[Congressional Record (Bound Edition), Volume 152 (2006), Part 17]
[Senate]
[Pages 22424-22428]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. COLEMAN:
  S. 4077. A bill to require the United States Trade Representative to 
initiate a section 301 investigation into abuses by the Australian 
Wheat Board with respect to the United Nations Oil-for-Food Programme, 
and for other purposes; to the Committee on Finance.
  Mr. COLEMAN. Mr. President, I would like to discuss today the gross 
misconduct of the Australian Wheat Board in its dealings with Saddam 
Hussein under the U.N. Oil for Food Program and to introduce 
legislation regarding the potential impact AWB's actions may have had 
U.S. farmers.
  Last week, a commission in Australia led by former Supreme Court 
Justice Terence Cole released a detailed report documenting extensive 
corruption, fraud, and deceit on the part of the Australian Wheat 
Board, commonly called AWB. The report showed that AWB paid more than 
$221 million in under-the-table kickbacks to the Hussein regime to 
secure exclusive, illegal access to the Iraqi wheat market. I applaud 
Sir Terence Cole and his commission for the thorough and comprehensive 
manner in which they have dealt with this issue.
  As chairman of the Senate Permanent Subcommittee on Investigations, I 
conducted an investigation for almost 3 years into abuses of the U.N. 
Oil-for-Food Program. During my investigation, I held numerous hearings 
and issued several detailed reports that exposed significant graft 
associated with the program.
  In particular, my subcommittee exposed corruption involving public 
officials from the United Kingdom, Russia, France and the United 
Nations, along with corrupt transactions by companies in the United 
States, United Kingdom, and elsewhere around the world.
  However, when my subcommittee considered investigating the AWB, we 
faced insurmountable legal challenges that prevented us from initiating 
the kind of exhaustive review that this case required. Unlike other 
foreign entities that voluntarily cooperated with the subcommittee's 
efforts, AWB declined to cooperate with the subcommittee by providing 
documents or witnesses. Given that AWB is a foreign entity, the 
subcommittee could not compel its cooperation through subpoenas.
  Moreover, the U.N.'s investigators at the Independent Inquiry 
Committee issued a report in October 2004, which suggested that it 
would examine AWB's transactions along with the other deals executed 
under the program. Unlike the subcommittee's efforts, that inquiry 
would have complete access to U.N. files and unfettered access to 
documents from relevant Iraqi ministries and would likely have access 
to the files and banking records of AWB.
  Instead of launching a duplicative investigation with no ability to 
compel the AWB to cooperate, I encouraged the Australian Government and 
the AWB to cooperate with the IIC and the Cole inquiry whose findings 
have just been released.
  The Cole report has left me with a few lingering questions to which I 
plan to find some answers. My subcommittee is continuing its review of 
the Cole report to determine whether U.S. affiliates of the AWB should 
be held accountable here in the United States.
  But the most important question to ask in the wake of the Cole 
report's findings is whether American wheat farmers have suffered as a 
result of the fraud and abuse on the part of the monopolistic AWB. I am 
introducing legislation today to address that question, and if we find 
proof of harm, to make our farmers whole.
  I would like to introduce today the Australian Wheat Board 
Accountability Act of 2006. The purpose of this legislation is just 
that: to hold the Australian Wheat Board accountable for their illegal, 
deceitful, trade-distorting actions. The bill directs the Office of 
U.S. Trade Representative to use its authority to investigate and 
combat these practices.
  This legislation is a simple bill with two distinct elements. First, 
the bill directs USTR to investigate whether U.S. wheat farmers have 
suffered economic damage due to the actions of the Australian Wheat 
Board. Second, if we find harm, we seek compensation.
  I have spoken many times on this floor about the great experiences I 
have had meeting with farmers of my State. I just finished traveling to 
all 87 counties in Minnesota this year, and I will be the first to tell 
this body that some of the most enriching visits I had took place with 
farmers. Those who make a living by working the land, Mr. President. 
Those who produce the food and fiber of our Nation and have done so for 
generations. Those who contribute so much to the social fabric we hold 
so dear.
  And they don't ask for much in return. They didn't ask me to come to 
the floor today or to introduce this legislation. All they ask is that 
when it comes to trade, everyone ought to play by the same rules. They 
want a level playing field because they know they can compete with 
anyone in a fair global market.
  The fact is the Australian Wheat Board hasn't been playing by the 
rules. The Cole report has proven that the AWB unfairly monopolized 
wheat exports to Iraq under the Oil for Food Program. By paying Saddam 
and his henchmen millions in illegal kickbacks, they may have distorted 
the wheat market to the detriment of the honest, hard-working farmers 
across Minnesota and the United States while they reaped the benefits 
of a corrupt regime for their own ill-gotten gain.
  I intend to find out if AWB's criminal actions hurt the bottom lines 
of our farmers, and that is what part one of this legislation does.
  Part two of this legislation is about compensation. Under this bill, 
if it is found that our wheat farmers have suffered economic damage, 
USTR will seek appropriate compensation to make our farmers whole. If 
we cannot come to a negotiated settlement, we will impose duties on 
certain Australian goods until we collect a sum equivalent to the 
financial loss brought on by the AWB. Either way, I want any 
possibility of financial loss looked at, and if proven, I want 
compensation for our farmers.
  Mr. President, I realize this is the final week of the 109th Congress 
and that this legislation probably doesn't make the priority list for 
passage this week. You can bet I will be back here again when we 
reconvene in January offering this bill in the 110th Congress. We owe 
it to our farmers to further investigate AWB's actions, and this 
legislation will make that happen.
      By Mr. HATCH (for himself, Mr. Allard, Ms. Cantwell, and Mrs. 
        Feinstein):
  S. 4079. A bill to amend the Reclamation Safety of Dams Act of 1978 
to authorize improvements for the security of dams and other 
facilities, and for other purposes; to the Committee on Energy and 
Natural Resources.
  Mr. HATCH. Mr. President, I rise today to introduce the Water and 
Power Infrastructure Security bill, S. 4079. This legislation will 
amend the Reclamation Safety of Dams Act of 1978 to authorize 
improvement for the security of dams and other facilities.
  On September 11, 2001, America's view of national security changed. 
The threat of terrorist attacks on our own soil became a reality for 
each and every one of us. This possibility forced Americans to rethink 
security in many different sectors including the need to secure 
infrastructure such as our Nation's dams.
  As a result of the 9/11 attacks, the Bureau of Reclamation set up 
site security programs, implemented more

