mr. WARNER. Mr. President, I wonder if I may engage my distinguished 
chairman in a colloquy. I am privileged to serve on his committee. Some 
years ago I served on the committee and at one time was vice chairman 
of the committee. So I draw on, if I may say with some modesty, a long 
experience of working with the Intelligence Committee, and, as the 
chairman knows, the chairman and ranking member of the Armed Services 
Committee have always had a role of participation in his committee. I 
guess if I can add up all the years as chairman and ranking, it is 
about 12 or 15, I think, of my 28 years on the Armed Services 
Committee. I have watched this committee and have been a participant 
for many years.
  As I read through the amendment offered by our distinguished 
colleague from West Virginia--he has the title of vice chairman. That 
came about because the chairman and the vice chairman traditionally on 
this committee work to achieve the highest degree--I guess the word is 
the committee working together as an entity.
  I say to the chairman, it is my judgment that this amendment is 
really in the nature of a substitute for the oversight responsibilities 
of the committee.
  As we both know, the world environment changes overnight. This 
business of trying to operate on the basis of reports is simply, in my 
judgment, not an effective way for the committee to function. The 
Senator from Kansas, as chairman, in consultation with the vice 
chairman, has to call hearings and meetings and briefings in a matter 
of hours in order to keep the committee currently informed about world 
situations.
  I say with all due respect to my colleagues here and to our vice 
chairman of the Intelligence Committee, this amendment is a substitute 
for the committee's responsibilities, the basic responsibilities to be 
performed by this

[[Page 20291]]

committee. It is for that reason I oppose the amendment. But I would 
like to have the chairman's views.
  Mr. ROBERTS. Mr. President, if the chairman will yield.
  Mr. WARNER. Yes.
  Mr. ROBERTS. Let me repeat what I said in my statement--and I share 
the distinguished Senator's views, more especially from his experience 
on both committees, the Intelligence Committee and the Armed Services 
Committee. We both face the same kind of responsibilities, our 
oversight responsibilities. We take them very seriously. We may have 
differences of opinion on the Intelligence Committee or on the Armed 
Services Committee, but we do our oversight.
  The simple fact is that the vice chairman, myself, and other members 
of the committee--and let me stress now full membership of the 
committee; we worked very hard to get that access--have been fully 
briefed in the past and the present and also prospectively of the CIA's 
detention and interrogation operations.
  The vice chairman and other members of the Intelligence Committee, if 
people have problems, if people have questions, if people need to get 
more briefs, if people want to basically get into some--I say ``some'' 
because I think some of the questions are not reasonable--say they have 
questions about this, all they have to do is ask. I can guarantee as 
chairman that those in charge of this particular program at the CIA 
will be there and have been there.
  The inspector general of the CIA has briefed the committee--I am not 
going to get into the details of that briefing--both the vice chair and 
myself in regards to any question on what has happened, with what has 
gone wrong allegedly or otherwise with the interrogation and detention 
program, and we get an update as to where are those cases. If there was 
egregious behavior, what is happening to those people? Are they being 
prosecuted? And the answer to that is yes.
  All we have to do is ask. As I look at this, I must say in scope, it 
is unprecedented. They ask questions that I think, quite frankly, if I 
were an interrogator working within the confines of the Central 
Intelligence Agency, would have a very chilling effect on me to know 
that four times a year I would be held responsible for all of these 
questions which I think those in charge at the Agency can certainly 
respond to any committee request in terms of a briefing. I would be a 
little nervous.
  And that is not the case because, as I said in my remarks, the CIA 
will not be detecting and interdicting unlawful alien combatants; it 
will be writing one report after another, four times a year. If we look 
at the length, breadth, and depth, it is not whether we get this 
information, it is how we get the information. All we have to do is 
ask.
  This is a tremendous burden. I must tell my colleagues that I don't 
know where we are going to get enough staff on the committee to respond 
to these four mandated reports. It is going to be a rather unique 
situation when we have a lot of work to do. We have briefings, as the 
Senator from Virginia indicated, every week. We have one this 
afternoon--it is terribly important--requested by members. Yet I think 
we are going to have to hire more people to do this if, in fact, we do 
this, and I think the CIA will as well.
  I am not too sure, again, if I were an individual interrogator that I 
would want to stay in the business.
  Mr. WARNER. Mr. President, I thank my colleague. Another observation 
of all of us who have had the responsibility of being a chairman and 
ranking member of committees, I know it is sometimes difficult to get 
witnesses to appear, but I found thus far, certainly with General 
Hayden--and I have known him for a number of years--I have a high 
degree of confidence in his ability to administer this Agency, the CIA. 
It is of great importance to this Senator because it is in Virginia, if 
I may say. I view the agency and each and every one of its employees as 
someone for whom I have an obligation to speak on their behalf when 
necessary.
  I find that General Hayden is very forthcoming, very responsive. When 
the Chair and ranking member desire to see him, my understanding is he 
makes himself available. It is not as if we have to wait until a report 
comes, read it, and then decide to bring him down. The Chair, in 
consultation with the ranking member--he and his team are quite 
responsive; am I not correct in that?
  Mr. ROBERTS. I am happy to respond to the distinguished chairman. 
What he has described is accurate. It may be the situation with General 
Hayden, the Inspector General, or anybody else we request to appear 
before the committee that they may be in a situation where there would 
be sensitive intelligence information that at that particular time 
would not be provided, but there certainly would be the promise that it 
will be provided if at all possible.
  So I am not saying that it is a carte blanche kind of situation. That 
is to be expected. But the great preponderance of requests we make of 
the General and of the Inspector General have been very prompt and very 
full, and, again, all we have to do is ask.
  It is just that--I don't want to call it a book report, but that is 
about where we are. It is on some very important matters. I know 
members of the committee feel very strongly about this. I can't recall 
a time when members on the committee have asked me for help to get 
information from the executive or from the CIA or from any of our 
intelligence agencies where I haven't worked overtime to get that job 
done.
  I thank the chairman for his question.
  Mr. WARNER. Mr. President, I thank my distinguished colleague. I 
think we have framed for the full Senate the parameters of what I 
regard are the points to be considered at such time we vote on this 
amendment.
  On that matter, I see the distinguished vice chairman and my 
colleague. How much time remains under the control of the Senator from 
Virginia?
  The PRESIDING OFFICER. There is 8\1/2\ minutes remaining under the 
control of the Senator from Virginia.
  Mr. WARNER. I thank the Chair.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, if I might speak for 2 or 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Mr. President I have a one-page summary. Some of the 
arguments I have heard are absolutely incredible. The fact of the 
matter is there isn't any reporting done. For 4 years this has gone on. 
People say: Just call them in; call in the head of the CIA, whoever it 
is, before the committee. That doesn't yield information. We have so 
many requests for information from the CIA that have not been responded 
to. They are not responsive to the committee because they don't want to 
be responsive to the committee, because they are directed not to be 
responsive to the committee, I am assuming, by the Director of the 
National Intelligence Office.
  We don't have oversight on these programs we are talking about. 
Anybody who suggests otherwise is wrong. I heard the opposition to the 
amendment say it is going to slow down the passage of the bill. Now, 
that is brilliant. We could have started this in a timely fashion, and 
all the House has to do is accept the Senate amendment, if one were to 
pass. In a heartbeat, it is done. So what is in that argument?
  The Senator from Missouri has stated--and this is very important for 
my colleagues to hear--that the amendment would require public 
disclosure of the CIA's interrogation techniques. That is categorically 
false--wrong. It is a dangerous thing to say. It is an irresponsible 
thing to say on the floor of the Senate. The reports on the CIA program 
would be classified and they would be sent to the congressional 
Intelligence Committees and them alone. So we need to get that straight 
right now.
  The information that is provided in the reports is made to sound like 
we are rewriting the Constitution 17 times in a hot summer's several 
months. This is information which has not been provided to us for 4 
years, what these reports would be asked to do, and then

[[Page 20292]]

they could taper off if we found a responsive intelligence community. 
But we have not been provided these in 4 years. Am I meant to be 
worried about that? Is it the job of the Senate Intelligence Committee 
and the House to do oversight? Yes, it is, and we can't because they 
won't give us the information. The chairman can say that he and I are 
briefed, but that is seldom and on very discrete matters that don't 
cover this bill.
  So the Senator from Virginia, whom I obviously greatly respect, 
suggests this amendment is a substitute for oversight. This amendment, 
to the contrary, is going to allow us to do oversight, and that is my 
point. It is our responsibility under the law to do it. We cannot do 
it. We are not allowed to do it. We are systematically prevented from 
getting information from the people who are required by law to give it 
to us. That is called not being transparent, and that is called us not 
knowing what is going on and thus not being able to help with the war 
on terror.
  I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. ROCKEFELLER. Mr. President, I yield 4 minutes to the Senator from 
Michigan.
  The PRESIDING OFFICER. The Senator from Michigan is recognized for 4 
minutes.
  Mr. LEVIN. I thank the Chair, and I thank my friend from West 
Virginia.
  Mr. President, this amendment just simply requires regular reports on 
detention and interrogation programs. It will give us access to legal 
opinions. It is essential that this amendment be adopted.
  I just want to ask my good friend from West Virginia if he heard the 
chairman of the Intelligence Committee say that all we have to do is 
ask for reports and we will get them. Did I hear that right?
  Mr. ROCKEFELLER. The Senator from Michigan heard that correctly.
  Mr. LEVIN. Well, Mr. President, just one example here. I have been 
trying to get a memo called the second Bybee memo now for 2\1/2\ years. 
I haven't asked once, I haven't asked twice, I have probably asked a 
dozen times for the Bybee memo, and my good friend, the chairman of the 
Armed Services Committee, has asked for the Bybee memo, without any 
luck. So the idea that all we have to do is ask is just simply wrong.
  Chairman Warner asked on May 13, 2004--2004--that all legal reviews 
and related documentation concerning approval of interrogation 
techniques be provided to the committee. It has never been provided.
  On April 12, 2005, I submitted questions to John Negroponte, who was 
the nominee for the Director of National Intelligence, requesting to 
see if the intelligence community has copies of the so-called Bybee 
memo.
  In April of 2005, I asked General Hayden, on his nomination to be 
Deputy National Intelligence Director, to see if he could determine if 
the intelligence community has a copy of the second Bybee memo and to 
provide it to the committee.
  Then on the intelligence budget hearing, April 28, 2005, I asked 
Secretary Cambone: Can you get us a copy of the second Bybee memo? This 
has to do with what interrogation techniques are legal. This is written 
by the Office of Legal Counsel, this memo. He says he will get a reply 
to me. That was April 2005.
  In May of 2005, I wrote the Director of Central Intelligence, Porter 
Goss, requesting the second Bybee memo. Then I get a letter from the 
Director of Congressional Affairs, Joe Whipple, saying the memorandum 
can only be released by the Department of Justice. So in July, I write 
the Department of Justice, the Attorney General: Can we get a copy of 
the second Bybee memo? Letter after letter after letter.
  Then there is a hearing by the Senate Intelligence Committee, July 
2005. This is a hearing on Benjamin Powell's nomination to be general 
counsel in the Office of the Director of National Intelligence. I asked 
Mr. Powell: Can you provide us for the record a copy of that second 
Bybee memo? That decision, we are told a week later, is not a decision 
he can make; that is within the Department of Justice's purview, and on 
it goes.
  Another year of stonewalling, of denial, of coverup by the Department 
of Justice of a memo which is so critically important, according to 
press reports and according now also to the acknowledgment by the 
Department of Justice. It sets a legal framework for the interrogation 
of detainees, and the Senate can't get a copy.
  Apparently, two Members of the Senate, the chairman and vice chairman 
of the Intelligence Committee, have seen this memo. That is it. Members 
of the Intelligence Committee can't get it. Members of the Armed 
Services Committee can't get it. All we have to do is ask? How many 
times do we have to ask before we get documents?
  There are 70 documents we still can't get from the Department of 
Defense relative to the operation of the Feith shop. All we have to do 
is ask? There are documents we have asked of the Intelligence Committee 
for years beyond the Bybee amendment without any response.
  The PRESIDING OFFICER. The Senator has used 4 minutes.
  Mr. LEVIN. I thank the Chair, and I thank my good friend from West 
Virginia for trying to get some institutional support behind these 
requests that are made by Senators and committees frequently for 
documents.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, in consultation with my distinguished 
ranking member, I would like to inquire if there is further debate 
desired on this amendment. If not, my understanding is the leadership 
will select a time--joint leadership--for votes on this amendment and 
others at some point this afternoon and with the full expectation that 
this matter will be voted on final passage.
  So at this time, could I inquire as to the time for the Senator from 
Virginia and the Senator from Michigan?
  The PRESIDING OFFICER. The time is 18 minutes for the Senator from 
Virginia and 5 minutes 10 seconds for the Senator from West Virginia.
  Mr. LEVIN. Mr. President, may I inquire of the Senator from West 
Virginia as to whether, if he has completed debate on this amendment, 
he would be willing to yield the balance of his time to the Senator 
from Michigan for use on the bill?
  Mr. ROCKEFELLER. I would, with the exception of 1 minute to summarize 
just before we vote on it, so you can have the balance of the time.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the balance of 
the time of the Senator from West Virginia minus that 1 minute be 
assigned to the Senator from Michigan for use or allocation on the bill 
itself.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. WARNER. Mr. President, I would make a similar request that the 
balance of my time be allocated to me for use on the bill.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. WARNER. Therefore, I believe all time has been yielded back on 
both sides, and we can prepare the floor now for the receiving of an 
amendment from the distinguished Senator from Massachusetts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.


                           Amendment No. 5088

  Mr. KENNEDY. Mr. President, I believe my amendment No. 5088 is at the 
desk, and I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy] proposes an 
     amendment numbered 5088.

  Mr. KENNEDY. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:


                           AMENDMENT NO. 5088

(Purpose: To provide for the protection of United States persons in the 
                 implementation of treaty obligations)

       On page 83, between lines 8 and 9, insert the following:

[[Page 20293]]

       (2) Protection of united states persons.--The Secretary of 
     State shall notify other parties to the Geneva Conventions 
     that--
       (A) the United States has historically interpreted the law 
     of war and the Geneva Conventions, including in particular 
     common Article 3, to prohibit a wide variety of cruel, 
     inhuman, and degrading treatment of members of the United 
     States Armed Forces and United States citizens;
       (B) during and following previous armed conflicts, the 
     United States Government has prosecuted persons for engaging 
     in cruel, inhuman, and degrading treatment, including the use 
     of waterboarding techniques, stress positions, including 
     prolonged standing, the use of extreme temperatures, 
     beatings, sleep deprivation, and other similar acts;
       (C) this Act and the amendments made by this Act preserve 
     the capacity of the United States to prosecute nationals of 
     enemy powers for engaging in acts against members of the 
     United States Armed Forces and United States citizens that 
     have been prosecuted by the United States as war crimes in 
     the past; and
       (D) should any United States person to whom the Geneva 
     Conventions apply be subjected to any of the following acts, 
     the United States would consider such act to constitute a 
     punishable offense under common Article 3 and would act 
     accordingly. Such acts, each of which is prohibited by the 
     Army Field Manual include forcing the person to be naked, 
     perform sexual acts, or pose in a sexual manner; applying 
     beatings, electric shocks, burns, or other forms of physical 
     pain to the person; waterboarding the person; using dogs on 
     the person; inducing hypothermia or heat injury in the 
     person; conducting a mock execution of the person; and 
     depriving the person of necessary food, water, or medical 
     care.

  Mr. KENNEDY. Mr. President, I understand we have an hour evenly 
divided on the amendment.
  The PRESIDING OFFICER. Under the agreement, the Senator has 25 
minutes under his control.
  Mr. KENNEDY. Mr. President, I yield myself 10 minutes on the 
amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I have here before me the Department of 
Army regulations and rules for interrogating prisoners. In the document 
I have here, which is the official military document to define 
permissible interrogation techniques, it outlines certain 
interrogations which are prohibited and it lists these: forcing the 
person to be naked, perform sexual acts, or pose in a sexual manner; 
applying beatings, electric shock, burns, or other forms of physical 
pain; waterboarding; using dogs; inducing hypothermia or heat injury; 
conducting mock executions; depriving the person of necessary food, 
water, and medical care.
  Those techniques are prohibited by the Department of Defense. Those 
techniques are prohibited from being used against adversaries in any 
kind of a conflict, blatant violations the requirement for humane 
treatment, and what I would consider to be torture. Certainly the Army 
and Department of Defense have effectively found that out that these 
techniques do not work. They have banned them and there has not been 
any objection to it.
  What does our amendment say? Well, it says we in the United States 
are not going to tolerate those techniques if any of our military 
personnel are captured. But not all of the people who are representing 
the United States in the war on terror are wearing a uniform. For 
example, we have SEALs, we have some special operations, special 
forces, we have CIA agents. We have contractors and aid workers. We 
have more people around the world looking out after our security 
interests than any other country in the world.
  What does this amendment say? Well, if our military personnel are not 
going to do this those we capture, we are saying to countries around 
the world: You cannot do this against any American personnel you are 
going to capture in this war on terror, or in any other conflict. This 
amendment is about protecting American personnel who are involved in 
the war on terror. It is saying to foreign countries: If you use any of 
these techniques, the United States will say this is a war crime and 
you will be held accountable. How can anybody be against that? This 
administration has sown confusion about our commitments to the Geneva 
Conventions, so that protection does not exist now. That protection 
does not exist now. Restoring that protection is basically what this 
amendment is all about.
  I am not going to take much time, but I just want to remind our 
colleagues about how we viewed some of these techniques in our 
conflicts in previous wars.
  On the issue of waterboarding, the United States charged Yukio Asano, 
a Japanese officer on May 1 to 28, 1947, with war crimes. The offenses 
were recounted by John Henry Burton, a civilian victim:

       After taking me down into the hallway they laid me out on a 
     stretcher and strapped me on. The stretcher was then stood on 
     end with my head almost touching the floor and my feet in the 
     air. They then began pouring water over my face and at times 
     it was impossible for me to breathe without sucking in water. 
     The torture continued and continued. Yukio Asano was 
     sentenced to fifteen years of hard labor. We punished people 
     with fifteen years of hard labor when waterboarding was used 
     against Americans in World War II.

  What about the case of Matsukichi Muta, another Japanese officer, 
tried on April 15 to 25, 1947, for, among other charges, causing a 
prisoner to receive shocks of electricity and beating prisoners. Shocks 
of electricity. He was sentenced to death by hanging. Death by hanging. 
We could go on.
  In another case prosecuted from March 3 to April 30, 1948--the 
Japanese officer was sentenced for exposing prisoners to extreme cold 
temperatures, forcing them to spend long periods of time in the nude, 
making the prisoner stand in the cold for long periods of time, hour 
after hour, throwing water on him and inducing hypothermia. This 
officer received 15 years of hard labor. Fifteen years.
  We didn't tolerate those abuses, and we should not tolerate those 
abuses inflicted on any Americans who are going to be taken in the war 
on terror. That is what this amendment is all about. It will tell the 
Secretary of State to notify every signatory from 194 nations, that if 
any of their governments are going to use any of these techniques on 
any Americans that are taken in this war on terror, that we will 
consider this a violation of the Geneva Conventions and that they will 
be accountable.
  This is to protect our servicemen and servicewomen, those who are in 
the intelligence agencies, those performing dangerous duties, those who 
are not wearing the uniform in their battle against terror. We are 
putting everyone on notice.
  We did not make up this list. All these techniques are taken right 
out of the Defense Department's code of conduct for interrogations.
  I would take more time and review for my colleagues, where we tried 
individuals in World War II and sentenced individuals who performed 
these kinds of abuses on Americans to long periods of incarceration and 
even to death.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, at this moment I suggest the absence of a 
quorum, with the time not chargeable to either side.
  Mr. KENNEDY addressed the Chair.
  Mr. WARNER. I beg your pardon. I thought my colleague yielded the 
floor.
  Mr. KENNEDY. I did. If you want to yield your time, I wouldn't object 
to it, but I object if you are calling for equal time.
  Mr. WARNER. No, I said charged to neither side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, do I have additional time? How much time 
have I used?
  The PRESIDING OFFICER. There are 18 minutes 20 seconds remaining on 
the time of the Senator.
  Mr. KENNEDY. I would like to yield myself 5 more minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized.

[[Page 20294]]


  Mr. KENNEDY. Mr. President, it will be quite surprising to me if the 
Senate is not prepared to accept this amendment. I look back at the 
time that we actually passed the War Crimes Act of 1996. At that time 
it was offered by Walter B. Jones, a Republican Congressman. It was 
offered in response to our Vietnam experience, where American 
servicemen--including one of our own colleagues and dear friends, 
Senator McCain--had been subject to torture during that period of time.
  When this matter came up, both in the House of Representatives and 
the Senate of the United States, it passed in the Senate of the United 
States without a single objection. It passed the House by voice vote. 
This is what it says, under War Crimes, chapter 118:

       Whoever, whether inside or outside the United States, 
     commits a war crime . . .

  And it talks about the circumstances--

     . . . as a member of the armed forces of the United States or 
     a national United States. It is in Title 18 so those out of 
     uniform are subject to the code.

  So that is the CIA. Those are the SEALS. Those are the people 
involved now in our war on terror. Then it continues along to define a 
war crime as a violation of Common Article 3 of the Geneva Conventions. 
That provision protects against cruel treatment and torture. It 
prevents the taking of hostages. It prohibits outrages upon personal 
dignity. Those are effectively the kinds of protections that act 
affords.
  We heard a great deal from the administration, from the President, 
that he wanted specificity in the War Crimes Act and the Geneva 
Conventions in terms of what is permitted and what is not permitted. He 
felt those terms are too vague. Well, on that he is right. There is 
confusion in the world. There is confusion in the world about our 
commitment to the Geneva Conventions and what we think it means. There 
is a good deal of confusion in the world in the wake of what happened 
at Abu Ghraib. There we found out that these harsh interrogation 
techniques had been used. Sure, we have had 10 different reviews of 
what happened over there. What we always find out is it is the lower 
lights, the corporals and the sergeants who are the ones being tried 
and convicted. Those in the higher ranks are not. No one has stood up 
and said clearly, those are violations of the Geneva Conventions. So we 
have Abu Ghraib, which all of us remember. And it has caused confusion.
  We have the circumstances in Guantanamo--the conduct of General 
Miller, who brought these harsh interrogation techniques to Guantanamo 
at Secretary Rumsfeld's direction. When the Armed Services Committee 
questioned his whole standard of conduct, he moved toward early 
retirement to avoid coming up and facing the music. This caused 
confusion about our commitments to the Geneva Conventions.
  Then you had the Bybee memorandum, which was effectively the rule of 
law for some 2 years, which permitted torture, any kind of torture, and 
it said that any individual who is going to be involved in torturing 
would be absolved from any kind of criminality if the purpose of their 
abusing any individual was to get information and there was no specific 
intent to have bodily harm for that individual. This caused confusion 
about our commitments to the Geneva Conventions.
  That was the Bybee amendment. Finally, Attorney General Gonzales had 
to repudiate that or he never would have been approved as the Attorney 
General of the United States. That is the record in the Judiciary 
Committee. I sat through those hearings. I heard the Attorney General 
say they were repudiating the Bybee memorandum on that.
  This is against a considerable background of where we have seen some 
extraordinary abuses.
  Then we have tried to clarify our commitment. We have the action in 
the Senate of the United States, by a vote of 90 to 9, accepting 
Senator McCain's Amendment to prohibit cruel, inhumane, and degrading 
treatment; to make the Army Field Manual the law of the land; to say we 
are not interested in torture. Senator McCain understands. He believes 
that waterboarding is torture. He believes using dogs is torture. This 
is not complicated. We don't have to cause confusion. We have it 
written down on this list of prohibited techniques. It is not my list 
of prohibited techniques, but it is written down by the Department of 
Defense. This amendment says if a foreign country is going to practice 
these kinds of behavior against an American national who is out there 
in the war on terror and is being picked up, we are going to consider 
this to be a war crime. This is about protecting Americans.
  I don't understand the hesitancy on the other side, not being willing 
to accept this amendment. Let's go on the record about what we say is 
absolutely prohibited and what we know has been favored techniques that 
have been used by our adversaries at other times. Let's go on the 
record for clarity.
  Looking back in history, at the end of World War II and otherwise, we 
are all familiar with the different examples where these techniques--
frighteningly familiar to the series of techniques used in Iraq and 
Guantanamo--and are often frequently used against Americans.
  I am reminded--I gave illustrations: electric shocks, waterboarding, 
hypothermia, heat injury. We all remember the 52 American hostages who 
were held in the U.S. Embassy in Iran. They were subjected to the mock 
executions.
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. KENNEDY. Mr. President, I hope we could accept this amendment. I 
yield myself 1 more minute.
  It basically incorporates what the Senate did several years ago with 
war crimes. It is trying to respond to what the President says. He 
wants specificity about what is going to be prohibited and what will 
not be.
  The Department of Defense has found these areas to be off limits for 
the military. All we are saying is if other countries are going to do 
that to Americans, they are going to be held accountable.
  This is about protecting Americans. That is the least we ought to be 
able to do for those who are risking their lives in very difficult 
circumstances.
  I yield the floor.
  Mr. LEVIN. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time not be charged to either side.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. CLINTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CLINTON. Mr. President, the Senate is currently debating a bill 
on how we treat detainees in our custody, and, more broadly, on how we 
treat the principles on which our Nation was founded.
  The implications are far reaching for our national security interests 
abroad; the rights of Americans at home, our reputation in the world; 
and the safety of our troops.
  The threat posed by the evil and nihilistic movement that has spawned 
terrorist networks is real and gravely serious. We must do all we can 
to defeat the enemy with all the tools in our arsenal and every 
resource at our disposal. All of us are dedicated to defeating this 
enemy.
  The challenge before us on this bill, in the final days of session 
before the November election, is to rise above partisanship and find a 
solution that serves our national security interests. I fear that there 
are those who place a strategy for winning elections ahead of a smart 
strategy for winning the war on terrorism.
  Democrats and Republicans alike believe that terrorists must be 
caught, captured, and sentenced. I believe that there can be no mercy 
for those who perpetrated 9/11 and other crimes against humanity. But 
in the process of accomplishing that I believe we must hold on to our 
values and set an example we can point to with pride, not shame. Those 
captured are going nowhere--they are in jail now--so we should follow 
the duty given us by the Supreme Court and carefully craft the

[[Page 20295]]

right piece of legislation to try them. The President acted without 
authority and it is our duty now to be careful in handing this 
President just the right amount of authority to get the job done and no 
more.
  During the Revolutionary War, between the signing of the Declaration 
of Independence, which set our founding ideals to paper, and the 
writing of our Constitution, which fortified those ideals under the 
rule of law, our values--our beliefs as Americans--were already being 
tested.
  We were at war and victory was hardly assured, in fact the situation 
was closer to the opposite. New York City and Long Island had been 
captured. General George Washington and the Continental Army retreated 
across New Jersey to Pennsylvania, suffering tremendous casualties and 
a body blow to the cause of American independence.
  It was at this time, among these soldiers at this moment of defeat 
and despair, that Thomas Paine would write, ``These are the times that 
try men's souls.'' Soon afterward, Washington lead his soldiers across 
the Delaware River and onto victory in the Battle of Trenton. There he 
captured nearly 1,000 foreign mercenaries and he faced a crucial 
choice.
  How would General Washington treat these men? The British had already 
committed atrocities against Americans, including torture. As David 
Hackett Fischer describes in his Pulitzer Prize winning book, 
``Washington's Crossing,'' thousands of American prisoners of war were 
``treated with extreme cruelty by British captors.'' There are accounts 
of injured soldiers who surrendered being murdered instead of 
quartered, countless Americans dying in prison hulks in New York 
harbor, starvation and other acts of inhumanity perpetrated against 
Americans confined to churches in New York City.
  Can you imagine.
  The light of our ideals shone dimly in those early dark days, years 
from an end to the conflict, years before our improbable triumph and 
the birth of our democracy.
  General Washington wasn't that far from where the Continental 
Congress had met and signed the Declaration of Independence. But it is 
easy to imagine how far that must have seemed. General Washington 
announced a decision unique in human history, sending the following 
order for handling prisoners: ``Treat them with humanity, and let them 
have no reason to complain of our Copying the brutal example of the 
British Army in their treatment of our unfortunate brethren.''
  Therefore, George Washington, our commander-in-chief before he was 
our President, laid down the indelible marker of our Nation's values 
even as we were struggling as a Nation--and his courageous act reminds 
us that America was born out of faith in certain basic principles. In 
fact, it is these principles that made and still make our country 
exceptional and allow us to serve as an example. We are not bound 
together as a nation by bloodlines. We are not bound by ancient 
history; our Nation is a new nation. Above all, we are bound by our 
values.
  George Washington understood that how you treat enemy combatants can 
reverberate around the world. We must convict and punish the guilty in 
a way that reinforces their guilt before the world and does not 
undermine our constitutional values.
  There is another element to this. I can't go back in history and read 
General Washington's mind, of course, but one purpose of the rule of 
law is to organize a society's response to violence. Allowing coercion, 
coercive treatment, and torturous actions toward prisoners not only 
violates the fundamental rule of law and the institutionalization of 
justice, but it helps to radicalize those who are tortured.
  Zawahiri, bin Laden's second in command, the architect of many of the 
attacks on our country, throughout Europe and the world, has said 
repeatedly that it is his experience that torture of innocents is 
central to radicalization. Zawahiri has said over and over again that 
being tortured is at the root of jihad; the experience of being 
tortured has a long history of serving radicalized populations; abusing 
prisoners is a prime cause of radicalization.
  For the safety of our soldiers and the reputation of our Nation, it 
is far more important to take the time to do this job right than to do 
it quickly and badly. There is no reason we need to rush to judgment. 
This broken process and the blatant politics behind it will cost our 
Nation dearly. I fear also that it will cost our men and women in 
uniform. The Supreme Court laid out what it expected from us.
  I ask unanimous consent to have printed in the Record letters and 
statements from former military leaders, from 9/11 families, from the 
religious community, retired judges, legal scholars, and law 
professors. All of them have registered their concerns with this bill 
and the possible impact on our effort to win the war against terrorism.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 12, 2006.
     Hon. John Warner, Chairman,
     Hon. Carl Levin, Ranking Member,
     Senate Armed Services Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Warner and Senator Levin: As retired military 
     leaders of the U.S. Armed Forces and former officials of the 
     Department of Defense, we write to express our profound 
     concern about a key provision of S. 3861, the Military 
     Commissions Act of 2006, introduced last week at the behest 
     of the President. We believe that the language that would 
     redefine Common Article 3 of the Geneva Conventions as 
     equivalent to the standards contained in the Detainee 
     Treatment Act violates the core principles of the Geneva 
     Conventions and poses a grave threat to American service-
     members, now and in future wars.
       We supported your efforts last year to clarify that all 
     detainees in U.S. custody must be treated humanely. That was 
     particularly important, because the Administration determined 
     that it was not bound by the basic humane treatment standards 
     contained in Geneva Common Article 3. Now that the Supreme 
     Court has made clear that treatment of al Qaeda prisoners is 
     governed by the Geneva Convention standards, the 
     Administration is seeking to redefine Common Article 3, so as 
     to downgrade those standards. We urge you to reject this 
     effort.
       Common Article 3 of the Geneva Conventions provides the 
     minimum standards for humane treatment and fair justice that 
     apply to anyone captured in armed conflict. These standards 
     were specifically designed to ensure that those who fall 
     outside the other, more extensive, protections of the 
     Conventions are treated in accordance with the values of 
     civilized nations. The framers of the Conventions, including 
     the American representatives, in particular wanted to ensure 
     that Common Article 3 would apply in situations where a state 
     party to the treaty, like the United States, fights an 
     adversary that is not a party, including irregular forces 
     like al Qaeda. The United States military has abided by the 
     basic requirements of Common Article 3 in every conflict 
     since the Conventions were adopted. In each case, we applied 
     the Geneva Conventions--including, at a minimum, Common 
     Article 3--even to enemies that systematically violated the 
     Conventions themselves.
       We have abided by this standard in our own conduct for a 
     simple reason: the same standard serves to protect American 
     servicemen and women when they engage in conflicts covered by 
     Common Article 3. Preserving the integrity of this standard 
     has become increasingly important in recent years when our 
     adversaries often are not nation-states. Congress acted in 
     1997 to further this goal by criminalizing violations of 
     Common Article 3 in the War Crimes Act, enabling us to hold 
     accountable those who abuse our captured personnel, no matter 
     the nature of the armed conflict.
       If any agency of the U.S. government is excused from 
     compliance with these standards, or if we seek to redefine 
     what Common Article 3 requires, we should not imagine that 
     our enemies will take notice of the technical distinctions 
     when they hold U.S. prisoners captive. If degradation, 
     humiliation, physical and mental brutalization of prisoners 
     is decriminalized or considered permissible under a 
     restrictive interpretation of Common Article 3, we will 
     forfeit all credible objections should such barbaric 
     practices be inflicted upon American prisoners.
       This is not just a theoretical concern. We have people 
     deployed right now in theaters where Common Article 3 is the 
     only source of legal protection should they be captured. If 
     we allow that standard to be eroded, we put their safety at 
     greater risk.
       Last week, the Department of Defense issued a Directive 
     reaffirming that the military will uphold the requirements of 
     Common Article 3 with respect to all prisoners in its 
     custody. We welcome this new policy. Our servicemen and women 
     have operated for too long with unclear and unlawful guidance 
     on detainee treatment, and some have been left

[[Page 20296]]

     to take the blame when things went wrong. The guidance is now 
     clear.
       But that clarity will be short-lived if the approach taken 
     by Administration's bill prevails. In contrast to the 
     Pentagon's new rules on detainee treatment, the bill would 
     limit our definition of Common Article 3's terms by 
     introducing a flexible, sliding scale that might allow 
     certain coercive interrogation techniques under some 
     circumstances, while forbidding them under others. This would 
     replace an absolute standard--Common Article 3--with a 
     relative one. To do so will only create further confusion.
       Moreover, were we to take this step, we would be viewed by 
     the rest of the world as having formally renounced the clear 
     strictures of the Geneva Conventions. Our enemies would be 
     encouraged to interpret the Conventions in their own way as 
     well, placing our troops in jeopardy in future conflicts. And 
     American moral authority in the war would be further damaged.
       All of this is unnecessary. As the senior serving Judge 
     Advocates General recently testified, our armed forces have 
     trained to Common Article 3 and can live within its 
     requirements while waging the war on terror effectively.
       As the United States has greater exposure militarily than 
     any other nation, we have long emphasized the reciprocal 
     nature of the Geneva Conventions. That is why we believe--and 
     the United States has always asserted--that a broad 
     interpretation of Common Article 3 is vital to the safety of 
     U.S. personnel. But the Administration's bill would put us on 
     the opposite side of that argument. We urge you to consider 
     the impact that redefining Common Article 3 would have on 
     Americans who put their lives at risk in defense of our 
     Nation. We believe their interests, and their safety and 
     protection should they become prisoners, should be your 
     highest priority as you address this issue.
           With respect,
         General John Shalikashvili, USA (Ret.); General Joseph 
           Hoar, USMC (Ret.); Admiral Gregory G. Johnson, USN 
           (Ret.); Admiral Jay L. Johnson, USN (Ret.); General 
           Paul J. Kern, USA (Ret.); General Merrill A. McPeak, 
           USAF (Ret.); Admiral Stansfield Turner, USN (Ret.); 
           General William G.T. Tuttle, Jr., USA (Ret.); 
           Lieutenant General Daniel W. Christman, USA (Ret.); 
           Lieutenant General Paul E. Funk, USA (Ret.); Lieutenant 
           General Robert G. Gard Jr., USA (Ret.); Lieutenant 
           General Jay M. Garner, USA (Ret.); Vice Admiral Lee F. 
           Gunn, USN (Ret.); Lieutenant General Arlen D. Jameson, 
           USAF (Ret.); Lieutenant General Claudia J. Kennedy, USA 
           (Ret.).
         Lieutenant General Donald L. Kerrick, USA (Ret.); Vice 
           Admiral Albert H. Konetzni Jr., USN (Ret.); Lieutenant 
           General Charles Otstott, USA (Ret.); Vice Admiral Jack 
           Shanahan, USN (Ret.); Lieutenant General Harry E. 
           Soyster, USA (Ret.); Lieutenant General Paul K. Van 
           Riper, USMC (Ret.); Major General John Batiste, USA 
           (Ret.); Major General Eugene Fox, USA (Ret.); Major 
           General John L. Fugh, USA (Ret.); Rear Admiral Don 
           Guter, USN (Ret.); Major General Fred E. Haynes, USMC 
           (Ret.); Rear Admiral John D. Hutson, USN (Ret.); Major 
           General Melvyn Montano, ANG (Ret.); Major General 
           Gerald T. Sajer, USA (Ret.); Major General Michael J. 
           Scotti, Jr., USA (Ret.).
         Brigadier General David M. Brahms, USMC (Ret.); Brigadier 
           General James P. Cullen, USA (Ret.); Brigadier General 
           Evelyn P. Foote, USA (Ret.); Brigadier General David R. 
           Irvine, USA (Ret.); Brigadier General John H. Johns, 
           USA (Ret.); Brigadier General Richard O'Meara, USA 
           (Ret.); Brigadier General Murray G. Sagsveen, USA 
           (Ret.); Brigadier General John K. Schmitt, USA (Ret.); 
           Brigadier General Anthony Verrengia, USAF (Ret.); 
           Brigadier General Stephen N. Xenakis, USA (Ret.); 
           Ambassador Pete Peterson, USAF (Ret.); Colonel Lawrence 
           B. Wilkerson, USA (Ret.); Honorable Richard Danzig; 
           Honorable William H. Taft IV; Frank Kendall III, Esq.
                                  ____



                                The American Jewish Committee,

                                 New York, NY, September 27, 2006.
       Dear Senator: We write on behalf of the American Jewish 
     Committee, a national human relations organization with over 
     150,000 members and supporters represented by 32 regional 
     chapters, to urge you to oppose the compromise Military 
     Commissions Act of 2006, S. 3930, and to vote against 
     attaching the bill to H.R. 6061, absent correcting 
     amendments.
       To be sure, the compromise that produced the current bill 
     resulted in the welcome addition of provisions making clear 
     that the humane treatment standards of Common Article 3 of 
     the Geneva Conventions provide a floor for the treatment of 
     detainees as well as specifying that serious violations are 
     war crimes. Nevertheless, S. 3930 is unacceptable in its 
     present form for the following reasons:
       The bill arguably opens the door to the use of 
     interrogation techniques prohibited by the Geneva 
     Conventions.
       It opens the door to the admission of evidence in military 
     commissions obtained by coercive techniques in contravention 
     of constitutional standards and international treaty.
       It permits the prosecution to introduce evidence that has 
     not been provided to a defendant in a form sufficient to 
     allow him or her to participate in the preparation of his or 
     her defense.
       It unduly restricts defendants' access to exculpatory 
     evidence available to the government.
       It unduly restricts access to the courts by habeas corpus 
     and appeal.
       It interprets the definition of Common Article 3 violations 
     to exclude sexual assaults such as those that occurred at Abu 
     Ghraib.
       There is no doubt that the authorities entrusted with our 
     defense must be afforded the resources and tools necessary to 
     protect us from the serious threat that terrorists continue 
     to pose to all Americans, and, indeed, the civilized world. 
     But the homeland can be secured in a fashion consistent with 
     the values of due process and fair treatment for which 
     Americans have fought and for which they continue to fight. 
     We urge you to revisit and revise this legislation so that it 
     accords with our highest principles.
           Respectfully,
     E. Robert Goodkind,
       President.
     Richard T. Poltin,
       Legislative Director and Counsel.
                                  ____

                                        The Association of the Bar


                                      of the City of New York,

                                 New York, NY, September 27, 2006.
     Re Military Commission Act of 2006.

     Hon. Bill Frist,
     U.S. Senate Majority Leader,
     Washington, DC.
       Dear Majority Leader Frist: I am writing on behalf of the 
     New York City Bar Association to urge you to oppose the 
     Administration's proposed Military Commissions Act of 2006 
     (the ``Act''). The Association is an independent non-
     governmental organization of more than 22,000 lawyers, 
     judges, law professors and government officials. Founded in 
     1870, the Association has a long history of dedication to 
     human rights and the rule of law, and a particularly deep 
     historical engagement with the law of armed conflict and 
     military justice.
       The Association has now reviewed the amended version of 
     this legislation introduced on September 22, 2006, following 
     the compromise agreement between Senators Warner, McCain and 
     Graham, on one side, and the Administration on the other. The 
     compromise addresses two distinct aspects of the 
     Administration's proposal: first, the operation of the 
     military commissions which have been envisioned, and second, 
     aspects of United States enforcement of its treaty 
     obligations under the Geneva Conventions. We will address our 
     concerns in this order, keeping in mind particularly the 
     position of our members who may be called upon to serve as 
     defense counsel, prosecutors and judges in the commissions 
     process, and the interests of our members who presently or 
     may in the future serve their nation in the uniformed 
     services or in the intelligence services.
       The compromise clarifies many of the most important 
     failings of the prior draft by bringing the military 
     commissions process far closer to the standards established 
     by the Uniform Code of Military Justice and the Manual on 
     Courts-Martial. The Association shares the view presented by 
     the service judge advocates general that the existing court-
     martial system, which in many respects is exemplary, provides 
     an appropriate process for trial of traditional battlefield 
     detainees as well as the command and control structures of 
     terrorist organizations engaged in combat with the United 
     States, and that the commissions should closely follow that 
     model. The changes produced here in that regard are therefore 
     welcome.
       However, the bill gives the military judge discretion to 
     admit coerced testimony if, as will presumably be the case, 
     the coercion occurred before the enactment of the Detainee 
     Treatment Act on December 31, 2005. Hearsay can also be 
     admitted into evidence unless the accused carries a burden 
     (traditionally accorded to the party offering the evidence, 
     i.e., the prosecution) to show that the hearsay is not 
     probative or reliable. This shift of burden is inconsistent 
     with historical practice and would probably taint the 
     proceedings themselves, particularly if the accused is not 
     given access to the facts underlying the evidence. Admission 
     of evidence in this circumstance would discredit the 
     proceedings, undermine the appearance of fairness, and might, 
     if it was critical to a conviction, constitute a grave breach 
     of Common Article 3. These provisions do not serve the 
     interests of the United States in demonstrating the heinous 
     nature of terrorist acts, if such can be established in the 
     military commissions.

[[Page 20297]]

       The enforcement provisions raise far more troubling issues. 
     In particular, we are concerned by the definition of ``cruel 
     treatment'' which does not correspond to the existing law 
     interpreting and enforcing Common Article 3's notion of 
     ``cruel treatment.'' The definition incorporates a category 
     of ``serious physical pain or suffering,'' but defines that 
     category in a way that does not encompass many types of 
     serious physical suffering that can be and are commonly the 
     result of ``cruel treatment'' prohibited by Common Article 3. 
     The Common Article 3 offense of ``cruel treatment'' will 
     remain prohibited, even if not specifically criminalized by 
     this provision. There is really no basis to doubt that Common 
     Article 3 prohibits techniques such as waterboarding, long-
     time standing, and hypothermia or cold cell if indeed they 
     are not precluded as outright torture. However, the language 
     of the current draft would create a crime defined in terms 
     different from the accepted Geneva meanings, thereby 
     introducing ambiguity where none previously existed.
       This ambiguity produces risks for United States personnel 
     since it suggests that those who employ techniques such as 
     waterboarding, long-time standing and hypothermia on 
     Americans cannot be charged for war crimes. Moreover, Common 
     Article 3 contains important protections for United States 
     personnel who do not qualify for prisoner of war treatment 
     under the Third Geneva Convention. This may include 
     reconnaissance personnel, special forces operatives, private 
     military contractors and intelligence service paramilitary 
     professionals. Erosion of Common Article 3 standards thus 
     directly imperils the safety of United States personnel in 
     future conflicts. We strongly share the perspective of five 
     former chairs of the Joint Chiefs of Staff in their appeal to 
     Congress to avoid any erosion of these protections.
       The draft also seeks to strike the ability of hundreds of 
     detainees held as ``enemy combatants'' to seek review of 
     their cases through petitions of habeas corpus. The Great 
     Writ has long been viewed as one of the most fundamental 
     rights under our legal system. It is an essential guarantor 
     of justice in difficult cases, particularly in a conflict 
     which the Administration suggests is of indefinite duration, 
     possibly for generations. Holding individuals without 
     according them any right to seek review of their status or 
     conditions of detention raises fundamental questions of 
     justice. This concern is compounded by the draft's provision 
     that the Geneva Convention is unenforceable, thus leaving 
     detainees with no recourse should they receive cruel and 
     inhuman treatment.
       On July 19, 2006, Michael Mernin, the chair of our 
     Committee on Military Affairs and Justice, testified before 
     the Senate Armed Services Committee concerning this 
     legislative initiative. He appealed at that time for caution 
     and proper deliberation in the legislative process and urged 
     that a commission of military law experts be convened to 
     advise Congress on the weighty issues presented. The current 
     legislative project continues to show severe flaws which are 
     likely to prove embarrassing to the United States if it is 
     enacted. We therefore strongly urge that the matter receive 
     further careful consideration before it is acted upon and 
     that the advice of prominent military justice and 
     international humanitarian law experts be secured and 
     followed in the bill's finalization.
           Very truly yours,
                                                     Barry Kamins,
     President.
                                  ____

                                               September 14, 2006.
       Dear Senator: As members of families who lost loved ones in 
     the 9/11 attacks, we are writing to express our deep concern 
     over the provisions of the Administration's proposed Military 
     Commissions Act of 2006.
       There are those who would like to portray the legislation 
     as a choice between supporting the rights of terrorists and 
     keeping the United States safe. We reject this argument. We 
     believe that adopting policies against terrorism which honor 
     our values and our international commitments makes us safer 
     and is the smarter strategy.
       We do not believe that the United States should 
     decriminalize cruel and inhuman interrogations. The Geneva 
     Convention rules against brutal interrogations have long had 
     the strong support of the U.S. because they protect our 
     citizens. We should not be sending a message to the world 
     that we now believe that torture and cruel treatment is 
     sometimes acceptable. Moreover, the Administration's own 
     representatives at the Pentagon have strongly affirmed in 
     just the last few days that torture and abuse do not produce 
     reliable information. No legislation should have your support 
     if it is at all ambiguous on this issue.
       Nor do we believe that it is in the interest of the United 
     States to create a system of military courts that violate 
     basic notions of due process and lack truly independent 
     judicial oversight. Not only does this violate our most 
     cherished values and send the wrong message to the world, it 
     also runs the risk that the system will again be struck down 
     resulting in even more delay.
       We believe that we must have policies that reflect what is 
     best in the United States rather than compromising our values 
     out of fear. As John McCain has said, ``This is not-about who 
     the terrorists are, this is about who we are.'' We urge you 
     to reject the Administration's ill-conceived proposals which 
     will make us both less safe and less proud as a nation.
           Sincerely,
         Marilynn Rosenthal, Nicholas H. Ruth, Adele Welty, Nissa 
           Youngren, Terry Greene, John LeBlanc, Andrea LeBlanc, 
           Ryan Amundson, Barry Amundson, Colleen Kelly, Terry Kay 
           Rockefeller, John William Harris.
         David Potorti, Donna Marsh O'Connor, Kjell Youngren, 
           Blake Allison, Tia Kminek, Jennifer Glick, Lorie Van 
           Auken, Mindy Kleinberg, Anthony Aversano, Paula 
           Shapiro, Valerie Lucznikowska, Lloyd Glick.
         James and Patricia Perry, Anne M. Mulderry, Marion 
           Kminek, Alissa Rosenberg-Torres, Kelly Campbell, Bruce 
           Wallace, John M. Leinung, Kristen Breitweiser, Patricia 
           Casazza, Michael A. Casazza, Loretta J. Filipov, Joan 
           Glick.
                                  ____

                                               September 20, 2006.
     Re Evangelical religious leaders speak out on cruel, inhuman, 
         degrading treatment.

       Dear Members of Congress: The Congress faces a defining 
     question of morality in the coming hours: whether it is ever 
     right for Americans to inflict cruel and degrading treatment 
     on suspected terrorist detainees. We are writing to express 
     our strong support for the approach taken on this issue by 
     Senators McCain, Warner and Graham and a strong, bipartisan 
     majority of the Senate Armed Services Committee.
       We read credible reports--some from FBI agents--that 
     prisoners have been stripped naked, sexually humiliated, 
     chained to the floor, and left to defecate on themselves. 
     These and other practices like ``waterboarding'' (in which a 
     detainee is made to feel as if he is being drowned) may or 
     may not meet the technical definition of torture, but no one 
     denies that these practices are cruel, inhuman, and 
     degrading.
       Today, the question before the Congress is whether it will 
     support Sen. McCain's efforts to make it clear to the world 
     that the U.S. has outlawed such abuse or support an 
     Administration proposal which creates grave ambiguity about 
     whether prisoners can legally be abused in secret prisons 
     without Red Cross access.
       Evangelicals have often supported the Administration on 
     public policy questions because they believe that no 
     practical expediency, however compelling, should determine 
     fundamental moral issues of marriage, abortion, or bioethics. 
     Instead, these questions should be resolved with principles 
     of revealed moral absolutes, granted by a righteous and 
     loving Creator.
       As applied to issues of cruel, inhuman and degrading 
     treatment, the practical application of this moral outlook is 
     clear: even if it is expedient to inflict cruelty and 
     degradation on a prisoner during interrogation (and experts 
     seem very much divided on this question), the moral teachings 
     of Christ, the Torah and the Prophets do not permit it for 
     those who bear the Imago Dei.
       It will not do to say that the President's policy on the 
     treatment of detainees already rules out torture because 
     serious ambiguities still remain--ambiguities that carry 
     heavy moral implications and that are intended to preserve 
     options that some would rather not publicly defend.
       The terrorist attacks of September 11 were one of the most 
     heinous acts ever visited upon this nation. The Commander in 
     Chief must provide U.S. authorities with the practical tools 
     and policies to fight a committed, well-resourced, and 
     immoral terrorist threat. At the same time, the President 
     must also defend the deepest and best values of our moral 
     tradition.
       As Christians from the evangelical tradition, we support 
     Senator McCain and his colleagues in their effort to defend 
     the perennial moral values of this nation which are embodied 
     in international law and our domestic statutes. The United 
     States Congress must send an unequivocal message that cruel, 
     inhuman and degrading treatment has no place in our society 
     and violates our most cherished moral convictions.
           Sincerely,
       Rev. Dr. David Gushee, Union University, Jackson, TN.
       Gary Haugen, president, International Justice Mission.
       Rev. Dr. Roberta Hestenes, teaching pastor, Community 
     Presbyterian Church, Danville, CA.
       Frederica Mathewes-Green, author and commentator.
       Dr. Brian D. McLaren, founder, Cedar Ridge Community 
     Church, Spencerville, MD.
       Rev. Dr. Richard Mouw, president, Fuller Theological 
     Seminary.
       Dr. Glen Stassen, professor of Christian Ethics, Fuller 
     Theological Seminary.
       Dr. Nicholas Wolterstorff, professor of Philosophical 
     Theology, Yale University.

  Mrs. CLINTON. Now these values--George Washington's values, the 
values of our founding--are at stake. We are debating far-reaching 
legislation that would fundamentally alter our Nation's conduct in the 
world and the

[[Page 20298]]

rights of Americans here at home. And we are debating it too hastily in 
a debate too steeped in electoral politics.
  The Senate, under the authority of the Republican majority and with 
the blessing and encouragement of the Bush-Cheney administration, is 
doing a great disservice to our history, our principles, our citizens, 
and our soldiers.
  The deliberative process is being broken under the pressure of 
partisanship and the policy that results is a travesty.
  Fellow Senators, the process for drafting this legislation to correct 
the administration's missteps has not befitted the ``world's greatest 
deliberative body.'' Legitimate, serious concerns raised by our senior 
military and intelligence community have been marginalized, difficult 
issues glossed over, and debates we should have had have been shut off 
in order to pass a misconceived bill before Senators return home to 
campaign for reelection.
  For the safety of our soldiers and the reputation of our Nation, it 
is far more important to take the time to do the job right than to do 
it quickly and badly. There is no reason other than partisanship for 
not continuing deliberation to find a solution that works to achieve a 
true consensus based on American values.
  In the last several days, the bill has undergone countless changes--
all for the worse--and differs significantly from the compromise 
brokered between the Bush administration and a few Senate Republicans 
last week.
  We cannot have a serious debate over a bill that has been hastily 
written with little opportunity for serious review. To vote on a 
proposal that evolved by the hour, on an issue that is so important, is 
an insult to the American people, to the Senate, to our troops, and to 
our Nation.
  Fellow Senators, we all know we are holding this hugely important 
debate in the backdrop of November's elections. There are some in this 
body more focused on holding on to their jobs than doing their jobs 
right. Some in this chamber plan to use our honest and serious concerns 
for protecting our country and our troops as a political wedge issue to 
divide us for electoral gain.
  How can we in the Senate find a proper answer and reach a consensus 
when any matter that does not serve the majority's partisan advantage 
is mocked as weakness, and any true concern for our troops and values 
dismissed demagogically as coddling the enemy?
  This broken process and its blatant politics will cost our Nation 
dearly. It allows a discredited policy ruled by the Supreme Court to be 
unconstitutional to largely continue and to be made worse. This 
spectacle ill-serves our national security interests.
  The rule of law cannot be compromised. We must stand for the rule of 
law before the world, especially when we are under stress and under 
threat. We must show that we uphold our most profound values.
  We need a set of rules that will stand up to judicial scrutiny. We in 
this Chamber know that a hastily written bill driven by partisanship 
will not withstand the scrutiny of judicial oversight.
  We need a set of rules that will protect our values, protect our 
security, and protect our troops. We need a set of rules that 
recognizes how serious and dangerous the threat is, and enhances, not 
undermines, our chances to deter and defeat our enemies.
  Our Supreme Court in its Hamdan v. Rumsfeld decision ruled that the 
Bush administration's previous military commission system had failed to 
follow the Constitution and the law in its treatment of detainees.
  As the Supreme Court noted, the Bush administration has been 
operating under a system that undermines our Nation's commitment to the 
rule of law.
  The question before us is whether this Congress will follow the 
decision of the Supreme Court and create a better system that 
withstands judicial examination--or attempt to confound that decision, 
a strategy destined to fail again.
  The bill before us allows the admission into evidence of statements 
derived through cruel, inhuman and degrading interrogation. That sets a 
dangerous precedent that will endanger our own men and women in uniform 
overseas. Will our enemies be less likely to surrender? Will informants 
be less likely to come forward? Will our soldiers be more likely to 
face torture if captured? Will the information we obtain be less 
reliable? These are the questions we should be asking. And based on 
what we know about warfare from listening to those who have fought for 
our country, the answers do not support this bill. As Lieutenant John 
F. Kimmons, the Army's Deputy Chief of Staff for Intelligence said, 
``No good intelligence is going to come from abusive interrogation 
practices.''
  The bill also makes significant changes to the War Crimes Act. As it 
is now written, the War Crimes Act makes it a federal crime for any 
soldier or national of the U.S. to violate, among other things, Common 
Article 3 of the Geneva Conventions in an armed conflict not of an 
international character. The administration has voiced concern that 
Common Article--which prohibits ``cruel treatment or torture,'' 
``outrages against human dignity,'' and ``humiliating and degrading 
treatment''--sets out an intolerably vague standard on which to base 
criminal liability, and may expose CIA agents to jail sentences for 
rough interrogation tactics used in questioning detainees.
  But the current bill's changes to the War Crimes Act haven't done 
much to clarify the rules for our interrogators. What we are doing with 
this bill is passing on an opportunity to clearly state what it is we 
stand for and what we will not permit.
  This bill undermines the Geneva Conventions by allowing the President 
to issue Executive orders to redefine what permissible interrogation 
techniques happen to be. Have we fallen so low as to debate how much 
torture we are willing to stomach? By allowing this administration to 
further stretch the definition of what is and is not torture, we lower 
our moral standards to those whom we despise, undermine the values of 
our flag wherever it flies, put our troops in danger, and jeopardize 
our moral strength in a conflict that cannot be won simply with 
military might.
  Once again, there are those who are willing to stay a course that is 
not working, giving the Bush-Cheney administration a blank check--a 
blank check to torture, to create secret courts using secret evidence, 
to detain people, including Americans, to be free of judicial oversight 
and accountability, to put our troops in greater danger.
  The bill has several other flaws as well.
  This bill would not only deny detainees habeas corpus rights--a 
process that would allow them to challenge the very validity of their 
confinement--it would also deny these rights to lawful immigrants 
living in the United States. If enacted, this law would give license to 
this Administration to pick people up off the streets of the United 
States and hold them indefinitely without charges and without legal 
recourse.
  Americans believe strongly that defendants, no matter who they are, 
should be able to hear the evidence against them. The bill we are 
considering does away with this right, instead providing the accused 
with only the right to respond to the evidence admitted against him. 
How can someone respond to evidence they have not seen?
  At the very least, this is worth a debate on the merits, not on the 
politics. This is worth putting aside our differences--it is too 
important.
  Our values are central. Our national security interests in the world 
are vital. And nothing should be of greater concern to those of us in 
this chamber than the young men and women who are, right now, wearing 
our Nation's uniform, serving in dangerous territory.
  After all, our standing, our morality, our beliefs are tested in this 
Chamber and their impact and their consequences are tested under fire, 
they are tested when American lives are on the line, they are tested 
when our strength and ideals are questioned by our friends and by our 
enemies.

[[Page 20299]]

  When our soldiers face an enemy, when our soldiers are in danger, 
that is when our decisions in this Chamber will be felt. Will that 
enemy surrender? Or will he continue to fight, with fear for how he 
might be treated and with hate directed not at us, but at the patriot 
wearing our uniform whose life is on the line?
  When our Nation seeks to lead the world in service to our interests 
and our values, will we still be able to lead by example?
  Our values, our history, our interests, and our military and 
intelligence experts all point to one answer. Vladimir Bukovsky, who 
spent nearly 12 years in Soviet prisons, labor camps, and psychiatric 
hospitals for nonviolent human rights activities had this to say. ``If 
Vice President Cheney is right, that some `cruel, inhumane, or 
degrading' treatment of captives is a necessary tool for winning the 
war on terrorism, then the war is lost already.''
  Let's pass a bill that's been honestly and openly debated, not 
hastily cobbled together.
  Let's pass a bill that unites us, not divides us.
  Let's pass a bill that strengthens our moral standing in the world, 
that declares clearly that we will not retreat from our values before 
the terrorists. We will not give up who we are. We will not be shaken 
by fear and intimidation. We will not give one inch to the evil and 
nihilistic extremists who have set their sights on our way of life.
  I say with confidence and without fear that we are the United States 
of America, and that we stand now and forever for our enduring values 
to people around the world, to our friends, to our enemies, to anyone 
and everyone.
  Before George Washington crossed the Delaware, before he could 
achieve that long-needed victory, before the tide would turn, before he 
ordered that prisoners be treated humanely, he ordered that his 
soldiers read Thomas Paine's writing. He ordered that they read about 
the ideals for which they would fight, the principles at stake, the 
importance of this American project.
  Now we find ourselves at a moment when we feel threatened, when the 
world seems to have grown more dangerous, when our Nation needs to 
ready itself for a long and difficult struggle against a new and 
dangerous enemy that means us great harm.
  Just as Washington faced a hard choice, so do we. It's up to us to 
decide how we wage this struggle and not up to the fear fostered by 
terrorists. We decide.
  This is a moment where we need to remind ourselves of the confidence, 
fearlessness, and bravery of George Washington--then we will know that 
we cannot, we must not, subvert our ideals--we can and must use them to 
win.
  Finally, we have a choice before us. I hope we make the right choice. 
I fear that we will not; that we will be once again back in the Supreme 
Court, and we will be once again held up to the world as failing our 
own high standards.
  When our soldiers face an enemy, when our soldiers are in danger, 
will that enemy surrender if he thinks he will be tortured? Will he 
continue to fight? How will our men and women be treated?
  I hope we both pass the right kind of legislation and understand that 
it may very well determine whether we win this war against terror and 
protect or troops who are valiantly fighting for us.
  Thank you, Mr. President.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that it not be charged to either side.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. Ten minutes remain under the Senator's 
control.
  Mr. KENNEDY. Mr. President, I yield myself 4 minutes.
  Mr. President, I want to point out why this is so necessary and so 
essential.
  In reviewing the underlying legislation, if you look under the 
provisions dealing with definitions on page 70 and 71, and then read 
on, you will find that it is difficult to read that without having a 
sense of the kind of vagueness which I think surrounds prohibited 
interrogation techniques. It talks about substantial risks and extreme 
physical pain. But the statute does not have specifics to define the 
areas which are prohibited. The techniques in my amendment are the same 
ones the Department of the Army and, to my best knowledge, our 
colleague and friend from Arizona has identified. Voting for my 
amendment would provide those specifics.
  The President has asked for specificity, but he has refused to say 
whether Common Article 3 would prohibit these kinds of acts. That has 
left the world doubting our commitment to Common Article 3 and has 
endangered our people around the globe--those who are working for the 
United States in the war on terror. The administration's obfuscation 
comes at a great risk.
  This amendment provides the clarity and sends a message to the world 
that these techniques are prohibited. They are prohibited from our 
military bringing them to bear on any combatants. We interpret the 
legislation so that any country in the world that has signed on to the 
Geneva Conventions, any of those countries that are going to practice 
activities prohibited by the field manual, that I consider to be 
torture, are going to be held by the United States interrogation 
committing a war crime. This is important. It is essential. It is 
necessary.
  The general concept was improved without objection a number of years 
ago in the wake of the Vietnam situation, regarding the definition of 
war crimes. We ought to restate and recommit ourselves to protecting 
Americans involved in the war on terror and ensure they will not be 
subject to these activities.
  At the present time, without this amendment, it will be left open. If 
we accept this amendment, it would make it clear it is prohibited. That 
is what we should do.
  I withhold the remainder of my time.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Virginia.
  Mr. WARNER. I suggest the absence of a quorum and that it not be 
chargeable to either side.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. 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. BYRD. Mr. President, I ask unanimous consent the pending 
amendment be laid aside so that I may offer an amendment.
  Mr. WARNER. Mr. President, reserving the right to object, and I will 
not object, I would simply like to make it clear in laying aside the 
amendment the times remaining under the control of the Senator from 
Virginia and the Senator from Michigan remain in place. We will now, to 
accommodate our distinguished senior colleague, go off of the Kennedy 
amendment and proceed to address his amendment.
  The PRESIDING OFFICER. That would be the case.
  Without objection, it is so ordered.
  The Senator from West Virginia is recognized.


                           Amendment No. 5104

       (Purpose: To prohibit the establishment of new military 
     commissions after December 31, 2011)

  Mr. BYRD. Mr. President, I thank the Chair, and I also thank my very 
able and distinguished friend from Virginia.
  Mr. President, I shall offer an amendment today that provides a 5-
year sunset to any Presidential authorization of any military 
commission enacted under the legislation currently being

[[Page 20300]]

debated. This amendment which I shall offer is essential to the ability 
of the Congress to retain its power of oversight and as an important 
check on future executive actions.
  As I stand here now, Members are readying themselves to beat a path 
home to their States--I understand that--so they may get in their final 
politicking. Unfortunately, though, in the feverish climate of a 
looming election, the most important business of the Senate may suffer. 
I have seen that happen over the years. This is no surprise. We have 
seen before the fever of politics can undermine the serious business of 
the Congress once November and the winds of November draw nigh. We have 
seen the mistakes that can come when Congress rushes to legislate 
without the benefit of thorough vetting by committees, without adequate 
debate, without the opportunity to offer amendments.
  Likewise, when legislation is pushed as a means of political 
showboating--we all know what that is--instead of by a diligent 
commitment to our constitutional duties, the results can be disastrous.
  In fact, there have been various proposals to bring congressional 
oversight to the military tribunals which were first authorized in 
November, 2001. Senators Specter, Leahy, and Durbin were instrumental 
in attempting to push back against unilateral actions by the President 
to establish these commissions. These attempts were to reassert the 
power of the Congress--yes, the constitutional duty embodied in Article 
I of this Constitution that is vested in the Congress and in the 
Congress alone, to make our country's laws and specifically to make 
rules concerning captures on land and water.
  Let me say that again. I will repeat the verbiage of the 
Constitution: to make our country's laws and specifically to ``make 
rules concerning captures on land and water.''
  Nothing came of these proposals. Since then, the Congress has ignored 
its responsibilities and this most important issue has been shoved 
aside.
  What is this new impetus spurring congressional action and a renewed 
interest in the issue? Did Congress find its way back to embracing its 
Article I duties? No. Did the executive branch wake up to realize it is 
not within its purview to dictate the laws of the land? No. It was the 
Supreme Court's decision in the Hamdan case.
  While the President grabbed the wheel and the Congress dozed, the 
Court stepped in to remind us of the separation of powers and the 
constitutional role of each branch, thank God. Yes, thank God for the 
separation of powers envisioned by our forefathers. Thank God for the 
Supreme Court. Yes, I said this before; I say it again: Thank God for 
the Supreme Court.
  It is no coincidence that the traditional pathways of legislation 
through the committee and amendment process and ample opportunity for 
debate are the best recourse against the enactment of bad, bills.
  This is the way the Senate was designed to operate and this is how it 
separates in the best interests of the people.
  Unfortunately, because of the timing of the Supreme Court's decision 
and the charged atmosphere of the midterm elections, we are again 
confronted with slap-happy legislation that is changing by the minute.
  The bill reported by the Senate Committee on Armed Services, which I 
supported, was the product of a thorough process, a deliberative 
process. Unfortunately, this bill's progress was halted by the 
administration's objections, and the product suffered mightily. Then, 
in closed-door negotiations with the White House, many of the successes 
announced less than a week ago in the previous version were trashed.
  When the administration met stiff opposition to its views by former 
JAG--judge advocate general--officers and previous members of its own 
Cabinet, it realized it must come back to the table. Last Friday's 
version of the bill was superseded by Monday's version, and changes are 
still forthcoming. In such a frenzied, frenetic, and uncertain state, 
who really knows the nature of the beast? This bill could very well be 
the most important piece of legislation--certainly one of the most 
important pieces of legislation--this Congress enacts, and the adoption 
of my amendment, which I shall offer, ensures--ensures--a reasonable 
review of the law authorizing military tribunals.
  There is nothing more important to scrutinize than the process of 
bringing suspected terrorists to justice for their crimes in a fair 
proceeding, without the taint--without the taint--of a kangaroo court. 
Those are the values of our country. We dare not handle the matter 
sloppily. The Supreme Court has once struck down the President's 
approach to military commissions, has it not? Do we want the product of 
this debate subjected to the same fate? Do we want it stricken also?
  The original authorization of the PATRIOT Act is a case study of the 
risks we run in legislating from the hip--too much haste--and how, in 
our haste, we can place in jeopardy those things we hold most dear. 
Apparently, the Senate has not recognized the error of its ways. This 
legislation is complex. This legislation defines the processes and the 
procedures for bringing enemy combatants to trial for offenses against 
our country, and it involves our obligations under the Geneva 
Conventions. This bill defines rules of evidence, it determines 
defendants' access to secret evidence, and it seeks to clarify what 
constitutes torture. We cannot afford to get this wrong.
  As with the PATRIOT Act, my amendment offers us an opportunity to 
provide a remedy for the unanticipated consequences that may arise as a 
result of hasty congressional action. Along with the sweeping changes 
made by the PATRIOT Act, the great hope included in it was the review 
that was required by the sunset provision. Everyone knows the saying 
that hindsight is 20-20, but the use of this type of congressional 
review gives us the opportunity both to strengthen the parts of the law 
that may be found to be weak, and to right the wrongs of past 
transgressions.
  So if we will not today legislate in a climate of steady 
deliberation, then let us at least prescribe for ourselves an antidote 
for any self-inflicted wounds. Let us prescribe for ourselves the 
remedy of reason--the remedy of reason. Let this be the age of reason 
once more. Sunset provisions have historically been used to repair the 
unforeseen consequences of acting in haste. You have heard that haste 
makes waste. If ever there were a piece of legislation that cries out 
to be reviewed with the benefit of hindsight, it is the current bill.
  My amendment, which I hold in my hand, provides that opportunity 
through a 5-year sunset provision. Now, what is wrong with that? There 
is nothing wrong with that--a 5-year sunset provision. And I thank 
Senator Obama and I thank Senator Clinton for their cosponsorship of my 
amendment. I urge my colleagues to support it.
  Mr. President, I send my amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from West Virginia [Mr. Byrd], for himself and 
     Mr. Obama, and Mrs. Clinton, proposes an amendment numbered 
     5104:

       On page 5, line 19, add at the end the following: ``The 
     authority of the President to establish new military 
     commissions under this section shall expire on December 31, 
     2011. However, the expiration of that authority shall not be 
     construed to prohibit the conduct to finality of any 
     proceedings of a military commission established under this 
     section before that date.''.

  The PRESIDING OFFICER. Who yields time?
  The Senator from Virginia.
  Mr. WARNER. Mr. President, we are about to receive a copy of the 
amendment. But I listened very carefully to my distinguished 
colleague's remarks. As he well knows, in my relatively short 28 years 
in the Senate, I have listened to him and I have the highest respect 
for his judgment, and particularly as it relates to how the legislative 
body should discharge its constitutional responsibilities and how, 
also, it should not try to discharge its constitutional 
responsibilities. And I guess

[[Page 20301]]

my opposition falls, most respectfully, in the latter category because 
I find this Congress has a very high degree of vigilance in overseeing 
the exercise of the executive powers as it relates to the war against 
those whom I view as jihadists, those who have no respect for, indeed, 
the religion which they have ostensibly committed their lives to, and 
those who have no respect for human life, including their human life.
  It is a most unusual period in the history of our great Republic. The 
good Senator, having been a part of this Chamber for nearly a half 
century, has seen a lot of that history unfold. The Senator and I have 
often discussed the World War II period. That is when my grasp of 
history began to come into focus. And, indeed, the Senator himself was 
engaged in his activities in the war effort, as we all were in this 
Nation.
  The ensuing conflicts, while they have been not exactly like World 
War II, have been basically engaging those individuals acting in what 
we refer to as their adhering to a state, an existing government that 
has promulgated rules and regulations, such as they may be, for the 
orders issued to their troops, most of whom wore uniforms, certainly to 
a large degree in the war that followed right after World War II, the 
Korean war. Most of those individuals in that conflict had some vestige 
of a uniform, conducting their warfare under state-sponsored 
regulations. I had a minor part in that conflict and remember it quite 
well.
  Vietnam came along, and there we saw the beginning of the blurring of 
state sponsored. Nevertheless, it was present. The uniforms certainly 
lacked the clarity that had been in previous conflicts. And on the 
history goes.
  But this one is so different, I say to my good friend, the Senator 
from West Virginia. And I think our President, given his duty as 
Commander in Chief under the Constitution, has to be given the maximum 
flexibility as to how he deals with these situations. We see that in a 
variety of issues around here. But, nevertheless, it is the exercise of 
executive authority, and that exercise of executive authority must also 
be subject to the oversight of the Congress of the United States.
  But I feel that in the broad powers conferred on the executive branch 
to carry out its duty to defend the Nation in the ongoing threat 
against what we generally refer to as terrorism--but more specifically 
the militant jihadists--we have to fight with every single tool we have 
at our disposal, consistent with the law of this Nation and 
international law. And, therefore, we are here in this particular time 
addressing a bill which provides for meting out justice, a measure of 
justice, to certain individuals who have been apprehended in the course 
of the war against this militant jihadist terrorist group.
  I find it remarkable, as I have worked it through with my other 
colleagues, that they are alien, they are unlawful by all international 
standards in the manner they conduct the war. Yet this great Nation, 
from the passage of this bill, is going to mete out a measure of 
justice as we understand it.
  Now, the Senator's concern is--and it always should be; it goes back 
to the time of George Washington and the Congress at that time--the 
fear of the overexercise of the authorities within the executive 
branch. But I think to put a clause and restriction, such as the 
Senator recommends in his amendment, into this bill would, in a sense, 
inhibit the ability of the President to rapidly exercise all the tools 
at his disposal.
  I say to the Senator, your bill says:

       The authority of the President to establish new military 
     commissions under this section shall expire. . . . However, 
     the expiration of that authority shall not be construed to 
     prohibit the conduct to finality of any proceedings of a 
     military commission established under this section before 
     that date.

  That could be misconstrued. This war we are engaged in, most notably 
on the fronts of Afghanistan and Iraq today, we see where it could 
spread across our globe and has--not to the degree of the significance 
of Iraq or Afghanistan, but it has spread. Other nations have become 
the victims, subject to the threats, subject to the overt actions such 
as took place in Spain and other places of the world. We should not 
have overhanging this important bill any such restriction as you wish 
to impose by virtue of what we commonly call a sunset. I think that 
would not be correct. It could send the wrong message. We have to rely 
upon the integrity of the two branches of the Congress to be ever 
watchful in their oversight, ever unrestrained in the authority they 
have under the Constitution. As we commonly say around here, what the 
Congress does one day, it can undo the next day.
  If, in the course of exercising our authority under the doctrine of 
the separation of powers--how many times have I heard the distinguished 
Senator from West Virginia discuss the doctrine of the separation of 
powers? So often. I remember when we were vigilantly trying to protect 
those powers reserved unto the Congress from an encroachment by the 
executive branch.
  So for that reason I most respectfully say that I do not and I urge 
other colleagues not to support this amendment but to continue in their 
trust in this institution, in the Senate and in the House, to exercise 
their constitutional responsibilities in such a way that we will not 
let the executive branch at any time transcend what we believe are 
certain parameters that we have set forth in this bill regarding the 
trials and the conduct of interrogations.
  I think an extraordinary legislation that I was privileged to be 
involved in, which garnered 90-some votes, was the Detainee Act, 
sponsored by our distinguished colleague, Mr. McCain. That was landmark 
legislation. From that legislation has come now what we call the Army 
Field Manual, in which we published to the world what America will do 
in connection with those persons--the unlawful aliens who come into our 
custody by virtue of our military operations, and how they will be 
dealt with in the course of interrogation. That was an extraordinary 
assertion by the Congress, within the parameters of its powers, as to 
what they should do, the executive branch.
  But a sunset date for the authority to hold military commissions, in 
my judgment, is not in the best interests, at this time in this war, of 
our country.
  I know there are other speakers. How much time do I have remaining?
  The PRESIDING OFFICER. Nineteen minutes 20 seconds.
  Mr. WARNER. I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, the Senator knows my great respect for him. 
It is an abiding respect. When I look at him, I see a man--a Member of 
this Senate--who has had vast experience and worn many coats of honor. 
I see a man who stands by his word, who keeps his word, and is always 
very meticulous in criticizing another Senator or criticizing 
legislation. He is most circumspect, most respectful to his colleagues, 
and most respectful to the Constitution. But I am abhorrent--I cannot 
write very well anymore. I would like to be able to write down words 
that other Senators say in a debate. But I cannot write. So I may have 
misinterpreted, or I may misstate the words. But I cannot understand 
why this legislation would not be in the best interests of my country.
  I believe the Senator said--he certainly implied strongly--that this 
legislation would not be in the best interests of our country. If I am 
wrong, I know the Senator will correct me. Let me read, though, the 
amendment:

       On page 5, line 19, add at the end the following: ``the 
     authority of the President to establish new military 
     commissions under this section shall expire on December 31, 
     2011. However, the expiration of that authority shall not be 
     construed to prohibit the conduct to finality of any 
     proceedings of a military commission established under this 
     section before that date.''

  Mr. President, what is wrong with that language? How would that 
language not be in the interest of our country? I think we are all 
subject to error. Adam and Eve were driven from the Garden of Eden 
because of error. So from the very beginning of history, the very 
history of mankind, this race of human beings, there has been evidence 
of errors, mistakes. People did not foresee the future, and this 
language is a protection against that.

[[Page 20302]]

  What is wrong with providing an expiration date for the authority 
given to the President in this bill, after a period of 5 years? Can we 
not be mistaken? Might we not see the day when we wish that we had an 
automatic opportunity to review this? Five years is a long time. Five 
years is ample time.
  So I must say that I am somewhat surprised that my friend, the great 
Senator from Virginia, would seek to oppose this amendment. Let me read 
it once again. This is nothing new, having sunset provisions in bills. 
I think they are good. We can always review them, and if mistakes have 
not been made, we can renew them. There is that opportunity. But it 
does guarantee that there will come a time when this legislation will 
be reviewed. Only the word of Almighty God is so perfect that there is 
no sunset provision in the Holy Writ. No. But the sunset provision 
there is with us, and the time will come when all of us will take a 
voyage into the sunset.
  Mr. WARNER. May I reply at the appropriate time?
  Mr. BYRD. Absolutely. I will yield right now.
  Mr. WARNER. Many times, the two of us have stood right here and had 
our debates together. It is one of those rich moments in the history of 
this institution when two colleagues, without all of the prepared text 
and so forth, can draw upon their experience and knowledge and their 
own love for the Constitution of the United States and engage.
  I say to my good friend, 3 weeks ago, there were headlines that three 
Senators were in rebellion against their President, three Senators were 
dissidents, and on and on it went. Well, the fact is, the three of us--
and there were others who shared our views, but somehow the three of us 
were singled out--believed as a matter of conscience we were concerned 
about an issue.
  The concern was that the bill proposed by the administration, in our 
judgment, could be construed as in some way--maybe we were wrong--
indicating that America was not going to follow the treaties of 1949--
most particularly, Common Article 3. Common Article 3 means that 
article in each of these three treaties. As my good friend knows--and 
we draw on our own individual recollections about the horrors of World 
War II. I was involved in the foreign battlefield. We certainly knew 
about it back here at home and studied it. I was a youngster, a skinny 
youngster in my last year in the Navy. So much for that. But we were 
very conscious of what was going on, and the frightful treatment of 
human beings as a consequence of that war.
  The world then came together--and I say the world--after that and 
enacted these three treaties. The United States was in the lead of 
putting those treaties in. Those treaties were for the purpose of 
ensuring that future mankind, generations, hopefully, would not 
experience what literally millions of people experienced by death and 
maiming--not only soldiers but civilians.
  Mr. President, we believed that the administration's approach to this 
could be interpreted by the world as somehow we were not behind those 
treaties. If we were to put a sunset in here after all of the 
deliberation and all of the work on the current bill that is before 
this body, it could once again raise the specter that, well, if in fact 
the United States was trying to not live up to the treaties that 
brought on this debate in the Senate, then at the end of 5 years we go 
back to where we were. That could happen. We do not want to send that 
message. We want to send a message that this Nation has reconciled, 
hopefully, this body, as we vote this afternoon, and will send a strong 
bipartisan message that we are reconciled behind this legislation to 
ensure that in the eyes of the world we are going to live fully within 
the confines of the treaties of 1949.
  Mr. BYRD. We are not dealing with the treaties of 1949.
  Mr. WARNER. I respectfully say that our bill does, in my judgment. 
Clearly, it constitutes an affirmation of the treaties. I would not 
want to send a message at this time that there could come a point, 
namely, December 31, 2011, that such assurances as we have given about 
those treaties might expire. That is what concerns me.
  Mr. BYRD. Mr. President, I am almost speechless. I listened to the 
words that have just been uttered by my friend. My amendment does not 
affect, in any way, the portions of this bill that relate to the Geneva 
Conventions.
  It sunsets only the authority of the President to convene military 
commissions and, of course, the Senate can renew that authority. That 
is done in many instances here. I think it is insurance for our country 
and the welfare of our country and the welfare of the people who serve 
in the military.
  We say 5 years. Do we want to make that 6 years? Do we want to make 
it 7 years? Fine. It will expire at that time. It simply means that the 
Senate and the House take a look at it again and renew it. What is 
wrong with that?
  Mr. WARNER. I say to my friend, Mr. President, from a technical 
standpoint, he is correct. He is going in there and incising out 
regarding commissions. But the whole debate has been focused around how 
those commissions will conduct themselves in accordance with the common 
understanding of Article 3, particularly.
  So while the Senator, in his very fine and precise way of dealing 
with the legislation, takes out just that, it might not be fully 
understood beyond our shores. The headline could go out that there is 
going to be an expiration.
  I say to my good friend, it is just not wise to go in and try and put 
any imprint on this that expiration could occur. It could raise, again, 
the debate, and I do not think that is in the interest of the country. 
I think this debate, this legislation has been settled, and I don't 
think it was ever the President's intention in the course of the 
preparation of his legislation, but some fear it could.
  Mr. BYRD. Mr. President, it could be a Democratic President, as far 
as I am concerned. I think this is wise on the part of the Senate in 
conducting its constitutional oversight, to say that we will do it this 
far and then we will take another look at it in the light of the new 
day, in the light of the new times, the new circumstances; we will take 
another look at it. We are not passing any judgment on that legislation 
5 years out.
  I am flabbergasted--flabbergasted--that my friend would take umbrage 
at this legislation.
  I only have a few minutes left.
  Mr. LEVIN. Will the Senator from West Virginia yield for 3 minutes?
  Mr. BYRD. Yes, I yield 3 minutes.
  Mr. LEVIN. Mr. President, I think the Senator from West Virginia is, 
more than any other person in the history of this body, the custodian 
in his person of the Constitution of the United States. The bill that 
is before us obviously raises a number of very significant issues 
involving our Constitution.
  What the amendment of Senator Byrd does very wisely is say that after 
5 years, let us double back and doublecheck--double back and 
doublecheck--so that we can be confident that what we have done 
comports with the Constitution of the United States. This amendment 
does it very carefully. It does not disturb any pending proceeding 
under the commission. The Senator has written this amendment so 
carefully that he says even though it will sunset, forcing us to go 
back and doublecheck, to look at our work, that it will not in any way 
disturb any existing or pending proceeding.
  I believe this is such an important statement of our determination 
that we act in a way that is constitutional, not in the heat of a 
moment which is obviously critical to us, but that we comport in every 
way with this Constitution. We ought to heed the words of Senator Byrd, 
who understands the importance of this Constitution and that this body 
be the guardian of the Constitution. We are the body that must protect 
this Constitution.
  Mr. BYRD. Yes.
  Mr. LEVIN. And this, as he puts it, is an insurance policy that we 
will do just that.
  Mr. BYRD. Yes.
  Mr. LEVIN. I ask unanimous consent that I be added as a cosponsor to 
the Byrd amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 20303]]


  Mr. BYRD. Mr. President, I have 4 minutes remaining; do I?
  The PRESIDING OFFICER. The Senator has 5 minutes 14 seconds 
remaining.
  Mr. BYRD. I yield 5 minutes to my friend, the distinguished Senator 
from Illinois, Mr. Obama.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. OBAMA. Mr. President, I thank my dear friend and colleague from 
West Virginia.
  I am proud to be sponsoring this amendment with the senior Senator 
from West Virginia. He is absolutely right that Congress has abrogated 
its oversight responsibilities, and one way to reverse that troubling 
trend is to adopt a sunset provision in this bill. We did it in the 
PATRIOT Act, and that allowed us to make important revisions to the 
bill that reflected our experience about what worked and what didn't 
work during the previous 5 years. We should do that again with this 
important piece of legislation.
  It is important to note that this is not a conventional war we are 
fighting, as has been noted oftentimes by our President and on the 
other side of the aisle. We don't know when this war against terrorism 
might end. There is no emperor to sign a surrender document. As a 
consequence, unless we build into our own processes some mechanism to 
oversee what we are doing, then we are going to have an open-ended 
situation, not just for this particular President but for every 
President for the foreseeable future. And we will not have any formal 
mechanism to require us to take a look and to make sure it is being 
done right.
  This amendment would make a significant improvement to the existing 
legislation, and it is one of those amendments that would, in normal 
circumstances, I believe, garner strong bipartisan support. 
Unfortunately, we are not in normal circumstances.
  Let me take a few minutes to speak more broadly about the bill before 
us.
  I may have only been in this body for a short while, but I am not 
naive to the political considerations that go along with many of the 
decisions we make here. I realize that soon--perhaps today, perhaps 
tomorrow--we will adjourn for the fall. The campaigning will begin in 
earnest. There are going to be 30-second attack ads and negative mail 
pieces criticizing people who don't vote for this legislation as caring 
more about the rights of terrorists than the protection of Americans. 
And I know that this vote was specifically designed and timed to add 
more fuel to the fire.
  Yet, while I know all of this, I am still disappointed because what 
we are doing here today, a debate over the fundamental human rights of 
the accused, should be bigger than politics. This is serious and this 
is somber, as the President noted today.
  I have the utmost respect for my colleague from Virginia. It saddens 
me to stand and not be foursquare with him. I don't know a more 
patriotic individual or anybody I admire more. When the Armed Services 
bill that was originally conceived came out, I thought to myself: This 
is a proud moment in the Senate. I thought: Here is a bipartisan piece 
of work that has been structured and well thought through that we can 
all join together and support to make sure we are taking care of 
business.
  The fact is, although the debate we have been having on this floor 
has obviously shown we have some ideological differences, the truth is 
we could have settled most of these issues on habeas corpus, on this 
sunset provision, on a whole host of issues. The Armed Services 
Committee showed us how to do it.
  All of us, Democrats and Republicans, want to do whatever it takes to 
track down terrorists and bring them to justice as swiftly as possible. 
All of us want to give our President every tool necessary to do this, 
and all of us were willing to do that in this bill. Anyone who says 
otherwise is lying to the American people.
  In the 5 years the President's system of military tribunals has 
existed, the fact is not one terrorist has been tried, not one has been 
convicted, and in the end, the Supreme Court of the United States found 
the whole thing unconstitutional because we were rushing through a 
process and not overseeing it with sufficient care. Which is why we are 
here today.
  We could have fixed all this several years ago in a way that allows 
us to detain and interrogate and try suspected terrorists while still 
protecting the accidentally accused from spending their lives locked 
away in Guantanamo Bay. Easily. This was not an either-or question. We 
could do that still.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. OBAMA. Mr. President, I ask unanimous consent for 2 more minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. Mr. President, charged against the allocation under the 
proponent of the amendment.
  The PRESIDING OFFICER. The proponent has no time remaining.
  Mr. WARNER. We are under fairly rigid time control, but I will give 
the Senator from Illinois a minute.
  Mr. OBAMA. I will conclude, then. I appreciate the Senator from 
Virginia.
  Instead of allowing this President--or any President--to decide what 
does and does not constitute torture, we could have left the definition 
up to our own laws and to the Geneva Conventions, as we would have if 
we passed the bill that the Armed Services committee originally 
offered.
  Instead of detainees arriving at Guantanamo and facing a Combatant 
Status Review Tribunal that allows them no real chance to prove their 
innocence with evidence or a lawyer, we could have developed a real 
military system of justice that would sort out the suspected terrorists 
from the accidentally accused.
  And instead of not just suspending, but eliminating, the right of 
habeas corpus--the seven century-old right of individuals to challenge 
the terms of their own detention, we could have given the accused one 
chance--one single chance--to ask the Government why they are being 
held and what they are being charged with.
  But politics won today. Politics won. The administration got its 
vote, and now it will have its victory lap, and now they will be able 
to go out on the campaign trail and tell the American people that they 
were the ones who were tough on the terrorists.
  And yet, we have a bill that gives the terrorist mastermind of 9/11 
his day in court, but not the innocent people we may have accidentally 
rounded up and mistaken for terrorists--people who may stay in prison 
for the rest of their lives.
  And yet, we have a report authored by sixteen of our own Government's 
intelligence agencies, a previous draft of which described, and I 
quote, ``. . . actions by the United States government that were 
determined to have stoked the jihad movement, like the indefinite 
detention of prisoners at Guantanamo Bay . . .''
  And yet, we have al-Qaida and the Taliban regrouping in Afghanistan 
while we look the other way. We have a war in Iraq that our own 
Government's intelligence says is serving as al-Qaida's best 
recruitment tool. And we have recommendations from the bipartisan 9/11 
commission that we still refuse to implement 5 years after the fact.
  The problem with this bill is not that it is too tough on terrorists. 
The problem with this bill is that it is sloppy. And the reason it is 
sloppy is because we rushed it to serve political purposes instead of 
taking the time to do the job right.
  I have heard, for example, the argument that it should be military 
courts, and not Federal judges, who should make decisions on these 
detainees. I actually agree with that.
  The problem is that the structure of the military proceedings has 
been poorly thought through. Indeed, the regulations that are supposed 
to be governing administrative hearings for these detainees, which 
should have been issued months ago, still haven't been issued. Instead, 
we have rushed through a bill that stands a good chance of being 
challenged once again in the Supreme Court.
  This is not how a serious administration would approach the problem 
of terrorism. I know the President came

[[Page 20304]]

here today and was insisting that this is supposed to be our primary 
concern. He is absolutely right it should be our primary concern--which 
is why we should be approaching this with a somberness and seriousness 
that this administration has not displayed with this legislation.
  Now let me make clear--for those who plot terror against the United 
State, I hope God has mercy on their soul, because I certainly do not.
  For those who our Government suspects of terror, I support whatever 
tools are necessary to try them and uncover their plot.
  We also know that some have been detained who have no connection to 
terror whatsoever. We have already had reports from the CIA and various 
generals over the last few years saying that many of the detainees at 
Guantanamo shouldn't have been there--as one U.S. commander of 
Guantanamo told the Wall Street Journal, ``Sometimes, we just didn't 
get the right folks.'' And we all know about the recent case of the 
Canadian man who was suspected of terrorist connections, detained in 
New York, sent to Syria, and tortured, only to find out later that it 
was all a case of mistaken identity and poor information. In the 
future, people like this may never have a chance to prove their 
innocence. They may remain locked away forever.
  The sad part about all of this is that this betrayal of American 
values is unnecessary.
  We could have drafted a bipartisan, well-structured bill that 
provided adequate due process through the military courts, had an 
effective review process that would've prevented frivolous lawsuits 
being filed and kept lawyers from clogging our courts, but upheld the 
basic ideals that have made this country great.
  Instead, what we have is a flawed document that in fact betrays the 
best instincts of some of my colleagues on both sides of the aisle--
those who worked in a bipartisan fashion in the Armed Services 
Committee to craft a bill that we could have been proud of. And they 
essentially got steamrolled by this administration and by the 
imperatives of November 7.
  That is not how we should be doing business in the U.S. Senate, and 
that is not how we should be prosecuting this war on terrorism. When we 
are sloppy and cut corners, we are undermining those very virtues of 
America that will lead us to success in winning this war. At bare 
minimum, I hope we can at least pass this provision so that cooler 
heads can prevail after the silly season of politics is over.
  I conclude by saying this: Senator Byrd has spent more time in this 
Chamber than many of us combined. He has seen the ebb and flow of 
politics in this Nation. He understands that sometimes we get caught up 
in the heat of the moment. The design of the Senate has been to cool 
those passions and to step back and take a somber look and a careful 
look at what we are doing.
  Passions never flare up more than during times where we feel 
threatened. I strongly urge, despite my great admiration for one of the 
sponsors of the underlying bill, that we accept this extraordinarily 
modest amendment that would allow us to go back in 5 years' time and 
make sure what we are doing serves American ideals, American values, 
and ultimately will make us more successful in prosecuting the war on 
terror about which all of us are concerned.
  Thank you, Mr. President.
  Mr. BYRD. Mr. President, I ask the distinguished Senator from 
Virginia, may I have 10 seconds?
  Mr. WARNER. I am going to give the Senator more than 10 seconds. I 
have to do a unanimous consent request on behalf of the leadership.


                         Order Vitiated--S. 295

  I ask unanimous consent that the order with respect to S. 295 be 
vitiated.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Reserving the right to object.
  No objection.
  Mr. WARNER. I understand there is no objection. Will the Chair kindly 
rule?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I yield such time as Mr. Byrd wishes to 
take.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank my friend from Virginia. I merely 
wanted to thank the distinguished Senator from Illinois, Mr. Obama, for 
his statement. I think it was well said, I think it was wise, and I 
thank him for his strong support of this amendment.
  I also close by asking that the clerk once again read this amendment. 
I will then yield the floor. I thank the Senator from Virginia.
  Mr. WARNER. Mr. President, I say to my good friend, I fully 
understand what you endeavor to do here, and I respectfully strongly 
disagree with it. I think many of us share this. This is going to be a 
very long war against those people whom we generically call terrorists. 
In the course of that war, this President and his successor must have 
the authority to continue to conduct these courts-martial--these trials 
under these commissions--and not send out a signal to terrorists: If 
you get under the time limit and you don't get caught, this thing may 
end.
  If you are not caught within this period of time, when this went into 
effect, then you are no longer going to be held accountable. I, and I 
think every Member of this body, regret that this Nation or other 
nations or a consortium of nations have not captured Osama bin Laden. 
There is a debate going on about that, and I am not going to get into 
that debate, but the fact is he is still at large. There could be other 
Osama bin Ladens, and it may take years to apprehend them, no matter 
how diligently we pursue them. We cannot send out a signal that at this 
definitive time, it is the responsibility of the President, of the 
executive branch, to hold those accountable for crimes against 
humanity. They would not be held accountable if this provision went 
into power.
  Need I remind this institution of the most elementary fact that every 
Senator understands, that what we do one day can be changed the next. 
If there comes a time when we feel this President or a subsequent 
President does not exercise authority consistent with this act, 
Congress can step in, and with a more powerful action than a sunset, a 
very definitive action.
  Mr. President, it is my understanding I have a few minutes left under 
this amendment.
  The PRESIDING OFFICER (Mr. Coleman). The time of the Senator from 
Virginia is 9\1/2\ minutes.
  Mr. WARNER. I would like to have that time transferred under my time 
on the bill as a whole. I hope Senator Cornyn, who has expressed an 
interest in this, gets the opportunity to use that time to address this 
amendment.
  Now, Mr. President, as I look at the number of Senators who are 
desiring to speak on my side--and I think perhaps it would be helpful 
if you could, I say to my colleague, the ranking member, check on the 
other side--we still have some debate, and we are prepared to get into 
debate on the Kennedy amendment now. Therefore, I will undertake to do 
that just as soon as I finish.
  But then we are in that time period where all time has expired or 
utilized or otherwise allocated on the several amendments. We will soon 
receive an indication from the leadership as to the time to vote on the 
stacked votes. But under the time reserved for the bill, I have, of 
course, the distinguished Senator from Arizona, Mr. McCain, and Senator 
Graham are going to be given by me such time as they desire, and then 
subject to the time utilized by those two Senators, I would hope to 
have time for Senator Hutchison, Senator Chambliss, and again Senator 
Cornyn, Senator Grassley, and Senator McConnell, the distinguished 
majority whip.
  So I am going to manage that as fairly and as equitably as I can. 
That is what we propose to do. I will go into the subject of the 
Kennedy amendment right now.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, I am afraid that the way this now is set 
up,

[[Page 20305]]

the Senator from Virginia has about six speakers who will have time, 
and we have on this side, because of the interest in the amendment 
process, used up our time and had to use time on the bill, so that on 
our side we only have--how much time left on the bill, if I could 
inquire of the Chair?
  The PRESIDING OFFICER. The Senator from Michigan has 4 minutes 
remaining on the bill. The Senator from Vermont has 12 minutes 
remaining on the bill.
  Mr. LEVIN. And the Senator from Massachusetts has how many minutes on 
his amendment?
  The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes 
20 seconds.
  Mr. LEVIN. How much time all together on the majority side?
  The PRESIDING OFFICER. On the bill, 50 minutes; on the Kennedy 
amendment, 30 minutes.
  Mr. LEVIN. I think everybody ought to recognize the situation we are 
in. I hope we will withhold our comments until those on the other side 
who have been indicated as having time allocated to them speak so that 
we will have some time to respond to them.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.