[[Page 22425]]

complex surveillance systems, erected protection barriers, and devoted 
substantial funding in the process.
  Initially, the Bureau covered these added security costs, recognizing 
that water and power infrastructure benefits the public generally. This 
was a pattern established after the Pearl Harbor attacks when the 
Federal Government covered the added security costs at these public 
facilities.
  Indeed, all Americans benefit from stable power sources and improved 
flood control. Other universal benefits of public dams include 
recreation, water supply, and fish and wildlife.
  However, in recent years the Bureau has begun to shift these costs 
onto the energy rate payers probably due to pressure from Office of 
Management and Budget. Thus, hard working American families, many of 
whom are family farmers with limited incomes, are forced to shoulder 
this large financial burden. Shifting the burden of national security 
to family farmers is patently unfair.
  Our bill amends the Reclamation Safety of Dams Act to require to 
clarify that consumers of public power must contribute to site security 
at Federal dams. However, the bill would limit their contribution to 15 
percent of total security costs. This provides a more equitable 
division of dam security costs between local and national 
beneficiaries. The bill also would require the Secretary of the 
Interior to involve project beneficiaries in the planning and building 
of site security. Finally, the bill requires the Bureau to provide 
Congress a five-year plan on dam security and an annual report of its 
expenditures.
  There is no question we need to protect our critical infrastructure. 
It seems logical that the costs of these national and multi-purpose 
facilities should not be imposed on a concentrated group of energy 
consumers. However, customers who depend on the Bureau of Reclamation 
facilities are willing to pay their fair allotment of the security 
reflected in this legislation.
  I believe this bill strikes a good balance between reasonable costs 
and a legitimate amount of transparency. Ultimately, its about working 
together as Americans to protect our critical infrastructure and 
provide a fair cost distribution system. I urge my colleagues to 
support this bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 4079

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

     SECTION 1. ADDITIONAL AUTHORIZATION FOR IMPROVEMENTS TO SITE 
                   SECURITY.