                           Amendment No. 5088

  Mr. WARNER. Mr. President, I would now like to address the amendment 
offered by the senior Senator from Massachusetts.
  I have read this very carefully and I have studied it, I say to my 
good friend. There are certain aspects of this amendment that are well-
intentioned. But I strongly oppose it, and I do encourage colleagues to 
oppose it, because the question of the separation of powers is involved 
here, and that is the subject on which this Chamber has resonated many 
times. But here I find the amendment invades the authority of the 
executive branch in the area of the conduct of its foreign affairs by 
requiring the Secretary of State to notify other state parties to the 
Geneva Conventions of certain U.S. interpretations of the Geneva 
Conventions, in particular Common Article 3 and the law of war.
  It is up to the executive branch in its discretion to take such 
actions in terms of its relations with other several states in this 
world--not the Congress directing that they must do so--such 
communications with foreign governments. But in the balance of powers, 
it is beyond the purview of the Congress to say to the Secretary of 
State: You shall do thus and so.
  This bill speaks for itself by defining grave breaches of Common 
Article 3 that amount to war crimes under U.S. law. Any congressional 
listing of specific techniques should be avoided simply because 
Congress cannot foresee all of the techniques considered to maybe fall 
within the category of cruel and inhuman conduct, and therefore, they 
would become violations of Article 3. We can't foresee all of those 
situations. Again, it is the responsibility of this body to administer, 
to see that this bill becomes law in a manner of oversight.
  Senator Kennedy's amendment, depending on how the vote comes--and I 
am of the opinion that this Chamber will reject it--I don't want that 
rejection to be misconstrued by the world in any way as asserting that 
the techniques mentioned in the amendment are consistent with the 
Geneva Conventions or that they could legitimately be employed against 
our troops or anyone else. We must not leave that impression as a 
consequence of the decision soon to be made by way of a vote on the 
Kennedy amendment.
  The types of conduct described in this amendment, in my opinion, are 
in the category of grave breaches of Common Article 3 of the Geneva 
Conventions. These are clearly prohibited by our bill. Rather than 
listing specific techniques, Congress has exercised its proper 
constitutional role by defining such conduct in broad terms as a crime 
under the War Crimes Act. The techniques in Senator Kennedy's amendment 
are not consistent with the Common Article 3 and would strongly protest 
their use against our troops or any others.
  So I say with respect to my good friend, this is not an amendment 
that I would in any way want to be a part of this bill.
  Mr. LEVIN. Mr. President, the Kennedy amendment would require the 
Secretary of State to notify other countries around the world that 
seven specific categories of actions, each of which is specifically 
prohibited by the Army Field Manual, are punishable offenses under 
common Article 3 of the Geneva Conventions that would be prosecuted as 
war crimes if applied to any United States person. Those seven 
categories of actions are: (1) Forcing the detainee to be naked, 
perform sexual acts, or pose in a sexual manner; (2) applying beatings, 
electric shock, burns, or other forms of physical pain; (3) 
``waterboarding''; (4) using military working dogs; (5) inducing 
hypothermia or heat injury; (6) conducting mock executions; and (7) 
depriving the detainee of necessary food, water, or medical care.
  I listened very carefully to what my colleague from Virginia, the 
Chairman of the Armed Services Committee, had to say about this 
amendment. He stated:

       Now Senator Kennedy's amendment, depending on how the votes 
     come, and I'm of the opinion that this chamber will reject 
     it, I don't want that rejection to be misconstrued by the 
     world in any way as asserting that the techniques mentioned 
     in the amendment are consistent with the Geneva Convention or 
     that they could legitimately be employed against our troops 
     or anyone else. . . . We must not leave that impression as a 
     consequence of the decisions soon to be made by way of vote 
     on the Kennedy amendment. The types of conduct described in 
     this amendment, in my opinion, are in the category of grave 
     breaches of Common Article Three of the Geneva Convention. 
     These are clearly prohibited by the bill.

  I am in complete agreement with Senator Warner that each of these 
practices is a grave breach of Common Article 3. I agree that these 
practices are unlawful today and that they will continue to be unlawful 
if this bill is enacted into law.
  However, I am concerned that the administration may have muddied the 
record on these issues through its unwillingness to clearly state what 
practices are permitted, and what practices are prohibited, under 
Common Article 3. While I reach the same conclusion as Senator Warner 
as to the lawfulness of the practices listed in the Kennedy amendment, 
I am afraid that others around the world may not.
  We agree that these practices are prohibited by Common Article 3. We 
need to send a clear message to the world that this is the case, so 
that the rest of the world will abide by the same standard. That is why 
I strongly support the Kennedy amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I would like to inquire of the Senator 
from Virginia, and I yield myself 3 minutes. As I understand, one of 
the reasons this amendment is being rejected is because of the burden 
that it is going to place on our State Department to notify the 194 
countries that we expect, if these techniques are used against 
Americans, they would be considered a war crime. That is a possible 
difficulty for us? That is a burden for our State Department? Or, 
rather is he objecting because, we can't foresee all of the different 
kinds of techniques that might be used against individuals and 
therefore we shouldn't list these. We list them in the Army Field 
Manual specifically. They are not pulled out of the air; they are 
listed specifically in the Army Field Manual. That is where they come 
from. And a number of the Members on the other side of the aisle have 
said that those techniques are prohibited. So we have taken the 
Department of Defense list and incorporated it.
  Then the last argument is that: Well, if it is rejected, we don't 
want this to be interpreted as a green light for these techniques. 
There must be stronger arguments. Maybe I am missing something around 
here. With all respect, I have difficulty in understanding why the 
Senator from Virginia, the chairman of the Armed Services Committee, 
does not address the fundamental issue which is included in this 
amendment, and that is this amendment protects Americans who are out on 
the front lines of the war on terror, the SEALS, the CIA, others who 
are fighting, and it

[[Page 20306]]

gives warning to any country: You go ahead with any of these techniques 
and you are committing a war crime and will be held accountable.
  Now, if I could get a good answer to that, I would welcome it, but I 
haven't heard it yet. With all respect, I just haven't heard why the 
Senator is refusing and effectively denying--opposition to this 
amendment is denying that kind of protection. I read, and it was when 
the Senator was here, when we found out that similar kinds of 
techniques were used against Americans in World War II, and we 
sentenced offenders to 10, 15 years and even executed some. Now we are 
saying: Oh, no, we can't list those because it is going to be a bother 
to our State Department, notifying these countries. My, goodness.
  There has to be a better reason that we are not going to protect our 
service men and women from these kinds of techniques. We are saying to 
those countries: If you use these techniques, you are a war criminal. 
What are those techniques? They are in the Department of Defense 
listing. That is what they are. How often are they used? I gave the 
illustrations of how they were used repeatedly, whether it has been by 
Iran or whether it has been by Japan, or any of our adversaries in any 
other war.
  The PRESIDING OFFICER. The Senator has consumed 3 minutes.
  Mr. KENNEDY. I yield myself 1 minute. I want to put in the Record the 
excellent letter from Jack Vessey, who is a distinguished former Joint 
Chief of Staff:

       I continue to read and hear that we are facing a different 
     enemy in the war on terror. No matter how true that may be, 
     inhumanity and cruelty are not new to warfare nor to enemies 
     we have faced in the past. In my short 46 years in the armed 
     forces, Americans confronted the horrors of the prison camps 
     of the Japanese in World War II, the North Koreans in 1950 to 
     1953, and the North Vietnamese in the long years of the 
     Vietnam War, as well as knowledge of the Nazi's holocaust 
     depredations in World War II. Through those years, we held to 
     our own values. We should continue to do so.

  The Kennedy amendment does it. That is what this amendment is about. 
I reserve the remainder of my time.
  I ask unanimous consent the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 12, 2006.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: Sometimes, the news is a little 
     garbled by the time it reaches the forests of North-central 
     Minnesota, but I call your attention to recent reports that 
     the Congress is considering legislation which might relax the 
     United States support for adherence to Common Article 3 of 
     the Geneva Convention. If that is true, it would seem to 
     weaken the effect of the McCain Amendment on torture of last 
     year. If such legislation is being considered, I fear that it 
     may weaken America in two respects. First, it would undermine 
     the moral basis which has generally guided our conduct in war 
     throughout our history. Second, it could give opponents a 
     legal argument for the mistreatment of Americans being held 
     prisoner in time of war.
       In 1950, 3 years after the creation of the Department of 
     Defense, the then Secretary of Defense, General George C. 
     Marshall, issued a small book, titled The Armed Forces 
     Officer. The book summarized the laws and traditions that 
     governed our Armed Forces through the years. As the Senate 
     deals with the issue it might consider a short quote from the 
     last chapter of that book which General Marshall sent to 
     every American Officer. The last chapter is titled 
     ``Americans in Combat'' and it lists 29 general propositions 
     which govern the conduct of Americans in war. Number XXV, 
     which I long ago underlined in my copy, reads as follows:
       ``The United States abides by the laws of war. Its Armed 
     Forces, in their dealing with all other peoples, are expected 
     to comply with the laws of war, in the spirit and the letter. 
     In waging war, we do not terrorize helpless non-combatants, 
     if it is within our power to avoid so doing. Wanton killing, 
     torture, cruelty or the working of unusual hardship on enemy 
     prisoners or populations is not justified in any 
     circumstance. Likewise, respect for the reign of law, as that 
     term is understood in the United States, is expected to 
     follow the flag wherever it goes. . . .''

       For the long term interest of the United States as a nation 
     and for the safety of our own forces in battle, we should 
     continue to maintain those principles. I continue to read and 
     hear that we are facing a ``different enemy'' in the war on 
     terror; no matter how true that may be, inhumanity and 
     cruelty are not new to warfare nor to enemies we have faced 
     in the past. In my short 46 years in the Armed Forces, 
     Americans confronted the horrors of the prison camps of the 
     Japanese in World War II, the North Koreans in 1950-53, and 
     the North Vietnamese in the long years of the Vietnam War, as 
     well as knowledge of the Nazi's holocaust depredations in 
     World War II. Through those years, we held to our own values. 
     We should continue to do so.
       Thank you for your own personal courage in maintaining 
     those values, both in war and on the floor of the Senate. I 
     hope that my information about weakening American support for 
     Common Article 3 of the Geneva Convention is in error, and if 
     not that the Senate will reject any such proposal.
           Very respectfully,
                               General John W. Vessey, USA (Ret.).

  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, my distinguished colleague used two 
phrases just now. He said: Burden. He used the word burden. He then 
said the word bother. Senator, you walk straight into the 
constitutional separation of powers in your language and you say: The 
Secretary of State shall--that is a direct order--notify other parties 
to the Geneva Conventions. You are putting a direct order to the 
executive branch. I say that is a transgression of the long 
constitutional history of this country and the doctrine of separation 
of powers.
  Mr. KENNEDY. Would the Senator support it if we changed it to 
``shall,'' that you, the chairman of our committee, will make that 
request and the President will go ahead and notify and follow those 
instructions?
  Mr. WARNER. Senator, I am not in the business of trying to amend your 
amendment.
  Mr. KENNEDY. I am just trying to accommodate you. You are saying that 
this is a constitutional issue. I just offered to try to accommodate 
the Chairman so we can ensure we are protecting American servicemen 
from torture--from torture. And the response is: Well, it is going to 
violate the Constitution. I am interested in getting results.
  But I hear the Senator say that it is unconstitutional that my 
amendment says Department of State shall notify other countries that if 
they are going to torture, they are going to be held accountable, and 
we are being defeated on the floor of the U.S. Senate because the 
opponents are saying that is unconstitutional and we cannot find a way 
to do it. I find this unwillingness to compromise is outrageous.
  Mr. President, I am prepared to call the roll on this one.
  Mr. WARNER. Mr. President, at this point I wish to have such time as 
remains under the control of the Senator from Virginia accorded to me 
under the control of the time on the bill.
  The PRESIDING OFFICER. The time will be so allocated.
  Mr. WARNER. Mr. President, I wish to inform the Chamber that we are 
at that juncture where we will consider the statements of others, very 
important statements to be made. I listed them in a recitation of those 
who have indicated their desire to speak. But I also bring to the 
attention of the body that I have just been told by the leadership they 
are anxious to proceed to the votes.
  At this time I would ask--if I can get my colleague's attention--that 
there be yeas and nays on all of the pending amendments remaining.
  The PRESIDING OFFICER. Without objection, the yeas and nays may be 
requested on all pending amendments.
  Mr. LEVIN. Will the Senator withhold that request for 2 minutes? Will 
the Senator withhold?
  Mr. WARNER. Surely.
  Mr. President, we will now put in a quorum call to accommodate the 
ranking member, such that the time is not charged to either side.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, the managers, together with the guidance 
from their respective leaders, are endeavoring to do the following. 
There

[[Page 20307]]

are three amendments to be voted on and then final passage. We hope to 
have as much time used on the bill as we can, to be consumed prior to 
the initiation of the votes. But then subsequent to the three votes, 
there will be a block of time. A Senator on this side has reserved 12 
minutes. I intend to reserve, on my side, time to Senator McCain. I am 
trying to work in that category of time following the votes. But until 
we are able to reconcile this, I ask that we now proceed.
  Let me allow the Senator from Georgia to proceed. He has indicated a 
desire to speak for 5 or so minutes at this time. But I hope Senators 
are following what the two managers are saying. Those desiring to speak 
on the bill, with the exception of Senator McCain, would they kindly 
come down and utilize this time before the amendments start?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise today in support of the Military 
Commissions Act of 2006. This historic legislation is the result of 
much work, thought, and debate.
  I commend the administration, I commend Senator Warner, Senator 
McCain, Senator Graham, and all those who were involved in the ultimate 
compromise we have come to on this very sensitive and very complex 
issue. I am pleased we were able to find common ground on this critical 
issue and ensure that the President can authorize the appropriate 
agencies to move forward with an appropriate interrogation program.
  There is no question that this program provides essential 
intelligence that is vital to America's success in the war on 
terrorism. At the same time, it honors our agreement under the Geneva 
Conventions and underscores to other nations that America is a nation 
of laws. This has been a difficult issue and I am pleased that both 
sides worked so diligently to achieve this result. In this new era of 
threats, where the stark and sober reality is that America must 
confront international terrorists committed to the destruction of our 
way of life, this bill is absolutely necessary. Our prior concept of 
war has been completely altered, as we learned so tragically on 
September 11, 2001. We must address threats in a different way. If we 
are going to get at the root of terrorist activity, we need to be able 
to get critical information to do so.
  There has been much discussion during the course of the drafting of 
this bill about the rule of law, and the rule of law relative to 
detainees is, indeed, reflected in this bill. It provides for 
tribunals, for judges, for counsel, for discovery, and for rules of 
evidence.
  Most importantly, however, in my view, is that while this bill 
provides important rule of law procedures for illegal enemy combatants, 
it does not give them the same protections which we afford lawful enemy 
combatants or our own military personnel, and that is a critical 
distinction. And that is how it ought to be. We have made that 
distinction for no other reason than to provide incentive for every 
nation across the world to observe international agreements for the 
proper treatment of captives. It bears repeating--this bill applies to 
the trial of illegal enemy combatants--those who make no pretense 
whatsoever of conformity with even minimal standards or international 
norms of civilized behavior when it comes to the treatment of those 
they capture.
  We hear repeatedly that we should be concerned about what we do, for 
fear that we encourage others to treat our captured service men and 
women in a similar manner. But let's be very clear here and state what 
every American knows to be true. The al-Qaida terrorists treat our 
captured service men and women by beheading them and by dragging their 
bodies through the streets. They need no encouragement or excuse for 
their actions by reference to our treatment of their captives.
  As a result of the Supreme Court's ruling, we are creating military 
commissions that provide rule of law protections which are embodied in 
this bill--courts, judges, legal counsel, and rules of evidence. So 
this bill appropriately meets our international obligations and 
America's sense of what is right and it is in keeping with our highest 
values.
  However, this bill will allow the President to move forward with a 
terrorist interrogation program that will ensure that we continue to 
get critical information about those who are plotting to carry out 
hateful acts against America and against Americans.
  I commend the President for his determination to respond to the new 
reality confronting us. I commend Chairman Warner and my colleagues on 
the Armed Services Committee who worked in good faith to craft a bill 
which is the right bill to respond to the challenges we face. And 
again, I am pleased we were able to find common ground on this critical 
issue and ensure that the President can move forward with an 
appropriate interrogation program.
  I think it is important that we send a bill to the White House, to 
the desk of the President that is exactly the same as the bill that has 
already been passed by the House so we can put this program in place 
immediately. The way we do that is to continue to defeat all the 
amendments that have been put forward, and that we send the President 
the same bill that has already been passed by the House so that this 
program can be reinitiated immediately.
  I yield the floor.
  Mr. WARNER. Mr. President, I thank our distinguished colleague from 
Georgia, a very valued member of the Armed Services Committee who has 
from time to time participated in the extensive deliberations and 
consultations with regard to how the original bill which we worked on 
should be shaped and finally amended. I thank him.
  Again, I call to the attention of colleagues that I shall put in a 
quorum for the purpose of trying to accommodate Members on my side who 
desire to speak.
  I now see the distinguished Senator from South Carolina. We are 
prepared to allocate to him such time as he may desire. How much time 
does he need?
  Mr. GRAHAM. Would 15 minutes be OK?
  Mr. WARNER. Yes.
  Mr. GRAHAM. I thank the chairman.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, in 15 minutes I will try to explain the 
processes as I know it to be in terms of how we arrived at this moment.
  No. 1, I am glad we are here. I think the country is better off 
having the bill voted on in the current fashion.
  I have gotten to know Senator Warner very well over the last 30 days. 
I had a high opinion of the Senator before this process started, but I, 
quite frankly, am in awe of his ability to stand up for the institution 
as a U.S. Senator, who was a former Secretary of the Navy, who tried to 
have a balanced approach about what we are trying to do.
  It is no secret that Senator McCain is one of my closest friends in 
this body, and I respect him in so many ways. But unlike myself and 
most of us, Senator McCain paid a heavy price while serving this 
country. He and his colleagues in Vietnam were treated very poorly as 
prisoners of war. When he speaks about the Geneva Conventions, he does 
so as someone who has been in an environment where the Conventions 
would not apply. But Senator McCain believes very strongly in the 
Geneva Conventions. When it comes to the Vietnam war, he has told me 
more than once that if it were not for the insistence of the United 
States and the international community that constantly pushed back 
against the North Vietnamese, he thought the torture would have 
continued and all of them would eventually be killed. But the North 
Vietnamese became concerned about international criticism after a point 
in time.
  While the Geneva Conventions were not applied evenly by any means, it 
did have an effect on the North Vietnamese.
  I have been a military lawyer for over 20 years. I have had the honor 
of wearing the Air Force uniform while

[[Page 20308]]

serving my country and being around great men and women in uniform. It 
has been one of the highlights of my life. I have never been shot at. 
The only people who wanted to kill me were probably some of my clients. 
But I do appreciate why the Geneva Conventions exist and the fact that 
the law of armed conflict is a body of law unique to itself and has a 
rich tradition in our country and throughout the world and it will work 
to make us safe and live within our values if we properly apply it.
  The reason we are here is because the Supreme Court ruled in the 
Hamdan case that the military commissions authorized by the President 
were in violation of Common Article 3 of the Geneva Conventions. They 
were not regularly constituted courts.
  It surprised me greatly that the Supreme Court would find that the 
Geneva Conventions applied to the war on terror. It was President 
Bush's assumption and mine, quite frankly, that humane treatment would 
be the standard. But this enemy doesn't wear a uniform; it operates 
outside the Conventions, doesn't represent a nation, and, therefore, 
would not be covered. But the Supreme Court came to a different 
conclusion. Thus, we are here.
  I say to my fellow Americans, it is not a weakness, it is strength 
that we have three branches of government. It is not healthy for one 
branch of government to dominate the other two at a time of stress.
  I have pushed back against the administration when I believed they 
were pushing the executive power of the inherent authority of the 
President too far. Even though we are in a time of war, there is plenty 
of room for the Congress and the courts.
  What I tried to do in helping draft this bill, working with the 
President and working with our friends on the other side, is come up 
with a product that would create a balance that I think would serve us 
well.
  My basic proposition that I have applied to the problem is we are at 
war, that 9/11 was an act of war, and since that moment in time our 
Nation has been at war with enemy combatants who do not wear a uniform, 
who do not represent a nation but are warriors for their cause, just as 
dedicated as Hitler was to his cause, and they are just as vicious and 
barbaric as any enemy we have ever fought.
  But we don't need to be like them to win. As a matter of fact, we 
need to show the world that we are different than them.
  When the Geneva Conventions were applied to the war on terror, we had 
a problem. We had to renew the Military Commission Tribunal in line 
with Common Article 3. Common Article 3 is a mini-human-rights tree 
that is common to all four Convention articles. You have one about 
lawful combatants and unlawful combatants, civilians and wounded 
people. Common Article 3 is throughout all of the treaties regarding 
the Geneva Conventions. It says you would have to have a regularly 
constituted court to pass judgment or render sentences against those 
who are in your charge during time of war; that is, unlawful 
combatants.
  The problem with the military commission order authorized by the 
President was that it deviated from the formal Code of Military 
Justice, the court-martial model, without showing a practical reason. 
Within our Uniform Code of Military Justice, it says military 
commissions are authorized, but they need to be like the court-martial 
system to the extent practicable.
  What I am proud of is we have created a new military commission based 
on the UCMJ and deviations are there because of the practical need. A 
court martial is not the right forum to try enemy combatants--non-
citizen terrorists--the military commission is the right forum, but we 
are basing what we are doing on UCMJ, and the practical differences, I 
think, will be sustained by the Court.
  The confrontation rights that were originally posed by the 
administration gave me great concern. I do not believe that to win this 
war we need to create a trial procedure where the jury can receive 
evidence classified in nature, convict the accused, and the accused 
never knows what the jury had to render a verdict upon, could not 
answer that accusation, rebut or examine the evidence.
  That was the proposal which I thought went too far and that would 
come back to haunt us. As a result of this compromise, it has been 
taken out.
  We have a national security privilege available to the Government to 
protect that prosecutor's file from being given over to the defense or 
to the accused so our secrets can be protected. But we will now allow 
the prosecutor to give that to the jury and let them bring it out on 
the side of the accused and the accused never knowing what he was 
convicted upon. That could come back to haunt us if one of our soldiers 
falls into enemy hands.
  We would not want a future conviction based on evidence that our 
soldiers and CIA operative never saw. I think we have a military 
commission model that affords due process under the law of war that our 
Nation can be proud of, that will work in a way to render justice, and 
if a condition is abstained, it will be something we can be proud of as 
a nation. I am hopeful that the world would see the condition based on 
evidence, not vengeance.
  My goal is to render justice to the terrorists, even though they will 
not render justice to us. That is a big distinction.
  People ask me, Why do you care about the Geneva Conventions? These 
people will cut our heads off and they will kill us all. You are 
absolutely right. Why do I care?
  Because I am an American. And we have led the way for over 50-
something years when it comes to the Geneva Conventions applications.
  I am also a military lawyer, and I can tell every Member of this 
body--some of them have served in combat unlike myself; some know 
better than I. But we have had downed pilots in Somalia. A helicopter 
pilot was captured by militia in Somalia. We dropped leaflets all over 
the city of Mogadishu. We told the militia leaders, ``If you harm a 
helicopter pilot, you will be a war criminal.'' We blared that 
throughout town on loudspeakers with helicopters. After a period of 
time, they got the message, and he was released.
  We had two pilots shot down over Libya when Reagan bombed Qadhafi. I 
was on active duty in the Air Force. We told Qadhafi directly and 
indirectly, if they harm these two pilots, they will be in violation of 
the Geneva Conventions, and we will hunt you down to the ends of the 
Earth.
  I want to be able to say in future wars that there is no reason to 
abandon our Geneva Conventions obligations to render justice to these 
terrorists.
  So not only do we have a military commission model that is Geneva 
Conventions compliant; we have a model that I think we should be proud 
of as a nation.
  The idea that the changes between the committee bill and the 
compromise represents some grave departure, quite frankly, I vehemently 
disagree with. I didn't get into this discussion and political fight to 
take all the heat that we have taken to turn around and do something 
that undercuts the purpose of being involved in it to begin with. The 
evidentiary standard that will be used in a military commission trial 
of an enemy combatant was adopted from the International Criminal 
Court.
  I will place into the Record statements from every Judge Advocate 
General in all four branches of the services that have certified from 
their point of view that the evidentiary standard that the judge will 
apply to any statements coming into evidence against an enemy combatant 
are legally sufficient, will not harm our standing in the world, and, 
in fact, are the model of the International Criminal Court which try 
the war criminals on a routine basis.
  The provision I added, along with Senator McCain, dealing with the 
provisions of the Detainee Treatment Act, 5th, 8th, and 14th amendment 
concepts within the Detainee Treatment Act, will also be a standard in 
the future designed to reinforce the relevance of the Detainee 
Treatment Act in our national policy, in our legal system, not to 
undermine anything but to enforce the concept the Detainee Treatment

[[Page 20309]]

Act and the judicial standard that our military judges will apply to 
terrorists accused is the same that is applied in International 
Criminal Court.
  I have been a member of the JAG court for over 20 years. I have had 
the honor of serving with many men and women who will be in that court-
martial scene. The chief prosecutor, Moe Davis, I met as a captain. 
There is no finer officer in the military than Colonel Davis. He is 
committed to render justice. I am very proud of the fact that the men 
and women who will be doing these military commissions believe in 
America just as much as anybody I have ever met, and they want to 
render justice.
  What else do we try to accomplish?
  We reauthorize the military commissions in a way to be Geneva 
Conventions-compliant to afford the defendants accused due process in 
the way that will not come back to haunt us.
  What else did we have to deal with? A CIA program that is classified 
in nature that needs to continue. There is a debate in this country: 
Should we have a CIA interrogation program classified in nature that 
would allow techniques not in the Army Field Manual to get good 
intelligence from high value targets? The answer, from my point of 
view, is yes, we should, but not because we want to torture anybody, 
because we want to be inhumane as a nation. The reason we need a CIA 
program classified in nature to get good information is because in this 
war information saves lives.
  Mutual assured destruction was the concept of the Cold War, where if 
the Soviet Union attacked us, they knew with certainty they would be 
wiped out. That concept doesn't work when your enemy doesn't mind 
killing themselves when they kill you. The only way we will protect 
ourselves effectively is to know what they are up to before they act. 
The way you find that out is to have good intelligence. But you have to 
do it with your value system.
  Abu Ghraib was an aberration, but it has hurt this country. Anytime 
the world believes America has adopted techniques and tactics that are 
not of who we are, we lose our standing. So what we did regarding the 
CIA, we redefined the War Crimes Act to meet our Geneva Conventions 
obligations. The test for the Congress was, how can you have a 
clandestine CIA program and then not run afoul of the Geneva 
Conventions? What are the Geneva Conventions requirements of every 
country that signs the treaty to outlaw domestically gray areas of the 
treaty?
  In Article 129 and 130 of the Geneva Conventions, it puts the burden 
on each country to do it internally, to create laws to discipline their 
own personnel who may violate the treaty in a grave way. It lists six 
offenses that would be considered grave breaches of the treaty under 
the conventions. Those six offenses were taken out of the treaty and 
put in our domestic law, title 18, the War Crimes Act, and anybody in 
our Government who violates that War Crimes Act is subject to being 
punished as a felon.
  We added three other crimes we came up with ourselves.
  Torture has always been a crime, so anyone who comes to the Senate 
and says the United States engages in torture, condones torture, that 
this agreement somehow legitimizes torture, you don't know what you are 
talking about. Torture is a crime in America. If someone is engaged in 
it, they are subject to being a felon, subject to the penalty of death. 
Not only is torture a war crime, serious physical injury, cruel and 
inhumane treatment mentally and physically of a detainee is a crime 
under title 18 of the war crimes statute.
  Every CIA agent, every military member now has the guidance they need 
to understand the law. Before we got involved, our title 18 War Crimes 
Act was hopelessly confusing. I couldn't understand it. We brought 
clarity. We have reined in the program. We have created boundaries 
around what we can do. We can aggressively interrogate, but we will not 
run afoul of the Geneva Conventions. We are not going to let our people 
commit felonies in the name of getting good information, but now they 
know what they can and cannot do.
  Who complies with that treaty? Who is it within our Government who 
would implement our obligations under the treaty? The Congress has 
decided what a war crime would be to prohibit grave breaches of the 
treaty. The President, this President, like every other President, 
implements treaties. So what we said in this legislation, when it comes 
to nongrave breaches, all the other obligations of the Geneva 
Conventions, the President will have the responsibility 
constitutionally to comply with those obligations, not to rewrite title 
18, not to sanction torture, not to violate the Detainee Treatment Act, 
but to fulfill the treaty the way every other President has in our 
constitutional history. That is all we have done. To say otherwise is 
just political rhetoric. Not only have we allowed the CIA program to go 
forward in a way not to violate the Geneva Conventions, we have 
delegated to the President what was already our constitutional 
responsibility to enforce the treaty--not to rewrite it but to enforce 
it and fulfill it.
  My concern was that in the process of complying with Hamdan, we would 
be seen by the world as redefining the treaty for our own purposes. We 
have not redefined the Geneva Conventions. We have, for the first time 
in our domestic law, clearly defined what a crime would be against the 
Geneva Conventions, and we have told the President, as a Congress: It 
is your job to fulfill the other obligations outside of criminal law. 
That is the way it should be, and it is something of which I am 
extremely proud.
  We have been at war for over 5 years. Here we are 5 years later 
trying to figure out the basic legal infrastructure. It has been 
confusing. It has been contentious. We have had two Supreme Court cases 
where the Government's work product was struck down.
  My hope is that our homework will be graded by the Supreme Court, 
that this bill eventually will go to our Federal courts, as it should, 
and the courts will say the following: the military commissions are 
Geneva Conventions compliant and meet constitutional standards set out 
by our country when it comes to trying people.
  I am confident the court will rule that way. I am confident the 
Supreme Court will understand that the power we gave the President to 
fulfill the treaty is consistent with his role as President and the war 
crimes we have written to protect the treaty from a grave breach from 
our own people is written in a way to sustain legal scrutiny.
  I am also confident that Congress has finally cleared up what has 
been a huge problem. What role should a judge have in a time of war? 
Who should make the decision regarding enemy combatant status?
  In every war we have been in up until now, the military has decided 
the battlefield issues. Under the Geneva Conventions, it is a military 
decision to consider who an enemy combatant is. The habeas cases that 
have existed in our courts from the last 3 or 4 years have led to 
tremendous chaos at Guantanamo Bay. Our own troops are being sued by 
the people we are fighting. They are bringing every kind of action you 
can think of into Federal courts. Over 200 cases have been filed. It is 
impeding the war effort.
  A judge should not make a military decision during a time of war. The 
military is far more capable of determining who an enemy combatant is 
than a Federal judge. They are not trained to do that.
  We have replaced a system where the judges of this country can take 
over military decisions and allow judges to review military decisions, 
once made, for legal sufficiency. That is the way every other country 
in the world does it. Habeas has no place in this war for enemy 
prisoners. The Germans and the Japanese--no prisoner in the history of 
the United States has ever been able to go to a Federal court and sue 
the people they are fighting who are protecting us against the enemy.
  We are allowing the Federal courts to review every military decision 
made about an enemy combatant as to whether they made the right 
decision

[[Page 20310]]

based on competent evidence and whether the procedures they used are 
constitutional. We have rejected the idea as a Congress of allowing the 
courts to run the war when it comes to defining who an enemy combatant 
is. That was a decision which needed to be made. It is not destroying 
the writ of habeas corpus. It is having a rational, balanced approach 
to where the judges can play a meaningful role in time of war and not 
play a role they are not equipped to play. This will mean nothing if it 
does not withstand court scrutiny.
  I hope soon we will have an overwhelming vote for the final product 
after the amendments are disposed of. My goal for 2 years has been to 
try to find national unity, to have the Congress, the executive branch, 
and eventually the courts on the same sheet of music where we can tell 
the world at large that we have detention policies, interrogation 
policies, and confinement policies that not only are humane and just 
but will allow us to protect ourselves from a vicious enemy and live up 
to our obligations as a nation. We are very close to that day coming.
  I thank every Member of this Senate who has worked to make this 
product better. When you cast a vote, please remember, we are at war, 
we are not fighting crime.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, we now have an additional speaker, the 
Senator from Texas.
  As the Senator from South Carolina has just completed his remarks, I 
have to say it has been an unusual experience for all of us these past 
weeks. Working together with Senator McCain and the Senator from South 
Carolina has enabled this Senate to proceed in a way that is consistent 
with Senate practices: namely, have a committee go through a bill, have 
a markup, and then proceed to work on a product. It brought together 
the consensus.
  I say to my friend from South Carolina, although I have had some 
modest experience as Secretary of the Navy dealing with court-martials, 
and, indeed, when I was a young officer in the Marines, I was involved 
in court-martials, the Senator brought together in this bill, in this 
deliberation, a very special expertise of the years he has had.
  Now he is a full colonel in the U.S. Air Force and a Judge Advocate 
General recognition. I thank the Senator for his invaluable 
contribution to putting the series of bills we have had--putting into 
those bills matters which he believed were in the best interests of the 
men and women of the Armed Forces and, indeed, his consultation 
throughout this process with the Judge Advocate Generals and other past 
and present Judge Advocates and some of the younger officers who will 
be future Judge Advocate Generals. I thank the Senator from South 
Carolina for his strong contribution to this deliberative process in 
the Senate.
  Now I yield the floor to our last speaker before we proceed to the 
votes. As I understand, we will be voting at the conclusion of this 
statement?
  Mr. LEVIN. I don't know if the unanimous consent agreement has been 
finished yet. That is our hope.
  Mr. WARNER. We are finishing a unanimous consent request, but I alert 
the Senate that it is my strong hope and prediction we will soon be 
voting in sequence on three amendments.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I first compliment the distinguished 
chairman of the Senate Committee on Armed Services, the Senator from 
Virginia, for being the calm and steady hand on the rudder during the 
course of the discussions and debates involving this important piece of 
legislation. His work and demeanor have always been constructive and 
civil, and any disagreements we have had are befitting of the great 
traditions of this institution. I thank him for that.
  Mr. WARNER. If I may, I thank the Senator from Texas. Several times 
we came to the Senator's office in the course of the deliberations on 
this bill because the Senator, too, brings to the debate a vast 
experience, having risen through the ranks of the legal profession to 
become a judge in his State. The Senator is very well equipped and did 
provide a very valuable input into this debate.
  Mr. CORNYN. My thanks to the Senator from Virginia.
  Mr. President, not everyone who has been engaging in this debate has 
been as constructive. We have heard some outlandish statements that 
bear correction, some suggesting this bill would actually permit the 
use of torture. Nothing--nothing--could be further from the truth. In 
fact, what this bill does is make sure that the provisions of the 
Detainee Treatment Act, which were passed in December of 2005 in this 
same Senate, that ban torture, cruel, inhuman, and degrading treatment 
of detainees, that we comply with those laws which reflect upon our 
international treaty obligations as well as our domestic laws and which 
reflect our American values.
  We are a nation at war. But there is no equivalency with the way this 
war is fought and prosecuted by the United States and our allies, no 
equivalency with the manner in which the war is prosecuted by our 
enemies. We have learned that our enemies have been at war against us 
for much longer than just September 11, 2001, and date back many years 
before we even realized America was under attack.
  We know that this enemy, represented by Islamic extremism, justifies 
the use of murder against innocent civilians in order to accomplish its 
goals.
  America complies with all of its international treaty obligations and 
domestic laws. What this bill is about is to try to provide our 
intelligence authorities the clear direction they need so they know how 
to comply with those laws and, at the same time, preserve an absolutely 
critical means of collecting intelligence through the interrogation of 
high-value detainees at Guantanamo Bay.
  But no civilian employee of the U.S. Government working at the CIA or 
elsewhere is going to risk their career, their reputation, and their 
assets using some sort of cloudy law or gray law that does not make 
clear what is permitted and what is not permitted. This bill we are 
prepared to pass in a few minutes provides that kind of clear 
direction. What it says is that we in the U.S. Congress are stepping up 
to take the responsibility ourselves to provide that kind of clarity 
that will allow our intelligence authorities to gain this important 
intelligence while at the same time be secure in the knowledge that 
what they are doing fully complies with our law, including our 
international treaty obligations.
  We know the aggressive interrogation techniques that are legal under 
the provisions of the McCain amendment in the Detainee Treatment Act 
have provided much valuable intelligence that has saved American lives. 
We know the CIA's high-value terrorist detainee program works. For 
example, detainees have provided the names of approximately 86 
individuals whom al-Qaida deemed suitable for Western operations. Half 
of these individuals have now been removed from the battlefield and are 
no longer a threat to the United States of America or our allies.
  This program is effective and has saved American lives and must be 
preserved. Yet there are people who would go so far as to intimate that 
we are torturing people. But we are not torturing people. But we are 
using legal, aggressive interrogations consistent with the U.S. 
Constitution, U.S. laws, and our treaty obligations. In doing so, we 
are keeping faith with the American people that the Federal Government 
will use every legal means available to us to keep the American people 
safe.
  Now, we may disagree--and we do disagree on the Senate floor--with 
the level of rights that an accused terrorist should have. I happen to 
believe these individuals, who are high-value detainees at Guantanamo 
Bay, do not deserve the same panoply of rights preserved for American 
citizens in our legal system. But I would hope that we would all agree 
that the CIA interrogation program must continue. We must not

[[Page 20311]]

allow the brave patriots who conduct these interrogations to be at risk 
unnecessarily by providing a gray zone as opposed to absolute clarity 
insofar as it is within our power to give it so that we may interrogate 
these captured terrorists to the fullest extent of the law.
  To suggest that we are somehow torturing individuals or violating our 
own laws that we passed just last year in the Detainee Treatment Act 
under the McCain amendment banning torture, cruel and inhuman 
treatment, is absolutely untrue and irresponsible. The American people 
have a right to believe we will use every legal tool available to us to 
help keep them safe against this new and different type of enemy.
  Let me just say a word about who that enemy is. We have heard we are 
engaged in a global war on terror, and that is absolutely true. But it 
does not necessarily tell us who that enemy is. Unfortunately, it is an 
enemy that has hijacked one of the world's great religions, Islam, in 
pursuit of their extremist goals that justifies the murder of innocent 
civilians in order to accomplish those goals.
  Some on the Senate floor have said this debate is all about Iraq. It 
is not just about Iraq. If it were just about Iraq, how would those 
critics explain the attempted terrorist plot that was broken up at 
Heathrow Airport just a few short weeks ago, or the attacks in Madrid 
or Beslan in Russia or Bali or elsewhere or, for that matter, New York 
and Washington, DC?
  The fact is, we have prevented another terrorist attack on our own 
soil by using this interrogation program to allow us to detect and 
deter and disrupt terrorist activity, and the fact we have also taken 
the fight on the offensive where the terrorists plot, plan, train, and 
try to export their terrorist attacks to the United States and 
elsewhere.
  If we would do what some would apparently want us to do and simply 
pull the covers over our head and wish the bad people would go away, 
America would be less safe and we would not be able to stand here and 
say that due to the vigilance of the American people, due to the 
vigilance of the U.S. Congress and the executive branch of Government, 
we have been successful, thank goodness, in preventing another 
terrorist attack on our own soil, after 5 years from September 11, 
2001.
  So, Mr. President, I hope our colleagues will vote against these ill-
advised amendments to this bill and will send a clean bill to be 
reconciled with the House version and sent to the President right away 
so that before too long we can see that some of the war criminals who 
sit detained at Guantanamo Bay may be brought to justice, people like 
Khalid Shaikh Mohammed, who was the mastermind of the 9/11 plot that 
killed nearly 3,000 Americans.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my distinguished colleague from 
Texas. He has been a valuable addition to those who are trying to 
structure this piece of legislation.
  Momentarily, I will seek a unanimous consent request ordering the 
votes and the allocation of such time as remains between Senators.
  So at this point in time, I will suggest the absence of a quorum, 
unless the Senator from Massachusetts would like to take the additional 
3 minutes that he has at this time on his amendment.
  Mr. KENNEDY. Yes.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, just quickly, the proceedings we are 
going to have--if I can inquire--I use the 3 minutes, and then we are 
moving toward a series of votes; is that right?
  Mr. WARNER. That is correct, I say to the Senator.
  Mr. KENNEDY. Then, I would ask when I have 30 seconds left--Mr. 
President, I have 3\1/2\ minutes; am I correct?
  The PRESIDING OFFICER. Three minutes.
  Mr. KENNEDY. Three minutes.
  Mr. WARNER. Mr. President, I may have misunderstood my colleague. 
That is the 3 minutes remaining on your amendment held in abeyance.
  Mr. KENNEDY. That is correct.
  Mr. President, I yield myself the 3 minutes.


                           Amendment No. 5088

  Mr. President, just for the benefit of the membership, in my hand is 
the Army manual. In the Army manual are the prohibitions for 
instructions to all the interrogators of the United States, that they 
cannot use these kinds of harsh tactics which have been recognized by 
Members as torture.
  This amendment says if any country is going to use those similar 
tactics against those who would be representing the United States in 
the war on terror--for example, the Central Intelligence Agency; for 
example, the SEALs; for example, contractors working for the 
intelligence agency--then they will have committed a war crime.
  I reviewed earlier in the debate where we have prosecuted Japanese 
and other war crimes, giving them 10 or 15 years, and even execution 
when they went ahead with this. That is why this is so important.
  Now, my good friend, the chairman of the committee, says we cannot do 
it because it violates the Constitution because it is instructing--
instructing--the President of the United States through the State 
Department to notify the 194 countries.
  Well, we thought it was not unconstitutional on the Port Security 
Act, when we said:

       When the Secretary . . . , after conducting an assessment . 
     . . , decides that an airport does not maintain and carry out 
     effective security measures, the Secretary . . . shall notify 
     the appropriate authorities of the government of the foreign 
     country. . . .

  Here is port security.
  Here is on the pollution issues:

       The Secretary of State shall notify without delay foreign 
     states concerned. . . .

  That is the second one.
  And I have the third illustration in terms of foreign carriers.
  In 15 minutes we got these cases. And here we are going to say we are 
going to refuse to protect Americans who are on the cutting edge of the 
war on terror because we will not let our State Department go on an e-
mail and notify the 192 countries because that is unconstitutional? If 
the chairman of the Armed Services Committee feels that way, we could 
strike that provision and just say it is the policy of the United 
States. Then we would not be instructing anyone. Either way, this is 
about protecting Americans. It is about protecting Americans.
  I believe those Americans who are out there in the hills and in the 
mountains of Afghanistan today and tonight, those people who are in the 
hills and mountains and deserts of Iraq, those people who are out in 
Southeast Asia or all over the world in order to try to deal with the 
problems of terrorism ought to know, if they are in danger of getting 
captured, if any of their host countries are going to perform this kind 
of procedure and torture on them, they will be war criminals.
  That is what this amendment is about. I hope it will be accepted. It 
should be.
  Mr. President, I yield what time I have to my ranking member.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. WARNER. Mr. President, at this time we are waiting for clearance 
by the leadership of the UC. But I will ask at this time we get the 
yeas and nays on all the votes, the amendments and final passage.
  Mr. ROCKEFELLER. Mr. President, without objecting, does any unanimous 
consent request allow me to close on my amendment for 2 minutes?
  Mr. WARNER. Mr. President, the UC, as presently drafted, gives 2 
minutes to each side for the purpose of addressing amendments.
  Mr. ROCKEFELLER. I thank the Senator.
  Mr. WARNER. Mr. President, I once again restate the request for the 
yeas and nays on the amendments and final passage. I ask unanimous 
consent that it be in order to ask for the yeas and nays on the 
amendments and final passage.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I ask for the yeas and nays on the 
amendments and final passage.

[[Page 20312]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. WARNER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. 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. Mr. President, I ask unanimous consent that any remaining 
time be yielded back, other than as noted below, and that the Senate 
proceed to votes in relation to the amendments in the following order:
  The Rockefeller amendment No. 5095, the Byrd amendment No. 5104, and 
the Kennedy amendment No. 5088.
  I further ask unanimous consent that there be 4 minutes for debate, 
equally divided, prior to each of the above votes.
  I further ask unanimous consent that prior to passage of the bill, 
Senator Leahy be recognized for his remaining 12 minutes and, as set 
forth in the initial unanimous consent request, which was provided for 
under the original consent order, Senator Levin be in control of 4 
minutes, Senator Warner in control of 16 minutes, to be followed by 
closing remarks by the two leaders and, following that time, the Senate 
proceed to passage of the bill; further, that there then be 5 minutes 
equally divided prior to the vote on invoking cloture on the border 
fence legislation; provided further that with respect to the border 
fence bill, it be in order to file second degrees at the desk no later 
than 5 p.m. today under the provisions of rule XXII.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Mr. President, reserving the right to object, I did not 
understand the part about the fence.
  Mr. WARNER. Can the Senator repeat that?
  Mr. LEAHY. I did not understand the part about the timing of the 
fence bill.
  Mr. WARNER. I will repeat it.
  Mr. LEAHY. Just that part.
  Mr. WARNER. It reads as follows: Following that time, the Senate 
proceed to passage of the bill; further, there then be 5 minutes 
equally divided prior to the vote on invoking cloture on the border 
fence legislation; provided further that with respect to the border 
fence bill, it be in order to file second degrees at the desk no later 
than 5 p.m. today under the provisions of rule XXII.
  Mr. LEAHY. Mr. President, even though I believe we have made a 
terrible and tragic mistake in the Senate, including major changes in 
our constitutional rights willy-nilly to get out to campaign, I realize 
they have locked this in and there is not much one can do about it. I 
think it is a farce in the Senate.
  Mr. WARNER. Mr. President, I renew the unanimous consent request.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                           Amendment No. 5095

  There will now be 4 minutes of debate, equally divided, on the 
Rockefeller amendment.
  The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, my amendment would require, as I 
explained this morning, the CIA to provide the Congressional 
Intelligence Committees, which are required by law to be informed of 
what is going on in the intelligence world, fully the most basic and 
fundamental information it needs to oversee the CIA detention and 
interrogation program.
  Frankly, for the past 4 years we have not had that information. The 
administration has withheld this information from us. I am not saying 
that in partisan fashion. It is a fact.
  It has been very frustrating as a member of the Intelligence 
Committee, much less as a Member of the Senate. We have made repeated 
requests and the Intelligence Committee has been prevented from 
carefully reviewing the program. The program has operated, as a result, 
without any meaningful congressional oversight whatsoever, and that is 
our responsibility under the law.
  All of my colleagues should be troubled by this fact. We cannot 
assure ourselves, we cannot assure the American people, and we cannot 
assure our agents overseas that the CIA program is both legally sound 
and effective, without the basic information required under my 
amendment.
  My amendment is simply about oversight and accountability, nothing 
more, nothing less. Nothing in the amendment would require the public 
disclosure of any classified document or aspect of the CIA program.
  Mr. President, I ask unanimous consent that Senator Feinstein be 
added as a cosponsor of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I spoke in strong opposition to this 
amendment. Again, I think it tries to displace the oversight that is 
performed by the Intelligence Committee. I would like to add the 
following bit of information.
  On September 28 of this year, GEN Michael V. Hayden, who is the 
current Director of the CIA, wrote a letter to Chairman Pat Roberts of 
the Intelligence Committee in the Senate. In it he said:

       On September 6, 2006, I briefed the full SSCI membership on 
     key aspects of the detainee program, providing a level of 
     detail previously not made available to SSCI members. I made 
     clear to the committee that upon passage of the new detainee 
     legislation, I would brief the SSCI on how CIA would execute 
     the future program, and I agreed to promptly notify the 
     committee when any modifications to the program were 
     proposed, or when the status of any individual detainee 
     changed.

  I think that is dispositive of a very clear indication by the 
executive branch to allow the Senate to perform its oversight through 
the properly designated committee, the Senate Committee on 
Intelligence.
  Mr. ROCKEFELLER. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. WARNER. Mr. President, I ask unanimous consent that this letter 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  Central Intelligence Agency,

                               Washington, DC, September 28, 2006.
     Hon. Pat Roberts,
     Chairman, Select Committee on Intelligence,
     United States Senate, Washington, DC.
       Dear Mr. Chairman: I write today regarding the Rockefeller 
     amendment to the military commissions legislation now pending 
     on the Senate floor. The CIA strongly opposes adoption of the 
     Rockefeller amendment.
       Since the inception of its detention program, the CIA has a 
     strong and consistent record of keeping its oversight 
     committees fully and currently informed of critical aspects 
     of the program. Further, the bipartisan leadership of 
     Congress has been briefed regularly by the CIA on this 
     program since its inception, and I personally briefed the 
     Majority and Minority Leaders of the Senate only weeks ago. 
     The CIA remains committed to a frank and open dialogue with 
     the Congress on detailed aspects of the detainee program, 
     while ensuring the secrecy of this particularly sensitive 
     activity. Senate adoption of the Rockefeller amendment would 
     go far beyond traditional CIA reports to Congress by 
     mandating detailed information about assets, methods, 
     locations and individuals involved in sensitive operations. 
     In addition, detailing in public law the amount of sensitive 
     information that CIA must provide to Congress will chill some 
     of our counterterrorism partners whose cooperation is fully 
     conditioned on the absolute secrecy of their support.
       Since becoming Director of the CIA, I have made every 
     effort to keep your committee apprised of the status of the 
     detainee program. In July, I updated you and SSCI Vice 
     Chairman Rockefeller on the program, sharing sensitive 
     aspects, including information about specific detainees, 
     examples of actionable intelligence gained from the program 
     and about ways in which the program could continue to be 
     successful in the future. Following this briefing and despite 
     its highly sensitive nature, at your request--and that of 
     Sen. Rockefeller--I fully supported briefing the entire SSCI 
     membership.
       On September 6, 2006, I briefed the full SSCI membership on 
     key aspects of the detainee program, providing a level of 
     detail previously not made available to SSCI members. I made 
     clear to the committee that

[[Page 20313]]

     upon passage of new detainee legislation, I would brief the 
     SSCI on how CIA would execute the future program and I agreed 
     to promptly notify the committee when any modifications to 
     the program were proposed or when the status of any 
     individual detainee changed.
       Upon Senate passage of the military commissions 
     legislation, I stand ready to again brief your committee and 
     the bipartisan Senate leadership on the future of the 
     detainee program.
           Sincerely,
                                                Michael V. Hayden,
                                           General, USAF Director.

  Mr. WARNER. Mr. President, are we prepared to move to a vote?
  The PRESIDING OFFICER. Yes. The question is on agreeing to the 
amendment of the Senator from West Virginia.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Maine (Ms. Snowe).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 46, nays 53, as follows:

                      [Rollcall Vote No. 256 Leg.]

                                YEAS--46

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

                                NAYS--53

     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
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Snowe
       
  The amendment (No. 5095) was rejected.
  Mr. McCONNELL. 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.


                           Amendment No. 5104

  The PRESIDING OFFICER. There will now be 4 minutes equally divided on 
the Byrd amendment.
  Who yields time?
  The Senator from West Virginia is recognized.
  Mr. BYRD. Friends, Senators, lend me your ears. Friends, Senators, 
lend me your ears. I voted to report a fair and balanced bill from the 
Armed Services Committee, but the legislation before the Senate today 
bears little resemblance to that legislation. It has been changed so 
many times, we don't know the real implications of this ever-changing 
bill. The Byrd-Obama-Clinton-Levin amendment sunsets the authority of 
the President to convene new military commissions after 5 years. There 
is nothing wrong with that.
  This amendment ensures that Congress will not simply stand aside and 
ignore its oversight responsibilities after this bill is enacted. This 
amendment will not stop any trials of suspected terrorists that 
commence before the sunset date. It simply forces Congress to revisit--
revisit--the weighty constitutional implications of this bill in 5 
years' time and then be in a position, on the basis of new knowledge 
and experience, to make a decision again.
  It is a very reasonable amendment. I urge my colleagues to support 
it.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I say to our most distinguished senior 
colleague that this amendment was well debated on the floor, but I 
would bring to the attention of all Senators that we do not have any 
estimates of how long the war on terrorism against the jihadists is 
going to take place. We may be having those who commit crimes today not 
apprehended until after this sunset provision. Then they go free. They 
are not subject, unless the Senate at that time somehow restores the 
importance of the next President to continue--to continue, Mr. 
President--bringing to justice and trial under our rules these 
individuals who are committing war crimes. So I urge all Senators to 
oppose this amendment.
  Mr. BYRD. Mr. President, do I have any time remaining?
  The PRESIDING OFFICER. The Senator has 36 seconds.
  Mr. BYRD. This amendment will not set any terrorists free. Let 
Senators who are here 5 years from now take a new look on the basis of 
experience and make a decision in the light of the then circumstances. 
That is all I am asking. This is nothing new.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to the Byrd amendment No. 5104.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Maine (Ms. Snowe).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 47, nays 52, as follows:

                      [Rollcall Vote No. 257 Leg.]

                                YEAS--47

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

                                NAYS--52

     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
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Snowe
       
  The amendment (No. 5104) was rejected.
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. McCONNELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 5088

  The PRESIDING OFFICER. There are 4 minutes equally divided on the 
Kennedy amendment.
  Mr. KENNEDY. Mr. President, here is the Army Manual of 2006 printed 
after the Senate of the United States went on record in accepting the 
McCain amendment prohibiting torture. In the printed Army Manual is a 
list of the prohibited activities where any person who is a member of 
the Defense Department is prohibited to engage in these kinds of 
activities because they have made a finding that they are basically and 
effectively torture.
  Today we have thousands of Americans in the Central Intelligence 
Agency, Special Forces, the SEALS, and American contractors working for 
the CIA around the world fighting terrorism. All this amendment does is 
give notice to each and every country that any country that is going to 
practice these kinds of techniques on any American will be guilty 
effectively of a war crime.
  That is effectively what we have done with the Army Manual, and we 
ought

[[Page 20314]]

to protect our intelligence agency personnel, our SEALS, and all of 
those who are all over the world protecting the United States.
  Arguments against? It is a violation of the Constitution because it 
is an instruction to a member of the Cabinet about what they ought to 
do.
  Here it is for airports. The Secretary of Transportation shall 
conduct an assessment with foreign countries.
  Here it is on voting rights. The Attorney General is authorized and 
directed to institute suits that are going to be involved in poll 
taxes.
  The Secretary of State shall notify without delay foreign states that 
are involved in pollution. The list goes on. If we can do it for 
pollution, we can do it for violation of basic and fundamental rights 
of Americans overseas.
  This is effectively about what we adopted when we adopted the War 
Crimes Act, which was virtually unanimous, with not a single vote in 
opposition.
  This is basically a restatement. I hope it will be accepted 
overwhelmingly.
  Mr. WARNER. Mr. President, this is an amendment that requires close 
attention by all colleagues.
  In the preparation of this bill, we defined in broad terms the 
conduct that is regarded as a grave breach of Common Article 3. These 
are war crimes. We the Congress should not try to provide a specific 
list of techniques. We don't know what the future holds. That is not 
the responsibility of the Congress. We are not going to direct. We try 
to make a list of techniques, that the United States describe every 
technique that violates Common Article 3. We cannot foresee into the 
future every technique that might violate Common Article 3. We should 
not step on that situation. It is not ours to do.
  Under the separation of powers, it is reserved to the executive 
branch to work this out. But if at any time it is the judgment of any 
Member of this body, or collectively, that we are not abiding by this 
law, I am confident that this institution's oversight will correct and 
quickly remedy the situation.
  I yield the floor.
  The PRESIDING OFFICER. The question is on agreeing to the amendment. 
The yeas and nays have been ordered the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Maine (Ms. Snowe).
  The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 46, nays 53, as follows:

                      [Rollcall Vote No. 258 Leg.]

                                YEAS--46

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

                                NAYS--53

     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
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Snowe
       
  The amendment (No. 5088) was rejected.
  Mr. WARNER. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. I ask the Presiding Officer to read the unanimous consent 
that is in place so all Members understand what is to take place.
  The PRESIDING OFFICER. Senator Leahy will be recognized for his 
remaining 12 minutes. Senator Levin is under the control of 4 minutes, 
Senator Warner is under the control of 16 minutes, to be followed by 
closing remarks by the two leaders. Following that time, the Senate 
will proceed to passage of the bill. Further, that there then be 5 
minutes equally divided prior to the vote on the motion to invoke 
cloture on border fence legislation.
  Mr. WARNER. The Chair will now recognize Senator Leahy?
  Mr. LEVIN. Mr. President, my understanding is that was the allocation 
of time, not necessarily the order of speaking.
  The PRESIDING OFFICER. The agreement does not appear to be in any 
particular order.
  Mr. WARNER. Mr. President, at the appropriate time, I will allocate 
14 minutes to the distinguished Senator from Arizona, Mr. McCain.
  At this point in time, I recognize the extraordinary contributions of 
the staff persons who worked on this bill, and I shall include the 
entire list.
  We worked under the direction of Charlie Abell, Scott Stucky, David 
Morriss, Rick DeBobes, Peter Levine, Chris Paul, Pablo Chavez, Richard 
Fontaine, Jen Olson, Adam Brake, James Galyean, and legislative counsel 
Charlie Armstrong.
  I assure Members it was a challenge from beginning to end. I cannot 
recall seeing a more professional group of staffers serving their 
Members in the Senate.
  Mr. LEVIN. I suggest the absence of a quorum, and I ask unanimous 
consent that the time not be charged to either side or to any party.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INHOFE. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Unanimous Consent Request--S. 2781

  Mr. INHOFE. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar 625, S. 2781, and I 
ask unanimous consent that the committee-reported amendment be, for the 
third time, passed and the motion to reconsider be laid upon the table.
  Mr. JEFFORDS. I object. I agree that wastewater security is an 
important issue. In fact, it is made even more important because the 
Homeland Security appropriations conferees have exempted these 
facilities from security requirements--a decision that I understand was 
due in large part to the Senator's opposition to including these 
facilities within the protections of that bill.
  Although I would like to have seen stronger chemical security 
provisions than those I understand are forthcoming from the Homeland 
Security appropriations conference, I anticipate supporting that 
measure. I would support including wastewater facilities in that 
measure. But I will not support a bill like S. 2781 that provides 
weaker protections.
  By contrast, I long ago introduced S. 1995, The Wastewater Treatment 
Works Security Act of 2005. I feel certain that if I asked unanimous 
consent to pass this bill, the Senator would object to my request. I 
prefer a more constructive pathway to providing essential protection to 
our communities.
  We should fill this gap in our Nation's security, and in order to do 
so, we need full and fair opportunity to offer amendments to cure the 
serious deficiencies in this bill.
  Mr. President, I ask unanimous consent to insert a statement in the 
Record concerning my objection to consideration of the Wastewater 
Security bill.
  The PRESIDING OFFICER. The objection is heard.
  Mr. INHOFE. Mr. President, I wanted to call the Senate's attention to 
the

[[Page 20315]]

fact we do have wastewater legislation that has passed both the House 
and the Senate, in the House by a vote of 413 to 2. It is something 
which is desperately needed. We need to attend to that as soon as 
possible.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objction, it is so ordered.


COMMON ARTICLE 3 AND WAR CRIMES PROVISIONS OF THE MILITARY COMMISSIONS 
                                  ACT

  Mr. LEVIN. Senators Warner and McCain, over the last year, you have 
played an instrumental role in bringing needed clarity to the rules for 
the treatment of detainees in U.S. custody. I understand that you also 
played a key role in negotiating the provisions of the military 
commissions bill regarding the War Crimes Act and Common Article 3 of 
the Geneva Conventions. As you said last year when the Detainee 
Treatment Act was adopted, this is not an area in which ambiguity is 
helpful. For this reason, I hope that you will help me in providing a 
clear record of our intent on these issues.
  In particular, section 8(a)(3) of the bill provides that ``the 
President has the authority for the United States to interpret the 
meaning and application of the Geneva Conventions'', that these 
interpretations shall be issued by Executive order, and that such an 
Executive order ``shall be authoritative (as to non-grave breach 
provisions of Common Article 3) as a matter of United States law, in 
the same manner as other administrative regulations.''
  Would you agree that nothing in this provision gives the President or 
could give the President the authority to modify the Geneva Conventions 
or U.S. obligations under those treaties?
  Mr. McCAIN. First, I say to my good friend from Michigan that this 
legislation clearly defines grave breaches of Common Article 3, which 
are criminalized and ultimately punishable by death. It is critical for 
the American public to understand that we are criminalizing breaches of 
Common Article 3 that rise to the level of a felony. Such acts--
including cruel or inhuman treatment, torture, rape, and murder, among 
others--will clearly be considered war crimes.
  Where the President may exercise his authority to interpret treaty 
obligations is in the area of ``nongrave'' breaches of the Geneva 
Conventions--those breaches that do not rise to the level of a war 
crime. In interpreting the conventions in this manner, the President is 
bounded by the conventions themselves. Nothing in this bill gives the 
President the authority to modify the conventions or our obligations 
under those treaties. That understanding is at the core of this 
legislation.
  Mr. WARNER. I concur with the Senator from Arizona.
  Mr. LEVIN. Would you agree that nothing in this provision gives the 
President, or could give the President, the authority to modify the 
requirements of the Detainee Treatment Act?
  Mr. WARNER. The purpose of this legislation is to strengthen, not to 
weaken or modify, the Detainee Treatment Act. For the first time, this 
legislation is required to ``take action to ensure compliance'' with 
the DTA's prohibition on cruel, inhuman, or degrading treatment, as 
defined in the U.S. reservation to the Convention Against Torture. He 
is directed to do so through, among other actions, the establishment of 
administrative rules and procedures. Nothing in this legislation 
authorizes the President to modify the requirements of the DTA, which 
were enshrined in a law passed last December. I would point out as well 
to the distinguished ranking member that the President himself never 
proposed to weaken the DTA. Rather, he proposed to make compliance with 
the DTA tantamount to compliance with Common Article 3 of the Geneva 
Conventions. That proposal is not included in this legislation.
  Mr. McCAIN. I agree entirely with Senator Warner's comments.
  Mr. LEVIN. Would you agree that any interpretation issued by the 
President under this section would only be valid if it is consistent 
with U.S. obligations under the Geneva Conventions and the Detainee 
Treatment Act?
  Mr. McCAIN. That is correct.
  Mr. WARNER. I agree.
  Mr. LEVIN. Section 8(b) of the bill would amend the War Crimes Act to 
provide that only ``grave breaches'' of Common Article 3 of the Geneva 
Conventions constitute war crimes under U.S. law. The provision goes on 
to define those grave breaches to include, among other things, torture, 
and ``cruel or inhuman treatment''. The term ``cruel or inhuman 
treatment' is defined to include acts ``intended to inflict severe or 
serious physical or mental pain or suffering.''
  Would you agree that the changes to the War Crimes Act in section 
8(b) do not in any way alter U.S. obligations under the Geneva 
Conventions or under the Detainee Treatment Act?
  Mr. McCAIN. The changes to the War Crimes Act are actually a 
responsible modification in order to better comply with America's 
obligations under the Geneva Conventions to provide effective penal 
sanction for grave breaches of Common Article 3. It is important to 
note, as has the Senator from Michigan, that in this section ``cruel or 
inhuman treatment'' is defined for purposes of the War Crimes Act only. 
It does not infringe, supplant, or in any way alter the definition of 
cruel, inhuman, or degrading treatment or punishment prohibited in the 
DTA and defined therein with reference to the 5th, 8th, and 14th 
amendments to the U.S. Constitution. Nor do the changes to the War 
Crimes Act alter U.S. obligations under the Geneva Conventions.
  Mr. WARNER. I would associate myself with the comments from the 
Senator from Arizona.
  Mr. LEVIN. Would you agree that nothing in this section or in this 
bill requires or should be interpreted to authorize any modification to 
the new Army Field Manual on interrogation techniques, which was issued 
last month and provides important guidance to our solders on the field 
as to what is and is not permitted to the interrogation of detainees?
  Mr. WARNER. The executive branch has the authority to modify the Army 
Field Manual on Intelligence Interrogation at any time. I welcomed the 
new version of the field manual issued last month and agree that it 
provides critical guidance to our solders in the field. That said, the 
content of the field manual is an issue separate from those at issue in 
this bill, and it was not my intent to effect any change in the field 
manual through this legislation.
  Mr. McCAIN. I concur wholeheartedly with the Senator from Virginia. 
As the Senator form Virginia is aware, there is a provision in the bill 
before the Senate that defines ``cruel and inhuman treatment'' under 
the War Crimes Act. I would note first that this definition is limited 
to criminal offenses under the War Crimes Act and is distinct from the 
broader prohibition contained in the Detainee Treatment Act. That act 
defined the term ``cruel, inhuman and degrading treatment'' with 
reference to the reservation the United States took to the Convention 
Against Torture.
  In the war crimes section of this bill, cruel and inhuman treatment 
is defined as an act intended to inflict severe or serious physical or 
mental pain or suffering. It further makes clear that such mental 
suffering need not be prolonged to be prohibited. The mental suffering 
need only be more than transitory. It is important to note that the 
``nontransitory'' requirement applies to the harm, not to the act 
producing the harm. Thus if a U.S. soldier is, for example, subjected 
to some terrible technique that lasts for a brief time but that causes 
serious and nontransitory mental harm, a criminal act has occurred.
  Mr. WARNER. That is my understanding and intent as well, and I agree 
with the Senator's other clarifying remarks.
  In the same section, the term ``serious physical pain or suffering'' 
is defined as a bodily injury that involves one of four 
characteristics: ``a substantial risk of death,'' ``extreme physical

[[Page 20316]]

pain,'' ``a burn or physical disfigurement or a serious nature,'' or 
``significant loss or impairment of the function of a bodily member, 
organ or mental faculty.'' I do not believe that the term ``bodily 
injury'' adds a separate requirement which must be met for an act to 
constitute serious physical pain or suffering.
  Mr. McCAIN. I am of the same view.
  Mr. LEVIN. And would the Senator from Arizona agree with my view that 
section 8(a)(3) does not make lawful or give the President the 
authority to make lawful any technique that is not permitted by Common 
Article 3 or the Detainee Treatment Act?
  Mr. McCAIN. I do agree.
  Mr. WARNER. I agree with both of my colleagues.
  Mr. KENNEDY. Mr. President, in times of war, our obligation is to 
protect our Nation and to protect those men and women who risk their 
lives to defend us. This bill fails that duty. By failing to renounce 
torture, it inflames an already dangerous world and makes new enemies 
for America in our war against terror. This puts cause or people and 
our troops at greater risk. That is why so many respected military 
leaders oppose this bill.
  Throughout our history, America has led the world in promoting human 
rights and decency. We have fought wars against tyranny and oppression. 
Our enemies have employed tactics that were rightly and roundly 
condemned by the civilized world. We maintained American strength and 
honor by refusing to stoop to the level of our enemies. And we should 
not stoop to the level of the terrorists in the war on terror.
  I rise to express my profound opposition to this bill both in terms 
of its substance and the procedure by which it reached the floor. The 
Armed Service Committee reported out a bill that I supported. That bill 
was not perfect, but it preserved our commitment to the Geneva 
Conventions, limited the possibility that detainees would be treated 
abusively and set up procedures for military tribunals that generally 
respected the fundamental requirements of fairness.
  Republican members of the Armed Services Committee then began a 
process of secret negotiation with the White House that produced a bill 
that is far worse than the committee bill. Indeed, we have continued to 
see changes in that bill as it has been moved toward the floor in a 
rush to achieve passage before the Senate recesses for the election. 
This rush to passage to serve a political agenda is no way to produce 
careful and thoughtful legislation on profound issues of national 
security and civil liberties. At this point, most Members of this body 
hardly know what they are being asked to approve.
  The bill as it now appears on the floor works profound and disastrous 
changes in our law.
  This legislation sets out an overly broad definition of unlawful 
enemy combatant. This definition would allow the President to pick up 
anyone citizen and legal residents included anywhere around the world, 
and throw them into prison in Guantanamo without even charging or 
trying them. These people would never get a day in court to prove their 
innocence. There is no check whatsoever on the President's ability to 
detain people in an arbitrary manner.
  We already know that our military has made mistakes in detaining 
people. We are currently holding dozens of people at Guanatanamo who we 
know based on the military's own records are not guilty of anything. 
Yet they have not been let go.
  This legislation also makes a distinction between citizens and lawful 
permanent residents. Citizens cannot be subject to military commissions 
and their flawed procedures. Yet lawful permanent residents, those 
green card holders who are on the path to citizenship, could be sent to 
military commissions. Green Card holders must obey our laws, pay taxes, 
and register for the draft. They are serving our country in Iraq. They 
have an obligation to protect our laws, and they deserve the protection 
of those same laws.
  The Geneva Conventions were adopted in the wake of the horrific 
atrocities during World War II. These conventions reflect the 
international consensus on how individuals should be treated in times 
of war. They set a minimum floor of humane treatment for all prisoners, 
military and civilian alike. This floor is known as Common Article 3 
because it is common to all of the conventions. Yet this bill also 
gives the President authority to decide what conduct violates Common 
Article 3 of the Geneva Conventions. Again, the President's authority 
to define the meaning of Common Article 3 is virtually unreviewable. He 
is required to publish his interpretation in the Federal Register, but 
the administration has already made clear that it will not make public 
which interrogation tactics are being used. Moreover, the bill 
expressly states that the Geneva Conventions cannot be relied upon in 
any U.S. court as a source of rights. The President's interpretation 
may well likely escape judicial review, as well.
  As the final method of concealing its activities, the administration 
has stripped the courts of their ability to review the confinement or 
treatment of detainees. The administration won a provision that 
eliminates the ability of any detainee anywhere in the world to file a 
habeas corpus petition challenging the justification for or conditions 
of his or her confinement. The provision applies to all existing 
petitions and would require their dismissal, including the Hamdan case 
itself. There is no justification for stripping courts of jurisdiction 
to issue the great writ of habeas corpus, which has been a foundation 
of our legal system with roots in the Magna Carta. The availability of 
the Great Writ is assured in the Constitution itself, which permits its 
suspension only in times of invasion or rebellion. This provision of 
the bill is most likely unconstitutional.
  The administration has pursued a strategy to defeat accountability 
since it first began to take detainees into custody. It chose 
Guantanamo and secret prisons abroad because it thought U.S. law would 
not apply. It fought hard to prevent detainees from obtaining counsel 
and then argued that U.S. Courts lacked jurisdiction to hear detainees' 
complaints. It sought the prohibition on habeas corpus petitions 
adopted in the Detainee Treatment Act and then urged courts to 
misconstrue it to wipe out all pending habeas cases. This new effort to 
prohibit habeas petitions is a continuation of this effort to escape 
judicial scrutiny.
  The bill also for the first time in our history would authorize the 
introduction of evidence obtained by torture in a judicial proceeding. 
Our courts have always rejected this type of evidence because it is 
inconsistent with fundamental notions of justice, and also because it 
is unreliable. We know that detainees were subjected to harsh 
interrogation techniques, and made statements as a result. Under this 
legislation, if those statements were made before the passage of the 
McCain Amendment last winter, then they are admissible. The Congress is 
saying for the first time in our nation's history that statements 
obtained by torture are admissible. This fact, alone, is a stunning 
statement about how far we have strayed from our bedrock values.
  It defines conduct that can be prosecuted as a war crime in a very 
narrow way that appears designed to exclude many of the abusive 
interrogation practices that this administration has employed. While 
some have argued that cruel and inhumane practices such as 
waterboarding, induced hypothermia and sleep deprivation would surely 
be covered, the White House and the Republican leadership have refused 
to commit to this basic interpretation of the bill.
  We tried to improve this bill. A number of amendments were offered 
and should have been adopted. I offered an amendment that responds to 
the lack of clarity about which practices are prohibited by the bill. 
Because the administration has refused to commit itself to stop using 
specific abusive interrogation procedures, our commitment to the 
standards of Common Article 3 of the Geneva Conventions is in doubt. 
That puts our own people at

[[Page 20317]]

risk. As military leaders have repeatedly stated, our adherence to the 
Geneva Conventions is essential to protect our own people around the 
world. America has thousands of people across the globe who do not wear 
uniforms, but put their lives on the line to protect this country every 
day. CIA agents, Special Forces members, contractors, journalists and 
others will all be less safe if we turn our backs on the standards of 
Common Article 3.
  The bill as it has reached the floor would diminish the security and 
safety of Americans everywhere and further erode our civil liberties. I 
strongly oppose this bill.
  Mr. GRASSLEY. Mr. President, we hear on a daily basis about the war 
we are currently engaged in, the war on terror, but I don't think most 
of us stop to think about what that actually means.
  As citizens of the greatest country in the world, we have become so 
accustomed to all the rights afforded us by our Constitution that we 
now take them for granted. We are incredibly fortunate to live in a 
nation where our freedom and safety is our Government's first priority.
  We aren't living in the world I grew up in. Our Nation was rocked to 
its core 5 years ago when we were attacked on our own soil. Thousands 
of innocent Americans were murdered simply because they lived in the 
one country that, above all others, embodies freedom and democracy. The 
mastermind behind those attacks was Khalid Shaikh Mohammed, who is now 
in custody and soon will be brought to justice.
  In the aftermath of these attacks, Congress authorized our President 
to ``use all necessary force against those nations, organizations, or 
persons he determines planned, authorized, committed or aided the 
terrorist attacks that occurred on September 11, 2001, or harbored such 
organizations or persons.'' President Bush used this authorization, 
combined with his constitutional powers to make these sorts of 
judgments during times of war, to try enemy combatants in military 
commissions.
  Earlier this month, we observed the 5-year anniversary of the 
horrific attacks on America. I cannot imagine the reaction that would 
have come if, 5 years ago, Members of Congress had stood on this floor 
and suggested that we wouldn't do all we could to prevent another 
attack on our country. Five years ago, with the images of the 
collapsing Twin Towers and the burning Pentagon and the smoldering 
Pennsylvania field seared into our memories, we stood united in the 
proposition that we intended to protect Americans first.
  In Hamdan v. Rumsfeld, which the Supreme Court decided earlier this 
year, the Court ruled that the administration's use of military 
commissions to try unlawful enemy combatants violated international 
law. This decision forced our interrogators, key in defending America 
from terrorist attack, to curtail their investigations. Without a 
clarification of the vague requirements, these interrogators might be 
subject to prosecution for war crimes. It also brought to an end the 
prosecution of unlawful enemy combatants through the military 
commissions.
  It is key to point out that military commissions have been used 
throughout American history to bring enemy combatants to justice since 
before the United States was even officially formed. George Washington 
used them during the American Revolution, and since our Constitution 
was ratified, Presidents have used military commissions to try those 
who seek to harm Americans during every major conflict. Some of our 
most popular Presidents from history have taken this route, including 
Abraham Lincoln and Franklin Roosevelt. Whenever the leaders of this 
great Nation have seen threats posed by those who refuse to abide by 
the rules of war, they have taken the necessary steps to protect us.
  Our President has come to us and asked for help in trying these 
terrorists whose sole goal is to kill those who love freedom. He has 
asked for our help in ensuring that those investigating potential 
terrorist plots against our Nation and our citizens are secure from 
arbitrary prosecution for undefined war crimes. These people are part 
of our first line of defense in securing the safety of our country--we 
owe it to them to protect them. Because of the Supreme Court's decision 
in Hamdan, the only way these terrorists will be brought to justice and 
our interrogators will be protected for doing their jobs is for 
Congress to write a new law codifying procedures for military 
commissions and clarifying our obligations under the Geneva 
Conventions.
  I firmly believe that enemy combatants in our custody enjoyed ample 
due process in the military commissions established by the 
administration, which were brought to a halt by the Supreme Court. The 
compromise that we are considering here today gives more rights to 
terrorists who were caught trying to harm America and our allies than 
our own servicemembers would receive elsewhere, more than is required 
by the Geneva Conventions--yet some are still demanding more.
  Mr. President, it is essential that we protect human dignity at every 
opportunity, but we have gone well beyond that with this legislation. 
The legislation before us responds to the Supreme Court's decision in 
Hamdan and seeks to protect national security while ensuring that the 
terrorists who seek to destroy America are properly dealt with. This 
bill affords these unlawful enemy combatants rights that they 
themselves would never consider granting American soldiers. It is 
beyond reasonable, beyond fair, and beyond time for Congress to act. We 
must pass this bill and reinstate the programs that, I believe, have 
been a crucial part of our Nation's security over the last 5 years.
  Mr. WARNER. Mr. President, I ask unanimous consent to have printed in 
the Record a joint statement regarding alleged violations of the Geneva 
Conventions.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Joint Statement of Senators McCain, Warner, and Graham on Individual 
        Rights Under the Geneva Conventions, September 28, 2006

       Mr. President, we are submitting this statement into the 
     record because it has been suggested by some that this 
     legislation would prohibit litigants from raising alleged 
     violations of the Geneva Conventions. This suggestion is 
     misleading on three counts.
       First, it presumes that individuals currently have a 
     private right of action under Geneva. Secondly, it implies 
     that the Congress is restricting individuals from raising 
     claims that the Geneva Conventions have been violated as a 
     collateral matter once they have an independent cause of 
     action. Finally, this legislation would not stop in any way a 
     court from exercising any power it has to consider the United 
     States' obligations under the Geneva Conventions, regardless 
     of what litigants say or do not say in the documents that 
     they file with the court.
       The Supreme Court's decision in Hamdan left untouched the 
     widely-held view that the Geneva Conventions provide no 
     private rights of action to individuals. And, in fact, the 
     majority in Hamdan suggested that the Geneva Conventions do 
     not afford individuals private rights of action, although it 
     did not need to reach that question in its decision. This 
     view has been underscored by judicial precedent--and even 
     Salim Hamdan himself did not claim in his court filings that 
     he had a private right of action under Geneva.
       Still, this legislation would not bar individuals from 
     raising to our Federal courts in their pleadings any 
     allegation that a provision of the Geneva Conventions--or, 
     for that matter, any other treaty obligation that has the 
     force of law--has been violated. It is not the intent of 
     Congress to dictate what can or cannot be said by litigants 
     in any case.
       By the same token, this legislation explicitly reserves 
     untouched the constitutional functions and responsibilities 
     of the judicial branch of the United States. Accordingly, 
     when Congress says that the President can interpret the 
     meaning of Geneva, it is merely reasserting a longstanding 
     constitutional principle. Congress does not intend with this 
     legislation to prohibit the Federal courts from considering 
     whether the obligations of the United States under any treaty 
     have been met. To paraphrase an opinion written by Chief 
     Justice Roberts recently, if treaties are to be given effect 
     as Federal law under our legal system, determining their 
     meaning as a matter of Federal law is the province and duty 
     of the judiciary headed by the Supreme Court. So, though the 
     President certainly has the constitutional authority to 
     interpret our Nation's treaty obligations, such 
     interpretation is subject to judicial review. It is not the 
     intent of Congress to infringe on any constitutional power of 
     the

[[Page 20318]]

     Federal bench, a co-equal branch of government.
       Most importantly, the lack of judicial enforceability 
     through a private right of action has absolutely no bearing 
     on whether Geneva is binding on the executive branch. Even if 
     the Geneva Conventions are not enforceable by individuals in 
     our Nation's courts, the President and his subordinates are 
     bound to comply with Geneva, a set of treaty obligations that 
     forms part of our American jurisprudence. That is clear to us 
     and to all who have negotiated this legislation in good 
     faith.

  Mrs. BOXER. Mr. President, I view this bill as a weak plan that will 
lead to delay after delay in convicting terrorists, endanger our troops 
on the field, and surrender one of the bedrock constitutional 
principles of our justice system--habeas corpus.
  We had a chance to improve this bill with amendments, but this rubber 
stamp Senate defeated them one after another, leaving us with a flawed 
plan that will face a serious court challenge, and that makes us less 
safe.
  The Republicans even voted against a bipartisan bill that came out of 
the Senate Armed Services Committee.
  Mr. McCONNELL. Mr. President, I rise today in support of the Military 
Commissions Act of 2006. I support this legislation, first and 
foremost, because this bill recognizes that we are a Nation at war. We 
are a Nation at war, and we are at war with Islamic extremists. We are 
not conducting a law enforcement operation against a checkwriting scam 
or trying to foil a bank heist. We are at war against extremists who 
want to kill our citizens, cripple our economy, and discredit the 
principles we hold dear--freedom and democracy.
  Once you accept the premise that we are at war, the most important 
consideration should be, Does this bill protect the American people? I 
submit that this bill does just that. It does so by permitting the 
President's CIA interrogation program to continue. This is of profound 
importance.
  If the attacks of September 11, 2001, taught us anything, it is that 
self-imposed limitations on our intelligence-gathering efforts can have 
devastating consequences. For instance, the wall of separation between 
the intelligence community and the law enforcement community that 
existed prior to 2001 proved to be an imposing hurdle to foiling the 
September 11 attacks. According to the report of the 9/11 Commission, 
in late summer 2001, the U.S. Government, in effect, conducted its 
search for 9/11 hijacker Khalid Mihdhar with one hand tied behind its 
back. As we all know, that search was unsuccessful. Comparable pre-9/11 
efforts with respect to Zacarias Moussaoui were similarly frustrated in 
large part due to this wall.
  Thankfully, with the PATRIOT Act, we removed this wall of separation, 
and now the intelligence and law enforcement arms of our Government can 
share information and more effectively protect us here at home.
  Another lesson of September 11 was the premium that should be placed 
on human intelligence. Prior to September 11, we were woefully 
deficient in our human intelligence regarding al-Qaida. Al-Qaida is an 
extremely difficult organization to infiltrate. You can't just pay dues 
and become a member. But interrogation offers a rare and valuable 
opportunity to gather vital intelligence about al-Qaida's capabilities 
and plans before they attack us.
  The CIA interrogation program provided crucial human intelligence 
that has saved American lives by helping to prevent new attacks. As the 
President has explained, 9/11 mastermind Khalid Shaikh Mohammed told 
the CIA about planned attacks on U.S. buildings in which al-Qaida 
members were under orders to set off explosives high enough in the 
building so the victims could not escape through the windows.
  As the President also noted, the program has also yielded human 
intelligence regarding al-Qaida's efforts to obtain biological weapons 
such as anthrax. And it has helped lead to the capture of key al-Qaida 
figures, such as KSM and his accomplice, Ramzi bin al Shibh.
  Another means of evaluating the importance of this program is by 
considering a grim hypothetical. What if al-Qaida or other terrorists 
organizations were able to get their hands on nuclear, chemical, or 
biological weapons and were trying to attack a major U.S. city? 
Thousands or even millions of lives could be at stake. Under such a 
chilling scenario, wouldn't we want our intelligence community to have 
all possible tools at its disposal? Would we want our intelligence 
community to respond with one hand tied behind its back as it did 
before September 11?
  Unfortunately, that threat is all too real. The potential for al-
Qaida to attack a U.S. city with a device that could kill millions of 
people reflects how vital it is to permit the intelligence community to 
make full use of the tools it needs to continue protecting American 
lives. The compromise preserves this crucial intelligence-gathering 
tool and allows the CIA and others on the front lines to continue 
protecting America.
  In addition, this bill protects classified information from being 
released to al-Qaida terrorists. This also is a serious concern. The 
identities of U.S. intelligence officials and informants--men and women 
who put their lives at risk to defend this Nation--must be protected at 
all costs.
  If we needed any reminding why terrorists should not be given 
sensitive information, we should just look at the prosecution of the 
1993 World Trade Center bombers. According to the man who prosecuted 
these Islamic extremists, intelligence from U.S. Government files was 
supplied to the defendants through the discovery process.
  This information was later delivered directly to Osama bin Laden 
while he was living in Sudan. Let me repeat that. Information given to 
the jihadist defendants, individuals who tried to destroy the World 
Trade Center in 1993, was later given directly to bin Laden himself.
  Since we are at war, we should not be revealing classified 
information to the enemy. That is just common sense. This bill protects 
classified information.
  Finally, while this bill preserves our ability to continue to protect 
America, it also provides detainees with fair procedural rights.
  In fact, this legislation provides broader protections for defendants 
than did Nuremberg. Liberal law professor Cass Sunstein has written 
that the military commissions authorized by the President in 2001 
``provide far greater procedural safeguards than any previous military 
commission, including Nuremberg.'' Let me say that again: liberal law 
professor Cass Sunstein noted that the President's 2001 military order 
provided far greater procedural safeguards than any previous military 
commission, including Nuremberg. And in this legislation, we provide 
defendants with even broader procedural safeguards than the President's 
2001 military order.
  This system is exceedingly fair since al-Qaida in no way follows the 
Geneva Conventions or any other international norm. Al-Qaida respects 
no law, no authority, no legitimacy but that of its own twisted strain 
of radical Islam.
  Al-Qaida grants no procedural rights to Americans they capture. Look 
at journalist Daniel Pearl, who was beheaded by al-Qaida in Pakistan in 
2002. Al-Qaida simply executes those they capture, even civilians like 
Pearl. Not only do they unapologetically kill innocent civilians, they 
broadcast these brutal executions on the Internet for all to see.
  Mr. President, I would just conclude by stating that this legislation 
is vitally important. It is vitally important because it is wartime 
legislation. It is vitally important because this bill protects our 
national security, it protects classified information, and it protects 
the rights of defendants. Most important, it protects America. For 
these reasons, I urge its passage.
  Mr. CORNYN. Mr. President, once the Military Commissions Act, MCA, is 
signed into law and section 7 is effective, Congress will finally 
accomplish what it sought to do through the Detainee Treatment Act--
DTA--last year. It will finally get the lawyers out of Guantanamo Bay. 
It will substitute the blizzard of litigation instigated by Rasul v. 
Bush with a narrow DC Circuit -only review of the Combatant Status 
Review Tribunal--CSRT--hearings.

[[Page 20319]]

  Perhaps even more important than the narrow standards of review 
created by the DTA is the fact that that review is exclusive to the 
court of appeals. This is by design. Courts of appeals do not hold 
evidentiary hearings or otherwise take in evidence outside of the 
administrative record. The DC Circuit will operate no differently under 
the CSRT review provisions of the DTA. The circuit court will review 
the administrative record of the CSRTs to make sure that the right 
standards were applied, the standards that the military itself set for 
CSRTs. And it will determine whether the CSRT system as a whole is 
consistent with the Constitution and with Federal statutes.
  There is no invitation in the DTA or MCA to reconsider the 
sufficiency of the evidence. Weighing of the evidence is a function for 
the military when the question is whether someone is an enemy 
combatant. Courts simply lack the competence--the knowledge of the 
battlefield and the nature of our foreign enemies--to judge whether 
particular facts show that someone is an enemy combatant. By making 
review exclusive to the DC Circuit, the DTA helps to ensure that the 
narrow review standards it sets do not somehow grow into something akin 
to Federal courts' habeas corpus review of State criminal convictions. 
The court's role under the DTA is to simply ensure that the military 
applied the right rules to the facts. It is not the court's role to 
interpret those facts and decide what they mean.
  Because review under the DTA and MCA will be limited to the 
administrative record, there is no need for any lawyer to ever again go 
to Guantanamo to represent an enemy combatant challenging his 
detention. The military, I am certain, will make the paper record 
available inside the United States. This is one of the major benefits 
of enacting the MCA. As I and others have noted previously, the 
hundreds of lawyer visits to Guantanamo sparked by Rasul have seriously 
disrupted the operation of the Naval facility there. They have forced 
reconfiguration of the facility and consumed enormous resources, and 
have led to leaks of information that have made it harder for our 
troops there to do their job, to keep order at Guantanamo. Some of 
these detainee lawyers have even bragged about what a burden their 
activities have been on the military, and how they have disrupted 
interrogations at Guantanamo. Putting an end to that was the major 
purpose of the DTA. Today, with the MCA, we see to it that this goal is 
effectuated.
  Another major improvement that the MCA makes to the DTA is that it 
tightens the bar on nonhabeas lawsuits contained in 28 U.S.C. 
Sec. 2241(e)(2). That paragraph, as enacted by the DTA, barred 
postrelease conditions-of-confinement lawsuits, but only if the 
detainee had been found to be properly detained as an enemy combatant 
by the U.S. Court of Appeals on review of a CSRT hearing. Although 
nothing in the DTA or MCA directly requires the military to conduct 
CSRTs, this limitation on the bar to non-habeas actions effectively did 
compel the military to hold CSRTs--and to somehow get the detainee to 
appeal to the DC Circuit. The alternative would have been to allow the 
detainee to sue U.S. troops at Guantanamo after his release.
  The MCA revises section 2241(e)(2) by, among other things, adopting a 
much narrower exception to the bar on post-release lawsuits. Under the 
MCA, 2242(e)(2) will bar nonhabeas lawsuits so long as the detainee 
``has been determined by the United States to have been properly 
detained as an enemy combatant or is awaiting such determination.'' 
This new language does several things. First, it eliminates the 
requirement that the DC Circuit review a CSRT, or that a CSRT even be 
held, before nonhabeas actions are barred. This is important because 
many detainees were released before CSRTs were even instituted. We do 
not want those who were properly detained as enemy combatants to be 
able to sue the U.S. military. And we do not want to force the military 
to hold CSRT hearings forever, or in all future wars. Instead, under 
the new language, the determination that is the precondition to the 
litigation bar is purely an executive determination. It is only what 
the United States has decided that will matter.
  In addition, the language of (e)(2) focuses on the propriety of the 
initial detention. There inevitably will be detainees who are captured 
by U.S. troops, or who are handed over to us by third parties, who 
initially appear to be enemy combatants but who, upon further inquiry, 
are found to be unconnected to the armed conflict. The U.S. military 
should not be punished with litigation for the fact that they initially 
detained such a person. As long as the individual was at least 
initially properly detained as an enemy combatant, the nonhabeas 
litigation is now barred, even if the U.S. later decides that the 
person was not an enemy combatant or no longer poses any threat. The 
inquiry created here is not unlike that for reviewing, in the civilian 
criminal justice context, the propriety of an arrest. An arrest might 
be entirely legal, might be based on sufficient probable cause, even if 
the arrestee is later conclusively found to be innocent of committing 
any crime. The arresting officer cannot be sued and held liable for 
making that initial arrest, so long as the arrest itself was supported 
by probable cause, simply because the suspect was not later convicted 
of a crime. Similarly, under 2241 (e)(2), detainees will not be able to 
sue their captors and custodians if the United States determines that 
it was the right decision to take the individual into custody.
  Mr. SESSIONS. Mr. President, I would like to make a few comments 
about section 7 of the bill that is before us today. This section makes 
a number of improvements to the Detainee Treatment Act, which was 
passed by the Congress and signed into law on December 30 of last year. 
First, section 7 will fulfill one of the original objectives of the 
DTA: to get the lawyers out of Guantanamo Bay. As my colleague Senator 
Graham has noted, these lawyers have even bragged about the fact that 
their presence and activities at Guantanamo have made it harder for the 
military to do its job. Mr. Michael Ratner, the director of the Center 
for Constitutional Rights, which coordinated much of the detainee 
habeas litigation, had this to say about his activities to a magazine:

       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?

  This is what Congress thought that it was putting an end to when it 
enacted the DTA in 2005. That act provided that ``no court, justice, or 
judge shall have jurisdiction to hear or consider'' claims filed by 
Guantanamo detainees, except under the review standards created by that 
Act. The DTA was made effective immediately upon the date of its 
enactment. And as Justice Scalia noted in his Hamdan v. Rumsfeld 
dissenting opinion, the DTA's jurisdictional removal made no exception 
for lawsuits that were pending when the statute was enacted. Justice 
Scalia also pointed out that ``[a]n ancient and unbroken line of 
authority attests that statutes ousting jurisdiction unambiguously 
apply to cases pending at their effective date.'' He also noted that up 
until the Hamdan decision, ``one cannot cite a single case in the 
history of Anglo-American law . . . in which a jurisdiction-stripping 
provision was denied immediate effect in pending cases, absent an 
explicit statutory reservation.''
  The Hamdan majority, on the other hand, found that the Supreme 
Court's precedents governing jurisdictional statutes were trumped in 
that case by a legislative intent to preserve the pending lawsuits. 
This congressional intent, the majority concluded, was manifested in 
minor changes that had been made to the language of the bill and, most 
expressly, in statements made by Senators regarding the intended effect 
of the bill. As Senator Graham has explained in detail in remarks in 
the Congressional Record on August 3, at 152 Cong. Rec. 16944, it

[[Page 20320]]

appears that the Supreme Court was misled about the legislative history 
of the DTA by the lawyers for Hamdan. Those lawyers misrepresented the 
nature of the statements made in the Senate and caused the court to 
believe that Congress had an intent other than that reflected in the 
text of the statute. It certainly was not my intent, when I voted for 
the DTA, to exempt all of the pending Guantanamo lawsuits from the 
provisions of that act.
  Section 7 of the Military Commissions Act fixes this feature of the 
DTA and ensures that there is no possibility of confusion in the 
future. Subsection (b) provides that the bill's revised litigation bar 
``shall take effect on the date of the enactment of this Act, and shall 
apply to all cases, without exception, pending on or after the date of 
the enactment of this Act which relate to any aspect of the detention, 
transfer, treatment, trial, or conditions of detention of an alien 
detained by the United States since September 11, 2001.'' I don't see 
how there could be any confusion as to the effect of this act on the 
pending Guantanamo litigation. The MCA's jurisdictional bar applies to 
that litigation ``without exception.''

  The new bill also bars all litigation by anyone found to have been 
properly detained as an enemy combatant, regardless of whether the 
detainee has been through the DC Circuit under the DTA or has been 
through a Combatant Status Review Tribunal hearing. The previous 
version of this bar, in the DTA, allowed detainees to bring conditions-
of-confinement lawsuits after their release if their detention was not 
reviewed by the DC Circuit. Obviously, the Government could not force 
the detainee to appeal, and there are some who were released before 
CSRT hearings were instituted. The new bill states that as long as the 
military decides that it was appropriate to take the individual into 
custody as an enemy combatant, as a security risk in relation to a war, 
that person cannot turn around and sue our military after he is 
released. It should not be held against our soldiers that they take 
someone into custody, believing in good faith that he appears to be 
connected to hostilities against the United States, and then determine 
that the individual is not an enemy combatant and release the person. 
The fact of release should not be an invitation to litigation, so long 
as the military finds that it was appropriate to take the individual 
into custody in the first place.
  The biggest change that the MCA makes to section 2241(e) is that the 
new law applies globally, rather than just to Guantanamo detainees. We 
are legislating through this law for future generations, creating a 
system that will operate not only throughout this war, but for future 
wars in which our Nation fights. In the future, we may again find 
ourselves involved in an armed conflict in which we capture large 
numbers of enemy soldiers. It is not unlikely that the safest and most 
secure place to hold those soldiers will be inside the United States. 
The fact that we hold those enemy soldiers in this country should not 
be an invitation for each of them to sue our Government. We held very 
large numbers of enemy soldiers in this country during World War II. 
They did not sue our Government seeking release. The Rasul decision 
would seem to have required that enemy combatants held in this country 
during wartime can sue. If that court allowed enemy combatants held in 
Cuba to sue, it is inevitable that those held inside this country would 
have been allowed to sue as well. That is simply not acceptable. It 
would make it very difficult to fight a major war in the future if 
every enemy war prisoner detained inside this country could sue our 
military. Through section 7 of the MCA, we not only solve our current 
problems with Guantanamo, but we plan for future conflicts as well. We 
ensure that, if need be, we can again hold enemy soldiers in prison 
camps inside our country if we need to, without becoming embroiled in a 
tempest of litigation.
  I imagine that, now that Congress has clearly shut off access to 
habeas lawsuits, the lawyers suing on behalf of the detainees will 
shift their efforts toward arguing for an expansive interpretation of 
the judicial review allowed under the DTA. Paragraphs 2 and 3 of 
section 1005(e) of the DTA allow the DC Circuit to review a CSRT enemy 
combatant determination. The Government has provided a CSRT hearing to 
every detainee held at Guantanamo, with the likely exception of those 
transferred there this month, so all of those detainees will now be 
allowed to seek DTA review in the DC Circuit. Paragraphs 2 and 3 allow 
the DC Circuit to ask whether the military applied its own standards 
and procedures for CSRTs to the detainee, and they allow the court to 
ask whether those standards are constitutional and are consistent with 
nontreaty Federal law. I think that those standards speak for 
themselves, that they clearly allow only a very limited review. In 
particular, they do not allow the courts to second-guess the military's 
evidentiary findings. The courts simply are not in a position, they do 
not have the expertise, to judge whether particular evidence suggests 
that an individual is an enemy combatant.
  I would like to note here that this is the consensus view of the DTA 
at this time, at least for now. I have no doubt that in the future, 
lawyers will argue that these standards invite the court to reweigh the 
evidence, to take in evidence outside of the CSRT record, and to decide 
if the military was right about its factual judgment. At this time, 
however, both proponents and opponents of section 7 of the MCA seem to 
agree on what kind of review it will allow. Earlier today, for example, 
I heard Senator Specter, who opposes section 7, criticize the paragraph 
2 and 3 review standards on the Senate floor. He said, ``the statute 
provides that the Combatant Status Review Tribunal may be reviewed by 
the Court of Appeals for the District of Columbia only to the extent 
that it was--the ruling was consistent with the standards and 
procedures specified by the Secretary of Defense. Now, to comply with 
the standards and procedures determined by the Secretary of Defense 
does not mean--excludes on its face--a factual determination as to what 
happens to the detainees.''
  I have also come into possession of a so-called fact sheet on the DTA 
review standards that is being distributed on Capitol Hill by Human 
Rights First, a group that is lobbying Senators to oppose the MCA and 
to support the Specter amendment that was defeated earlier today. This 
fact sheet is titled, ``The Limited Review Allowed Under the DTA is No 
Substitute for Habeas.'' Here is what the Human Rights First fact sheet 
says:

       The DTA restricts the court to determining whether the 
     prior CSRTs followed their own procedures.