       The Reclamation Safety of Dams Act of 1978 is amended--
       (1) in section 2 (43 U.S.C. 506), by inserting ``and site 
     security'' after ``structural safety'';
       (2) in section 3 (43 U.S.C. 507), by inserting ``and site 
     security'' after ``dam safety''; and
       (3) in section 4 (43 U.S.C. 508)--
       (A) in subsection (c)--
       (i) in the matter preceding paragraph (1), by inserting 
     after ``safety purposes'' the following: ``and all costs 
     incurred for building and site security activities (including 
     facility fortifications, operation, maintenance and 
     replacement of the fortifications, and guards and patrols, as 
     identified in the Bureau of Reclamation's Report to Congress 
     dated February 2006)'';
       (ii) by inserting after paragraph (2) the following:
       ``(3) In the case of the Central Valley Project of 
     California--
       ``(A) the Secretary shall collect dam safety and site 
     security costs allocated to irrigation and municipal and 
     industrial water service exclusively through inclusion of the 
     costs in the operation and maintenance rates, capital water 
     rates, or a combination of operation and maintenance rates 
     and capital water rates; and
       ``(B) dam safety and site security costs allocated to 
     irrigation and municipal and industrial water service shall 
     not be segregated from other project operation, maintenance, 
     or capital costs for separate allocation or repayment.''; and
       (iii) by redesignating paragraphs (3) and (4) as paragraphs 
     (4) and (5), respectively; and
       (B) in subsection (e)--
       (i) in paragraph (1), by inserting ``or site security 
     measure'' after ``modification''; and
       (ii) in paragraph (2), by inserting ``or site security 
     measure'' after ``modification''.

     SEC. 2. REPORTS.

       The Reclamation Safety of Dams Act of 1978 is amended--
       (1) in section 5 (43 U.S.C. 509)--
       (A) in the first sentence--
       (i) by striking ``There are hereby'' and inserting the 
     following:
       ``(a) In General.--There are''; and
       (ii) by striking ``Act:'' and inserting ``Act.'';
       (B) in the proviso--
       (i) by striking ``Provided, That no funds'' and inserting 
     the following:
       ``(b) Limitation.--
       ``(1) In general.--No funds''; and
       (ii) by inserting after ``under authority of this Act'' the 
     following: ``, the cause of which results from new hydrologic 
     or seismic data or changes in the state-of-the-art criteria 
     determined to be necessary for site security or structural 
     safety purposes,''; and
       (iii) by striking ``The report required to be submitted by 
     this section'' and inserting the following:
       ``(2) Report.--The report required under paragraph (1)''; 
     and
       (C) by adding at the end the following:
       ``(c) Annual Report.--
       ``(1) In general.--The Secretary shall submit to the 
     Committee on Resources of the House of Representatives and 
     the Committee Energy and Natural Resources of the Senate an 
     annual report on building and site security measures carried 
     out under this Act during the applicable fiscal year.
       ``(2) Components.--The report required under paragraph (1) 
     shall include--
       ``(A) a summary of Federal and non-Federal expenditures for 
     the fiscal year; and
       ``(B) information relating to a 5-year plan for building 
     and site security measures carried out under this Act, which 
     shall provide pre- and post-September 11, 2001, costs for the 
     building and site security measures.''; and
       (2) in section 5A (43 U.S.C. 509a)--
       (A) in subsection (c)--
       (i) in paragraph (1), by striking ``under section 5'' and 
     inserting ``under section 5(b)''; and
       (ii) in paragraph (3)--

       (I) by striking ``The response'' and inserting ``If a 
     modification is the result of new hydrologic or seismic data 
     or changes in the state-of-the-art criteria determined to be 
     necessary for structural safety purposes, the response''; and
       (II) by striking ``by section 5'' and inserting ``under 
     section 5(b)'';

       (B) in subsection (d), by inserting ``site'' before 
     ``security''; and
       (C) by inserting ``or site security measure'' after 
     ``modification'' each place it appears.
                                 ______
                                 