                           *   *   *   *   *

       It has been suggested that the court of appeals, in 
     reviewing the CSRT decisions, can fix the problem simply by 
     choosing to review the evidence itself. But that is simply 
     not the way the statute reads. The government has taken the 
     firm position in Bismullah that no review even of 
     ``significant exculpatory evidence'' is permitted under the 
     DTA. If Congress believes that the courts should be allowed 
     to review the evidence--and they clearly should be--then it 
     should change the statute to say so. It is no solution to 
     hope that the courts will ignore the actual statutory 
     language and rewrite the statute to correct the deficiency.

  There you have it. Senators have been told in floor debate by the 
chairman of the Judiciary Committee that the DTA ``excludes on its 
face'' any factual determination with regard to the Guantanamo 
detainees. The groups lobbying Senators with regard to the MCA have 
pointed out that having courts make their own factual determinations, 
to judge the sufficiency of the evidence behind the military's 
findings, ``is simply not the way the statute reads.'' We are informed 
that the Justice Department has taken the ``firm position'' that no 
evidentiary review is permitted under the DTA. And we are told that if 
we disagree with this system, if we think that ``the courts should be 
allowed to review the evidence,'' then we ``should change the statute 
to say so.'' The Senate is clearly on notice as to how the DTA review 
will work, what the statute says on its face, how the Justice 
Department has construed that statute. By rejecting

[[Page 20321]]

the Specter amendment earlier today, and by passing the MCA later 
today, the Senate makes clear that it does not disagree with the 
Justice Department and does not want to change this system.
  I will close my remarks by quoting at length from the testimony of 
U.S. Attorney General William Barr, who spoke on the matters addressed 
by this legislation before the Judiciary Committee on June 15, 2005. 
Mr. Barr's testimony informs our understanding of the history, law, and 
practical reality underlying the DTA and the MCA. I would commend his 
statement to anyone seeking to understand these statutes and the 
complex relationship between the President's war-making power and the 
judiciary. This relationship is superficially similar to, but is 
fundamentally different from, the judiciary's oversight of the civilian 
criminal justice system. I particularly found to be true Mr. Barr's 
emphasis that the proper role of the courts in this area is not 
accurately described as ``deference'' to military decisions because 
deference implies that the ultimate decisions still lie with the 
courts. As Mr. Barr notes, ``the point here is that the ultimate 
substantive decision rests with the President and that the courts have 
no authority to substitute their judgments for that of the President.''
  Here is an extended excerpt from Attorney General Barr's testimony 
regarding the detention of alien enemy combatants:

       The determination that a particular foreign person seized 
     on the battlefield is an enemy combatant has always been 
     recognized as a matter committed to the sound judgment of the 
     Commander in Chief and his military forces. There has never 
     been a requirement that our military engage in evidentiary 
     proceedings to establish that each individual captured is, in 
     fact, an enemy combatant. Nevertheless, in the case of the 
     detainees at Guantanamo, the Deputy Secretary of Defense and 
     the Secretary of the Navy have established Combatant Status 
     Review Tribunals (``CSRTs'') to permit each detainee a fact-
     based review of whether they are properly classified as enemy 
     combatants and an opportunity to contest such designation.
       As to the detention of enemy combatants, World War II 
     provides a dramatic example. During that war, we held 
     hundreds of thousands of German and Italian prisoners in 
     detention camps within the United States. These foreign 
     prisoners were not charged with anything; they were not 
     entitled to lawyers; they were not given access to U.S. 
     courts; and the American military was not required to engage 
     in evidentiary proceedings to establish that each was a 
     combatant. They were held until victory was achieved, at 
     which time they were repatriated. The detainees at Guantanamo 
     are being held under the same principles, except, unlike the 
     Germans and Italians, they are actually being afforded an 
     opportunity to contest their designation as enemy combatants.
       Second, once hostile forces are captured, the subsidiary 
     question arises whether they belonged to an armed force 
     covered by the protections of the Geneva Convention and hence 
     entitled to POW status? If the answer is yes, then the 
     captives are held as prisoners of war entitled to be treated 
     in accord with the various requirements of the Convention. If 
     the answer is no, then the captives are held under humane 
     conditions according to the common law of war, though not 
     covered by the various requirements of the Convention. The 
     threshold determination in deciding whether the Convention 
     applies is a ``group'' decision, not an individualized 
     decision. The question is whether the military formation to 
     which the detainee belonged was covered by the Convention. 
     This requires that the military force be that of a signatory 
     power and that it also comply with the basic requirements of 
     Article 4 of the Treaty, e.g., the militia must wear 
     distinguishing uniforms, retain a military command structure, 
     and so forth. Here, the President determined that neither al-
     Qaeda nor Taliban forces qualified under the Treaty.
       The third kind of action we are taking goes beyond simply 
     holding an individual as an enemy combatant. It applies so 
     far only to a subset of the detainees and is punitive in 
     nature. In some cases, we are taking the further step of 
     charging an individual with violations of the laws of war. 
     This involves individualized findings of guilt. Throughout 
     our history we have used military tribunals to try enemy 
     forces accused of engaging in war crimes. Shortly after the 
     attacks of 9/11, the President established military 
     commissions to address war crimes committed by members of al-
     Qaeda and their Taliban supporters.
       Again, our experience in World War II provides a useful 
     analog. While the vast majority of Axis prisoners were simply 
     held as enemy combatants, military commissions were convened 
     at various times during the war, and in its immediate 
     aftermath, to try particular Axis prisoners for war crimes. 
     One notorious example was the massacre of American troops at 
     Malmedy during the Battle of the Bulge. The German troops 
     responsible for these violations were tried before military 
     commissions.
       Let me turn to address some of the challenges being made to 
     the way we are proceeding with these al-Qaeda and Taliban 
     detainees.


     I. The Determination That Foreign Persons Are Enemy Combatants

       The Guantanamo detainees' status as enemy combatants has 
     been reviewed and re-reviewed within the Executive Branch and 
     the military command structure. Nevertheless, the argument is 
     being advanced that foreign persons captured by American 
     forces on the battlefield have a Due Process right under the 
     Fifth Amendment to an evidentiary hearing to fully litigate 
     whether they are, in fact, enemy combatants. In over 225 
     years of American military history, there is simply no 
     precedent for this claim.
       The easy and short answer to this claim is that it has 
     been, as a practical matter, mooted by the military's 
     voluntary use of the CSRT process, which gives each detainee 
     the opportunity to contest his status as an enemy combatant. 
     As discussed below, those procedures are clearly not required 
     by the Constitution. Rather they were adopted by the military 
     as a prudential matter.
       Nonetheless, those procedures would plainly satisfy any 
     conceivable due process standard that could be found to 
     apply. In its recent Hamdi decision, the Supreme Court set 
     forth the due process standards that would apply to the 
     detention of an American citizen as an enemy combatant. The 
     CSRT process was modeled after the Hamdi provisions and thus 
     provides at least the same level of protection to foreign 
     detainees as the Supreme Court said would be sufficient to 
     detain an American citizen as an enemy combatant. Obviously, 
     if these procedures are sufficient for American citizens, 
     they are more than enough for foreign detainees who have no 
     colorable claim to due process rights.
       Moreover, most of the guarantees embodied in the CSRT 
     parallel and even surpass the rights guaranteed to American 
     citizens who wish to challenge their classification as enemy 
     combatants. The Supreme Court has indicated that hearings 
     conducted to determine a detainee's prisoner-of-war status, 
     pursuant to the Geneva Convention, could satisfy the core 
     procedural guarantees owed to an American citizen. In certain 
     respects, the protocols established in the CSRTs closely 
     resemble a status hearing, as both allow all detainees to 
     attend open proceedings, to use an interpreter, to call and 
     question witnesses, and to testify or not testify before the 
     panel. Furthermore, the United States has voluntarily given 
     all detainees rights that are not found in any prisoner-of-
     war status hearing, including procedures to ensure the 
     independence of panel members and the right to a personal 
     representative to help the detainee prepare his case. 
     Nevertheless, there appear to be courts and critics who 
     continue to claim that the Due Process Clause applies and 
     that the CSRT process does not go far enough. I believe these 
     assertions are frivolous.
       I am aware of no legal precedent that supports the 
     proposition that foreign persons confronted by U.S. troops in 
     the zone of battle have Fifth Amendment rights that they can 
     assert against the American troops. On the contrary, there 
     are at least three reasons why the Fifth Amendment has no 
     applicability to such a situation. First, as the Supreme 
     Court has consistently held, the Fifth Amendment does not 
     have extra-territorial application to foreign persons outside 
     the United States. As Justice Kennedy has observed, ``[T]he 
     Constitution does not create, nor do general principles of 
     law create, any juridical relation between our country and 
     some undefined, limitless class of non-citizens who are 
     beyond our territory.'' Moreover, as far as I am aware, prior 
     to their capture, none of the detainees had taken any 
     voluntary act to place themselves under the protection of our 
     laws; their only connection with the United States is that 
     they confronted U.S. troops on the battlefield. And finally, 
     the nature of the power being used against these individuals 
     is not the domestic law enforcement power--we are not seeking 
     to subject these individuals to the obligations and sanctions 
     of our domestic laws--rather, we are waging war against them 
     as foreign enemies, a context in which the concept of Due 
     Process is inapposite.
       In society today, we see a tendency to impose the judicial 
     model on virtually every field of decision-making. The notion 
     is that the propriety of any decision can be judged by 
     determining whether it satisfies some objective standard of 
     proof and that such a judgment must be made by a ``neutral'' 
     arbiter based on an adversarial evidentiary hearing. What we 
     are seeing today is an extreme manifestation of this--an 
     effort to take the judicial rules and standard applicable in 
     the domestic law enforcement context and extend them to the 
     fighting of wars. In my view, nothing could be more farcical, 
     or more dangerous.
       These efforts flow from a fundamental error--confusion 
     between two very distinct

[[Page 20322]]

     constitutional realms. In the domestic realm of law 
     enforcement, the government's role is disciplinary--
     sanctioning an errant member of society for transgressing the 
     internal rules of the body politic. The Framers recognized 
     that in the name of maintaining domestic tranquility an 
     overzealous government could oppress the very body politic it 
     is meant to protect. The government itself could become an 
     oppressor of ``the people.''
       Thus our Constitution makes the fundamental decision to 
     sacrifice efficiency in the realm of law enforcement by 
     guaranteeing that no punishment can be meted out in the 
     absence of virtual certainty of individual guilt. Both the 
     original Constitution and the Bill of Rights contain a number 
     of specific constraints on the Executive's law enforcement 
     powers, many of which expressly provide for a judicial role 
     as a neutral arbiter or ``check'' on executive power. In this 
     realm, the Executive's subjective judgments are irrelevant; 
     it must gather and present objective evidence of guilt 
     satisfying specific constitutional standards at each stage 
     of a criminal proceeding. The underlying premise in this 
     realm is that it is better for society to suffer the cost 
     of the guilty going free than mistakenly to deprive an 
     innocent person of life or liberty. The situation is 
     entirely different in armed conflict where the entire 
     nation faces an external threat. In armed conflict, the 
     body politic is not using its domestic disciplinary powers 
     to sanction an errant member, rather it is exercising its 
     national defense powers to neutralize the external threat 
     and preserve the very foundation of all our civil 
     liberties. Here the Constitution is not concerned with 
     handicapping the government to preserve other values. 
     Rather it is designed to maximize the government's 
     efficiency to achieve victory--even at the cost of 
     ``collateral damage'' that would be unacceptable in the 
     domestic realm.
       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.
       The Constitution's grant of ``Commander-in-Chief'' power 
     must, at its core, mean the plenary authority to direct 
     military force against persons the Commander judges as a 
     threat to the safety of our forces, the safety of our 
     homeland, or the ultimate military and political objectives 
     of the conflict. At the heart of these kinds of military 
     decisions is the judgment of what constitutes a threat or 
     potential threat and what level of coercive force should be 
     employed to deal with these dangers. These decisions cannot 
     be reduced to tidy evidentiary standards, some predicate 
     threshold, that must be satisfied as a condition of the 
     President ordering the use of military force against a 
     particular individual. What would that standard be? 
     Reasonable suspicion, probable cause, substantial evidence, 
     preponderance of the evidence, or beyond a reasonable doubt? 
     Does anyone really believe that the Constitution prohibits 
     the President from using coercive military force against a 
     foreign person--detaining him--unless he can satisfy a 
     particular objective standard of evidentiary proof?
       Let me posit a battlefield scenario. American troops are 
     pinned down by sniper fire from a village. As the troops 
     advance, they see two men running from a building from which 
     the troops believe they had received sniper fire. The troops 
     believe they are probably a sniper team. Is it really being 
     suggested that the Constitution vests these men with due 
     process rights as against the American soldiers? When do 
     these rights arise? If the troops shoot and kill them--i.e., 
     deprive them of life--could it be a violation of due process? 
     Suppose they are wounded and it turns out they were not enemy 
     forces. Does this give rise to Bivens' Constitutional tort 
     actions for violation of due process? Alternatively, suppose 
     the fleeing men are captured and held as enemy combatants. 
     Does the due process clause really mean that they have to be 
     released unless the military can prove they were enemy 
     combatants? Does the Due Process Clause mean that the 
     American military must divert its energies and resources from 
     fighting the war and dedicate them to investigating the 
     claims of innocence of these two men?
       This illustrates why military decisions are not susceptible 
     to judicial administration and supervision. There are simply 
     no judicially-manageable standards to either govern or 
     evaluate military operational judgments. Such decisions 
     inevitably involve the weighing of risks. One can easily 
     imagine situations in which there is an appreciable risk that 
     someone is an enemy combatant, but significant uncertainty 
     and not a preponderance of evidence. Nevertheless, the 
     circumstances may be such that the President makes a judgment 
     that prudence dictates treating such a person as hostile in 
     order to avoid an unacceptable risk to our military 
     operations. By their nature, these military judgments must 
     rest upon a broad range of information, opinion, prediction, 
     and even surmise. The President's assessment may include 
     reports from his military and diplomatic advisors, field 
     commanders, intelligence sources, or sometimes just the 
     opinion of frontline troops. He must decide what weight to 
     give each of these sources. He must evaluate risks in light 
     of the present state of the conflict and the overall military 
     and political objectives of the campaign.
       Furthermore, extension of due process concepts from the 
     domestic prosecutive arena as a basis for judicial 
     supervision of our military operations in time of war would 
     not only be wholly unprecedented, but it would be 
     fundamentally incompatible with the power to wage war itself, 
     so altering and degrading that capacity as to negate the 
     Constitution's grant of that power to the President.
       First, the imposition of such procedures would 
     fundamentally alter the character and mission of our combat 
     troops. To the extent that the decisions to detain persons as 
     enemy combatants are based in part on the circumstances of 
     the initial encounter on the battlefield, our frontline 
     troops will have to concern themselves with developing and 
     preserving evidence as to each individual they capture, at 
     the same time as they confront enemy forces in the field. 
     They would be diverted from their primary mission--the rapid 
     destruction of the enemy by all means at their disposal--to 
     taking notes on the conduct of particular individuals in the 
     field of battle. Like policeman, they would also face the 
     prospect of removal from the battlefield to give evidence at 
     post-hoc proceedings.
       Nor would the harm stop there. Under this due process 
     theory, the military would have to take on the further burden 
     of detailed investigation of detainees' factual claims once 
     they are taken to the rear. Again, this would radically 
     change the nature of the military enterprise. To establish 
     the capacity to conduct individualized investigations and 
     adversarial hearings as to every detained combatant would 
     make the conduct of war--especially irregular warfare--vastly 
     more cumbersome and expensive. For every platoon of combat 
     troops, the United States would have to field three platoons 
     of lawyers, investigators, and paralegals. Such a result 
     would inject legal uncertainty into our military operations, 
     divert resources from winning the war into demonstrating the 
     individual ``fault'' of persons confronted in the field of 
     battle, and thereby uniquely disadvantage our military vis-a-
     vis every other fighting force in the world.
       Second, the introduction of an ultimate decision maker 
     outside of the normal chain of command, or altogether outside 
     the Executive Branch, would disrupt the unitary chain of 
     command and undermine the confidence of frontline troops in 
     their superior officers. The impartial tribunals could 
     literally overrule command decisions regarding battlefield 
     tactics and set free prisoners of war whom American soldiers 
     have risked or given their lives to capture. The effect of 
     such a prospect on military discipline and morale is 
     impossible to predict.
       The Supreme Court's decision in Rasul v. Bush does not 
     undercut these long-standing principles. In Rasul, the 
     Supreme Court addressed a far narrower question--whether the 
     habeas statute applies extraterritorially--and expressly 
     refrained from addressing these settled constitutional 
     questions. The Court, in concluding that the habeas statute 
     reached aliens held at Guantanamo Bay, relied on the peculiar 
     language of the statute and the ```extraordinary territorial 
     ambit' of the writ at common law.'' Of course, the 
     idiosyncrasies of the habeas statute do not have any impact 
     on judicial interpretation of the reach of the Fifth 
     Amendment or other substantive constitutional provisions. 
     Moreover, the Court's recognition in Rasul that the United 
     States exercises control, but ``not ultimate sovereignty'' 
     over the leased Guantanamo Bay territory confirms the 
     inapplicability of the Fifth Amendment to aliens held there.
       Nevertheless, even if Guantanamo Bay is somehow deemed 
     sovereign United States territory, the Fifth Amendment is 
     still inapplicable. The Supreme Court, in addition to the 
     requisite detention on sovereign United States territory, 
     demands that the aliens only ``receive constitutional 
     protections'' when they have also ``developed substantial 
     connections with this country.'' Thus, under the Court's 
     formulation, ``lawful but involuntary'' presence in the 
     United States ``is

[[Page 20323]]

     not of the sort to indicate any substantial connection with 
     our country'' sufficient to trigger constitutional 
     protections. The ``voluntary connection'' necessary to 
     trigger the Fifth Amendment's due process guarantee is sorely 
     lacking with respect to enemy combatants.
       Whatever else may be said, there can be no dispute that 
     these individuals did not arrive at Guantanamo Bay by free 
     choice. Captured enemy combatants that have been transported 
     to Guantanamo Bay for detention thus are not entitled to 
     Fifth Amendment due process rights. It should also be noted 
     that the Supreme Court's decision in Rasul was a statutory 
     ruling, not a constitutional one. In other words, the Court 
     concluded only that the federal habeas statute confers 
     jurisdiction on federal district courts to hear claims 
     brought by aliens detained at Guantanamo Bay. The Court 
     nowhere suggested that the Constitution grants such aliens a 
     right of access to American courts.
       An important consequence follows: Congress remains free to 
     restrict or even to eliminate entirely the ability of enemy 
     aliens at Guantanamo Bay to file habeas petitions. Congress 
     could consider enacting legislation that does so--either by 
     creating special procedural rules for enemy alien detainees, 
     by requiring any such habeas petitions to be filed in a 
     particular court, or by prohibiting enemy aliens from haling 
     military officials into court altogether.''

  Mr. President, with the Military Commissions Act, the Senate today 
enacts Mr. Barr's third suggestion. We create a system that is 
consistent with our treaty obligations but that also is consistent with 
military tradition and the needs of our fighting forces in a time of 
war. It is a system that will serve this Nation well. I look forward to 
the act's passage and enactment.
  Mr. HARKIN. Mr. President, since my years as a pilot with the U.S. 
Navy, nothing has been more important to me than protecting the 
American people and ensuring the security of our country.
  Today, we are at war with extremists who want to do grievous harm to 
America. We all want to fight these extremists and defeat them. We all 
want to ensure that those who committed or supported acts of terror are 
brought to justice. The only disagreement is about how best to do that. 
What is the smartest, most effective way to fight and defeat our 
enemies?
  Unfortunately, as the newly declassified National Intelligence 
Estimate testifies very clearly, our current course is, in many ways, 
playing into the hands of the terrorists. It is stirring up virulent 
anti-Americanism around the world, it is drawing new recruits to the 
jihadists' cause, and it is making America less safe.
  We have to do a better job, and we can do a better job. It is not 
good enough to be strong and wrong. We need to be strong and smart. 
This is especially true when it comes to our policies on interrogating 
and trying suspected terrorists. Again, we all want to extract 
information from these suspects. We all want to try them and, if 
guilty, punish them. The only disagreement is about how best to do 
that. What is the smartest, most effective way to interrogate and to 
try these suspected terrorists?
  There is plenty of evidence that our current course, which clearly 
includes torturing suspects and imprisoning them without trial, is not 
working. To take just one case in point, consider the Canadian citizen, 
whom we now know to be completely innocent, who was arrested by the 
CIA--I use the word ``arrested'' loosely. He was picked up by the CIA, 
bound, gagged, blindfolded, and sent to Syria for interrogation under 
torture. Not surprisingly, he told his torturers exactly what they 
wanted to hear--that he had received terrorist training in Afghanistan. 
The truth, of course, is that he was never in Afghanistan, had no 
terrorist ties, and is completely innocent.
  The cost to the United States for this miscarriage of justice, in 
terms of our forfeited reputation and moral standing, has been 
disastrous--just as the revelations of torture and abuse at Abu Ghraib. 
What is more, it has endangered our troops in the field--now and in the 
future--should they fall into the hands of captors who say they have 
the right to subject American prisoners to the same torture and abuse.
  Again, it is not enough to be strong and wrong. We need to be strong 
and smart. We need to be true to 230 years of American jurisprudence, 
our Constitution, and the humane values that define us as Americans.
  Back during the dark days of McCarthyism in the 1950s, former Senator 
Joseph McCarthy went on a rampage. What he was basically saying to the 
American people is that we have to become like the Communists in order 
to defeat them. Cooler heads prevailed but not until Senator McCarthy 
had done a lot of damage in this country, not until a lot of innocent 
people were blacklisted, denied employment, many of whom committed 
suicide because they had no place to turn. The dark days of Joseph 
McCarthy come back to us in the guise of this military tribunal bill.
  We do not have to become like the jihadists. We don't have to become 
like the terrorists in order to defeat them. The best way to defeat 
them is the same way we defeated Joseph McCarthy and the Communists. We 
stayed true to our American ideals, our American jurisprudence, and the 
humane values we cherish as a free society. Regrettably, the bill 
before us fails this test. I cannot, in good conscience, support it.
  The bill includes no barrier on the President's reinterpreting our 
obligations under the Geneva Conventions as he pleases, allowing 
practices such as simulated drowning, induced hypothermia, and extreme 
sleep deprivation. The President can allow all of those to continue, in 
contravention of the Geneva Conventions.
  The bill before us rewrites the War Crimes Act in a way that fails to 
give clarity as to interrogation techniques that are allowed or 
forbidden, effectively allowing the administration--any 
administration--to continue the abusive techniques I just mentioned.
  The bill creates a very bizarre double standard, immunizing, on the 
one hand, policymakers and the CIA and its contractors for committing 
acts of torture--immunizing them--while leaving our military troops 
subject to prosecution under the Uniform Code of Military Justice for 
the exact same practices. Let me repeat that. The bill creates this 
double standard: it immunizes the CIA, for example, and any contractors 
with the CIA, for committing acts of torture, while at the same time 
those same acts, if committed by a military person, would subject that 
military person to prosecution under the Uniform Code of Military 
Justice.
  What kind of a signal does this send? What kind of signal is this? 
The bill completely eliminates the ability of noncitizens to bring a 
habeas corpus petition, effectively removing the only remaining check 
on the administration's decision regarding torture and other abuses.
  Indeed, the habeas provisions in this bill would permit--get this--
the bill would permit a legal permanent resident of the United States--
a legal permanent resident of the United States--to be snatched off the 
street in the dark of night, bound, blindfolded, subject to indefinite 
detention, even torture, with absolutely no way for that person to 
challenge it in court.
  Is that what we want to become as a nation? A legal permanent 
resident in the United States, of which there are millions in this 
country, taken out of his or her home at night, and we don't know what 
happens to them? They go into the dark dungeons of who knows where. 
Maybe Guantanamo Bay.
  Habeas corpus is the only independent remedy available to people 
being held in indefinite detention who, in fact, have no connection to 
terrorism.
  I heard one of my colleagues on the other side of the aisle going on 
yesterday about this habeas provision. He went on about how habeas 
corpus is to protect U.S. citizens. It is in no way, he went on, aimed 
at protecting enemy combatants who are picked up.
  Therein lies the problem. How do we know they are enemy combatants? 
Is it because the CIA says they are an enemy combatant? Who says they 
are an enemy combatant? This is not World War II, folks, where the 
Germans are on one side and they have uniforms, and the Japanese are on 
the other side and they have uniforms. This is an amorphous terrorist 
war where the terrorists don't wear uniforms. They can be dressed like 
you or me. They can look just like you or me. So we don't know.

[[Page 20324]]

  We have instances where people have been thrown into Guantanamo, for 
example, and they were fingered by a neighbor who didn't like them and 
wanted their property or house or didn't like them because of something 
they had done to them in the past. They fingered them and said: Guess 
what. They are big terrorists. People were picked up and thrown in 
jail.
  Habeas is the one provision that allows someone snatched off the 
streets here or anywhere else suspected of being a terrorist to at 
least come forward and say: What are the charges against me?
  We have seen this happen in Guantanamo, people kept for months, for 
years, without ever having a charge filed against them, and many of 
them we found out were totally innocent. What does this say to the rest 
of the world?
  Senator Obama from Illinois told the story the other day about when 
he was in Chad in August and heard about an American citizen who was 
picked up in Sudan and held by the Sudanese. He made some calls to try 
to get this person released. It was an American journalist. After a 
while, he was released.
  The American journalist came back and said: I was picked up by the 
Sudanese officials. I asked for permission to contact the U.S. Embassy 
with a phone call so I could talk to our Embassy.
  The Sudanese captor said: Why should we let you do that? You don't 
let the people in Guantanamo Bay do that.
  The use of habeas is not just to protect the people who are suspected 
so that we know whether they really are an enemy combatant. It is also 
as a protection for our troops, our soldiers, our civilians, our 
business people traveling around the world, people traveling on 
vacation, journalists, just like this one, who may be snatched, picked 
up by a foreign government. We want to be able to say to that 
government: Produce the person. What are the charges? If we don't allow 
it, we are giving the green light to every other would-be dictator 
anywhere in the world to do the same thing--any government anywhere.
  If the moral argument against torture does not hold any weight with 
this administration, they should just examine the abundant evidence 
that torture simply doesn't work. This is not just my opinion, this is 
what the experts are saying.
  Let me quote from a letter signed by 20 former U.S. Army 
interrogators and interrogation technicians:

       Prisoner/detainee abuse and torture are to be avoided at 
     all costs, in part because they can degrade the intelligence 
     collection effort by interfering with a skilled 
     interrogator's efforts to establish rapport with the subject.

  Simply put, torture does not help gather useful, reliable, actionable 
intelligence. In fact, it inhibits the collection of such intelligence.
  Earlier this month, the U.S. Army released its new field manual 
222.3: ``Human Intelligence Collector Operations,'' which covers 
interrogations by the U.S. military in detail. This manual replaces the 
previous manual and is to be used by our military personnel around the 
world in performing interrogations.
  The Army Field Manual explicitly bans, among other things, beating 
prisoners, sexually humiliating them, threatening them with dogs, 
depriving them of food and water, performing mock executions, shocking 
them with electricity, burning them, causing other pain, or subjecting 
them to the technique called waterboarding, which simulates drowning.
  So if these techniques are explicitly banned in the Army Field 
Manual, why shouldn't they be explicitly banned for CIA personnel or 
CIA contract personnel? Why do we have a high standard for our military 
and effectively no standard for the CIA and its contractors?
  For me, this debate about illegal imprisonment and officially 
sanctioned torture is not an abstraction. It strikes very close to home 
for me.
  Thirty-six years ago this summer at the height of the Vietnam war, I 
brought back photographs of the so-called tiger cages at Con Son Island 
where the Vietcong and North Vietnamese prisoners, as well as civilians 
who had committed no crime whatsoever, were being tortured and killed 
with the full knowledge and sanction of the U.S. Government. That was 
July of 1970 when I was a staff person in the House of Representatives 
working with a congressional delegation on a factfinding trip to 
Vietnam.
  We had all heard reports about the possible existence of these so-
called tiger cages in which people were brutally tortured and killed. 
Our State Department and our military officials denied their existence. 
They said it was only Communist propaganda.
  Through various sources, I thought that the reports about the tiger 
cages were at least credible and should be investigated further.
  Thanks to the courage of Congressman William Anderson of Tennessee 
and Congressman Augustus Hawkins of California and to Don Luce, an 
American working for a nongovernmental organization, and because of the 
bravery of a young Vietnamese man who gave us the maps on how to find 
the prison, we were able to expose the tiger cages on Con Son Island.
  This young Vietnamese man about whom I speak was let out of the tiger 
cages, but they kept his brother, and they said: If you breathe one 
word about this, we are going to kill your brother.
  Why did they let him out of the tiger cages? Because he was president 
of the student body at Saigon University. What had been his crime? He 
had demonstrated against the war. So they picked up he and his brother 
and threw them in the tiger cages and tortured them.
  The students refused to go back to class--this was a big deal--until 
they returned this young man to his university, which they did, but 
they kept his brother and said: If you breathe a word of this, we will 
kill him.
  This young man decided he needed to take a chance, and he took a 
chance on me. He drew the maps and gave us the story on how to find 
these tiger cages which were well hidden, and without the maps we never 
would have found them. Fortunately, I had a camera and a hidden tape 
recorder which proved useful when I returned to the United States.
  Supporters of the war claim that the tiger cages were not all that 
bad. But then Life magazine published my pictures, and the world saw 
the horrific conditions where, in clear violation of the Geneva code, 
North Vietnamese, Vietcong, as well as civilian opponents of the war--
just civilians--who committed no crimes whatsoever--were all crowded 
together in these cages, as I said, in clear violation of the Geneva 
Conventions and the most fundamental principles of human rights.
  At the same time, the U.S. Government had been insisting that the 
North Vietnamese abided by the Geneva Conventions in their treatment of 
prisoners in North Vietnam. Yet here we were condoning and even 
supervising the torture of civilian Vietnamese, along with Vietnamese 
soldiers and others in clear violation of the Geneva Conventions.
  We may not have known about it--our public did not know about that--
but the Vietnamese sure knew about it.
  I thought we had learned our lesson from that, and then I saw Abu 
Ghraib and thought: Wait a minute. Haven't we learned our lesson? And, 
Mr. President, just as 37 years ago when the tiger cages were first 
talked about, they were denied--and they thought they could deny them 
because it was hard to get to the island. You couldn't really get out 
there. As far as they knew, no one had ever taken pictures of it and no 
one had really ever escaped from there, like a Devil's Island kind of 
place. So the military denied it. Our Government denied it year after 
year until I was able to take the pictures and bring back the evidence.
  Mr. President, I submit to you and everyone here and the American 
people that had not that courageous soldier taken the pictures of Abu 
Ghraib and kept those pictures, they would have denied that ever 
happened. They would have denied to high Heaven that such things took 
place at Abu Ghraib. Thankfully, one courageous young soldier decided 
this was wrong, it was inhumane, it was not upholding the highest human 
standards of America, and it

[[Page 20325]]

was in violation of the Geneva Conventions. Had he not taken those 
pictures, it would be denied forever that ever happened at Abu Ghraib.
  So now, as if we learned nothing from that previous tragedy of the 
tiger cages 36 years ago or Abu Ghraib just a couple of years ago, here 
we go again denying obvious instances of torture and abuse, effectively 
giving the green light to torture by U.S. Government agents and 
contractors and watering down the War Crimes Act.
  This is a betrayal of our laws. It is a betrayal of our values. It is 
a betrayal of everything that makes us unique and proud to be 
Americans.
  The administration apparently thinks that we will just go along with 
this betrayal because there is an election in 6 weeks. Apparently they 
think we are afraid of being branded weak on terrorism. Indeed, some 
are no doubt hoping that we will vote against this bill so they can use 
it as a bludgeon against us in the election. All I can say is: Shame on 
them. What is more, it is not going to work. Because opposing this 
bill, which would give the green light to torture, is far, far bigger 
than the outcome of the November election.
  This is about preserving our core values as Americans. It is about 
standing up for our troops and ensuring that they do not become subject 
to the same acts of torture and retaliation. It is about standing up 
for American citizens, civilians, and others who may be caught up in 
some foreign land with false charges filed against them, and yet not 
even being able to contact our embassy. It is about protecting 
Americans. And it is about changing course and beginning to wage an 
effective war against the terrorists who attacked us on September 11, 
2001.
  It is time to quit being strong and wrong, and it is time to start 
being strong and smart. Being strong and wrong has been a disaster. It 
has bogged us down in a civil war in Iraq. It has turbocharged the 
terrorists. It has made America less safe. So it is time to be strong 
and smart. It is time to be true to who we are as Americans. It is time 
to say no to indefinite--indefinite--incarceration. It is time to say 
no to taking away the right of someone put away to at least have the 
charges pressed against them. It is time to say no to torture in all 
its forms now and at any time in the future.
  Mr. President, I yield the floor.
  Mr. BIDEN. Mr. President, I want to start by complimenting Senators 
Warner, McCain and Graham and the work that they did to improve this 
bill, particularly in two areas.
  First, our colleagues did the right thing by rejecting the attempt by 
the administration to reinterpret, by statute, Common Article III of 
the Geneva Conventions. That would have been an enormous mistake--and 
an invitation for other countries to define for themselves what the 
Geneva Conventions require.
  Second, our colleagues were right to reject the use of secret 
evidence in military commissions. Such a proposal is not consistent 
with American jurisprudence, and would not have satisfied the 
requirements of the Supreme Court decision in Hamdan.
  Overall, the bill provides a much better framework for trying 
unlawful enemy combatants than under the flawed order issued by the 
President. All this is positive, and our three colleagues deserve 
credit for their good work.
  But the bill contains a significant flaw. It limits the right of 
habeas corpus in a manner that is probably unconstitutional. Don't take 
my word for it. Listen to the words of a conservative Republican, 
Kenneth Starr, who used to sit on this nation's second highest court, 
and is now one of the country's leading appellate advocates, in a 
letter written to Senator Specter earlier this week:

       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 be problematic for Congress 
     to modify the constitutionally protected writ of habeas 
     corpus under current events.

  Accordingly, I believe this bill is likely unconstitutional. I hope 
that I am wrong. But I fear that I am right, and that we will be back 
here in a few years debating this issue again.
  We had one chance to get this right--to ensure that we don't end up 
back here again after a new round of litigation. There was no reason to 
rush. No one challenges our right to detain the high-value prisoners 
the President just transferred to Guantanamo. We are not about to 
release them--nor should we.
  But rush we did. In the last week, there have been two different 
versions of the legislation that emerged from closed-door negotiations 
with the administration. My colleagues may be willing to trust the 
legal judgment and competence of this administration. But I am not.
  Since 9/11, several major cases have gone to the Supreme Court that 
relate to the laws governing the war on al-Qaida and the President's 
powers. And the administration has been wrong too many times--wrong 
about whether habeas corpus rights applied to detainees in Guantanamo 
Bay, wrong about whether U.S. citizens detained as enemy combatants had 
a right to meaningful due process, and wrong about whether the military 
commissions the President established by order were legal. Simply put, 
I am not willing to trust the administration's legal judgment again. 
And it is clear that the administration has put its imprint on this 
legislation in several troubling respects, including in the stripping 
of habeas rights.
  In the struggle in which we are engaged against radical 
fundamentalists, we must be both tough and smart. This bill is not 
smart because it risks continued litigation about how we detain and try 
unlawful enemy combatants.
  It is also not smart because it risks continued harm to the image of 
the United States. The 9/11 Commission concluded that ``[a]llegations 
that the United States abused prisoners in its custody make it harder 
to build the diplomatic, political, and military alliances the 
government will need.'' The recently released National Intelligence 
Estimate made plain that there are several factors fueling the spread 
of the jihadist movement, including ``entrenched grievances, such as 
corruption, injustice, and fear of Western domination, leading to 
anger, humiliation, and a sense of powerlessness.'' The mistreatment of 
detainees at Abu Ghraib, and concerns about our policies governing 
detainees at Guantanamo Bay, undoubtedly fuel these grievances and 
anger against the United States. Our detainee policies have also made 
it harder for our allies to support our anti-terrorism policies. We 
have to get this right.
  Therefore, even though our colleagues achieved significant 
improvements, I cannot support this legislation.
  Mr. WARNER. Mr. President, at this point in time I yield to the 
distinguished Senator from Arizona 14 minutes.
  I would say that I have been privileged to be a Member of this 
institution for now 28 years, and I first met John McCain through his 
father when I was Secretary of the Navy. So that goes back 28 plus 
another 5 years that I have known of John McCain.
  This Chamber, and indeed all of America, knows full well about the 
extraordinary record that this man has in the service of his Nation, 
showing unselfishness, showing courage, showing foresight.
  I am proud to have worked with him as a partner in these past weeks, 
indeed, months now, on this piece of legislation.
  I just want to express my gratitude, and I think the gratitude of 
many people across this country, for the service he is rendering the 
Senate and hopefully will continue to render the Senate in the coming 
years.
  When I step down under the caucus, it is my hope that John McCain is 
elected to succeed me as chairman of the Senate Armed Services 
Committee.
  But at this point in time, I am proud to yield, as manager, my time 
to the Senator from Arizona.
  Mr. LEVIN. Mr. President, will the Senator from Arizona yield?

[[Page 20326]]


  Mr. McCAIN. I would be glad to.
  Mr. LEVIN. Mr. President, I heartily join my good friend from 
Virginia in his assessment of Senator McCain. I know there has been 
some disagreement as to who would go first, but that should not in any 
way, I hope, cloud the real affection which I think everybody in this 
body holds for Senator McCain and the effort he has made for so long to 
try to bring some kind of decency to the approaches we use to people 
whom we detain.
  I thank the Senator.
  The PRESIDING OFFICER. The Senator from Arizona is recognized for 14 
minutes.
  Mr. McCAIN. Mr. President, I thank both my friends of many years, 
Senator Levin and Senator Warner, for the collegiality, the 
bipartisanship, and the effort that we all make under their leadership 
on the Armed Services Committee for the betterment of the men and women 
who serve our country and our Nation's defense. I am honored to serve 
under both.
  For the record, I believe I just calculated, I say to my dear friend 
from Virginia, it has been 33 years since I came home from Vietnam and 
found that our distinguished Secretary of the Navy was very concerned 
about the welfare of those who had the lack of talent that we were able 
to get shot down. So I thank my friend from Virginia especially, and I 
thank my friend from Michigan. I believe our committee conducts itself 
in a fashion which has been handed down to us from other great Members 
of the Senate, such as Richard Russell and others.
  Mr. President, before I move on to other issues, I have heard some 
criticism on the Senate floor today about the way in which the bill 
treats admissibility of coerced testimony.
  A New York Times editorial today said that in this legislation 
``coercion is defined in a way that exempts anything done before the 
passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush 
chooses'' in their own inimitable style.
  This is thoroughly incorrect, and I would like to correct not only 
the impression but the facts.
  This bill excludes any evidence obtained through illegal 
interrogation techniques, including those prohibited by the 2005 
Detainee Treatment Act. The goal is to bolster the Detainee Treatment 
Act by ensuring that the fruits of any illegal treatment will be per se 
inadmissible in the military commissions.
  For evidence obtained before passage of the Detainee Treatment Act, 
we adopted the approach recommended by the military JAGs. In order to 
admit such evidence, the judge--we leave it to the judge--must find 
that: it passes the legal reliability test--and, as applied in 
practice, the greater the degree of coercion, the more likely the 
statement will not be admitted; the evidence possesses sufficient 
probative value; and that the interests of justice would best be served 
by admission of the statement into evidence.
  Mr. President, I ask unanimous consent that three different letters 
from three different JAGs--Air Force, Navy, and Marine Corps--be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      Department of the Air Force,


                                   Headquarter U.S. Air Force,

                                   Washington DC, August 28, 2006.
     Hon. John McCain,
     Russell Senate Office Building,
     Washington DC.
       Dear Senator McCain: Thank you for your letter of 23 August 
     2006, in which you requested my written recommendations on 
     the military commissions legislation Congress is expected to 
     consider next month. You specifically ask for my personal 
     views on the most pressing issues involving the legislation.
       As of the date of this letter, several bills have been 
     introduced and I believe the administration is also 
     considering legislation for congressional consideration. I 
     appreciate the opportunity to provide my personal perspective 
     and comments on the general nature of the potential 
     legislation.
       I begin with the premise that legislation is appropriate. 
     As the Supreme Court noted again in Hamdan v. Rumsfeld. 548 
     U.S.     , 126 S.Ct. 2749 (2006), the President's powers in 
     wartime are at their greatest when specifically authorized by 
     Congress. While different approaches are feasible, I believe 
     the Nation will be best served by a fresh start to the 
     military commission process. Existing criminal justice 
     systems, including the process established by Military 
     Commission Order 1, should be reviewed to develop a system 
     that will best serve the interests of justice and the United 
     States. The Uniform Code of Military Justice (10 U.S.C. 
     Sec. 801 et. seq.) (UCMJ) and the Manual for Courts-Martial 
     (MCM) provide superb starting points. The processes and 
     procedures in the UCMJ and MCM have served us well and can be 
     readily adapted to meet the needs of military conmnssions.
       As I have testified, Congress could enact a UCMJ Article 
     135a to establish the basic substantive requirements for 
     military commissions, and an executive order could provide 
     detailed guidance, just as the MCM provides detailed guidance 
     for the trial of courts-martial. Alternatively, Congress 
     could create a separate Code of Military Commissions as a new 
     chapter in Title 10, modeled to an appropriate degree after 
     the UCMJ, and similarly leave the details to an executive 
     order. Either approach must address the requirements of the 
     Geneva Conventions and the concerns articulated in Hamdan.
       There will necessarily be differences between current 
     court-martial procedures and the rules and procedures for 
     military commissions. However, the processes and procedures 
     in the UCMJ and MCM can be readily adapted to meet the needs 
     of military commissions and still meet the requirements of 
     criminal justice systems established by common Article 3 of 
     the Geneva Conventions.
       The legislation must appropriately address access to 
     evidence and the accused's presence during the trial. 
     Specifically, it is my strongly held view that all evidence 
     admitted against an accused and provided to members of a 
     military commission must also be provided to the accused and 
     accused's counsel. Any statute that allows evidence to be 
     admitted outside the presence of the accused would mean the 
     military commission could convict (and possibly impose a 
     sentence of death) without the accused ever fully knowing the 
     evidence considered against him: Such a procedure is 
     extremely problematic, both constitutionally and from a 
     Common Article 3 perspective.
       The accused's presence is a critical facet of this 
     legislation. The United States is more than a nation of laws; 
     it is a country founded upon strong moral principles of 
     fairness to all. Moreover, our country--to the delight of our 
     adversaries--has been heavily criticized because of the 
     perception that the pre-Hamdan military commission process 
     was unfair and did not afford ``all the judicial guarantees 
     which are recognized as indispensable by civilized peoples.''
       Now is the time to correct that perception and clearly 
     establish procedures and rules that meet that standard. These 
     procedures and rules will do more than merely correct legal 
     deficiencies; they will help reestablish the United States as 
     the leading advocate of the rule of law. I firmly believe 
     doing so is an important facet of winning the global war on 
     terrorism.
       Inextricably tied to that concept is an awareness of 
     reciprocity. We cannot hold out as acceptable a military 
     commission process that we would consider to be unfair and 
     illegal if used by a foreign authority to try captured United 
     States servicemen and women for alleged offenses.
       Additionally, concerns have been raised about other 
     evidentiary and procedural issues, including the ability of 
     the accused to represent himself, and the admissibility of 
     hearsay, classified evidence, and an accused's own 
     statements.
       The right of an accused to represent himself pro se is well 
     recognized in our jurisprudence. In the context of military 
     commissions, it presents difficult issues. Current procedures 
     allow an accused to expressly waive the right to be 
     represented and conduct his defense personally. That option 
     should be available if the accused competently demonstrates 
     to the military judge he understands the potential 
     disadvantages and consequences of self-representation and he 
     voluntarily and knowingly waives the right to representation. 
     The military judge should have the authority to require that 
     a defense counsel remain present even if the waiver is 
     granted and to revoke the waiver if the accused is disruptive 
     or fails to follow basic rules of decorum and procedure. This 
     right is obviously contingent on the accused's presence 
     throughout the proceeding as well as access to the evidence.
       Again, I recommend that Congress detail the basic 
     evidentiary requirements in the legislation and then permit 
     an executive order to flesh out the details, just as the MCM 
     provides evidentiary details for the UCMJ. Evidence should be 
     admissible if, in the judgment of an experienced military 
     judge, there are guarantees of its trustworthiness, the 
     evidence has probative value, and the interests of justice 
     are best served by its admission.
       There has been some comment that the admission of hearsay 
     is improper. In my view, such criticisms reflect a 
     misunderstanding of the rules of evidence used in Federal, 
     military and state trials today. Under the Military Rules of 
     Evidence (MRE), hearsay is not admissible except as provided 
     in the MREs or by statute. The MREs further define statements 
     that are not hearsay and provide for

[[Page 20327]]

     exceptions conditioned on the availability of the declarant. 
     Additionally, there is a residual hearsay rule that permits 
     the introduction of other statements, having equivalent 
     circumstantial guarantees of trustworthiness, if the court 
     determines that the statement is material evidence; has more 
     probative value than other available evidence; and serves the 
     interests of justice. The Supreme Court recently narrowed the 
     application of residual hearsay as it applies to out-of-court 
     statements that are testimonial in nature. Such statements 
     are now barred unless there is a showing that the witness is 
     unavailable and the accused had a prior opportunity to cross-
     examine the witness. The overall application of the residual 
     hearsay rule is functionally very much like that used in 
     international tribunals and requires a military judge to find 
     the evidence is probative and reliable. These existing 
     procedures provide a meaningful starting point for addressing 
     the hearsay issues arising in military commissions.
       As to the use of classified evidence, I believe the 
     procedures of MRE 505 adequately protect national security. 
     MRE 505 is based on the Classified Information Procedures Act 
     (CIP A) (Title 18, U.S.C. App III). CIP A is designed to 
     prevent unnecessary or inadvertent disclosures of classified 
     information and advise the government of the national 
     security implications of going forward with certain evidence. 
     MRE 505 achieves a reasonable accommodation of the United 
     States' interest in protecting information and the accused's 
     need to be able to mount a defense. The rule permits in 
     camera, ex parte consideration of the Government's concerns 
     by a judge, the substitution of unclassified summaries or 
     other alternative forms of evidence, and ensures fairness to 
     the accused. Under MRE 505, both the prosecution and the 
     accused rely on and know about the evidence going to the 
     court. The accused knows all that is to be considered by the 
     trier-of-fact, has an opportunity to respond, and is able to 
     assist the defense counsel to respond appropriately.
       Concerns about the admissibility of statements made by an 
     accused primarily involve the current requirement to provide 
     Miranda warnings (codified more broadly in the UCMJ at 
     Article 31) and whether the statement is the product of 
     torture or coercion. The military commission process must 
     recognize the battlefield is not an orderly place. The 
     requirement to warn an individual before questioning is one 
     area where deviation from the established UCMJ framework may 
     well be warranted.
       Generally, if a military judge concludes the confession or 
     admission of an accused is involuntary, the statement is not 
     admissible in a court-martial over the accused's objection. 
     Commonly, a statement is involuntary if it is obtained in 
     violation of the self-incrimination privilege or due process 
     clause of the Fifth Amendment to the Constitution of the 
     United States; Article 31; or through the use of coercion, 
     unlawful influence, or unlawful inducement. Each situation is 
     obviously fact determinative and the military judge decides 
     whether the statement is voluntary considering the totality 
     of the circumstances. I trust the judgment of experienced 
     military judges. Military commissions should not be permitted 
     to consider evidence that is found to be unlawfully coerced 
     and thus involuntary.
       Finally, appellate jurisdiction over military commission 
     decisions should be clearly established. That jurisdiction 
     would be most appropriately vested in the United States Court 
     of Appeals for the District of Columbia Circuit (consistent 
     with the Detainee Treatment Act of 2005).
       I hope this information is helpful. Please let me know if 
     additional information or comments from me on this matter are 
     desired.
           Sincerely,

                                                Jack L. Rives,

                                              Major General, USAF,
     The Judge Advocate General.
                                  ____

         Department of the Navy,


        Office of the Judge Advocate General, Washington Navy 
                                                         Yard,

                                    Washington, DC, Aug. 31, 2006.
     Hon. John McCain,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator McCain. Thank you for your letter of August 
     23, 2006 requesting my personal views on military commission 
     legislation.
       Before proceeding with discussion of specific issues, I 
     would like to note that I have had the opportunity to provide 
     comment to the DoD General Counsel and the Department of 
     Justice regarding draft commission legislation. As of this 
     writing, I have not seen the final version of the 
     Administration's draft.
       Although existing courts-martial rules are not practical 
     for the prosecution of unlawful enemy combatants, they 
     provide a good starting point for the drafting of Commission 
     legislation. I recommend that legislation establish the 
     jurisdiction of military commissions, set baseline standards 
     of structure, procedure, and evidence consistent with U.S. 
     law and the law of war, and prescribe all substantive 
     offenses. It also should authorize the President to 
     promulgate supplemental rules of practice. In this regard, I 
     believe we should follow the military justice model, whereby 
     Congress establishes the legal framework (the Uniform Code of 
     Military Justice, or in this case a Code for Military 
     Commissions) and the President promulgates supplemental rules 
     of practice (a Manual for Courts-Martial, or in this case a 
     Manual for Military Commissions) .
       Within that context, I recommend that the jurisdiction of 
     military commissions be expanded to permit prosecution of all 
     unlawful enemy combatants who engage in or attempt to engage 
     in hostilities against the United States. In particular, we 
     need the ability to prosecute before military commissions 
     irregular belligerents who violate the laws of war while 
     acting on behalf of foreign governments as well as terrorists 
     not associated with al Qaida and/or the Taliban.
       With regard to baseline standards of structure, procedure, 
     and evidence, it is critically important that independent 
     military judges preside at military commissions and have 
     authority to make final rulings on all matters of law. 
     Similarly, defense counsel must have an independent reporting 
     chain of command, free from both actual and perceived 
     influence of prosecution and convening authorities.
       The introduction of evidence outside the presence of an 
     accused is, in my view, inconsistent with U.S. law and the 
     law of war. The Supreme Court held in Hamdan v. Rumsfeld, 126 
     S.Ct. 2749 (2006), that absent a sufficient practical need to 
     deviate from existing U.S. laws and criminal trial 
     procedures, an accused must be present at trial and have 
     access to all evidence presented against him. A four-justice 
     plurality also opined that Common Article 3 of the 1949 
     Geneva Conventions requires, at a minimum, that an accused be 
     present at trial and have access to the evidence presented 
     against him. Justice Kennedy, who was not part of the 
     plurality, further signaled in a separate concurring opinion 
     that introduction of evidence outside the presence of the 
     accused would be ``troubling'' and, if done to the prejudice 
     of the accused would be grounds for reversal. Furthermore, as 
     a matter of policy, adopting such practice for military 
     commissions may encourage others to reciprocate in kind 
     against U.S. service members held in captivity.
       I recommend that the legislation adopt Military Rule of 
     Evidence 505 (M.R.E. 505), which is partly based on the 
     Classified Information Procedures Act (CIPA). M.R.E. 505 
     permits a military judge to conduct an in camera, ex parte 
     review of the Government's interest in protecting classified 
     information and encourages the substitution of unclassified 
     summaries or alternative forms of evidence in lieu of the 
     classified information. This type of procedure ensures that 
     classified information is not disclosed under circumstances 
     that could injure national security.
       While it is true that application of a M.R.E. 55-style 
     process might conceivably result in the Government being 
     unable to introduce evidence against an accused under certain 
     circumstances, it is my view that we are better served by 
     fully honoring the law of war, which requires that we afford 
     even terrorists the judicial guarantees which are recognized 
     as indispensable amongst civilized peoples when we choose to 
     prosecute. For it is that very same law that allows us to 
     hold terrorists for the duration of hostilities, however long 
     those hostilities might last.
       With regard to hearsay evidence, I have no objection to the 
     introduction of hearsay evidence so long as the evidentiary 
     standard is clarified to exclude information that is 
     unreliable, not probative, unfairly prejudicial, confusing, 
     or misleading, or when such exclusion is necessary to protect 
     the integrity of the proceedings. Such an approach would be 
     consistent with the practice of international war crimes 
     tribunals supported by the United States in Rwanda and the 
     former Yugoslavia. Those tribunals satisfy the requirements 
     of the law of war including Common Article 3 of the Geneva 
     Conventions of 1949.
       With regard to statements alleged to have been derived from 
     coercion, the presiding military judge should have the 
     discretion and authority to inquire into the underlying 
     factual circumstances and exclude any statement derived from 
     coercion, in order to protect the integrity of the 
     proceeding.
       As I noted earlier, the legislation should enumerate all 
     offenses triable by military commission. Conspiracy should be 
     included, but only conspiracies to commit one of the 
     substantive offenses specifically enumerated and there must 
     be a requirement to prove the defendant committed an overt 
     act in furtherance of the conspiracy. This would mean, for 
     example, that conspiracy to commit murder in violation of the 
     laws of war would be a cognizable offense, but affiliation 
     with a terrorist organization, standing alone, would not be 
     cognizable.
       I would also like to address Common Article 3 of the Geneva 
     Conventions. Common Article 3 is a baseline standard that 
     U.S. Armed Forces have trained to for decades. Its 
     application to the War on Terror imposes no new requirements 
     on us. However, if Congress desires to clarify the Common 
     Article 3 phrase ``outrages upon personal dignity, in 
     particular humiliating and degrading treatment,'' this would 
     be beneficial. The legislation might consider requiring an 
     objective

[[Page 20328]]

     standard be used in interpreting this phrase, and define the 
     language to encompass willful acts of violence, brutality, or 
     physical injury, and so severely humiliating or degrading as 
     to constitute an attack on human dignity. Examples of such 
     conduct include forcing detainees to perform sexual acts, 
     threatening a detainee with sexual mutilation, systematically 
     beating detainees, and forcing them into slavery: Such an 
     approach would accurately reflect established war crimes 
     jurisprudence and adoption would prevent the perception that 
     we are attempting to abrogate our obligations under the 1949 
     Geneva Conventions.
       Thank you again for this opportunity to provide personal 
     comment on military commission legislation. I hope that this 
     information is helpful.
           Sincerely,

                                              Bruce MacDonald,

                                    Rear Admiral, JAGC, U.S. Navy,
     Judge Advocate General.
                                  ____

                                           Department of the Navy,


                               Headquarters U.S. Marine Corps,

                                    Washington, DC, Aug. 31, 2006.
     Hon. John McCain,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator McCain. Thank you for your letter of 23 August 
     2006, in which you requested written recommendations from the 
     service Judge Advocates General on the military commissions 
     legislation Congress is expected to consider in September. 
     You specifically asked for our personal views on the most 
     pressing issues involving the legislation. I appreciate the 
     opportunity to provide my personal perspective and comments.
       Although I assumed the position of Staff Judge Advocate to 
     the Commandant of the Marine Corps on 25 August, I am 
     certainly familiar with the process to date, including the 
     previous testimony of my predecessor, Brigadier General Kevin 
     M. Sandkuhler, and the Judge Advocates General. Like them, I 
     believe that military commissions, in some form, are both 
     appropriate and necessary in prosecuting alleged terrorists 
     while continuing to wage the Global War on Terror. I also 
     believe that there is middle ground to be found between the 
     Uniform Code of Military Justice (UCMJ) and the original 
     military commissions process, which would comport with the 
     requirements of Common Article 3 of the Geneva Conventions.
       Any legislation must be approached with an eye toward both 
     precedent and reciprocity. We must account for the values for 
     which our nation has always stood, and also be cognizant of 
     the fact that the solution we create may influence how our 
     service members are judged internationally in the future.
       I share in the strong position previously expressed by the 
     Judge Advocates General regarding the fundamental importance 
     of an accused's access to evidence and presence at trial. 
     Simply put, an accused (and his counsel) must be provided the 
     evidence admitted against him. This may require the 
     government to balance the need for prosecution on particular 
     charges against the need to protect certain classified 
     information. This balancing concept is not new. Domestically, 
     the government must often weigh the sanctity of sensitive 
     information against having to disclose it for use in a 
     successful prosecution believe that the indispensable 
     ``judicial guarantees'' referenced in Common Article 3 
     require the same sort of deliberative decision-making in the 
     context of these commissions. Where the government intends to 
     prosecute an accused using classified information, Military 
     Rule of Evidence (MRE) 505 should serve as the evidentiary 
     benchmark.
       The commissions should be presided over by a certified and 
     qualified (pursuant to Article 26 of the UCMJ) military 
     judge, who is trained to make measured evidentiary rulings. 
     While I recommend that Congress allow for an executive order 
     to promulgate specific applicable evidentiary rules (same as 
     with the Manual for Courts-Martial, or MCM), I do offer 
     comment here on what I believe are two more notable 
     evidentiary issues: hearsay and statements by an accused.
       Regarding hearsay evidence, the residual hearsay exception 
     found in the Military Rules of Evidence (MRE) provides a 
     solid foundation upon which to build for the commissions. 
     This exception requires that a military judge find the 
     evidence to be probative and reliable--a standard with 
     international acceptance. In practice, this standard could 
     allow for alternatives to live testimony, such as by video 
     teleconference, which take into account the global nature of 
     the conflict.
       I share previously expressed concerns about the 
     admissibility of statements made by an accused as a product 
     of torture or coercion. Without exception, statements 
     obtained by torture, as defined in Title 18 of the U.S. Code, 
     must be inadmissible. Coercion is a more nebulous concept. As 
     a result, military judges should retain discretion to 
     determine whether statements so alleged are admissible. After 
     an examination of all the facts and circumstances surrounding 
     the statement, the military judge could determine if it is 
     inadmissible because it is either unreliable or lacking in 
     probative value.
       In closing, I submit that the jurisdiction of the military 
     commissions should be broad enough to facilitate the 
     prosecution of all unlawful enemy combatants, and not merely 
     members of al Qaida, the Taliban, and associated 
     organizations. Jurisdiction must extend to other terrorist 
     groups, regardless of their level of organization, and the 
     individual ``freelancers'' so common on the current 
     battlefield.
       Thank you again for the opportunity to provide comment. I 
     look forward to continuing to work toward resolution of this 
     matter.
           Very respectfully,

                                              James C. Walker,

                                          Brigadier General, USMC,
                           Staff Judge Advocate to the Commandant.

  Mr. McCAIN. Mr. President, the JAG of the Air Force says:

       . . . through the use of coercion, unlawful influence, or 
     unlawful inducement. Each situation is obviously fact 
     determinative and the military judge decides whether the 
     statement is voluntary considering the totality of the 
     circumstances. I trust the judgment of experienced military 
     judges. Military commissions should not be permitted to 
     consider evidence that is found to be unlawfully coerced and 
     thus involuntary.

  And the other two Judge Advocate Generals say the same thing, that 
the provisions of this bill are exactly in line with their opinions. 
Frankly, that had a great deal of weight in our adopting them.
  Almost exactly 3 months ago, the Supreme Court decided the 
groundbreaking case of Hamdan v. Rumsfeld. In that case, a majority of 
the Court ruled that the military procedures used to try detainees held 
at Guantanamo Bay fell short of the standards of the Uniform Code of 
Military Justice and the Geneva Conventions.
  The Court also determined that Common Article 3 of the Geneva 
Conventions applies to al-Qaida because our conflict with that 
terrorist organization is ``not of an international character.'' Some 
of my colleagues may disagree with the Court's decision, but once 
issued it became the law of the land.
  Unfortunately, the Hamdan decision left in its wake a void and 
uncertainty that Congress needed to address--and address quickly--in 
order to continue fighting the war on terrorism. I believe this act 
allows us to do that in a way that protects our soldiers and other 
personnel fighting on the front lines and respects core American 
principles of justice. I would like to thank Senators Graham and Warner 
and many others for their unceasing work on this bill.
  I would like to take a few moments to describe some of the key 
elements of the legislation.
  As is by now well known, Senators Warner, Graham, and I, and others, 
have resisted any redefinition or modification of our Nation's 
obligations under Common Article 3 of the Geneva Conventions. We did so 
because we care deeply about legal protections for American fighting 
men and women and about America's moral standing in the world. More 
than 50 retired military generals and flag officers expressed grave 
concern about redefining our Geneva obligations, including five former 
Chairmen of the Joint Chiefs of Staff.
  Mr. President, I ask unanimous consent to have printed in the Record 
letters from GEN Colin Powell, GEN Jack Vessey, and GEN Hugh Shelton, 
and a letter from the former Commandant of the Marine Corps, General 
Krulak.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 13, 2006.
       Dear Senator McCain: I just returned to town and learned 
     about the debate taking place in Congress to redefine Common 
     Article 3 of the Geneva Convention. I do not support such a 
     step and believe it would be inconsistent with the McCain 
     amendment on torture which I supported last year.
       I have read the powerful and eloquent letter sent to you by 
     one of my distinguished predecessors as Chairman of the Joint 
     Chiefs of Staff, General Jack Vessey. I fully endorse in tone 
     and tint his powerful argument. The world is beginning to 
     doubt the moral basis of our fight against terrorism. To 
     redefine Common Article 3 would add to those doubts. 
     Furthermore, it would put our own troops at risk.
       I am as familiar with The Armed Forces Officer as is Jack 
     Vessey. It was written after all the horrors of World War II 
     and General George C. Marshall, then Secretary of Defense, 
     used it to tell the world and to remind our soldiers of our 
     moral obligations with respect to those in our custody.
           Sincerely,
                              General Colin L. Powell, USA (Ret.).

[[Page 20329]]

     
                                  ____
                                               September 12, 2006.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: Sometimes, the news is a little 
     garbled by the time it reaches the forests of North-central 
     Minnesota, but I call your attention to recent reports that 
     the Congress is considering legislation which might relax the 
     United States' support for adherence to Common Article 3 of 
     the Geneva Convention. If that is true, it would seem to 
     weaken the effect of the McCain Amendment on torture of last 
     year. If such legislation is being considered, I fear that it 
     may weaken America in two respects. First, it would undermine 
     the moral basis which has generally guided our conduct in war 
     throughout our history. Second, it could give opponents a 
     legal argument for the mistreatment of Americans being held 
     prisoner in time of war.
       In 1950, 3 years after the creation of the Department of 
     Defense, the then Secretary of Defense, General George C. 
     Marshall, issued a small book, titled The Armed Forces 
     Officer. The book summarized the laws and traditions that 
     governed our Armed Forces through the years. As the Senate 
     deals with the issue, it might consider a short quote from 
     the last chapter of that book which General Marshall sent to 
     every American Officer. The last chapter is titled 
     ``Americans in Combat'' and it lists 29 general propositions 
     which govern the conduct of Americans in war. Number XXV, 
     which I long ago underlined in my copy, reads as follows:

       ``The United States abides by the laws of war. Its Armed 
     Forces, in their dealing with all other peoples, are expected 
     to comply with the laws of war, in the spirit and the letter. 
     In waging war, we do not terrorize helpless non-combatants, 
     if it is within our power to avoid so doing. Wanton killing, 
     torture, cruelty or the working of unusual hardship on enemy 
     prisoners or populations is not justified in any 
     circumstance. Likewise, respect for the reign of law, as that 
     term is understood in the United States, is expected to 
     follow the flag wherever it goes. . . .''

       For the long term interest of the United States as a nation 
     and for the safety of our own forces in battle, we should 
     continue to maintain those principles. I continue to read and 
     hear that we are facing a ``different enemy'' in the war on 
     terror; no matter how true that may be, inhumanity and 
     cruelty are not new to warfare nor to enemies we have faced 
     in the past. In my short 46 years in the Armed Forces, 
     Americans confronted the horrors of the prison camps of the 
     Japanese in World War II, the North Koreans in 1950-53, and 
     the North Vietnamese in the long years of the Vietnam War, as 
     well as knowledge of the Nazi's holocaust depredations in 
     World War II. Through those years, we held to our own values. 
     We should continue to do so.
       Thank you for your own personal courage in maintaining 
     those values, both in war and on the floor of the Senate. I 
     hope that my information about weakening American support for 
     Common Article 3 of the Geneva Convention is in error, and if 
     not that the Senate will reject any such proposal.
           Very respectfully,
     General John. W. Vessey, USA (Ret.).
                                  ____

                                               September 20, 2006.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: I have followed with great interest 
     the debate over whether to redefine in law Common Article 3 
     of the Geneva Conventions. I join my distinguished 
     predecessors as Chairman of the Joint Chiefs of Staff, 
     Generals Vessey and Powell, in expressing concern regarding 
     the contemplated change. Such a move would, I believe, hinder 
     our efforts to win America's wars and protect American 
     soldiers.
       Common Article 3 and associated Geneva provisions have 
     offered legal protections to our troops since 1949. American 
     soldiers are trained to Geneva standards and, in some cases, 
     these standards constitute the only protections remaining 
     after capture. Given our military's extraordinary presence 
     around the world, Geneva protections are critical.
       Should the Congress redefine Common Article 3 in domestic 
     statute, the United States would be inviting similar 
     reciprocal action by other parties to the treaty. Such an 
     action would send a terrible signal to other nations that the 
     United States is attempting to water down its obligations 
     under Geneva. At a time when we are deeply engaged in a war 
     of ideas, as well as a war on the battlefield, this would be 
     an egregious mistake. I firmly believe that not only is such 
     a move unnecessary, it potentially subjects our men and women 
     in uniform to unnecessary danger.
       The legislation sponsored by Senator Warner, which would 
     enumerate war crime offenses while remaining silent on 
     America's obligations under Common Article 3, is a better 
     course of action. By doing so, our men and women in field 
     will have the clarity they require, we can still interrogate 
     terrorists, and our service personnel will have the undiluted 
     protections offered by the Geneva Convention.
           Respectfully,
     General H. Hugh Shelton.
                                  ____

       Senator McCain: This is the first time I have publically 
     spoken about the administration policy regarding the war 
     against terror but my professionalism and my conscience leads 
     me to comment on the proposed ``interpretation/change'' to 
     the Geneva Convention.
       My concerns are as follows:
       I. A redefinition or reinterpretation of the Geneva 
     Convention, a document that has been taught to every recruit 
     and officer candidate since its inception, would immediately 
     attack the moral dimension with which every Soldier, Sailor, 
     Marine and Airman is inculcated during their time as a member 
     of the US Armed Forces. By weakening the moral link that 
     these young men and women depend on . . . by allowing a 
     redefinition of a lawful Convention . . . we run the risk of 
     undermining the foundation upon which they willingly fight 
     and die for our Country.
       2. The mothers and fathers who give their sons and 
     daughters to our care brought their children up to do 
     ``right'' . . . to obey the law . . . to take the moral high 
     ground. We do these parents a grave disservice by 
     ``legalizing'' a different standard for their children.
       3. This issue is NOT about what our enemy does to our 
     servicemen and women when captured! This issue is all about 
     how we, as Americans, act. Do we walk our talk. Do we change 
     the rules of the game because our enemy acts in a horrific 
     manner. Do we give up our honor because our enemy is without 
     honor? If we do, we begin to mimic the very behavior we 
     abhor.
       4. Many countries already look at the United States as 
     arrogant. This redefinition/reinterpretation would only serve 
     to strengthen that conviction. The idea that the United 
     States would ``pick and choose'' what portion of the Geneva 
     Convention to follow . . . and what portion to ``redefine/
     reinterpret'' . . . goes against who we are as a people and 
     as a Nation. The unintended consequence of this type of 
     action is that it opens the door for other nations to make 
     interpretations of their own . . . across a gamut of issues. 
     The world is a dangerous place and our actions might well 
     serve as precedents during the first battle of the NEXT war.
       5. Finally, Duty-Honor-Country and Semper Fidelis are NOT 
     just ``bumper stickers''. These words, and others like them, 
     form the ethos of our Armed Forces. When you start to tamper 
     with the laws governing warfare . . . laws recognized by 
     countries around the world . . . you run the risk of bringing 
     into question the very ethos that these men and women hold 
     dear.
           Semper Fidelis,

                                                  C.C. Krulak,

                                              General, USMC (Ret),
                              31st Commandant of the Marine Corps.

  Mr. McCAIN. These men express one common view: that modifying the 
Geneva Conventions would be a terrible mistake and would put our 
personnel at greater risk in this war and the next. If America is seen 
to be doing anything other than upholding the letter and spirit of the 
conventions, it will be harder, not easier, to defeat our enemies. I am 
pleased that this legislation before the Senate does not amend, 
redefine, or modify the Geneva Conventions in any way. The conventions 
are preserved intact.
  The bill does provide needed clarity for our personnel about what 
activities constitute war crimes. For the first time, there will be a 
list of nine specific activities that constitute criminal violations of 
Common Article 3, punishable by imprisonment or even death. There has 
been much public discussion about specific interrogation methods that 
may be prohibited. But it is unreasonable to suggest that any 
legislation could provide an explicit and all-inclusive list of what 
specific activities are illegal and which are permitted. Still, I am 
confident that the categories included in this section will criminalize 
certain interrogation techniques, like waterboarding and other 
techniques that cause serious pain or suffering that need not be 
prolonged--I emphasize ``that need not be prolonged.''
  Some critics of this legislation have asserted that it gives amnesty 
to U.S. personnel who may have committed war crimes since the enactment 
of the War Crimes Act. Nothing--nothing--could be further from the 
truth. As currently written, the War Crimes Act makes criminal any and 
all behavior that constitutes a violation of Common Article 3--
specifically, any act that constitutes an ``outrage upon personal 
dignity.'' Observers have commented that, though such outrages are 
difficult to define precisely, we all know them when we see them. 
However, neither I nor any other responsible Member of this body should 
want to prosecute and

[[Page 20330]]

potentially sentence to death any individual for violating such a vague 
standard.
  The specificity that the bill provides to the War Crimes Act--and its 
retroactive effect--will actually make prosecuting war criminals a 
realistic goal. None of my colleagues should object to that goal.
  It is also important to note that the acts that we propose to 
enumerate in the War Crimes Act are not the only activities prohibited 
under this legislation. The categories enumerated in the War Crimes Act 
list only those violations of Common Article 3 that are so grave as to 
constitute felonies potentially punishable by death. The legislation 
states explicitly that there are other, nongrave breaches of Common 
Article 3.
  This legislation also requires the President to publish his 
interpretations of the Geneva Conventions, including what violations 
constitute nongrave breaches, in the Federal Register--in the Federal 
Register--for every American to see. These interpretations will have 
the same force as any other administrative regulation promulgated by 
the executive branch and, thus, may be trumped--may be trumped--by law 
passed by Congress.
  Simply put, this legislation ensures that we respect our obligations 
under Geneva, recognizes the President's constitutional authority to 
interpret treaties, and brings accountability and transparency to the 
process of interpretation by ensuring that the Executive's 
interpretation is made public--the Executive's interpretation is made 
public. The legislation would also guarantee that Congress and the 
judicial branch will retain their traditional roles of oversight and 
review with respect to the President's interpretation of nongrave 
breaches of Common Article 3.
  In short, whereas last year only one law--the torture statute--was 
deemed to apply to the treatment of all enemy detainees, now there is a 
set of overlapping and comprehensive legal standards that are in force: 
the Detainee Treatment Act, with its prohibition on cruel, inhuman, and 
degrading treatment as defined by the fifth, eighth, and fourteenth 
amendments to the Constitution, Common Article 3 of the Geneva 
Conventions, and the War Crimes Act. This legislation will allow--my 
colleagues, have no doubt--this legislation will allow the CIA to 
continue interrogating prisoners within the boundaries established in 
the bill.
  Let me state this flatly: It was never our purpose to prevent the CIA 
from detaining and interrogating terrorists. On the contrary, it is 
important to the war on terror that the CIA have the ability to do so. 
At the same time, the CIA's interrogation program has to abide by the 
rules, including the standards of the Detainee Treatment Act.
  I, like many of my colleagues, find troubling the reports that our 
intelligence personnel feel compelled to purchase liability insurance 
because of the lack of legal clarity that exists in the wake of the 
Hamdan decision. This legislation provides an affirmative defense for 
any Government personnel prosecuted under the War Crimes Act for 
actions they reasonably believed to be legal at the time. That is a 
longstanding precedent. In addition, it would eliminate any private 
right of action against our personnel based on a violation of the 
Geneva Conventions. The intent of this provision is to protect 
officers, employees, members of the Armed Forces, and other agents of 
the United States from suits for money damages or any other lawsuits 
that could harm the financial well-being of our personnel who were 
engaged in lawful--I emphasize ``lawful''--activities.
  It is important to note, however, that the fact that the Geneva 
Conventions lack a private right of action--and the fact that this 
legislation does not create such a right--has absolutely no bearing on 
whether the Conventions are binding on the executive branch. Even if 
the Geneva Conventions do not enable detainees to sue our personnel for 
money damages, the President and his subordinates are nevertheless 
bound to comply with Geneva. That is clear to me and to all who have 
negotiated this legislation in good faith.
  This point is critical, because our personnel deserve not only the 
legal protections written into this legislation, but also the undiluted 
protections offered since 1949 by the Geneva Conventions. Should the 
United States be seen as amending, modifying, or redefining the Geneva 
Conventions, it would open the door for our adversaries to do the same, 
now and in the future. The United States should champion the Geneva 
Conventions, not look for ways to get around them, lest we invite 
others to do the same. America has more personnel deployed, in more 
places, than any other country in the world, and this unparalleled 
exposure only serves to further demonstrate the critical importance of 
our fulfilling the letter and the spirit of our international 
obligations. To do any differently would put our fighting men and women 
directly at risk. We owe it to our fighting men and women to uphold the 
Geneva Conventions, just as we have done for 57 years.
  For these reasons, this bill makes clear that the United States will 
fulfill all of its obligations under those Conventions. We expect the 
CIA to conduct interrogations in a manner that is fully consistent not 
only with the Detainee Treatment Act and the War Crimes Act, but with 
all of our obligations under Common Article 3 of the Geneva 
Conventions.
  Finally, I note that there has been opposition to this legislation 
from some quarters, including the New York Times editorial page. 
Without getting into a point-by-point rebuttal here on the floor, I 
simply say that I have been reading the Congressional Record trying to 
find the bill that page so vociferously denounced. The hyperbolic 
attack is aimed not at any bill this body is today debating, nor even 
at the administration's original position. I can only presume that some 
would prefer that Congress simply ignore the Hamdan decision and pass 
no legislation at all. That, I suggest to my colleagues, would be a 
travesty.
  This is a very long, difficult task. This is critical for the future 
security of this Nation, and we have done the very best we can. I 
believe we have come up with a good product. I believe good-faith 
negotiations have taken place. I hope we will pass this legislation 
very soon. I think you will find that people will be brought to justice 
and we can move forward with trials with treating people under the 
Geneva Conventions and restoring America's prestige in the world.
  I thank my colleagues.
  Mr. WARNER. Mr. President, I wish to commend our distinguished 
colleague on an excellent summary of the bill and his heartfelt 
expressions and interpretations of this bill, which I share.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, it is from strength that America should 
defend our values and our Constitution. It takes a commitment to those 
values to demand accountability from the Government. In standing up for 
American values and security, I will vote against this bill.
  I can give you many reasons, but let me take one. We will turn back 
the protections of the Great Writ of habeas corpus. Since 13th century 
Anglo jurisprudence, we have had the Great Writ. We have had habeas 
corpus since the birth of our Nation. We fought a revolution to make 
sure we could retain it. We fought a civil war, and we fought through 
two world wars. Now, in a matter of hours, in a debate that has so 
often skirted the issues, we are ready to strip back habeas corpus. I 
cannot vote for that.
  Senator Smith spoke stirringly earlier today of the dangers of the 
bill's habeas provision, which would eliminate the independent judicial 
check on Government overreaching and lawlessness. He quoted from great 
defenders of liberty. It was Justice Robert H. Jackson who said in his 
role as Chief Counsel for the Allied Powers responsible for trying 
German war criminals after World War II: ``That four great nations, 
flushed with victory and stung with injury stay the hand of vengeance 
and voluntarily submit their captive enemies to the judgment of the law 
is one of the most significant tributes that

[[Page 20331]]

Power ever has paid to Reason.'' He closed the Nuremberg trials about 
which Senator Dodd spoke earlier by saying: ``Of one thing we may be 
sure. The future will never have to ask, with misgiving, `What could 
the Nazis have said in their favor?' History will know that whatever 
could be said, they were allowed to say. They have been given the kind 
of a trial which they, in the days of their pomp and power, never gave 
to any man. But fairness is not weakness. The extraordinary fairness of 
these hearings is an attribute of our strength.''
  He was right and his wisdom was echoed this week at our Judiciary 
Committee hearing when Admiral Hutson and Lieutenant Commander Swift 
testified that fairness and lawfulness are our greatest strengths. This 
legislation doesn't live up to that ideal. It strips away fairness.
  The actions by the U.S. Government, this administration, for all its 
talk of strength, have made us less safe, and its current proposal is 
one that smacks of weakness and shivering fear. Its legislative demands 
reflect a cowering country that is succumbing to the threat of 
terrorism. I believe we Americans are better than that. I believe we 
are stronger than that. I believe we are fairer than that. And I 
believe America should be a leader in the fight for human rights and 
the rule of law, and that will strengthen us in our fight against 
terrorists.
  We have taken our eye off the ball in this fight against terrorists. 
That is essentially what all of our intelligence agencies concluded in 
the National Intelligence Estimate that the administration had for six 
months while this was rolling along, but that they only shared a part 
of this past weekend. Our retooled and reorganized intelligence 
agencies, with leadership handpicked by the administration, have 
concluded, contrary to the campaign rhetoric of the President and Vice 
President, that the Iraq war has become a ``cause celebre'' that has 
inspired a new generation of terrorists. It hasn't stopped terrorists, 
it has inspired new terrorists. Surely, the shameful mistreatment of 
detainees at Guantanamo, at Abu Ghraib, at secret CIA prisons, and that 
by torturers in other countries to whom we have turned over people, 
have become other ``causes celebre'' and recruiting tools for our 
enemies.
  Surely, the continued occupation of Iraq, when close to three-
quarters of Iraqis want U.S. forces to depart their country, is another 
circumstance being exploited by enemies to demonize our great country.
  Passing laws that remove the remaining checks against mistreatment of 
prisoners will not help us win the battle for the hearts and minds of 
the generation of young people around the world being recruited by 
Osama bin Laden and al-Qaida. Authorizing indefinite detention of 
anybody the Government designates, without any proceeding or without 
any recourse, putting them into the secret prisons we condemned during 
the Cold War, is what our worse critics claim the United States would 
do. That is not what American values, our traditions, and our rule of 
law would have us do. This is not just a bad bill, this is truly a 
dangerous bill.
  I have been asking Secretary Rumsfeld's question for the last several 
weeks: whether our actions are eliminating more of our enemies than are 
being created. But now we understand that we are creating more enemies 
than we are eliminating. Our intelligence agencies agree that the 
global jihadist movement is spreading and adapting; it is ``increasing 
in both number and geographic dispersion.'' We are putting ourselves 
more at risk.
  ``If this trend continues,'' our intelligence agencies say, that is, 
if we do not wise up and change course and adopt a winning new 
strategy, ``threats to U.S. interests at home and abroad will become 
more diverse, leading to increasing attacks worldwide.'' Attacks have 
been increasing worldwide over the last 5 years of these failing 
policies and are, according to the judgment of our own, newly 
reconstituted intelligence agencies, likely to increase further in the 
days and months and years ahead. The intelligence agencies go on to 
note ominously that ``new jihadist networks and cells, with anti-
American agendas, are increasingly likely to emerge'' and further that 
the ``operational threat will grow,'' particularly abroad ``but also in 
the homeland.''
  This is truly chilling. The Bush-Cheney administration not only 
failed to stop 9/11 from happening, but for 5 years they have failed to 
bring Osama bin Laden to justice, even though they had him cornered at 
Tora Bora. They yanked the special forces out of there to send them 
into Iraq. We have witnessed the growth of additional enemies.
  And what do our intelligence agencies suggest is the way out of this 
dangerous quagmire? The National Intelligence Estimate suggests we have 
to ``go well beyond operations to capture or kill terrorist leaders,'' 
and we must foster democratic reforms. When America can be seen 
abandoning its basic American democratic values, its checks and 
balances, its great and wonderful legal traditions, and can be seen as 
becoming more autocratic and less accountable, how will that foster 
democratic reforms elsewhere? ``Do as I say and not as I do'' is a 
model that has never successfully inspired peoples around the world, 
and it doesn't inspire me.
  The 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. Even they cannot 
dismiss the practices at Guantanamo as the actions of a few ``bad 
apples.''
  With Senate adoption of the antitorture 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. In rejecting the 
Kennedy amendment today, the Senate has turned away from the wise 
counsel and judgment of military professionals. Of course, the 
President in his signing statement already undermined enactment of the 
antitorture law.
  The administration is now obtaining license--before, they just did it 
quietly and against the law and on their own say-so, but now they are 
obtaining license--to engage in additional harsh techniques that the 
rest of the world will see as abusive, as cruel, as degrading, and even 
as torture. Fortunately, a growing number of our own people see it that 
way, too.
  What is being lost in this debate is any notion of accountability and 
the guiding principles of American values and law. 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 for 5 years? The Republican leadership's 
legislation strips away all accountability and erodes our most basic 
national values without so much as an accounting of these facts and 
legal arguments. Senator Rockefeller's amendment to incorporate some 
accountability in the process through oversight of the CIA 
interrogation program was unfortunately rejected by the Republican 
leadership in the Senate.
  Secrecy for all time is to be the Republican rule of the day. 
Congressional oversight is no more. Checks and balances are no more. 
The fundamental check that was last provided by the Supreme Court is 
now to be taken away. This is wrong. This should be unconstitutional. 
It is certainly unconscionable. This is certainly not the action of any 
Senate in which I have served. It is not worthy of the United States of 
America. What we are saying is one person will make all of the rules; 
there will be no checks and balances. There will be no dissent, and 
there will be nobody else's view, and we will remove,

[[Page 20332]]

piece by piece, every single law that might have allowed checks and 
balances.
  We are rushing through legislation that would have a devastating 
effect on our security and our values. I implore Senators to step back 
from the brink 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 in January 2001 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 antiterror budget on September 10, the 
day before the worst foreign terrorist attack on U.S. soil in our 
history. This administration was focused on Star Wars, not terrorism. 
Time was of the essence when Osama bin Laden was trapped in Tora Bora. 
But this administration was more interested in going after Sadaam 
Hussein, who the President recently admitted had ``nothing'' to do with 
9/11.
  After 5 years of this administration's unilateral actions that have 
left us less safe, time is now of the essence to take real steps to 
keep us safe from terrorism. Real steps like those included in the Real 
Security Act, S. 3875. We should be focusing on getting the terrorists 
and securing the nuclear material that this administration has allowed 
for the last 5 years to be unaccounted for around the world. We should 
be doing the things Senator Kerry and others are talking about, such as 
strengthening our special forces and winning the peace in Afghanistan, 
where the Taliban has regrouped and is growing in strength.
  Instead, the President and the Republican Senate leadership call for 
rubberstamping more flawed White House proposals just in time for the 
runup to another election and for the fundraising appeals to go out.
  I had hoped that this time, for the first time, even though the 
Senate is controlled by the President's party, we could act as an 
independent branch of the Government and serve as a check on this 
administration. After this debate and the rejection of all amendments 
intended to improve this measure, I see that day has long passed. I 
will continue to speak out. That is my privilege as a Senator. But I 
weep for our country and for the American values, the principles on 
which I was raised and which I took a solemn oath to uphold. I applaud 
those Senators who stood up several times on the floor today and voted 
to uphold the best of American values.
  Going forward, the bill departs even more radically from our most 
fundamental values. And 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 closed-door revisions over the past 
week. For example, the bill has been amended to eliminate habeas corpus 
review even for persons inside the United States, and even for persons 
who have not been determined to be enemy combatants. It has moved from 
detention of those who are captured having taken up arms against the 
United States on a battlefield to millions of law-abiding Americans 
that the Government might suspect of sympathies for Muslim causes and 
who knows what else--without any avenue for effective review.
  Remember, we are giving a blank check to a Government whose 
incompetence was demonstrated in historic dimensions by the lack of 
preparation in response to Hurricane Katrina. This is the same 
Government which, in its fight against terrorism, has had Senator 
Kennedy and Congressman Lewis on terrorist watch lists, and could not 
get them off. This is a Government which repeatedly releases 
confidential family information about our Armed Forces and veterans. It 
is a Government which just refuses to admit any mistakes or to make any 
corrections but regards all of its representatives, from Donald 
Rumsfeld to Michael Brown, as doing a ``heckuva job.''
  The proponents of this bill talk about sending messages. What message 
does it send to the millions of legal immigrants living in America, 
participating in American families, working for American businesses, 
and paying American taxes? Its message is 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--a term that the bill now defines in a tortured and 
unprecedentedly broad manner. And that power and any errors cannot be 
reviewed or corrected by a court. What message does that send about 
abuse of power? What message does that send to the world about 
America's freedoms?
  Numerous press accounts have quoted administration officials who 
believe that a significant percentage of those detained at Guantanamo 
have no connection to terrorism. In other words, the Bush-Cheney 
administration has been holding for several years, and intends to hold 
indefinitely without trial or any recourse to justice, a substantial 
number of innocent people who were turned in by anonymous bounty 
hunters or picked up by mistake in the fog of war or as a result of a 
tribal or personal vendetta. The most important purpose of habeas 
corpus is to correct errors like that--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 the public Safety may require it.'' But court 
review has now embarrassed the Bush administration, as the U.S. Supreme 
Court has three times rejected its lawyers' schemes. And, so how does 
the administration respond? It insists that there be no more judicial 
check on its actions and errors.
  When the Senate accedes to that demand, it abandons American 
principles and all checks on an imperial Presidency. The Senator from 
Vermont will not be a party to retreat from America's constitutional 
values. Vermonters don't retreat.
  Senator Smith, speaking this morning about the habeas provisions of 
this bill, quoted Thomas Jefferson, who said:

       The habeas corpus secures every man here, alien or citizen, 
     against everything which is not law, whatever shape it may 
     assume.

  Jefferson said on another occasion:

       I would rather be exposed to the inconveniences attending 
     too much liberty than to those attending too small a degree 
     of it.

  With this bill, the Senate reverses that profound judgment of 
history, chooses against liberty, and succumbs to fear.
  When former Secretary of State Colin Powell wrote last week of his 
concerns with the administration's bill, he wrote about doubts 
concerning our ``moral authority in the war against terrorism.'' This 
General, former head of the Joint Chiefs of Staff and former Secretary 
of State, was right. Now we have heard from a number of current and 
former diplomats, military lawyers, Federal judges, law professors and 
law school deans, the American Bar Association, and even the first 
President Bush's Solicitor General, Kenneth Starr, that they have grave 
concerns with the habeas corpus stripping provisions of this bill.
  I agree with Mr. Starr that we should not suspend--and we should 
certainly not eliminate--the Great Writ. I also agree with more than 
300 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 traditions.'' And I 
agree with more than 30 former U.S. Ambassadors and other senior 
diplomats, who say that eliminating habeas corpus for aliens detained 
by the United States will harm our interests abroad, and put our own 
military, diplomatic, and other personnel stationed abroad at risk. We 
cannot 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 9/11 attacks, and in the face of the continuing 
terrorist threat, now is not the time for the United States to abandon 
its principles. Admiral Hutson was right to

[[Page 20333]]

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, to shiver and quake, to rely on secrecy and 
torture. Those are ways of repression and oppression, not the American 
way.
  We need to pursue the war on terror with strength and intelligence, 
but we need to uphold American ideals. 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 and 
cruel and inhumane treatment of detainees. He did not want clarity when 
spying on Americans without warrants. And he certainly did not want 
clarity while 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 withstand the light of day.
  It seems the only clarity this administration wants is a clear green 
light from Congress to do whatever it wants. That is not clarity. That 
is immunity from crime. I cannot vote for that. 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 America's values.
  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 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 
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. Despite the President's calls for clarity, the new 
provisions are so purposefully ambiguous that we cannot know for sure 
whether they are covered. 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 and made us less safe. 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 the 
green light to change their laws 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 a 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.
  This bill does not clarify the War Crimes Act. It authorizes and 
immunizes abhorrent conduct that violates our basic ideals. Perhaps 
that is why more than 40 religious organizations and human rights 
groups wrote to urge the Senate to take more time to consider the 
effects of this legislation on

[[Page 20334]]

our safety, security, and commitment to the rule of law, and to vote 
against it if the serious problems in the bill are not corrected.
  The proposed legislation would also allow the admission of evidence 
obtained through cruel and inhuman treatment into military commission 
proceedings. 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 commissions 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 
obtained 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 arrested by our government on bad intelligence and sent 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 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 noncitizens alike--who have ``purposefully and materially 
supported hostilities'' against the United States or its allies. It 
also includes people determined to be unlawful enemy combatants by any 
``competent tribunal'' established by the President or the Secretary of 
Defense. So the Government can select any person, including a United 
States 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.
  I am sorry the Republican leadership passed up the chance to consider 
and pass bipartisan legislation that would have made 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. I will not 
participate in a legislative retreat out of weakness that undercuts 
everything this Nation stands for and that makes us more vulnerable and 
less secure.
  The Senator from Vermont, consistent with my oath of office and my 
conscience and my commitment to the people of Vermont and the Nation, 
cannot--I will not--support this bill.
  The PRESIDING OFFICER (Mr. Chafee). Who yields time? The Senator from 
Michigan.
  Mr. LEVIN. Mr. President, I believe I have 4 minutes allocated.
  The PRESIDING OFFICER. There is 3\1/2\ minutes remaining.
  Mr. LEVIN. Mr. President, less than 2 weeks ago, the Armed Services 
Committee voted on a military commissions bill. The committee endorsed 
that bill on a bipartisan basis with a 15-to-9 vote. Yesterday, 43 of 
us voted for the same bill on the Senate floor.
  The bill would have provided the administration with the tools that 
it needed to detain enemy combatants, conduct interrogations, and 
prosecute detainees for any war crimes they may have committed.
  Unfortunately, that bill went off the tracks after it was approved by 
the Armed Services Committee. Instead of bringing to the Senate floor 
the bill that had been adopted by the Armed Services Committee on a 
bipartisan basis, we are voting now on a dramatically different bill 
based on changes made at the insistence of an administration that has 
been relentless in its determination to legitimize the abuse of 
detainees, to protect those who authorize the abuses, and to distort 
military commission procedures in order to ensure criminal convictions.
  For example, the bill before us inexplicably fails to prohibit the 
use of statements or testimony obtained through cruel and inhuman 
treatment as long as those statements or testimony was obtained before 
December 30, 2005.
  The argument has been made that the bill before us prohibits the use 
of statements that are obtained through torture. That was never in 
contention. The problem is that it permits the use of statements 
obtained through cruel and inhuman treatment that doesn't meet the 
strict definition of torture as long as those statements were obtained 
before December 30, 2005.
  This is a compromise on the issue of cruelty--an issue on which there 
should be no compromise by our Nation or by the Senate. If we 
compromise on that, we compromise at our peril. The men and women who 
represent us in uniform will be in much greater danger if we compromise 
on the issue of statements obtained through cruelty and inhuman 
treatment.
  A compromise on this issue endangers our troops because if other 
nations apply the same standard and allow statements or confessions 
obtained through cruelty to be used at so-called trials of our 
citizens, we will have little ground to stand on in our objecting to 
them.
  This bill also does many other things which are dramatic changes from 
the bill that came out of the Armed Services Committee. For instance, 
the bill would authorize the use of evidence seized without a search 
warrant or other authorization, even if that evidence was seized from 
U.S. citizens inside the United States in clear violation of the U.S. 
Constitution.
  Both the committee bill and the bill before us provide the executive 
branch with the tools it needs to hold enemy combatants accountable for 
any war crimes they may have committed. On this issue we are in 
agreement. We all agree that people who are responsible for the 
terrible events of September 11 and other terrorist attacks around the 
world should be brought to justice.
  However, the bill before us differs dramatically from the Senate 
Armed Services Committee bipartisan-approved bill, particularly when it 
comes to the accountability of the administration for policies and 
actions leading to the abuses of detainees.
  The bill before us contains provision after provision designed to 
ensure that the administration will not be held accountable for the 
abuse of prisoners in U.S. custody, for violations of U.S. law, or for 
the use of such tactics that have turned much of the world against us.
  Over the last 2 days, we have debated the habeas corpus provision in 
the bill. Most of that debate has focused on the writ of habeas corpus 
as an individual right to challenge the lawfulness of detention. The 
writ of habeas corpus does serve that purpose.
  But the writ of habeas corpus has always served a second purpose as 
well: for its 900-year history, the writ of habeas corpus has always 
served as a means of making the sovereign account for its actions. By 
depriving detainees of the opportunity to demonstrate that they were 
detained in error, this bill not only deprives individuals of a 
critical right deeply embedded in American law, it also helps ensure 
that the administration will not be held to account for the illegal or 
abusive treatment of detainees.
  Indeed, the court-stripping provision in the bill does far more than 
just eliminate habeas corpus rights for detainees. It also prohibits 
the U.S. courts from hearing or considering ``any other action against 
the United States or its agents relating to any aspect of the 
detention, treatment, or trial'' of an alien detainee. By depriving 
detainees of access to our courts, even if they have been subject to 
torture or to cruel and inhuman treatment, this provision seeks to 
ensure that the details of administration policies that appear to have 
violated our obligations under U.S. and international law will never be 
aired in court.
  A number of other provisions in the bill before us appear to be 
directed at the same objective. For example, section 5 of the bill 
provides that no person--whether that person is an enemy

[[Page 20335]]

combatant or anybody else--may invoke the Geneva Conventions as a 
source of rights in a habeas corpus or other proceeding in any court of 
the United States. Section 948b(g) of the military commissions part of 
the bill would similarly provide that no person subject to trial by 
military commission may invoke the Geneva Conventions as a source of 
rights. These provisions, like the habeas corpus provision, appear to 
be designed to ensure that administration policies that may have 
violated our obligations under U.S. and international law will never be 
aired in court.
  Other provisions in the bill narrow the range of abuses that are 
covered by the War Crimes Act. As a result of these amendments, some 
actions that were war crimes at the time they took place will not be 
prosecutable. Indeed, because of a complex definition in the bill, some 
actions that violated the War Crimes Act at the time they took place 
and will violate that act if they take place in the future will not be 
prosecutable. In other words, this bill carves out a window to immunize 
actions of this administration from prosecution under the War Crimes 
Act.
  The administration and its allies have argued that these provisions 
are necessary to protect CIA interrogators from prosecution for actions 
that they believed to be lawful and authorized at the time they were 
undertaken. However, we addressed that problem with the enactment of 
the Detainee Treatment Act last year. That law provides a defense to 
any U.S. agent who engaged in specific operational practices that were 
officially authorized or reasonably believed to be lawful at the time 
they were undertaken.
  This bill, however, goes far beyond protecting the front line 
interrogators and agents who believed that their actions were lawful: 
it changes the law to ensure that the administration officials who 
provided the authorization and knew or should have known that there was 
no legal basis for that authorization, will not be held accountable for 
their actions.
  Last year, this Congress took an important stand for the rule of law 
by enacting the McCain amendment, which prohibits the cruel, inhuman, 
or degrading treatment of detainees in the custody of any U.S. agency 
anywhere in the world. That landmark provision is at risk of being 
rendered meaningless, if we establish rules ensuring that it can never 
be enforced.
  We need to provide the administration with the tools that are needed 
to prosecute unlawful enemy combatants for any war crimes that they may 
have committed. However, we should not do so in a way that is 
inconsistent with our own values as a Nation. We need to practice what 
we preach to the rest of the world.
  The bill before us will put our own troops who might be captured in 
future conflicts at risk if other countries decide to apply similar 
standards to us, is likely to result in the reversal of convictions on 
appeal, and is inconsistent with American values. For these reasons, I 
will vote no on final passage.
  The PRESIDING OFFICER. The minority leader.
  Mr. REID. Mr. President, it is my understanding I am to speak and the 
majority leader will speak and then we will vote; is that true?
  The PRESIDING OFFICER. That is correct.
  Mr. REID. Mr. President, on a bright and sunny September morning 5 
years ago, history changed in an instant. Our Nation was attacked. 
Nearly 3,000 of our citizens were murdered, and our lives as we knew 
them were forever changed.
  The family members of those who died that day and we, their fellow 
Americans, have been waiting 5 years for those who masterminded that 
outrageous terrorist attack to be brought to justice. Osama bin Laden, 
a man whom we have seen on videotape bragging and laughing about his 
role in conceiving this deed, remains at large 5 years later. The 
American people are justifiably frustrated that he has not been caught. 
They have a right to ask whether our military and intelligence 
resources were unwisely diverted from that solemn task.
  But some of Osama bin Laden's lieutenants were captured overseas 
years ago. There is no disagreement whatsoever between Republicans and 
Democrats on the need to bring these people to justice. We all want to 
make sure the President has the tools he needs to make this happen.
  For 5 years, Democrats stood ready to work with the President and the 
Republican Congress to establish sound procedures for military 
tribunals. Mr. President, why do you think the Democratic ranking 
member of the Judiciary Committee has been so outraged at what has been 
going on? He is outraged because as the top Democrat on the Judiciary 
Committee, he introduced a bill in 2002 to solve the problems that are 
now before the Senate--4 years ago. No wonder he is incensed.
  Unfortunately, President Bush chose to ignore Senator Leahy and the 
Congress and ignore the advice of uniformed military professionals. He 
set up a flawed and imbalanced military tribunal system that failed to 
prosecute a single terrorist. Not surprisingly, it was ruled 
unconstitutional by the U.S. Supreme Court.
  Forced by the Court decision to ask Congress for help, the Bush 
administration initially asked us, the Congress, to rubberstamp 
basically the same system that the Supreme Court struck down. Their 
proposal for one-sided trials and murky interrogation rules was opposed 
by such well-respected leaders as GEN Colin Powell and former Secretary 
of State George Shultz, both Republicans, and many others, Democrats 
and Republicans.
  I must say, a handful of principled Republican Senators, led by the 
chairman of the Armed Services Committee, Senator Warner, Senator 
Graham from South Carolina, and Senator McCain from Arizona stepped 
forward and forced the White House to back down from the worst elements 
of its extreme proposal. I appreciate the position of those Republican 
Senators, the names I have given you.
  I repeat, Mr. President, I admire their courage. I appreciate the 
improvements they managed to make in this bill. But for them what is 
before us would be a lot worse.
  However, since those Senators announced their agreement with the 
administration last Friday, the compromise has become much worse. The 
bill before us now looks more and more like the administration bill 
these Senators fought so hard against.
  I believe the bill approved by the Senate Armed Services Committee 
would have given the President all necessary authority. It was 
supported by the chairman and a bipartisan majority of that committee, 
as well as our Nation's uniformed military lawyers.
  The bill before us diverges from the committee bill in many ways, but 
let me talk about two.
  First, it makes less clear that the United States will abide by our 
obligations under the Geneva Conventions. The President says the United 
States does not engage in torture and there should be no ambiguity on 
that point, but this bill gives the President authority to reinterpret 
our obligations and limits judicial oversight of that process, putting 
our own troops at risk on the battlefield.
  A four-star general, former Secretary of State, former Chairman of 
the Joint Chiefs of Staff, GEN Colin Powell, wrote:
  The world is beginning to doubt the moral basis of our fight against 
terrorism. To redefine Common Article 3 would add to those doubts. 
Furthermore, it would put our own troops at risk.
  Second, this bill authorizes a vast expansion of the President's 
power to detain people, even U.S. citizens, indefinitely and without 
charge. There are no procedures for doing so. There is no due process 
provided, and no time limit on the detention is set.
  At the same time, the bill would deprive Federal judges of the power 
to review the legality of many such detentions. Judges--all judges--
would have no power to review the legality of many such detentions. 
This is true even in the case of a lawful permanent resident arrested 
and held in the United States, and even if that person happens to be 
completely innocent.