      Mr. SPECTER (for himself and Mr. Leahy):
  S. 4081. A bill to restore habeas corpus for those detained by the 
United States; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I introduce legislation which is 
captioned ``Habeas Corpus Restoration Act of 2006'' which I introduced 
on behalf of myself and Senator Leahy.
  The legislation which was adopted earlier this year on war crimes 
struck out habeas corpus jurisdiction of the Federal courts, sought to 
limit jurisdiction of the Federal courts on habeas corpus for 
Guantanamo detainees and others detained on charges of being enemy 
combatants or war criminals.
  There was very extended debate on the issue at that time. The bill 
reported by the Armed Services Committee and backed by the 
administration eliminated the jurisdiction of the Federal courts. I 
offered an amendment to reinstate habeas corpus. It was defeated 51 to 
48. This legislation would reinstate habeas corpus jurisdiction of the 
Federal courts. It is my view that the Federal courts will strike down 
the provisions in the legislation eliminating Federal court 
jurisdiction for a number of reasons. One is that the Constitution of 
the United States is explicit that habeas corpus may be suspended only 
in time of rebellion or invasion. We are suffering neither of those 
alternatives at the present time. We have not been invaded, and there 
has not been a rebellion. That much is conceded.
  There has been an effort made to contend that those constitutional 
rights are maintained with the very limited review which goes to the 
Court of Appeals for the District of Columbia.
  In the limited time I have today I will not go into great detail 
during the course of the argument as it appears in the Congressional 
Record as to why that does not maintain the traditional constitutional 
right of habeas corpus, a right which has existed in Anglo Saxon 
jurisprudence since King John in 1215 at Runnymede. The Supreme Court 
of the United States in the Hamdi case made it plain that these habeas 
corpus

[[Page 22426]]

rights apply to aliens as well as to citizens.
  The administration has taken the position now that someone who is 
making a charge of having been tortured, which is a violation of U.S. 
law, may not be permitted to disclose the specifics of his 
interrogation which he says constituted torture because al-Qaida will 
find out what our interrogation techniques are and will move to train 
their operatives so they can withstand those interrogations.
  It is unthinkable, in my opinion, to have a system of laws where 
someone who claims to have been tortured cannot describe what has 
happened to him to get judicial relief because al-Qaida may be able to 
educate or train their operatives to avoid those techniques.
  I supported the ultimate legislation on war crimes tribunals because 
it provided for recognition of the Geneva Conventions. It also provided 
for confrontation. It also provided for limitations on interrogation 
techniques.
  It was my view as I expressed it at the time that with the 
severability clause the Federal courts would eliminate the restriction 
on their jurisdiction. But as a precautionary matter, to put the matter 
in issue, this legislation is being introduced at this time.
  I ask unanimous consent that the summary of the Habeas Corpus 
Restoration Act of 2006 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 Habeas Corpus Restoration Act of 2006

       The bill strikes the new limitations on habeas corpus 
     created in the Military Commissions Act of 2006, Public Law 
     109-366, 2006 Stat. 3930.
       The MCA added two new habeas provisions--
       (1) A new paragraph in the federal habeas statute, 28 
     U.S.C. Sec. 2241(e), that would bar any alien detained by the 
     United States as an enemy combatant from filing a writ of 
     habeas corpus. The new paragraph was to apply to all pending 
     cases ``without exception'' thereby barring all pending 
     habeas corpus applications pending on behalf of Guantanamo 
     Bay detainees.
       (2) An entirely new habeas corpus limitation that barred 
     any habeas review of military commission procedures. Had this 
     bill been passed before the Hamdan v. Rumsfeld case was 
     decided, the Supreme Court would not have had jurisdiction to 
     review and reject the military commission procedures that 
     were at issue. This new habeas limitation was added to 
     federal law as 10 U.S.C. Sec. 950j(b).
       The Habeas Corpus Restoration Act would strike these two 
     provisions from the law in their entirety, thereby restoring 
     the right of aliens detained within U.S. territorial 
     jurisdiction (including at Gitmo) to challenge their 
     detention via file writs of habeas corpus.
       Because the Military Commissions Act already completely 
     repealed and superseded the habeas limitations created by the 
     Graham Amendment to the Detainee Treatment Act of 2005, the 
     bill would restore the state of play before the DTA.
       Actual effect--The MCA would deprive federal courts of 
     jurisdiction to hear the 196 habeas corpus applications 
     currently pending on behalf of the detainees at Guantanamo 
     Bay, Cuba. This bill would restore jurisdiction and allow 
     those cases to be decided on their merits. It would also 
     allow habeas corpus challenges to military commission 
     procedures.


    Article 1, Section 9, Clause 2 of the United States Constitution

       ``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.''


           Select United States Supreme Court Decision Quotes

     Hamdi
       In the 2004 Supreme Court decision of Hamdi v. Rumsfeld, 
     Justice O'Connor stated, ``All agree that, absent suspension, 
     the writ of habeas corpus remains available to every 
     individual detained within the United States.''
       Justice O'Connor was unequivocally in stating, ``[w]e have 
     long since made clear that a state of war is not a blank 
     check for the President when it comes to the rights of the 
     Nation's citizens.''
       The Hamdi court made clear that ``[i]t is during our most 
     challenging and uncertain moments that our Nation's 
     commitment to due process is most severely tested; and it is 
     in those times that we must preserve our commitment at home 
     to the principles for which we fight abroad.''
       Regarding habeas corpus, Justice O'Connor wrote, ``we have 
     made clear that, unless Congress acts to suspend it, the 
     Great Writ of habeas corpus allows the Judicial Branch to 
     play a necessary role in maintaining this delicate balance of 
     governance, serving as an important judicial check on the 
     Executive's discretion in the realm of detentions.''
     Korematsu
       In 1949, Justice Murphy dissented in Korematsu v. United 
     States: ``[i]ndividuals must not be left impoverished of 
     their constitutional rights on a plea of military necessity 
     that has neither substance nor support'' . . . ``[t]he 
     judicial test of whether the Government, on a plea of 
     military necessity, can validly deprive an individual of any 
     of his constitutional rights is whether the deprivation is 
     reasonably related to a public danger that is so `immediate, 
     imminent, and impending' as not to admit of delay and not to 
     permit the intervention of ordinary constitutional processes 
     to alleviate the danger.''


  CSRTs are not an Adequate and Effective Substitute for Habeas Corpus

       Combatant Status Review Tribunals, commonly referred to as 
     ``CSRTs,'' are not an adequate and effective means to 
     challenge detention in accordance with the Supreme Court's 
     decision in Swain v. Pressley (``the substitution of a 
     collateral remedy which is neither inadequate nor ineffective 
     to test the legality of a person's detention does not 
     constitute a suspension of the writ of habeas corpus.'').
       CSRTs are not adversarial, but consist of a one-sided 
     interrogation of the detainee by the tribunal members. The 
     proceedings do not comport with basic fairness because the 
     individuals detained do not have the right to confront 
     accusers, call witnesses, or know what evidence there is 
     against them. As Justice O'Connor wrote in her plurality 
     opinion in the Hamdi case, ``[a]n interrogation by one's 
     captor, however effective an intelligence-gathering tool, 
     hardly constitutes a constitutionally adequate factfinding 
     before a neutral decisionmaker.''
       According to the September 25, 2006 Judiciary Committee 
     testimony of the former U.S. Attorney for the Northern 
     District of Illinois, Thomas Sullivan, who has been to 
     Guantanamo on many occasions and has represented many 
     detainees. Mr. Sullivan cited hearings where individuals were 
     summoned before the tribunal, but did not speak the language, 
     did not have an attorney, did not have access to the 
     information which was presented against them, and continued 
     to be detained.
       For example, in the case of Abdul Hadi al Siba'i, a Saudi 
     Arabian police officer who came to Afghanistan in August 2001 
     to build schools and a mosque, Mr. Sullivan described how Mr. 
     Siba'i had no lawyer, spoke through a translator, and was 
     read the charges against him, but with no access to the 
     underlying evidence. According to Mr. Sullivan, his client 
     was returned to Saudi Arabia after a prolonged detention 
     without a trial, compensation, or apology. Mr. Sullivan 
     received no notice that his client was to be returned to 
     Saudi Arabia.

  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 4081

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Habeas Corpus Restoration 
     Act of 2006''.

     SEC. 2. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY 
                   THE UNITED STATES.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking subsection (e).
       (b) Title 10.--Section 950j of title 10, United States 
     Code, is amended by striking subsection (b) and inserting the 
     following:
       ``(b) Limited Review of Military Commission Procedures and 
     Actions.--Except as otherwise provided in this chapter or in 
     section 2241 of title 28 or any other habeas corpus 
     provision, and notwithstanding any other provision of law, 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.''.