[[Page 20336]]

  The Framers of our Constitution understood the need for checks and 
balances. This bill has thrown that principle right out the window.
  Many of the worst provisions were not in the committee-reported bill 
and were not in the compromise announced last Friday. They were added 
over the weekend. Remember, there was a bill that was put before the 
Senate last Thursday, and from Thursday to Monday, it changed after, I 
say, back-room meetings with White House lawyers.
  We have tried to improve this legislation. My friend, the ranking 
member of the Armed Services Committee, Senator Carl Levin, proposed to 
substitute the bipartisan bill reported by the Armed Services 
Committee. That amendment was rejected basically on a party-line vote.
  Senators Specter and Leahy, the two Members who are responsible for 
the Judiciary Committee, the chairman and ranking member, offered an 
amendment to restore the right of judicial review. This amendment was 
rejected on a party-line vote.
  And Senator Rockefeller, the ranking Democrat on the Intelligence 
Committee, offered an amendment to improve congressional oversight of 
the CIA programs. This amendment was rejected on a party-line vote.
  Senator Kennedy offered an amendment to clarify that inhumane 
interrogation tactics prohibited by the Army Field Manual could not be 
used on Americans or on others. That amendment was rejected on a party-
line vote. Senator Byrd, who has seen things come and go in this body 
and who has been a Member of Congress for more than 50 years, offered 
an amendment to sunset military commissions so Congress would be 
required to reconsider this far-reaching authority after 5 years of 
having it in effect. That commonsense, realistic amendment was rejected 
on a party-line vote.
  I personally believe, having been in a few courtrooms, that this 
legislation is unconstitutional. It will certainly be struck down by 
the Supreme Court in the years ahead, and when that happens, we will be 
back here debating how to bring terrorists to justice.
  The families of the 9/11 victims and the Nation have been waiting 5 
years for the perpetrators of these attacks to be brought to justice. 
They should not have to wait longer. We should get this right now; we 
should do it right. We are not doing so by passing this bill.
  The national security policies of this administration and this 
Republican Congress may have been tough, but they certainly haven't 
been smart. The American people are paying a tremendous price for their 
mistakes. History will judge our actions here today. I am convinced 
that future generations will view passage of this bill as a grave 
error. I will be recorded as voting against this piece of legislation.
  Mr. President, I dislike, I find repulsive, and I do not condone 
these evil and horrible people, these terrorists. They should be 
brought before the bar of justice and given what they deserve. For 5 
years, that has not been the case. We Democrats want terrorists brought 
to justice quickly and in a way in keeping with our Constitution and, 
in this manner, give honor to the sacrifices made by American patriots 
in days past.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, for the past month we have debated how best 
to keep America safe. On one point I know all of our colleagues agree 
is that Khalid Sheikh Mohammed should be brought to justice. He should 
be prosecuted for masterminding the mass murders of almost 3,000 
Americans on September 11. I know the American people and the families 
of those victims share that goal.
  Every terrorist should be held accountable for their crimes against 
the innocent, against our enduring freedoms, against the values that we 
all share. Unfortunately, due to the Supreme Court's decision in Hamdan 
v. Rumsfeld, prosecutions of suspected terrorists like Khalid Sheikh 
Mohammed are at a stand-still, and these prosecutions will remain at a 
stand-still until we act to authorize military commissions to try these 
suspected terrorists.
  In addition to halting prosecutions of suspected terrorists, the 
Hamdan decision has undermined effective interrogation methods employed 
by our intelligence community. These methods yield critical information 
that allows us to prevent terrorist attacks and to save innocent lives. 
The information provided by these enemy combatants is our primary 
source--our best source--of reliable intelligence.
  Past interrogations have guided us to the precise location of 
terrorists in hiding, explained how al-Qaida leaders communicate with 
operatives in Iraq, and identified voices in intercepted calls. Without 
this information, we fight a blind war.
  The bill we will vote on in a few minutes addresses the concerns 
raised by the Hamdan decision. It provides the legislative framework 
authorizing military tribunals to prosecute suspected terrorists. It 
ensures certain protections and rights for the accused such as the 
right to counsel and the right to exclude evidence obtained through 
torture.
  At the same time, the bill recognizes that because we are at war with 
a different type of enemy, we should not try terrorist detainees in the 
same way as our uniformed military or civilian criminals.
  The bill also protects classified information from terrorists who 
could exploit it to plan another terrorist attack.
  Finally, the bill allows key intelligence programs to continue while 
ensuring that our detention and interrogation methods comply with both 
domestic and international laws, including Geneva Conventions Common 
Article 3.
  The bottom line is the bill before us allows us to bring terrorists 
to justice through full and fair military trials while preserving 
intelligence programs--intelligence programs that have disrupted 
terrorist plots and saved countless American lives.
  Our national security demands that we pass this bill tonight. We need 
this tool in the war on terror. In the 5 years since 9/11 we have not 
suffered another terrorist attack on U.S. soil. One reason we have 
remained safe is by staying on the offense against emerging threats. 
This bill is another offensive strike against terrorism.
  For the safety and security of the American people, Mr. President, I 
urge my colleagues to join us in supporting the Military Commission Act 
of 2006.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The question is, Shall the bill, as amended, 
pass?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Maine (Ms. Snowe).
  Further, if present and voting, the Senator from Maine (Ms. Snowe) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Allen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 65, nays 34, as follows:

                      [Rollcall Vote No. 259 Leg.]

                                YEAS--65

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

[[Page 20337]]



                                NAYS--34

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Chafee
     Clinton
     Conrad
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Sarbanes
     Schumer
     Wyden

                             NOT VOTING--1

     Snowe
       
       
  The bill (S. 3930), as amended, was passed, as follows:

                                S. 3930

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Military 
     Commissions Act of 2006''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military 
              commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to 
              protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status 
              Review Tribunals of propriety of detention.

     SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH 
                   MILITARY COMMISSIONS.

       The authority to establish military commissions under 
     chapter 47A of title 10, United States Code, as added by 
     section 3(a), may not be construed to alter or limit the 
     authority of the President under the Constitution of the 
     United States and laws of the United States to establish 
     military commissions for areas declared to be under martial 
     law or in occupied territories should circumstances so 
     require.

     SEC. 3. MILITARY COMMISSIONS.

       (a) Military Commissions.--
       (1) In general.--Subtitle A of title 10, United States 
     Code, is amended by inserting after chapter 47 the following 
     new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``Subchapter
``I. General Provisions............................................948a
``II. Composition of Military Commissions..........................948h
``III. Pre-Trial Procedure.........................................948q
``IV. Trial Procedure..............................................949a
``V. Sentences.....................................................949s
``VI. Post-Trial Procedure and Review of Military Commissions......950a
``VII. Punitive Matters............................................950p

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.

     ``Sec. 948a. Definitions

       ``In this chapter:
       ``(1) Unlawful enemy combatant.--(A) The term `unlawful 
     enemy combatant' means--
       ``(i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States or its co-belligerents who is not a lawful 
     enemy combatant (including a person who is part of the 
     Taliban, al Qaeda, or associated forces); or
       ``(ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal 
     established under the authority of the President or the 
     Secretary of Defense.
       ``(B) Co-belligerent.--In this paragraph, the term `co-
     belligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the 
     United States in hostilities or directly supporting 
     hostilities against a common enemy.
       ``(2) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means a person who is--
       ``(A) a member of the regular forces of a State party 
     engaged in hostilities against the United States;
       ``(B) a member of a militia, volunteer corps, or organized 
     resistance movement belonging to a State party engaged in 
     such hostilities, which are under responsible command, wear a 
     fixed distinctive sign recognizable at a distance, carry 
     their arms openly, and abide by the law of war; or
       ``(C) a member of a regular armed force who professes 
     allegiance to a government engaged in such hostilities, but 
     not recognized by the United States.
       ``(3) Alien.--The term `alien' means a person who is not a 
     citizen of the United States.
       ``(4) Classified information.--The term `classified 
     information' means the following:
       ``(A) Any information or material that has been determined 
     by the United States Government pursuant to statute, 
     Executive order, or regulation to require protection against 
     unauthorized disclosure for reasons of national security.
       ``(B) Any restricted data, as that term is defined in 
     section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2014(y)).
       ``(5) Geneva conventions.--The term `Geneva Conventions' 
     means the international conventions signed at Geneva on 
     August 12, 1949.

     ``Sec. 948b. Military commissions generally

       ``(a) Purpose.--This chapter establishes procedures 
     governing the use of military commissions to try alien 
     unlawful enemy combatants engaged in hostilities against the 
     United States for violations of the law of war and other 
     offenses triable by military commission.
       ``(b) Authority for Military Commissions Under This 
     Chapter.--The President is authorized to establish military 
     commissions under this chapter for offenses triable by 
     military commission as provided in this chapter.
       ``(c) Construction of Provisions.--The procedures for 
     military commissions set forth in this chapter are based upon 
     the procedures for trial by general courts-martial under 
     chapter 47 of this title (the Uniform Code of Military 
     Justice). Chapter 47 of this title does not, by its terms, 
     apply to trial by military commission except as specifically 
     provided in this chapter. The judicial construction and 
     application of that chapter are not binding on military 
     commissions established under this chapter.
       ``(d) Inapplicability of Certain Provisions.--(1) The 
     following provisions of this title shall not apply to trial 
     by military commission under this chapter:
       ``(A) Section 810 (article 10 of the Uniform Code of 
     Military Justice), relating to speedy trial, including any 
     rule of courts-martial relating to speedy trial.
       ``(B) Sections 831(a), (b), and (d) (articles 31(a), (b), 
     and (d) of the Uniform Code of Military Justice), relating to 
     compulsory self-incrimination.
       ``(C) Section 832 (article 32 of the Uniform Code of 
     Military Justice), relating to pretrial investigation.
       ``(2) Other provisions of chapter 47 of this title shall 
     apply to trial by military commission under this chapter only 
     to the extent provided by this chapter.
       ``(e) Treatment of Rulings and Precedents.--The findings, 
     holdings, interpretations, and other precedents of military 
     commissions under this chapter may not be introduced or 
     considered in any hearing, trial, or other proceeding of a 
     court-martial convened under chapter 47 of this title. The 
     findings, holdings, interpretations, and other precedents of 
     military commissions under this chapter may not form the 
     basis of any holding, decision, or other determination of a 
     court-martial convened under that chapter.
       ``(f) Status of Commissions Under Common Article 3.--A 
     military commission established under this chapter is a 
     regularly constituted court, affording all the necessary 
     `judicial guarantees which are recognized as indispensable by 
     civilized peoples' for purposes of common Article 3 of the 
     Geneva Conventions.
       ``(g) Geneva Conventions Not Establishing Source of 
     Rights.--No alien unlawful enemy combatant subject to trial 
     by military commission under this chapter may invoke the 
     Geneva Conventions as a source of rights.

     ``Sec. 948c. Persons subject to military commissions

       ``Any alien unlawful enemy combatant is subject to trial by 
     military commission under this chapter.

     ``Sec. 948d. Jurisdiction of military commissions

       ``(a) Jurisdiction.--A military commission under this 
     chapter shall have jurisdiction to try any offense made 
     punishable by this chapter or the law of war when committed 
     by an alien unlawful enemy combatant before, on, or after 
     September 11, 2001.
       ``(b) Lawful Enemy Combatants.--Military commissions under 
     this chapter shall not have jurisdiction over lawful enemy 
     combatants. Lawful enemy combatants who violate the law of 
     war are subject to chapter 47 of this title. Courts-martial 
     established under that chapter shall have jurisdiction to try 
     a lawful enemy combatant for any offense made punishable 
     under this chapter.
       ``(c) Determination of Unlawful Enemy Combatant Status 
     Dispositive.--A finding, whether before, on, or after the 
     date of the enactment of the Military Commissions Act of 
     2006, by a Combatant Status Review Tribunal or another 
     competent tribunal established under the authority of the 
     President or the Secretary of Defense that a person is an 
     unlawful enemy combatant is dispositive for purposes of 
     jurisdiction for trial by military commission under this 
     chapter.

[[Page 20338]]

       ``(d) Punishments.--A military commission under this 
     chapter may, under such limitations as the Secretary of 
     Defense may prescribe, adjudge any punishment not forbidden 
     by this chapter, including the penalty of death when 
     authorized under this chapter or the law of war.

     ``Sec. 948e. Annual report to congressional committees

       ``(a) Annual Report Required.--Not later than December 31 
     each year, the Secretary of Defense shall submit to the 
     Committees on Armed Services of the Senate and the House of 
     Representatives a report on any trials conducted by military 
     commissions under this chapter during such year.
       ``(b) Form.--Each report under this section shall be 
     submitted in unclassified form, but may include a classified 
     annex.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
              members.

     ``Sec. 948h. Who may convene military commissions

       ``Military commissions under this chapter may be convened 
     by the Secretary of Defense or by any officer or official of 
     the United States designated by the Secretary for that 
     purpose.

     ``Sec. 948i. Who may serve on military commissions

       ``(a) In General.--Any commissioned officer of the armed 
     forces on active duty is eligible to serve on a military 
     commission under this chapter.
       ``(b) Detail of Members.--When convening a military 
     commission under this chapter, the convening authority shall 
     detail as members of the commission such members of the armed 
     forces eligible under subsection (a), as in the opinion of 
     the convening authority, are best qualified for the duty by 
     reason of age, education, training, experience, length of 
     service, and judicial temperament. No member of an armed 
     force is eligible to serve as a member of a military 
     commission when such member is the accuser or a witness for 
     the prosecution or has acted as an investigator or counsel in 
     the same case.
       ``(c) Excuse of Members.--Before a military commission 
     under this chapter is assembled for the trial of a case, the 
     convening authority may excuse a member from participating in 
     the case.

     ``Sec. 948j. Military judge of a military commission

       ``(a) Detail of Military Judge.--A military judge shall be 
     detailed to each military commission under this chapter. The 
     Secretary of Defense shall prescribe regulations providing 
     for the manner in which military judges are so detailed to 
     military commissions. The military judge shall preside over 
     each military commission to which he has been detailed.
       ``(b) Qualifications.--A military judge shall be a 
     commissioned officer of the armed forces who is a member of 
     the bar of a Federal court, or a member of the bar of the 
     highest court of a State, and who is certified to be 
     qualified for duty under section 826 of this title (article 
     26 of the Uniform Code of Military Justice) as a military 
     judge in general courts-martial by the Judge Advocate General 
     of the armed force of which such military judge is a member.
       ``(c) Ineligibility of Certain Individuals.--No person is 
     eligible to act as military judge in a case of a military 
     commission under this chapter if he is the accuser or a 
     witness or has acted as investigator or a counsel in the same 
     case.
       ``(d) Consultation With Members; Ineligibility To Vote.--A 
     military judge detailed to a military commission under this 
     chapter may not consult with the members of the commission 
     except in the presence of the accused (except as otherwise 
     provided in section 949d of this title), trial counsel, and 
     defense counsel, nor may he vote with the members of the 
     commission.
       ``(e) Other Duties.--A commissioned officer who is 
     certified to be qualified for duty as a military judge of a 
     military commission under this chapter may perform such other 
     duties as are assigned to him by or with the approval of the 
     Judge Advocate General of the armed force of which such 
     officer is a member or the designee of such Judge Advocate 
     General.
       ``(f) Prohibition on Evaluation of Fitness by Convening 
     Authority.--The convening authority of a military commission 
     under this chapter shall not prepare or review any report 
     concerning the effectiveness, fitness, or efficiency of a 
     military judge detailed to the military commission which 
     relates to his performance of duty as a military judge on the 
     military commission.

     ``Sec. 948k. Detail of trial counsel and defense counsel

       ``(a) Detail of Counsel Generally.--(1) Trial counsel and 
     military defense counsel shall be detailed for each military 
     commission under this chapter.
       ``(2) Assistant trial counsel and assistant and associate 
     defense counsel may be detailed for a military commission 
     under this chapter.
       ``(3) Military defense counsel for a military commission 
     under this chapter shall be detailed as soon as practicable 
     after the swearing of charges against the accused.
       ``(4) The Secretary of Defense shall prescribe regulations 
     providing for the manner in which trial counsel and military 
     defense counsel are detailed for military commissions under 
     this chapter and for the persons who are authorized to detail 
     such counsel for such commissions.
       ``(b) Trial Counsel.--Subject to subsection (e), trial 
     counsel detailed for a military commission under this chapter 
     must be--
       ``(1) a judge advocate (as that term is defined in section 
     801 of this title (article 1 of the Uniform Code of Military 
     Justice) who--
       ``(A) is a graduate of an accredited law school or is a 
     member of the bar of a Federal court or of the highest court 
     of a State; and
       ``(B) is certified as competent to perform duties as trial 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member; or
       ``(2) a civilian who--
       ``(A) is a member of the bar of a Federal court or of the 
     highest court of a State; and
       ``(B) is otherwise qualified to practice before the 
     military commission pursuant to regulations prescribed by the 
     Secretary of Defense.
       ``(c) Military Defense Counsel.--Subject to subsection (e), 
     military defense counsel detailed for a military commission 
     under this chapter must be a judge advocate (as so defined) 
     who is--
       ``(1) a graduate of an accredited law school or is a member 
     of the bar of a Federal court or of the highest court of a 
     State; and
       ``(2) certified as competent to perform duties as defense 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member.
       ``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The 
     Chief Prosecutor in a military commission under this chapter 
     shall meet the requirements set forth in subsection (b)(1).
       ``(2) The Chief Defense Counsel in a military commission 
     under this chapter shall meet the requirements set forth in 
     subsection (c)(1).
       ``(e) Ineligibility of Certain Individuals.--No person who 
     has acted as an investigator, military judge, or member of a 
     military commission under this chapter in any case may act 
     later as trial counsel or military defense counsel in the 
     same case. No person who has acted for the prosecution before 
     a military commission under this chapter may act later in the 
     same case for the defense, nor may any person who has acted 
     for the defense before a military commission under this 
     chapter act later in the same case for the prosecution.

     ``Sec. 948l. Detail or employment of reporters and 
       interpreters

       ``(a) Court Reporters.--Under such regulations as the 
     Secretary of Defense may prescribe, the convening authority 
     of a military commission under this chapter shall detail to 
     or employ for the commission qualified court reporters, who 
     shall make a verbatim recording of the proceedings of and 
     testimony taken before the commission.
       ``(b) Interpreters.--Under such regulations as the 
     Secretary of Defense may prescribe, the convening authority 
     of a military commission under this chapter may detail to or 
     employ for the military commission interpreters who shall 
     interpret for the commission and, as necessary, for trial 
     counsel and defense counsel and for the accused.
       ``(c) Transcript; Record.--The transcript of a military 
     commission under this chapter shall be under the control of 
     the convening authority of the commission, who shall also be 
     responsible for preparing the record of the proceedings.

     ``Sec. 948m. Number of members; excuse of members; absent and 
       additional members

       ``(a) Number of Members.--(1) A military commission under 
     this chapter shall, except as provided in paragraph (2), have 
     at least five members.
       ``(2) In a case in which the accused before a military 
     commission under this chapter may be sentenced to a penalty 
     of death, the military commission shall have the number of 
     members prescribed by section 949m(c) of this title.
       ``(b) Excuse of Members.--No member of a military 
     commission under this chapter may be absent or excused after 
     the military commission has been assembled for the trial of a 
     case unless excused--
       ``(1) as a result of challenge;
       ``(2) by the military judge for physical disability or 
     other good cause; or
       ``(3) by order of the convening authority for good cause.
       ``(c) Absent and Additional Members.--Whenever a military 
     commission under this chapter is reduced below the number of 
     members required by subsection (a), the trial may not proceed 
     unless the convening authority details new members sufficient 
     to

[[Page 20339]]

     provide not less than such number. The trial may proceed with 
     the new members present after the recorded evidence 
     previously introduced before the members has been read to the 
     military commission in the presence of the military judge, 
     the accused (except as provided in section 949d of this 
     title), and counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of 
              statements obtained by torture and other statements.
``948s. Service of charges.

     ``Sec. 948q. Charges and specifications

       ``(a) Charges and Specifications.--Charges and 
     specifications against an accused in a military commission 
     under this chapter shall be signed by a person subject to 
     chapter 47 of this title under oath before a commissioned 
     officer of the armed forces authorized to administer oaths 
     and shall state--
       ``(1) that the signer has personal knowledge of, or reason 
     to believe, the matters set forth therein; and
       ``(2) that they are true in fact to the best of the 
     signer's knowledge and belief.
       ``(b) Notice to Accused.--Upon the swearing of the charges 
     and specifications in accordance with subsection (a), the 
     accused shall be informed of the charges against him as soon 
     as practicable.

     ``Sec. 948r. Compulsory self-incrimination prohibited; 
       treatment of statements obtained by torture and other 
       statements

       ``(a) In General.--No person shall be required to testify 
     against himself at a proceeding of a military commission 
     under this chapter.
       ``(b) Exclusion of Statements Obtained by Torture.--A 
     statement obtained by use of torture shall not be admissible 
     in a military commission under this chapter, except against a 
     person accused of torture as evidence that the statement was 
     made.
       ``(c) Statements Obtained Before Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained before December 
     30, 2005 (the date of the enactment of the Defense Treatment 
     Act of 2005) in which the degree of coercion is disputed may 
     be admitted only if the military judge finds that--
       ``(1) the totality of the circumstances renders the 
     statement reliable and possessing sufficient probative value; 
     and
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence.
       ``(d) Statements Obtained After Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained on or after 
     December 30, 2005 (the date of the enactment of the Defense 
     Treatment Act of 2005) in which the degree of coercion is 
     disputed may be admitted only if the military judge finds 
     that--
       ``(1) the totality of the circumstances renders the 
     statement 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 to obtain the 
     statement do not amount to cruel, inhuman, or degrading 
     treatment prohibited by section 1003 of the Detainee 
     Treatment Act of 2005.

     ``Sec. 948s. Service of charges

       ``The trial counsel assigned to a case before a military 
     commission under this chapter shall cause to be served upon 
     the accused and military defense counsel a copy of the 
     charges upon which trial is to be had. Such charges shall be 
     served in English and, if appropriate, in another language 
     that the accused understands. Such service shall be made 
     sufficiently in advance of trial to prepare a defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.

     ``Sec. 949a. Rules

       ``(a) Procedures and Rules of Evidence.--Pretrial, trial, 
     and post-trial procedures, including elements and modes of 
     proof, for cases triable by military commission under this 
     chapter may be prescribed by the Secretary of Defense, in 
     consultation with the Attorney General. Such procedures 
     shall, so far as the Secretary considers practicable or 
     consistent with military or intelligence activities, apply 
     the principles of law and the rules of evidence in trial by 
     general courts-martial. Such procedures and rules of evidence 
     may not be contrary to or inconsistent with this chapter.
       ``(b) Rules for Military Commission.--(1) Notwithstanding 
     any departures from the law and the rules of evidence in 
     trial by general courts-martial authorized by subsection (a), 
     the procedures and rules of evidence in trials by military 
     commission under this chapter shall include the following:
       ``(A) The accused shall be permitted to present evidence in 
     his defense, to cross-examine the witnesses who testify 
     against him, and to examine and respond to evidence admitted 
     against him on the issue of guilt or innocence and for 
     sentencing, as provided for by this chapter.
       ``(B) The accused shall be present at all sessions of the 
     military commission (other than those for deliberations or 
     voting), except when excluded under section 949d of this 
     title.
       ``(C) The accused shall receive the assistance of counsel 
     as provided for by section 948k.
       ``(D) The accused shall be permitted to represent himself, 
     as provided for by paragraph (3).
       ``(2) In establishing procedures and rules of evidence for 
     military commission proceedings, the Secretary of Defense may 
     prescribe the following provisions:
       ``(A) Evidence shall be admissible if the military judge 
     determines that the evidence would have probative value to a 
     reasonable person.
       ``(B) Evidence 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.
       ``(C) A statement of the accused that is otherwise 
     admissible shall not be excluded from trial by military 
     commission on grounds of alleged coercion or compulsory self-
     incrimination so long as the evidence complies with the 
     provisions of section 948r of this title.
       ``(D) Evidence shall be admitted as authentic so long as--
       ``(i) the military judge of the military commission 
     determines that there is sufficient basis to find that the 
     evidence is what it is claimed to be; and
       ``(ii) the military judge instructs the members that they 
     may consider any issue as to authentication or identification 
     of evidence in determining the weight, if any, to be given to 
     the evidence.
       ``(E)(i) Except as provided in clause (ii), hearsay 
     evidence not otherwise admissible under the rules of evidence 
     applicable in trial by general courts-martial may be admitted 
     in a trial by military commission if the proponent of the 
     evidence makes known to the adverse party, sufficiently in 
     advance to provide the adverse party with a fair opportunity 
     to meet the evidence, the intention of the proponent to offer 
     the evidence, and the particulars of the evidence (including 
     information on the general circumstances under which the 
     evidence was obtained). The disclosure of evidence under the 
     preceding sentence is subject to the requirements and 
     limitations applicable to the disclosure of classified 
     information in section 949j(c) of this title.
       ``(ii) Hearsay evidence not otherwise admissible under the 
     rules of evidence applicable in trial by general courts-
     martial shall not be admitted in a trial by military 
     commission if the party opposing the admission of the 
     evidence demonstrates that the evidence is unreliable or 
     lacking in probative value.
       ``(F) The military judge shall exclude any evidence the 
     probative value of which is substantially outweighed--
       ``(i) by the danger of unfair prejudice, confusion of the 
     issues, or misleading the commission; or
       ``(ii) by considerations of undue delay, waste of time, or 
     needless presentation of cumulative evidence.
       ``(3)(A) The accused in a military commission under this 
     chapter who exercises the right to self-representation under 
     paragraph (1)(D) shall conform his deportment and the conduct 
     of the defense to the rules of evidence, procedure, and 
     decorum applicable to trials by military commission.
       ``(B) Failure of the accused to conform to the rules 
     described in subparagraph (A) may result in a partial or 
     total revocation by the military judge of the right of self-
     representation under paragraph (1)(D). In such case, the 
     detailed defense counsel of the accused or an appropriately 
     authorized civilian counsel shall perform the functions 
     necessary for the defense.
       ``(c) Delegation of Authority To Prescribe Regulations.--
     The Secretary of Defense may delegate the authority of the 
     Secretary to prescribe regulations under this chapter.
       ``(d) Notification to Congressional Committees of Changes 
     to Procedures.--Not later than 60 days before the date on 
     which any proposed modification of the procedures in effect 
     for military commissions under this chapter goes into effect, 
     the Secretary of Defense shall submit to the Committee on 
     Armed Services of the Senate and the Committee on Armed 
     Services of the House of Representatives a report describing 
     the modification.

[[Page 20340]]



     ``Sec. 949b. Unlawfully influencing action of military 
       commission

       ``(a) In General.--(1) No authority convening a military 
     commission under this chapter may censure, reprimand, or 
     admonish the military commission, or any member, military 
     judge, or counsel thereof, with respect to the findings or 
     sentence adjudged by the military commission, or with respect 
     to any other exercises of its or his functions in the conduct 
     of the proceedings.
       ``(2) No person may attempt to coerce or, by any 
     unauthorized means, influence--
       ``(A) the action of a military commission under this 
     chapter, or any member thereof, in reaching the findings or 
     sentence in any case;
       ``(B) the action of any convening, approving, or reviewing 
     authority with respect to his judicial acts; or
       ``(C) the exercise of professional judgment by trial 
     counsel or defense counsel.
       ``(3) Paragraphs (1) and (2) do not apply with respect to--
       ``(A) general instructional or informational courses in 
     military justice if such courses are designed solely for the 
     purpose of instructing members of a command in the 
     substantive and procedural aspects of military commissions; 
     or
       ``(B) statements and instructions given in open proceedings 
     by a military judge or counsel.
       ``(b) Prohibition on Consideration of Actions on Commission 
     in Evaluation of Fitness.--In the preparation of an 
     effectiveness, fitness, or efficiency report or any other 
     report or document used in whole or in part for the purpose 
     of determining whether a commissioned officer of the armed 
     forces is qualified to be advanced in grade, or in 
     determining the assignment or transfer of any such officer or 
     whether any such officer should be retained on active duty, 
     no person may--
       ``(1) consider or evaluate the performance of duty of any 
     member of a military commission under this chapter; or
       ``(2) give a less favorable rating or evaluation to any 
     commissioned officer because of the zeal with which such 
     officer, in acting as counsel, represented any accused before 
     a military commission under this chapter.

     ``Sec. 949c. Duties of trial counsel and defense counsel

       ``(a) Trial Counsel.--The trial counsel of a military 
     commission under this chapter shall prosecute in the name of 
     the United States.
       ``(b) Defense Counsel.--(1) The accused shall be 
     represented in his defense before a military commission under 
     this chapter as provided in this subsection.
       ``(2) The accused shall be represented by military counsel 
     detailed under section 948k of this title.
       ``(3) The accused may be represented by civilian counsel if 
     retained by the accused, but only if such civilian counsel--
       ``(A) is a United States citizen;
       ``(B) is admitted to the practice of law in a State, 
     district, or possession of the United States or before a 
     Federal court;
       ``(C) has not been the subject of any sanction of 
     disciplinary action by any court, bar, or other competent 
     governmental authority for relevant misconduct;
       ``(D) has been determined to be eligible for access to 
     classified information that is classified at the level Secret 
     or higher; and
       ``(E) has signed a written agreement to comply with all 
     applicable regulations or instructions for counsel, including 
     any rules of court for conduct during the proceedings.
       ``(4) Civilian defense counsel shall protect any classified 
     information received during the course of representation of 
     the accused in accordance with all applicable law governing 
     the protection of classified information and may not divulge 
     such information to any person not authorized to receive it.
       ``(5) If the accused is represented by civilian counsel, 
     detailed military counsel shall act as associate counsel.
       ``(6) The accused is not entitled to be represented by more 
     than one military counsel. However, the person authorized 
     under regulations prescribed under section 948k of this title 
     to detail counsel, in that person's sole discretion, may 
     detail additional military counsel to represent the accused.
       ``(7) Defense counsel may cross-examine each witness for 
     the prosecution who testifies before a military commission 
     under this chapter.

     ``Sec. 949d. Sessions

       ``(a) Sessions Without Presence of Members.--(1) At any 
     time after the service of charges which have been referred 
     for trial by military commission under this chapter, the 
     military judge may call the military commission into session 
     without the presence of the members for the purpose of--
       ``(A) hearing and determining motions raising defenses or 
     objections which are capable of determination without trial 
     of the issues raised by a plea of not guilty;
       ``(B) hearing and ruling upon any matter which may be ruled 
     upon by the military judge under this chapter, whether or not 
     the matter is appropriate for later consideration or decision 
     by the members;
       ``(C) if permitted by regulations prescribed by the 
     Secretary of Defense, receiving the pleas of the accused; and
       ``(D) performing any other procedural function which may be 
     performed by the military judge under this chapter or under 
     rules prescribed pursuant to section 949a of this title and 
     which does not require the presence of the members.
       ``(2) Except as provided in subsections (c) and (e), any 
     proceedings under paragraph (1) shall--
       ``(A) be conducted in the presence of the accused, defense 
     counsel, and trial counsel; and
       ``(B) be made part of the record.
       ``(b) Proceedings in Presence of Accused.--Except as 
     provided in subsections (c) and (e), all proceedings of a 
     military commission under this chapter, including any 
     consultation of the members with the military judge or 
     counsel, shall--
       ``(1) be in the presence of the accused, defense counsel, 
     and trial counsel; and
       ``(2) be made a part of the record.
       ``(c) Deliberation or Vote of Members.--When the members of 
     a military commission under this chapter deliberate or vote, 
     only the members may be present.
       ``(d) Closure of Proceedings.--(1) The military judge may 
     close to the public all or part of the proceedings of a 
     military commission under this chapter, but only in 
     accordance with this subsection.
       ``(2) The military judge may close to the public all or a 
     portion of the proceedings under paragraph (1) only upon 
     making a specific finding that such closure is necessary to--
       ``(A) protect information the disclosure of which could 
     reasonably be expected to cause damage to the national 
     security, including intelligence or law enforcement sources, 
     methods, or activities; or
       ``(B) ensure the physical safety of individuals.
       ``(3) A finding under paragraph (2) may be based upon a 
     presentation, including a presentation ex parte or in camera, 
     by either trial counsel or defense counsel.
       ``(e) Exclusion of Accused From Certain Proceedings.--The 
     military judge may exclude the accused from any portion of a 
     proceeding upon a determination that, after being warned by 
     the military judge, the accused persists in conduct that 
     justifies exclusion from the courtroom--
       ``(1) to ensure the physical safety of individuals; or
       ``(2) to prevent disruption of the proceedings by the 
     accused.
       ``(f) Protection of Classified Information.--
       ``(1) National security privilege.--(A) Classified 
     information shall be protected and is privileged from 
     disclosure if disclosure would be detrimental to the national 
     security. The rule in the preceding sentence applies to all 
     stages of the proceedings of military commissions under this 
     chapter.
       ``(B) The privilege referred to in subparagraph (A) may be 
     claimed by the head of the executive or military department 
     or government agency concerned based on a finding by the head 
     of that department or agency that--
       ``(i) the information is properly classified; and
       ``(ii) disclosure of the information would be detrimental 
     to the national security.
       ``(C) A person who may claim the privilege referred to in 
     subparagraph (A) may authorize a representative, witness, or 
     trial counsel to claim the privilege and make the finding 
     described in subparagraph (B) on behalf of such person. The 
     authority of the representative, witness, or trial counsel to 
     do so is presumed in the absence of evidence to the contrary.
       ``(2) Introduction of classified information.--
       ``(A) Alternatives to disclosure.--To protect classified 
     information from disclosure, the military judge, upon motion 
     of trial counsel, shall authorize, to the extent 
     practicable--
       ``(i) the deletion of specified items of classified 
     information from documents to be introduced as evidence 
     before the military commission;
       ``(ii) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(iii) the substitution of a statement of relevant facts 
     that the classified information would tend to prove.
       ``(B) Protection of sources, methods, or activities.--The 
     military judge, upon motion of trial counsel, shall permit 
     trial counsel to introduce otherwise admissible evidence 
     before the military commission, while protecting from 
     disclosure the sources, methods, or activities by which the 
     United States acquired the evidence if the military judge 
     finds that (i) the sources, methods, or activities by which 
     the United States acquired the evidence are classified, and 
     (ii) the evidence is reliable. The military judge may require 
     trial counsel to present to the military commission and the 
     defense, to the extent practicable and consistent with 
     national security, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     the evidence.
       ``(C) Assertion of national security privilege at trial.--
     During the examination of any witness, trial counsel may 
     object to any question, line of inquiry, or motion to admit 
     evidence that would require the disclosure of classified 
     information. Following

[[Page 20341]]

     such an objection, the military judge shall take suitable 
     action to safeguard such classified information. Such action 
     may include the review of trial counsel's claim of privilege 
     by the military judge in camera and on an ex parte basis, and 
     the delay of proceedings to permit trial counsel to consult 
     with the department or agency concerned as to whether the 
     national security privilege should be asserted.
       ``(3) Consideration of privilege and related materials.--A 
     claim of privilege under this subsection, and any materials 
     submitted in support thereof, shall, upon request of the 
     Government, be considered by the military judge in camera and 
     shall not be disclosed to the accused.
       ``(4) Additional regulations.--The Secretary of Defense may 
     prescribe additional regulations, consistent with this 
     subsection, for the use and protection of classified 
     information during proceedings of military commissions under 
     this chapter. A report on any regulations so prescribed, or 
     modified, shall be submitted to the Committees on Armed 
     Services of the Senate and the House of Representatives not 
     later than 60 days before the date on which such regulations 
     or modifications, as the case may be, go into effect.

     ``Sec. 949e. Continuances

       ``The military judge in a military commission under this 
     chapter may, for reasonable cause, grant a continuance to any 
     party for such time, and as often, as may appear to be just.

     ``Sec. 949f. Challenges

       ``(a) Challenges Authorized.--The military judge and 
     members of a military commission under this chapter may be 
     challenged by the accused or trial counsel for cause stated 
     to the commission. The military judge shall determine the 
     relevance and validity of challenges for cause. The military 
     judge may not receive a challenge to more than one person at 
     a time. Challenges by trial counsel shall ordinarily be 
     presented and decided before those by the accused are 
     offered.
       ``(b) Peremptory Challenges.--Each accused and the trial 
     counsel are entitled to one peremptory challenge. The 
     military judge may not be challenged except for cause.
       ``(c) Challenges Against Additional Members.--Whenever 
     additional members are detailed to a military commission 
     under this chapter, and after any challenges for cause 
     against such additional members are presented and decided, 
     each accused and the trial counsel are entitled to one 
     peremptory challenge against members not previously subject 
     to peremptory challenge.

     ``Sec. 949g. Oaths

       ``(a) In General.--(1) Before performing their respective 
     duties in a military commission under this chapter, military 
     judges, members, trial counsel, defense counsel, reporters, 
     and interpreters shall take an oath to perform their duties 
     faithfully.
       ``(2) The form of the oath required by paragraph (1), the 
     time and place of the taking thereof, the manner of recording 
     the same, and whether the oath shall be taken for all cases 
     in which duties are to be performed or for a particular case, 
     shall be as prescribed in regulations of the Secretary of 
     Defense. Those regulations may provide that--
       ``(A) an oath to perform faithfully duties as a military 
     judge, trial counsel, or defense counsel may be taken at any 
     time by any judge advocate or other person certified to be 
     qualified or competent for the duty; and
       ``(B) if such an oath is taken, such oath need not again be 
     taken at the time the judge advocate or other person is 
     detailed to that duty.
       ``(b) Witnesses.--Each witness before a military commission 
     under this chapter shall be examined on oath.

     ``Sec. 949h. Former jeopardy

       ``(a) In General.--No person may, without his consent, be 
     tried by a military commission under this chapter a second 
     time for the same offense.
       ``(b) Scope of Trial.--No proceeding in which the accused 
     has been found guilty by military commission under this 
     chapter upon any charge or specification is a trial in the 
     sense of this section until the finding of guilty has become 
     final after review of the case has been fully completed.

     ``Sec. 949i. Pleas of the accused

       ``(a) Entry of Plea of Not Guilty.--If an accused in a 
     military commission under this chapter after a plea of guilty 
     sets up matter inconsistent with the plea, or if it appears 
     that the accused has entered the plea of guilty through lack 
     of understanding of its meaning and effect, or if the accused 
     fails or refuses to plead, a plea of not guilty shall be 
     entered in the record, and the military commission shall 
     proceed as though the accused had pleaded not guilty.
       ``(b) Finding of Guilt After Guilty Plea.--With respect to 
     any charge or specification to which a plea of guilty has 
     been made by the accused in a military commission under this 
     chapter and accepted by the military judge, a finding of 
     guilty of the charge or specification may be entered 
     immediately without a vote. The finding shall constitute the 
     finding of the commission unless the plea of guilty is 
     withdrawn prior to announcement of the sentence, in which 
     event the proceedings shall continue as though the accused 
     had pleaded not guilty.

     ``Sec. 949j. Opportunity to obtain witnesses and other 
       evidence

       ``(a) Right of Defense Counsel.--Defense counsel in a 
     military commission under this chapter shall have a 
     reasonable opportunity to obtain witnesses and other evidence 
     as provided in regulations prescribed by the Secretary of 
     Defense.
       ``(b) Process for Compulsion.--Process issued in a military 
     commission under this chapter to compel witnesses to appear 
     and testify and to compel the production of other evidence--
       ``(1) shall be similar to that which courts of the United 
     States having criminal jurisdiction may lawfully issue; and
       ``(2) shall run to any place where the United States shall 
     have jurisdiction thereof.
       ``(c) Protection of Classified Information.--(1) With 
     respect to the discovery obligations of trial counsel under 
     this section, the military judge, upon motion of trial 
     counsel, shall authorize, to the extent practicable--
       ``(A) the deletion of specified items of classified 
     information from documents to be made available to the 
     accused;
       ``(B) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(C) the substitution of a statement admitting relevant 
     facts that the classified information would tend to prove.
       ``(2) The military judge, upon motion of trial counsel, 
     shall authorize trial counsel, in the course of complying 
     with discovery obligations under this section, to protect 
     from disclosure the sources, methods, or activities by which 
     the United States acquired evidence if the military judge 
     finds that the sources, methods, or activities by which the 
     United States acquired such evidence are classified. The 
     military judge may require trial counsel to provide, to the 
     extent practicable, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     such evidence.
       ``(d) Exculpatory Evidence.--(1) As soon as practicable, 
     trial counsel shall disclose to the defense the existence of 
     any evidence known to trial counsel that reasonably tends to 
     exculpate the accused. Where exculpatory evidence is 
     classified, the accused shall be provided with an adequate 
     substitute in accordance with the procedures under subsection 
     (c).
       ``(2) In this subsection, the term `evidence known to trial 
     counsel', in the case of exculpatory evidence, means 
     exculpatory evidence that the prosecution would be required 
     to disclose in a trial by general court-martial under chapter 
     47 of this title.

     ``Sec. 949k. Defense of lack of mental responsibility

       ``(a) Affirmative Defense.--It is an affirmative defense in 
     a trial by military commission under this chapter that, at 
     the time of the commission of the acts constituting the 
     offense, the accused, as a result of a severe mental disease 
     or defect, was unable to appreciate the nature and quality or 
     the wrongfulness of the acts. Mental disease or defect does 
     not otherwise constitute a defense.
       ``(b) Burden of Proof.--The accused in a military 
     commission under this chapter has the burden of proving the 
     defense of lack of mental responsibility by clear and 
     convincing evidence.
       ``(c) Findings Following Assertion of Defense.--Whenever 
     lack of mental responsibility of the accused with respect to 
     an offense is properly at issue in a military commission 
     under this chapter, the military judge shall instruct the 
     members of the commission as to the defense of lack of mental 
     responsibility under this section and shall charge them to 
     find the accused--
       ``(1) guilty;
       ``(2) not guilty; or
       ``(3) subject to subsection (d), not guilty by reason of 
     lack of mental responsibility.
       ``(d) Majority Vote Required for Finding.--The accused 
     shall be found not guilty by reason of lack of mental 
     responsibility under subsection (c)(3) only if a majority of 
     the members present at the time the vote is taken determines 
     that the defense of lack of mental responsibility has been 
     established.

     ``Sec. 949l. Voting and rulings

       ``(a) Vote by Secret Written Ballot.--Voting by members of 
     a military commission under this chapter on the findings and 
     on the sentence shall be by secret written ballot.
       ``(b) Rulings.--(1) The military judge in a military 
     commission under this chapter shall rule upon all questions 
     of law, including the admissibility of evidence and all 
     interlocutory questions arising during the proceedings.
       ``(2) Any ruling made by the military judge upon a question 
     of law or an interlocutory question (other than the factual 
     issue of mental responsibility of the accused) is conclusive 
     and constitutes the ruling of the military commission. 
     However, a military judge may change his ruling at any time 
     during the trial.
       ``(c) Instructions Prior to Vote.--Before a vote is taken 
     of the findings of a military commission under this chapter, 
     the military judge shall, in the presence of the accused and 
     counsel, instruct the members as to the

[[Page 20342]]

     elements of the offense and charge the members--
       ``(1) that the accused must be presumed to be innocent 
     until his guilt is established by legal and competent 
     evidence beyond a reasonable doubt;
       ``(2) that in the case being considered, if there is a 
     reasonable doubt as to the guilt of the accused, the doubt 
     must be resolved in favor of the accused and he must be 
     acquitted;
       ``(3) that, if there is reasonable doubt as to the degree 
     of guilt, the finding must be in a lower degree as to which 
     there is no reasonable doubt; and
       ``(4) that the burden of proof to establish the guilt of 
     the accused beyond a reasonable doubt is upon the United 
     States.