     SEC. 3. EFFECTIVE DATE AND APPLICABILITY.

       The amendments made by this Act shall--
       (1) take effect on the date of the enactment of this Act; 
     and
       (2) apply to any case that is pending on or after the date 
     of enactment of this Act.

  Mr. LEAHY. Mr. President, I am pleased to join the chairman of the 
Judiciary Committee and cosponsor the Habeas Corpus Restoration Act of 
2006. This bill would restore the great writ of habeas corpus, a 
cornerstone of American liberty for hundreds of years that Congress and 
the President rolled back in an unprecedented and unnecessary way with 
September's Military Commissions Act.

[[Page 22427]]

  I am also pleased to join Senator Dodd as a cosponsor of the 
Effective Terrorists Prosecution Act of 2006. That bill would likewise 
restore the liberties guaranteed by the writ of habeas corpus. It would 
also correct many of the other very disturbing provisions of the 
Military Commissions Act by narrowing that act's extremely broad 
definition of ``unlawful enemy combatants,'' excluding evidence 
obtained by coercion, and allowing defendants to review evidence used 
against them.
  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 one's innocence. As Justice Scalia 
stated in the Hamdi case: ``The very core of liberty secured by our 
Anglo-Saxon system of separated powers has been freedom from indefinite 
imprisonment at the will of the Executive.'' The remedy that secures 
that most basic of freedoms is habeas corpus.
  The Military Commissions Act eliminated that right, permanently, for 
any non-citizen determined to be an enemy combatant, or even 
``awaiting'' such a determination. That includes the approximately 12 
million lawful permanent residents in the United States today, people 
who work for American firms, raise American kids, and pay American 
taxes. This new law means that any of these people can be detained, 
forever, without any ability to challenge their detention in federal 
court--or anywhere else--simply on the Government's say-so that they 
are awaiting determination whether they are enemy combatants.
  I regret that Chairman Specter and I were unsuccessful in our efforts 
to stop this injustice when the President and the Republican leadership 
insisted on rushing the Military Commissions Act through Congress in 
the lead-up to the elections. We supported an amendment which would 
have removed the habeas-stripping provision from the Military 
Commissions Act. It failed by just three votes. I was saddened that the 
bill passed even with this poisonous habeas provision. Since then, the 
American people have spoken against the administration's ``stay the 
course'' approach to national security and against a rubber stamp 
Congress that accommodated this administration's efforts to grab more 
and more power.
  When we debated Chairman Specter's amendment to remove the habeas-
stripping provision back in September, I spelled out a nightmare 
scenario about a hard-working legal permanent resident who makes an 
innocent donation to, among other charities, a Muslim charity that the 
Government thinks might be funneling money to terrorists. I suggested 
that, on the basis of this donation and perhaps a report of 
``suspicious behavior'' from an overzealous neighbor based on visits 
from Muslim guests, the permanent resident could be brought in for 
questioning, denied a lawyer, confined, and even tortured. And this 
lawful permanent resident would have no recourse in the courts for 
years, for decades, forever.
  Many people viewed this kind of nightmare scenario as fanciful, just 
the rhetoric of a politician. It was not. It is all spelled out clearly 
in the language of the law that this body passed. Last month, the 
scenario I spelled out was confirmed by the Department of Justice 
itself in a legal brief submitted in a Federal court in Virginia. The 
Justice Department, in a brief to dismiss a detainee's habeas case, 
said that the Military Commissions Act allows the Government to detain 
any noncitizen declared to be an enemy combatant without giving that 
person any ability to challenge his detention in court. This is true, 
the Justice Department said, even for someone arrested and imprisoned 
in the United States. The Washington Post wrote that the brief ``raises 
the possibility that any of the millions of immigrants living in the 
United States could be subject to indefinite detention if they are 
accused of ties to terrorist groups.''
  In fact, the situation is more stark even than the Washington Post 
story suggested. The Justice Department's brief says that the 
Government can detain any noncitizen declared to be an enemy combatant. 
But the law this Congress passed says the Government need not even make 
that declaration; they can hold people indefinitely who are just 
awaiting determination whether or not they are enemy combatants. It 
gets worse. Republican leaders in the Senate followed the White House's 
lead and greatly expanded the definition of ``enemy combatants'' in the 
dark of night in the final days before the bill's passage, so that 
enemy combatants need not be soldiers on battlefield. They can be 
people who give money, or people that any group of decisionmakers 
selected by the President decides to call enemy combatants. The 
possibilities are chilling.
  The administration has made it clear that they intend to use every 
expansive definition and unchecked power given to them by the new law. 
Last month's Justice Department brief made clear that any of our legal 
immigrants could be held indefinitely without recourse in court. 
Earlier in November, the Justice Department went to court to say that 
detainees who had been held in secret CIA prisons could not even meet 
with lawyers because they might tell their lawyers about the cruel 
interrogation techniques used against them. In other words, if our 
Government tortures somebody, that person loses his right to a lawyer 
because he might tell the lawyer about having been tortured. A law 
professor was quoted as saying about the government's position in that 
case: ``Kafka-esque doesn't do it justice. This is `Alice in 
Wonderland.''' We are not talking about nightmare scenarios here. We 
are talking about today's reality.
  We have eliminated basic legal and human rights 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. We have removed the check that our legal 
system provides against the Government arbitrarily detaining people for 
life without charge, and we may well have made many of our remaining 
limits against torture and cruel and inhuman treatment obsolete because 
they are unenforceable. We have removed the mechanism the Constitution 
provides to check Government overreaching and lawlessness.
  This is wrong. It is unconstitutional. It is un-American. It is 
designed to ensure that the Bush-Cheney administration will never again 
be embarrassed by a U.S. Supreme Court decision reviewing its unlawful 
abuses of power. The conservative Supreme Court, with seven of its nine 
members appointed by Republican Presidents, has been the only check on 
the Bush-Cheney administration's lawlessness. Certainly the outgoing 
rubberstamp Republican Congress has not done it, or even investigated 
it. With passage of the Military Commissions Act, the Republican 
Congress completed the job of eviscerating its role as a check and 
balance on the administration.
  Abolishing habeas corpus for anyone who the Government thinks might 
have assisted enemies of the United States is unnecessary and morally 
wrong. It is 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.
  Admiral John Hutson testified before the Judiciary Committee that 
stripping the courts of habeas jurisdiction was inconsistent with 
American history and tradition. He concluded, ``We don't need to do 
this. America is too strong.'' Even Kenneth Starr, the former 
independent counsel and Solicitor General to the first President Bush, 
wrote that the Constitution's conditions for suspending habeas corpus 
have not been met, and that doing so would be problematic.
  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. Yet 6 weeks 
before a midterm election, the Bush-Cheney administration and the 
Republican