     ``Sec. 949m. Number of votes required

       ``(a) Conviction.--No person may be convicted by a military 
     commission under this chapter of any offense, except as 
     provided in section 949i(b) of this title or by concurrence 
     of two-thirds of the members present at the time the vote is 
     taken.
       ``(b) Sentences.--(1) No person may be sentenced by a 
     military commission to suffer death, except insofar as--
       ``(A) the penalty of death is expressly authorized under 
     this chapter or the law of war for an offense of which the 
     accused has been found guilty;
       ``(B) trial counsel expressly sought the penalty of death 
     by filing an appropriate notice in advance of trial;
       ``(C) the accused is convicted of the offense by the 
     concurrence of all the members present at the time the vote 
     is taken; and
       ``(D) all the members present at the time the vote is taken 
     concur in the sentence of death.
       ``(2) No person may be sentenced to life imprisonment, or 
     to confinement for more than 10 years, by a military 
     commission under this chapter except by the concurrence of 
     three-fourths of the members present at the time the vote is 
     taken.
       ``(3) All other sentences shall be determined by a military 
     commission by the concurrence of two-thirds of the members 
     present at the time the vote is taken.
       ``(c) Number of Members Required for Penalty of Death.--(1) 
     Except as provided in paragraph (2), in a case in which the 
     penalty of death is sought, the number of members of the 
     military commission under this chapter shall be not less than 
     12.
       ``(2) In any case described in paragraph (1) in which 12 
     members are not reasonably available because of physical 
     conditions or military exigencies, the convening authority 
     shall specify a lesser number of members for the military 
     commission (but not fewer than 9 members), and the military 
     commission may be assembled, and the trial held, with not 
     fewer than the number of members so specified. In such a 
     case, the convening authority shall make a detailed written 
     statement, to be appended to the record, stating why a 
     greater number of members were not reasonably available.

     ``Sec. 949n. Military commission to announce action

       ``A military commission under this chapter shall announce 
     its findings and sentence to the parties as soon as 
     determined.

     ``Sec. 949o. Record of trial

       ``(a) Record; Authentication.--Each military commission 
     under this chapter shall keep a separate, verbatim, record of 
     the proceedings in each case brought before it, and the 
     record shall be authenticated by the signature of the 
     military judge. If the record cannot be authenticated by the 
     military judge by reason of his death, disability, or 
     absence, it shall be authenticated by the signature of the 
     trial counsel or by a member of the commission if the trial 
     counsel is unable to authenticate it by reason of his death, 
     disability, or absence. Where appropriate, and as provided in 
     regulations prescribed by the Secretary of Defense, the 
     record of a military commission under this chapter may 
     contain a classified annex.
       ``(b) Complete Record Required.--A complete record of the 
     proceedings and testimony shall be prepared in every military 
     commission under this chapter.
       ``(c) Provision of Copy to Accused.--A copy of the record 
     of the proceedings of the military commission under this 
     chapter shall be given the accused as soon as it is 
     authenticated. If the record contains classified information, 
     or a classified annex, the accused shall be given a redacted 
     version of the record consistent with the requirements of 
     section 949d of this title. Defense counsel shall have access 
     to the unredacted record, as provided in regulations 
     prescribed by the Secretary of Defense.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.

     ``Sec. 949s. Cruel or unusual punishments prohibited

       ``Punishment by flogging, or by branding, marking, or 
     tattooing on the body, or any other cruel or unusual 
     punishment, may not be adjudged by a military commission 
     under this chapter or inflicted under this chapter upon any 
     person subject to this chapter. The use of irons, single or 
     double, except for the purpose of safe custody, is prohibited 
     under this chapter.

     ``Sec. 949t. Maximum limits

       ``The punishment which a military commission under this 
     chapter may direct for an offense may not exceed such limits 
     as the President or Secretary of Defense may prescribe for 
     that offense.

     ``Sec. 949u. Execution of confinement

       ``(a) In General.--Under such regulations as the Secretary 
     of Defense may prescribe, a sentence of confinement adjudged 
     by a military commission under this chapter may be carried 
     into execution by confinement--
       ``(1) in any place of confinement under the control of any 
     of the armed forces; or
       ``(2) in any penal or correctional institution under the 
     control of the United States or its allies, or which the 
     United States may be allowed to use.
       ``(b) Treatment During Confinement by Other Than the Armed 
     Forces.--Persons confined under subsection (a)(2) in a penal 
     or correctional institution not under the control of an armed 
     force are subject to the same discipline and treatment as 
     persons confined or committed by the courts of the United 
     States or of the State, District of Columbia, or place in 
     which the institution is situated.

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
              of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; procedures for execution of sentence of 
              death.
``950j. Finality or proceedings, findings, and sentences.

     ``Sec. 950a. Error of law; lesser included offense

       ``(a) Error of Law.--A finding or sentence of a military 
     commission under this chapter may not be held incorrect on 
     the ground of an error of law unless the error materially 
     prejudices the substantial rights of the accused.
       ``(b) Lesser Included Offense.--Any reviewing authority 
     with the power to approve or affirm a finding of guilty by a 
     military commission under this chapter may approve or affirm, 
     instead, so much of the finding as includes a lesser included 
     offense.

     ``Sec. 950b. Review by the convening authority

       ``(a) Notice to Convening Authority of Findings and 
     Sentence.--The findings and sentence of a military commission 
     under this chapter shall be reported in writing promptly to 
     the convening authority after the announcement of the 
     sentence.
       ``(b) Submittal of Matters by Accused to Convening 
     Authority.--(1) The accused may submit to the convening 
     authority matters for consideration by the convening 
     authority with respect to the findings and the sentence of 
     the military commission under this chapter.
       ``(2)(A) Except as provided in subparagraph (B), a 
     submittal under paragraph (1) shall be made in writing within 
     20 days after the accused has been given an authenticated 
     record of trial under section 949o(c) of this title.
       ``(B) If the accused shows that additional time is required 
     for the accused to make a submittal under paragraph (1), the 
     convening authority may, for good cause, extend the 
     applicable period under subparagraph (A) for not more than an 
     additional 20 days.
       ``(3) The accused may waive his right to make a submittal 
     to the convening authority under paragraph (1). Such a waiver 
     shall be made in writing and may not be revoked. For the 
     purposes of subsection (c)(2), the time within which the 
     accused may make a submittal under this subsection shall be 
     deemed to have expired upon the submittal of a waiver under 
     this paragraph to the convening authority.
       ``(c) Action by Convening Authority.--(1) The authority 
     under this subsection to modify the findings and sentence of 
     a military commission under this chapter is a matter of the 
     sole discretion and prerogative of the convening authority.
       ``(2)(A) The convening authority shall take action on the 
     sentence of a military commission under this chapter.
       ``(B) Subject to regulations prescribed by the Secretary of 
     Defense, action on the sentence under this paragraph may be 
     taken only after consideration of any matters submitted by 
     the accused under subsection (b) or after the time for 
     submitting such matters expires, whichever is earlier.
       ``(C) In taking action under this paragraph, the convening 
     authority may, in his sole discretion, approve, disapprove, 
     commute, or suspend the sentence in whole or in part. The 
     convening authority may not increase a sentence beyond that 
     which is found by the military commission.
       ``(3) The convening authority is not required to take 
     action on the findings of a

[[Page 20343]]

     military commission under this chapter. If the convening 
     authority takes action on the findings, the convening 
     authority may, in his sole discretion, may--
       ``(A) dismiss any charge or specification by setting aside 
     a finding of guilty thereto; or
       ``(B) change a finding of guilty to a charge to a finding 
     of guilty to an offense that is a lesser included offense of 
     the offense stated in the charge.
       ``(4) The convening authority shall serve on the accused or 
     on defense counsel notice of any action taken by the 
     convening authority under this subsection.
       ``(d) Order of Revision or Rehearing.--(1) Subject to 
     paragraphs (2) and (3), the convening authority of a military 
     commission under this chapter may, in his sole discretion, 
     order a proceeding in revision or a rehearing.
       ``(2)(A) Except as provided in subparagraph (B), a 
     proceeding in revision may be ordered by the convening 
     authority if--
       ``(i) there is an apparent error or omission in the record; 
     or
       ``(ii) the record shows improper or inconsistent action by 
     the military commission with respect to the findings or 
     sentence that can be rectified without material prejudice to 
     the substantial rights of the accused.
       ``(B) In no case may a proceeding in revision--
       ``(i) reconsider a finding of not guilty of a specification 
     or a ruling which amounts to a finding of not guilty;
       ``(ii) reconsider a finding of not guilty of any charge, 
     unless there has been a finding of guilty under a 
     specification laid under that charge, which sufficiently 
     alleges a violation; or
       ``(iii) increase the severity of the sentence unless the 
     sentence prescribed for the offense is mandatory.
       ``(3) A rehearing may be ordered by the convening authority 
     if the convening authority disapproves the findings and 
     sentence and states the reasons for disapproval of the 
     findings. If the convening authority disapproves the finding 
     and sentence and does not order a rehearing, the convening 
     authority shall dismiss the charges. A rehearing as to the 
     findings may not be ordered by the convening authority when 
     there is a lack of sufficient evidence in the record to 
     support the findings. A rehearing as to the sentence may be 
     ordered by the convening authority if the convening authority 
     disapproves the sentence.

     ``Sec. 950c. Appellate referral; waiver or withdrawal of 
       appeal

       ``(a) Automatic Referral for Appellate Review.--Except as 
     provided under subsection (b), in each case in which the 
     final decision of a military commission (as approved by the 
     convening authority) includes a finding of guilty, the 
     convening authority shall refer the case to the Court of 
     Military Commission Review. Any such referral shall be made 
     in accordance with procedures prescribed under regulations of 
     the Secretary.
       ``(b) Waiver of Right of Review.--(1) In each case subject 
     to appellate review under section 950f of this title, except 
     a case in which the sentence as approved under section 950b 
     of this title extends to death, the accused may file with the 
     convening authority a statement expressly waiving the right 
     of the accused to such review.
       ``(2) A waiver under paragraph (1) shall be signed by both 
     the accused and a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at 
     all, within 10 days after notice on the action is served on 
     the accused or on defense counsel under section 950b(c)(4) of 
     this title. The convening authority, for good cause, may 
     extend the period for such filing by not more than 30 days.
       ``(c) Withdrawal of Appeal.--Except in a case in which the 
     sentence as approved under section 950b of this title extends 
     to death, the accused may withdraw an appeal at any time.
       ``(d) Effect of Waiver or Withdrawal.--A waiver of the 
     right to appellate review or the withdrawal of an appeal 
     under this section bars review under section 950f of this 
     title.

     ``Sec. 950d. Appeal by the United States

       ``(a) Interlocutory Appeal.--(1) Except as provided in 
     paragraph (2), in a trial by military commission under this 
     chapter, the United States may take an interlocutory appeal 
     to the Court of Military Commission Review of any order or 
     ruling of the military judge that--
       ``(A) terminates proceedings of the military commission 
     with respect to a charge or specification;
       ``(B) excludes evidence that is substantial proof of a fact 
     material in the proceeding; or
       ``(C) relates to a matter under subsection (d), (e), or (f) 
     of section 949d of this title or section 949j(c) of this 
     title.
       ``(2) The United States may not appeal under paragraph (1) 
     an order or ruling that is, or amounts to, a finding of not 
     guilty by the military commission with respect to a charge or 
     specification.
       ``(b) Notice of Appeal.--The United States shall take an 
     appeal of an order or ruling under subsection (a) by filing a 
     notice of appeal with the military judge within five days 
     after the date of such order or ruling.
       ``(c) Appeal.--An appeal under this section shall be 
     forwarded, by means specified in regulations prescribed the 
     Secretary of Defense, directly to the Court of Military 
     Commission Review. In ruling on an appeal under this section, 
     the Court may act only with respect to matters of law.
       ``(d) Appeal From Adverse Ruling.--The United States may 
     appeal an adverse ruling on an appeal under subsection (c) to 
     the United States Court of Appeals for the District of 
     Columbia Circuit by filing a petition for review in the Court 
     of Appeals within 10 days after the date of such ruling. 
     Review under this subsection shall be at the discretion of 
     the Court of Appeals.

     ``Sec. 950e. Rehearings

       ``(a) Composition of Military Commission for Rehearing.--
     Each rehearing under this chapter shall take place before a 
     military commission under this chapter composed of members 
     who were not members of the military commission which first 
     heard the case.
       ``(b) Scope of Rehearing.--(1) Upon a rehearing--
       ``(A) the accused may not be tried for any offense of which 
     he was found not guilty by the first military commission; and
       ``(B) no sentence in excess of or more than the original 
     sentence may be imposed unless--
       ``(i) the sentence is based upon a finding of guilty of an 
     offense not considered upon the merits in the original 
     proceedings; or
       ``(ii) the sentence prescribed for the offense is 
     mandatory.
       ``(2) Upon a rehearing, if the sentence approved after the 
     first military commission was in accordance with a pretrial 
     agreement and the accused at the rehearing changes his plea 
     with respect to the charges or specifications upon which the 
     pretrial agreement was based, or otherwise does not comply 
     with pretrial agreement, the sentence as to those charges or 
     specifications may include any punishment not in excess of 
     that lawfully adjudged at the first military commission.

     ``Sec. 950f. Review by Court of Military Commission Review

       ``(a) Establishment.--The Secretary of Defense shall 
     establish a Court of Military Commission Review which shall 
     be composed of one or more panels, and each such panel shall 
     be composed of not less than three appellate military judges. 
     For the purpose of reviewing military commission decisions 
     under this chapter, the court may sit in panels or as a whole 
     in accordance with rules prescribed by the Secretary.
       ``(b) Appellate Military Judges.--The Secretary shall 
     assign appellate military judges to a Court of Military 
     Commission Review. Each appellate military judge shall meet 
     the qualifications for military judges prescribed by section 
     948j(b) of this title or shall be a civilian with comparable 
     qualifications. No person may be serve as an appellate 
     military judge in any case in which that person acted as a 
     military judge, counsel, or reviewing official.
       ``(c) Cases To Be Reviewed.--The Court of Military 
     Commission Review, in accordance with procedures prescribed 
     under regulations of the Secretary, shall review the record 
     in each case that is referred to the Court by the convening 
     authority under section 950c of this title with respect to 
     any matter of law raised by the accused.
       ``(d) Scope of Review.--In a case reviewed by the Court of 
     Military Commission Review under this section, the Court may 
     act only with respect to matters of law.

     ``Sec. 950g. Review by the United States Court of Appeals for 
       the District of Columbia Circuit and the Supreme Court

       ``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as 
     provided in subparagraph (B), the United States Court of 
     Appeals for the District of Columbia Circuit shall have 
     exclusive jurisdiction to determine the validity of a final 
     judgment rendered by a military commission (as approved by 
     the convening authority) under this chapter.
       ``(B) The Court of Appeals may not review the final 
     judgment until all other appeals under this chapter have been 
     waived or exhausted.
       ``(2) A petition for review must be filed by the accused in 
     the Court of Appeals not later than 20 days after the date on 
     which--
       ``(A) written notice of the final decision of the Court of 
     Military Commission Review is served on the accused or on 
     defense counsel; or
       ``(B) the accused submits, in the form prescribed by 
     section 950c of this title, a written notice waiving the 
     right of the accused to review by the Court of Military 
     Commission Review under section 950f of this title.
       ``(b) Standard for Review.--In a case reviewed by it under 
     this section, the Court of Appeals may act only with respect 
     to matters of law.
       ``(c) Scope of Review.--The jurisdiction of the Court of 
     Appeals on an appeal under subsection (a) shall be limited to 
     the consideration of--
       ``(1) whether the final decision was consistent with the 
     standards and procedures specified in this chapter; and
       ``(2) to the extent applicable, the Constitution and the 
     laws of the United States.
       ``(d) Supreme Court.--The Supreme Court may review by writ 
     of certiorari the final judgment of the Court of Appeals 
     pursuant to section 1257 of title 28.

[[Page 20344]]



     ``Sec. 950h. Appellate counsel

       ``(a) Appointment.--The Secretary of Defense shall, by 
     regulation, establish procedures for the appointment of 
     appellate counsel for the United States and for the accused 
     in military commissions under this chapter. Appellate counsel 
     shall meet the qualifications for counsel appearing before 
     military commissions under this chapter.
       ``(b) Representation of United States.--Appellate counsel 
     appointed under subsection (a)--
       ``(1) shall represent the United States in any appeal or 
     review proceeding under this chapter before the Court of 
     Military Commission Review; and
       ``(2) may, when requested to do so by the Attorney General 
     in a case arising under this chapter, represent the United 
     States before the United States Court of Appeals for the 
     District of Columbia Circuit or the Supreme Court.
       ``(c) Representation of Accused.--The accused shall be 
     represented by appellate counsel appointed under subsection 
     (a) before the Court of Military Commission Review, the 
     United States Court of Appeals for the District of Columbia 
     Circuit, and the Supreme Court, and by civilian counsel if 
     retained by the accused. Any such civilian counsel shall meet 
     the qualifications under paragraph (3) of section 949c(b) of 
     this title for civilian counsel appearing before military 
     commissions under this chapter and shall be subject to the 
     requirements of paragraph (4) of that section.

     ``Sec. 950i. Execution of sentence; procedures for execution 
       of sentence of death

       ``(a) In General.--The Secretary of Defense is authorized 
     to carry out a sentence imposed by a military commission 
     under this chapter in accordance with such procedures as the 
     Secretary may prescribe.
       ``(b) Execution of Sentence of Death Only Upon Approval by 
     the President.--If the sentence of a military commission 
     under this chapter extends to death, that part of the 
     sentence providing for death may not be executed until 
     approved by the President. In such a case, the President may 
     commute, remit, or suspend the sentence, or any part thereof, 
     as he sees fit.
       ``(c) Execution of Sentence of Death Only Upon Final 
     Judgment of Legality of Proceedings.--(1) If the sentence of 
     a military commission under this chapter extends to death, 
     the sentence may not be executed until there is a final 
     judgment as to the legality of the proceedings (and with 
     respect to death, approval under subsection (b)).
       ``(2) A judgment as to legality of proceedings is final for 
     purposes of paragraph (1) when--
       ``(A) the time for the accused to file a petition for 
     review by the Court of Appeals for the District of Columbia 
     Circuit has expired and the accused has not filed a timely 
     petition for such review and the case is not otherwise under 
     review by that Court; or
       ``(B) review is completed in accordance with the judgment 
     of the United States Court of Appeals for the District of 
     Columbia Circuit and--
       ``(i) a petition for a writ of certiorari is not timely 
     filed;
       ``(ii) such a petition is denied by the Supreme Court; or
       ``(iii) review is otherwise completed in accordance with 
     the judgment of the Supreme Court.
       ``(d) Suspension of Sentence.--The Secretary of the 
     Defense, or the convening authority acting on the case (if 
     other than the Secretary), may suspend the execution of any 
     sentence or part thereof in the case, except a sentence of 
     death.

     ``Sec. 950j. Finality or proceedings, findings, and sentences

       ``(a) Finality.--The appellate review of records of trial 
     provided by this chapter, and the proceedings, findings, and 
     sentences of military commissions as approved, reviewed, or 
     affirmed as required by this chapter, are final and 
     conclusive. Orders publishing the proceedings of military 
     commissions under this chapter are binding upon all 
     departments, courts, agencies, and officers of the United 
     States, except as otherwise provided by the President.
       ``(b) Provisions of Chapter Sole Basis for Review of 
     Military Commission Procedures and Actions.--Except as 
     otherwise provided in this chapter and notwithstanding any 
     other provision of law (including section 2241 of title 28 or 
     any other habeas corpus provision), no court, justice, or 
     judge shall have jurisdiction to hear or consider any claim 
     or cause of action whatsoever, including any action pending 
     on or filed after the date of the enactment of the Military 
     Commissions Act of 2006, relating to the prosecution, trial, 
     or judgment of a military commission under this chapter, 
     including challenges to the lawfulness of procedures of 
     military commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p.  Statement of substantive offenses.
``950q.  Principals.
``950r.  Accessory after the fact.
``950s.  Conviction of lesser included offense.
``950t.  Attempts.
``950u.  Solicitation.
``950v.  Crimes triable by military commissions.
``950w.  Perjury and obstruction of justice; contempt.

     ``Sec. 950p. Statement of substantive offenses

       ``(a) Purpose.--The provisions of this subchapter codify 
     offenses that have traditionally been triable by military 
     commissions. This chapter does not establish new crimes that 
     did not exist before its enactment, but rather codifies those 
     crimes for trial by military commission.
       ``(b) Effect.--Because the provisions of this subchapter 
     (including provisions that incorporate definitions in other 
     provisions of law) are declarative of existing law, they do 
     not preclude trial for crimes that occurred before the date 
     of the enactment of this chapter.

     ``Sec. 950q. Principals

       ``Any person is punishable as a principal under this 
     chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission;
       ``(2) causes an act to be done which if directly performed 
     by him would be punishable by this chapter; or
       ``(3) is a superior commander who, with regard to acts 
     punishable under this chapter, knew, had reason to know, or 
     should have known, that a subordinate was about to commit 
     such acts or had done so and who failed to take the necessary 
     and reasonable measures to prevent such acts or to punish the 
     perpetrators thereof.

     ``Sec. 950r. Accessory after the fact

       ``Any person subject to this chapter who, knowing that an 
     offense punishable by this chapter has been committed, 
     receives, comforts, or assists the offender in order to 
     hinder or prevent his apprehension, trial, or punishment 
     shall be punished as a military commission under this chapter 
     may direct.

     ``Sec. 950s. Conviction of lesser included offense

       ``An accused may be found guilty of an offense necessarily 
     included in the offense charged or of an attempt to commit 
     either the offense charged or an attempt to commit either the 
     offense charged or an offense necessarily included therein.

     ``Sec. 950t. Attempts

       ``(a) In General.--Any person subject to this chapter who 
     attempts to commit any offense punishable by this chapter 
     shall be punished as a military commission under this chapter 
     may direct.
       ``(b) Scope of Offense.--An act, done with specific intent 
     to commit an offense under this chapter, amounting to more 
     than mere preparation and tending, even though failing, to 
     effect its commission, is an attempt to commit that offense.
       ``(c) Effect of Consummation.--Any person subject to this 
     chapter may be convicted of an attempt to commit an offense 
     although it appears on the trial that the offense was 
     consummated.

     ``Sec. 950u. Solicitation

       ``Any person subject to this chapter who solicits or 
     advises another or others to commit one or more substantive 
     offenses triable by military commission under this chapter 
     shall, if the offense solicited or advised is attempted or 
     committed, be punished with the punishment provided for the 
     commission of the offense, but, if the offense solicited or 
     advised is not committed or attempted, he shall be punished 
     as a military commission under this chapter may direct.

     ``Sec. 950v. Crimes triable by military commissions

       ``(a) Definitions and Construction.--In this section:
       ``(1) Military objective.--The term `military objective' 
     means--
       ``(A) combatants; and
       ``(B) those objects during an armed conflict--
       ``(i) which, by their nature, location, purpose, or use, 
     effectively contribute to the opposing force's war-fighting 
     or war-sustaining capability; and
       ``(ii) the total or partial destruction, capture, or 
     neutralization of which would constitute a definite military 
     advantage to the attacker under the circumstances at the time 
     of the attack.
       ``(2) Protected person.--The term `protected person' means 
     any person entitled to protection under one or more of the 
     Geneva Conventions, including--
       ``(A) civilians not taking an active part in hostilities;
       ``(B) military personnel placed hors de combat by sickness, 
     wounds, or detention; and
       ``(C) military medical or religious personnel.
       ``(3) Protected property.--The term `protected property' 
     means property specifically protected by the law of war (such 
     as buildings dedicated to religion, education, art, science 
     or charitable purposes, historic monuments, hospitals, or 
     places where the sick and wounded are collected), if such 
     property is not being used for military purposes or is not 
     otherwise a military objective. Such term includes objects 
     properly identified by one of the distinctive emblems of the 
     Geneva Conventions, but does not include civilian property 
     that is a military objective.
       ``(4) Construction.--The intent specified for an offense 
     under paragraph (1), (2), (3), (4), or (12) of subsection (b) 
     precludes the applicability of such offense with regard to--

[[Page 20345]]

       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(b) Offenses.--The following offenses shall be triable by 
     military commission under this chapter at any time without 
     limitation:
       ``(1) Murder of protected persons.--Any person subject to 
     this chapter who intentionally kills one or more protected 
     persons shall be punished by death or such other punishment 
     as a military commission under this chapter may direct.
       ``(2) Attacking civilians.--Any person subject to this 
     chapter who intentionally engages in an attack upon a 
     civilian population as such, or individual civilians not 
     taking active part in hostilities, shall be punished, if 
     death results to one or more of the victims, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to any of the 
     victims, by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(3) Attacking civilian objects.--Any person subject to 
     this chapter who intentionally engages in an attack upon a 
     civilian object that is not a military objective shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(4) Attacking protected property.--Any person subject to 
     this chapter who intentionally engages in an attack upon 
     protected property shall be punished as a military commission 
     under this chapter may direct.
       ``(5) Pillaging.--Any person subject to this chapter who 
     intentionally and in the absence of military necessity 
     appropriates or seizes property for private or personal use, 
     without the consent of a person with authority to permit such 
     appropriation or seizure, shall be punished as a military 
     commission under this chapter may direct.
       ``(6) Denying quarter.--Any person subject to this chapter 
     who, with effective command or control over subordinate 
     groups, declares, orders, or otherwise indicates to those 
     groups that there shall be no survivors or surrender 
     accepted, with the intent to threaten an adversary or to 
     conduct hostilities such that there would be no survivors or 
     surrender accepted, shall be punished as a military 
     commission under this chapter may direct.
       ``(7) Taking hostages.--Any person subject to this chapter 
     who, having knowingly seized or detained one or more persons, 
     threatens to kill, injure, or continue to detain such person 
     or persons with the intent of compelling any nation, person 
     other than the hostage, or group of persons to act or refrain 
     from acting as an explicit or implicit condition for the 
     safety or release of such person or persons, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.
       ``(8) Employing poison or similar weapons.--Any person 
     subject to this chapter who intentionally, as a method of 
     warfare, employs a substance or weapon that releases a 
     substance that causes death or serious and lasting damage to 
     health in the ordinary course of events, through its 
     asphyxiating, bacteriological, or toxic properties, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.
       ``(9) Using protected persons as a shield.--Any person 
     subject to this chapter who positions, or otherwise takes 
     advantage of, a protected person with the intent to shield a 
     military objective from attack, or to shield, favor, or 
     impede military operations, shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of the victims, 
     by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(10) Using protected property as a shield.--Any person 
     subject to this chapter who positions, or otherwise takes 
     advantage of the location of, protected property with the 
     intent to shield a military objective from attack, or to 
     shield, favor, or impede military operations, shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(11) Torture.--
       ``(A) Offense.--Any person subject to this chapter who 
     commits an act specifically intended to inflict severe 
     physical or mental pain or suffering (other than pain or 
     suffering incidental to lawful sanctions) upon another person 
     within his custody or physical control for the purpose of 
     obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind, shall be punished, if death results to one or 
     more of the victims, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(B) Severe mental pain or suffering defined.--In this 
     section, the term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(12) Cruel or inhuman treatment.--
       ``(A) Offense.--Any person subject to this chapter who 
     commits 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 shall be 
     punished, if death results to the victim, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to the victim, by 
     such punishment, other than death, as a military commission 
     under this chapter may direct.
       ``(B) Definitions.--In this paragraph:
       ``(i) The term `serious physical pain or suffering' means 
     bodily injury that involves--

       ``(I) a substantial risk of death;
       ``(II) extreme physical pain;
       ``(III) a burn or physical disfigurement of a serious 
     nature (other than cuts, abrasions, or bruises); or
       ``(IV) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty.

       ``(ii) The term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(iii) The term `serious mental pain or suffering' has the 
     meaning given the term `severe mental pain or suffering' in 
     section 2340(2) of title 18, except that--

       ``(I) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(II) as to conduct occurring after the date of the 
     enactment of the Military Commissions Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.

       ``(13) Intentionally causing serious bodily injury.--
       ``(A) Offense.--Any person subject to this chapter who 
     intentionally causes serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war shall be punished, if death results to one or more of 
     the victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.
       ``(B) Serious bodily injury defined.--In this paragraph, 
     the term `serious bodily injury' means bodily injury which 
     involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) protracted and obvious disfigurement; or
       ``(iv) protracted loss or impairment of the function of a 
     bodily member, organ, or mental faculty.
       ``(14) Mutilating or maiming.--Any person subject to this 
     chapter who intentionally injures one or more protected 
     persons by disfiguring the person or persons by any 
     mutilation of the person or persons, or by permanently 
     disabling any member, limb, or organ of the body of the 
     person or persons, without any legitimate medical or dental 
     purpose, shall be punished, if death results to one or more 
     of the victims, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(15) Murder in violation of the law of war.--Any person 
     subject to this chapter who intentionally kills one or more 
     persons, including lawful combatants, in violation of the law 
     of war shall be punished by death or such other punishment as 
     a military commission under this chapter may direct.
       ``(16) Destruction of property in violation of the law of 
     war.--Any person subject to this chapter who intentionally 
     destroys property belonging to another person in violation of 
     the law of war shall punished as a military commission under 
     this chapter may direct.
       ``(17) Using treachery or perfidy.--Any person subject to 
     this chapter who, after inviting the confidence or belief of 
     one or more persons that they were entitled to, or obliged to 
     accord, protection under the law of war, intentionally makes 
     use of that confidence or belief in killing, injuring, or 
     capturing such person or persons shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of the victims, 
     by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(18) Improperly using a flag of truce.--Any person 
     subject to this chapter who uses a flag of truce to feign an 
     intention to negotiate, surrender, or otherwise suspend 
     hostilities when there is no such intention shall be punished 
     as a military commission under this chapter may direct.
       ``(19) Improperly using a distinctive emblem.--Any person 
     subject to this chapter who intentionally uses a distinctive 
     emblem recognized by the law of war for combatant purposes in 
     a manner prohibited by the law

[[Page 20346]]

     of war shall be punished as a military commission under this 
     chapter may direct.
       ``(20) Intentionally mistreating a dead body.--Any person 
     subject to this chapter who intentionally mistreats the body 
     of a dead person, without justification by legitimate 
     military necessity, shall be punished as a military 
     commission under this chapter may direct.
       ``(21) Rape.--Any person subject to this chapter who 
     forcibly or with coercion or threat of force wrongfully 
     invades the body of a person by penetrating, however 
     slightly, the anal or genital opening of the victim with any 
     part of the body of the accused, or with any foreign object, 
     shall be punished as a military commission under this chapter 
     may direct.
       ``(22) Sexual assault or abuse.--Any person subject to this 
     chapter who forcibly or with coercion or threat of force 
     engages in sexual contact with one or more persons, or causes 
     one or more persons to engage in sexual contact, shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(23) Hijacking or hazarding a vessel or aircraft.--Any 
     person subject to this chapter who intentionally seizes, 
     exercises unauthorized control over, or endangers the safe 
     navigation of a vessel or aircraft that is not a legitimate 
     military objective shall be punished, if death results to one 
     or more of the victims, by death or such other punishment as 
     a military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(24) Terrorism.--Any person subject to this chapter who 
     intentionally kills or inflicts great bodily harm on one or 
     more protected persons, or intentionally engages in an act 
     that evinces a wanton disregard for human life, in a manner 
     calculated to influence or affect the conduct of government 
     or civilian population by intimidation or coercion, or to 
     retaliate against government conduct, shall be punished, if 
     death results to one or more of the victims, by death or such 
     other punishment as a military commission under this chapter 
     may direct, and, if death does not result to any of the 
     victims, by such punishment, other than death, as a military 
     commission under this chapter may direct.
       ``(25) Providing material support for terrorism.--
       ``(A) Offense.--Any person subject to this chapter who 
     provides material support or resources, knowing or intending 
     that they are to be used in preparation for, or in carrying 
     out, an act of terrorism (as set forth in paragraph (24)), or 
     who intentionally provides material support or resources to 
     an international terrorist organization engaged in 
     hostilities against the United States, knowing that such 
     organization has engaged or engages in terrorism (as so set 
     forth), shall be punished as a military commission under this 
     chapter may direct.
       ``(B) Material support or resources defined.--In this 
     paragraph, the term `material support or resources' has the 
     meaning given that term in section 2339A(b) of title 18.
       ``(26) Wrongfully aiding the enemy.--Any person subject to 
     this chapter who, in breach of an allegiance or duty to the 
     United States, knowingly and intentionally aids an enemy of 
     the United States, or one of the co-belligerents of the 
     enemy, shall be punished as a military commission under this 
     chapter may direct.
       ``(27) Spying.--Any person subject to this chapter who with 
     intent or reason to believe that it is to be used to the 
     injury of the United States or to the advantage of a foreign 
     power, collects or attempts to collect information by 
     clandestine means or while acting under false pretenses, for 
     the purpose of conveying such information to an enemy of the 
     United States, or one of the co-belligerents of the enemy, 
     shall be punished by death or such other punishment as a 
     military commission under this chapter may direct.
       ``(28) Conspiracy.--Any person subject to this chapter who 
     conspires to commit one or more substantive offenses triable 
     by military commission under this chapter, and who knowingly 
     does any overt act to effect the object of the conspiracy, 
     shall be punished, if death results to one or more of the 
     victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.

     ``Sec. 950w. Perjury and obstruction of justice; contempt

       ``(a) Perjury and Obstruction of Justice.--A military 
     commission under this chapter may try offenses and impose 
     such punishment as the military commission may direct for 
     perjury, false testimony, or obstruction of justice related 
     to military commissions under this chapter.
       ``(b) Contempt.--A military commission under this chapter 
     may punish for contempt any person who uses any menacing 
     word, sign, or gesture in its presence, or who disturbs its 
     proceedings by any riot or disorder.''.
       (2) Tables of chapters amendments.--The tables of chapters 
     at the beginning of subtitle A, and at the beginning of part 
     II of subtitle A, of title 10, United States Code, are each 
     amended by inserting after the item relating to chapter 47 
     the following new item:

``47A. Military Commissions.....................................948a''.

       (b) Submittal of Procedures to Congress.--Not later than 90 
     days after the date of the enactment of this Act, the 
     Secretary of Defense shall submit to the Committees on Armed 
     Services of the Senate and the House of Representatives a 
     report setting forth the procedures for military commissions 
     prescribed under chapter 47A of title 10, United States Code 
     (as added by subsection (a)).

     SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

       (a) Conforming Amendments.--Chapter 47 of title 10, United 
     States Code (the Uniform Code of Military Justice), is 
     amended as follows:
       (1) Applicability to lawful enemy combatants.--Section 
     802(a) (article 2(a)) is amended by adding at the end the 
     following new paragraph:
       ``(13) Lawful enemy combatants (as that term is defined in 
     section 948a(2) of this title) who violate the law of war.''.
       (2) Exclusion of applicability to chapter 47a 
     commissions.--Sections 821, 828, 848, 850(a), 904, and 906 
     (articles 21, 28, 48, 50(a), 104, and 106) are amended by 
     adding at the end the following new sentence: ``This section 
     does not apply to a military commission established under 
     chapter 47A of this title.''.
       (3) Inapplicability of requirements relating to 
     regulations.--Section 836 (article 36) is amended--
       (A) in subsection (a), by inserting ``, except as provided 
     in chapter 47A of this title,'' after ``but which may not''; 
     and
       (B) in subsection (b), by inserting before the period at 
     the end ``, except insofar as applicable to military 
     commissions established under chapter 47A of this title''.
       (b) Punitive Article of Conspiracy.--Section 881 of title 
     10, United States Code (article 81 of the Uniform Code of 
     Military Justice), is amended--
       (1) by inserting ``(a)'' before ``Any person''; and
       (2) by adding at the end the following new subsection:
       ``(b) Any person subject to this chapter who conspires with 
     any other person to commit an offense under the law of war, 
     and who knowingly does an overt act to effect the object of 
     the conspiracy, shall be punished, if death results to one or 
     more of the victims, by death or such other punishment as a 
     court-martial or military commission may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a court-martial or military 
     commission may direct.''.

     SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR 
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva 
     Conventions or any protocols thereto in any habeas corpus or 
     other civil action or proceeding to which the United States, 
     or a current or former officer, employee, member of the Armed 
     Forces, or other agent of the United States is a party as a 
     source of rights in any court of the United States or its 
     States or territories.
       (b) Geneva Conventions Defined.--In this section, the term 
     ``Geneva Conventions'' means-- 
       (1) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3114);
       (2) the Convention for the Amelioration of the Condition of 
     the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (3) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (4) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).

     SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a) Implementation of Treaty Obligations.--
       (1) In general.--The acts enumerated in subsection (d) of 
     section 2441 of title 18, United States Code, as added by 
     subsection (b) of this section, and in subsection (c) of this 
     section, constitute violations of common Article 3 of the 
     Geneva Conventions prohibited by United States law.
       (2) Prohibition on grave breaches.--The provisions of 
     section 2441 of title 18, United States Code, as amended by 
     this section, fully satisfy the obligation under Article 129 
     of the Third Geneva Convention for the United States to 
     provide effective penal sanctions for grave breaches which 
     are encompassed in common Article 3 in the context of an 
     armed conflict not of an international character. No foreign 
     or international source of law shall supply a basis for a 
     rule of decision in the courts of the United States in 
     interpreting the prohibitions enumerated in subsection (d) of 
     such section 2441.
       (3) Interpretation by the president.--
       (A) As provided by the Constitution and by this section, 
     the President has the authority

[[Page 20347]]

     for the United States to interpret the meaning and 
     application of the Geneva Conventions and to promulgate 
     higher standards and administrative regulations for 
     violations of treaty obligations which are not grave breaches 
     of the Geneva Conventions.
       (B) The President shall issue interpretations described by 
     subparagraph (A) by Executive Order published in the Federal 
     Register.
       (C) Any Executive Order published under this paragraph 
     shall be authoritative (except as to grave breaches of common 
     Article 3) as a matter of United States law, in the same 
     manner as other administrative regulations.
       (D) Nothing in this section shall be construed to affect 
     the constitutional functions and responsibilities of Congress 
     and the judicial branch of the United States.
       (4) Definitions.--In this subsection:
       (A) Geneva conventions.--The term ``Geneva Conventions'' 
     means--
       (i) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3217);
       (ii) the Convention for the Amelioration of the Condition 
     of the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (iii) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (iv) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).
       (B) Third geneva convention.--The term ``Third Geneva 
     Convention'' means the international convention referred to 
     in subparagraph (A)(iii).
       (b) Revision to War Crimes Offense Under Federal Criminal 
     Code.--
       (1) In general.--Section 2441 of title 18, United States 
     Code, is amended--
       (A) in subsection (c), by striking paragraph (3) and 
     inserting the following new paragraph (3):
       ``(3) which constitutes a grave breach of common Article 3 
     (as defined in subsection (d)) when committed in the context 
     of and in association with an armed conflict not of an 
     international character; or''; and
       (B) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Prohibited conduct.--In subsection (c)(3), the term 
     `grave breach of common Article 3' means any conduct (such 
     conduct constituting a grave breach of common Article 3 of 
     the international conventions done at Geneva August 12, 
     1949), as follows:
       ``(A) Torture.--The act of a person who commits, or 
     conspires or attempts to commit, an act specifically intended 
     to inflict severe physical or mental pain or suffering (other 
     than pain or suffering incidental to lawful sanctions) upon 
     another person within his custody or physical control for the 
     purpose of obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind.
       ``(B) Cruel or inhuman 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.
       ``(C) Performing biological experiments.--The act of a 
     person who subjects, or conspires or attempts to subject, one 
     or more persons within his custody or physical control to 
     biological experiments without a legitimate medical or dental 
     purpose and in so doing endangers the body or health of such 
     person or persons.
       ``(D) Murder.--The act of a person who intentionally kills, 
     or conspires or attempts to kill, or kills whether 
     intentionally or unintentionally in the course of committing 
     any other offense under this subsection, one or more persons 
     taking no active part in the hostilities, including those 
     placed out of combat by sickness, wounds, detention, or any 
     other cause.
       ``(E) Mutilation or maiming.--The act of a person who 
     intentionally injures, or conspires or attempts to injure, or 
     injures whether intentionally or unintentionally in the 
     course of committing any other offense under this subsection, 
     one or more persons taking no active part in the hostilities, 
     including those placed out of combat by sickness, wounds, 
     detention, or any other cause, by disfiguring the person or 
     persons by any mutilation thereof or by permanently disabling 
     any member, limb, or organ of his body, without any 
     legitimate medical or dental purpose.
       ``(F) Intentionally causing serious bodily injury.--The act 
     of a person who intentionally causes, or conspires or 
     attempts to cause, serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war.
       ``(G) Rape.--The act of a person who forcibly or with 
     coercion or threat of force wrongfully invades, or conspires 
     or attempts to invade, the body of a person by penetrating, 
     however slightly, the anal or genital opening of the victim 
     with any part of the body of the accused, or with any foreign 
     object.
       ``(H) Sexual assault or abuse.--The act of a person who 
     forcibly or with coercion or threat of force engages, or 
     conspires or attempts to engage, in sexual contact with one 
     or more persons, or causes, or conspires or attempts to 
     cause, one or more persons to engage in sexual contact.
       ``(I) Taking hostages.--The act of a person who, having 
     knowingly seized or detained one or more persons, threatens 
     to kill, injure, or continue to detain such person or persons 
     with the intent of compelling any nation, person other than 
     the hostage, or group of persons to act or refrain from 
     acting as an explicit or implicit condition for the safety or 
     release of such person or persons.
       ``(2) Definitions.--In the case of an offense under 
     subsection (a) by reason of subsection (c)(3)--
       ``(A) the term `severe mental pain or suffering' shall be 
     applied for purposes of paragraphs (1)(A) and (1)(B) in 
     accordance with the meaning given that term in section 
     2340(2) of this title;
       ``(B) the term `serious bodily injury' shall be applied for 
     purposes of paragraph (1)(F) in accordance with the meaning 
     given that term in section 113(b)(2) of this title;
       ``(C) the term `sexual contact' shall be applied for 
     purposes of paragraph (1)(G) in accordance with the meaning 
     given that term in section 2246(3) of this title;
       ``(D) the term `serious physical pain or suffering' shall 
     be applied for purposes of paragraph (1)(B) as meaning bodily 
     injury that involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) a burn or physical disfigurement of a serious 
     nature (other than cuts, abrasions, or bruises); or
       ``(iv) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty; and
       ``(E) the term `serious mental pain or suffering' shall be 
     applied for purposes of paragraph (1)(B) in accordance with 
     the meaning given the term `severe mental pain or suffering' 
     (as defined in section 2340(2) of this title), except that--
       ``(i) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(ii) as to conduct occurring after the date of the 
     enactment of the Military Commissions Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.
       ``(3) Inapplicability of certain provisions with respect to 
     collateral damage or incident of lawful attack.--The intent 
     specified for the conduct stated in subparagraphs (D), (E), 
     and (F) or paragraph (1) precludes the applicability of those 
     subparagraphs to an offense under subsection (a) by reasons 
     of subsection (c)(3) with respect to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(4) Inapplicability of taking hostages to prisoner 
     exchange.--Paragraph (1)(I) does not apply to an offense 
     under subsection (a) by reason of subsection (c)(3) in the 
     case of a prisoner exchange during wartime.
       ``(5) Definition of grave breaches.--The definitions in 
     this subsection are intended only to define the grave 
     breaches of common Article 3 and not the full scope of United 
     States obligations under that Article.''.
       (2) Retroactive applicability.--The amendments made by this 
     subsection, except as specified in subsection (d)(2)(E) of 
     section 2441 of title 18, United States Code, shall take 
     effect as of November 26, 1997, as if enacted immediately 
     after the amendments made by section 583 of Public Law 105-
     118 (as amended by section 4002(e)(7) of Public Law 107-273).
       (c) Additional Prohibition on Cruel, Inhuman, or Degrading 
     Treatment or Punishment.--
       (1) In general.--No individual in the custody or under the 
     physical control of the United States Government, regardless 
     of nationality or physical location, shall be subject to 
     cruel, inhuman, or degrading treatment or punishment.
       (2) Cruel, inhuman, or degrading treatment or punishment 
     defined.--In this subsection, the term ``cruel, inhuman, or 
     degrading treatment or punishment'' means cruel, unusual, and 
     inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and Fourteenth Amendments to the Constitution of the 
     United States, as defined in the United States Reservations, 
     Declarations and Understandings to the United Nations 
     Convention Against Torture and Other Forms of Cruel, Inhuman 
     or Degrading Treatment or Punishment done at New York, 
     December 10, 1984.
       (3) Compliance.--The President shall take action to ensure 
     compliance with this subsection, including through the 
     establishment of administrative rules and procedures.

     SEC. 7. HABEAS CORPUS MATTERS.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking both the subsection (e) added by 
     section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and 
     the subsection (e) added by added by section 1405(e)(1) of 
     Public Law 109-163 (119 Stat. 3477) and inserting the 
     following new subsection (e):

[[Page 20348]]

       ``(e)(1) No court, justice, or judge shall have 
     jurisdiction to hear or consider an application for a writ of 
     habeas corpus filed by or on behalf of an alien detained by 
     the United States who has been determined by the United 
     States to have been properly detained as an enemy combatant 
     or is awaiting such determination.
       ``(2) Except as provided in paragraphs (2) and (3) of 
     section 1005(e) of the Detainee Treatment Act of 2005 (10 
     U.S.C. 801 note), no court, justice, or judge shall have 
     jurisdiction to hear or consider any other action against the 
     United States or its agents relating to any aspect of the 
     detention, transfer, treatment, trial, or conditions of 
     confinement of an alien who is or was detained by the United 
     States and has been determined by the United States to have 
     been properly detained as an enemy combatant or is awaiting 
     such determination.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act, 
     and shall apply to all cases, without exception, pending on 
     or after the date of the enactment of this Act which relate 
     to any aspect of the detention, transfer, treatment, trial, 
     or conditions of detention of an alien detained by the United 
     States since September 11, 2001.

     SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING 
                   TO PROTECTION OF CERTAIN UNITED STATES 
                   GOVERNMENT PERSONNEL.

       (a) Counsel and Investigations.--Section 1004(b) of the 
     Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is 
     amended--
       (1) by striking ``may provide'' and inserting ``shall 
     provide'';
       (2) by inserting ``or investigation'' after ``criminal 
     prosecution''; and
       (3) by inserting ``whether before United States courts or 
     agencies, foreign courts or agencies, or international courts 
     or agencies,'' after ``described in that subsection''.
       (b) Protection of Personnel.--Section 1004 of the Detainee 
     Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with 
     respect to any criminal prosecution that--
       (1) relates to the detention and interrogation of aliens 
     described in such section;
       (2) is grounded in section 2441(c)(3) of title 18, United 
     States Code; and
       (3) relates to actions occurring between September 11, 
     2001, and December 30, 2005.

     SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

       Section 1005(e)(3) of the Detainee Treatment Act of 2005 
     (title X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 
     note) is amended--
       (1) in subparagraph (A), by striking ``pursuant to Military 
     Commission Order No. 1. dated August 31, 2005 (or any 
     successor military order)'' and inserting ``by a military 
     commission under chapter 47A of title 10, United States 
     Code'';
       (2) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(B) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (3) in subparagraph (C)--
       (A) in clause (i)--
       (i) by striking ``pursuant to the military order'' and 
     inserting ``by a military commission''; and
       (ii) by striking ``at Guantanamo Bay, Cuba''; and
       (B) in clause (ii), by striking ``pursuant to such military 
     order'' and inserting ``by the military commission''; and
       (4) in subparagraph (D)(i), by striking ``specified in the 
     military order'' and inserting ``specified for a military 
     commission''.

     SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF 
                   COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY 
                   OF DETENTION.

       Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 
     2005 (title X of Public Law 109-148; 119 Stat. 2742; 10 
     U.S.C. 801 note) is amended by striking ``the Department of 
     Defense at Guantanamo Bay, Cuba'' and inserting ``the United 
     States''.
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. ENZI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. Mr. President, I thank the Presiding Officer.
  This matter has now been brought to conclusion.
  I yield the floor.

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