[[Page 22428]]

Congress deemed a complete abolition of the writ their highest 
priority. Notwithstanding the harm the administration has done to 
national security with its mismanaged misadventure in Iraq, there was 
no new national security crisis. There was only a Republican political 
crisis. The people have now spoken, and it is time to reverse the 
dangerous choices this Congress made.
  Rolling back the Military Commissions Act's disastrous habeas 
provision will set the stage for us to approach that issue in a way 
consistent with our needs and our values. We should take steps to 
ensure that our enemies can be tried efficiently and quickly and to 
prevent our courts from being tied up with frivolous suits. But 
abolishing the writ of habeas corpus for millions of legal immigrants 
and others, denying their right to get into court to challenge 
indefinite detainment on the Government's say-so, is not the answer.
  I hope that others will hear the call of the American people for a 
new direction and work to correct these and other problems with the new 
law, including the gutting of the War Crimes Act, which I was proud to 
help spearhead with strong bipartisan support in 1997.
  I will keep working on these issues until we restore the checks and 
balances that make our country great. We can ensure our security 
without giving up our liberty.
                                 ______
                                 
      By Mr. CRAPO:
  S. 4082. A bill to make a conforming amendment to the Federal Deposit 
Insurance Act with respect to examinations of certain insured 
depository institutions, and for other purposes; to the Committee on 
Banking, Housing, and Urban Affairs.
  Mr. CRAPO. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 4082

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

     SECTION 1. AMENDMENT TO THE FEDERAL DEPOSIT INSURANCE ACT.

       Paragraph (10) of section 10(d) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1820(d)(10)) is amended by striking 
     ``$250,000,000'' and inserting ``$500,000,000''.

                          ____________________