S10354 CONGRESSIONAL RECORD — SENATE September 28, 2006 a moment, against public opinion, to MILITARY COMMISSIONS ACT OF Senator from Texas, Mr. CORNYN, in set the gold standard and set us apart. 2006 the unanimous consent agreement to We have been known as the nation of The PRESIDING OFFICER. Under be recognized as one of the wrap-up Nuremberg. My fear is now we will be the previous order, the Senate will re­ speakers on those in opposition to the known as the nation of Guantanamo, sume consideration of S. 3930, which amendment. I yield the floor. and I worry about that. the clerk will report. Mr. WARNER. We have our dif­ The PRESIDING OFFICER. The Sen­ The assistant legislative clerk read ator from Arizona is recognized. ferences, if I may say, but that was a as follows: war of state-sponsored nations and ag­ Mr. KYL. Madam President, yester­ A bill (S. 3930) to authorize trial by mili­ day Senator SPECTER argued that one gressions, men wearing uniforms, men tary commission for violations of the law of acting at the direction of recognized sentence in the Hamdi opinion that re­ war, and for other purposes. fers to habeas corpus rights as applying governments. Today’s war is a dis­ Pending: parate bunch of terrorists, coming to all ‘‘individuals’’ inside the United Specter amendment No. 5087, to strike the overnight, no uniforms, no principles, States indicates that alien enemy com­ provision regarding habeas review. batants have constitutional habeas guided by nothing. We are doing the rights when they are held inside this best we can as a nation, under the di­ The PRESIDING OFFICER. The Sen­ country. I believe that Senator SPEC­ rection of our President, to defend our­ ator from Virginia. TER is incorrect, for the following rea­ selves. Mr. WARNER. Madam President, just sons: (1) The Hamdi plurality repeat­ Mr. DODD. If our colleague would for purposes of advising colleagues, edly makes clear that ‘‘the threshold yield, I do not disagree, but I don’t there remains on the Specter amend­ question before us is whether the Exec­ think there is a choice between uphold­ ment 16 minutes under the control of utive has the authority to detain citi­ ing the principles of America and fight­ the Senator from Virginia. I desire to zens who qualify as ‘enemy combat­ ing terrorism. Every generation of allocate about 4 minutes to Senator ants.’’’ The plurality expressly frames Americans will face their own threats. KYL, 2 to 3 minutes to Senator SES­ the issue before it in terms of the This is ours. Every previous generation SIONS, and to wrap it up, 2 to 3 minutes rights of citizens no fewer than eight faced serious threats, and they did not to Senator GRAHAM. But we will alter­ times. It is clear that it is only the abandon the principles upon which this nate or do as the Senator from Michi­ rights of citizens that the Hamdi plu­ country is founded. I am fearful we are gan—you have 33 minutes, I believe, rality studied and ruled on. (2) Else­ going to do that today. under the control of Senator SPECTER where the Hamdi plurality criticized a Mr. WARNER. I disagree with my and those in support of his amendment. rule that would make the government’s friend, and I yield the floor. Mr. LEVIN. Madam President, par­ right to hold someone as an enemy The PRESIDING OFFICER. The liamentary inquiry: How much time is combatant turn on whether they are Democratic leader. remaining to Members on this side, in­ held inside or outside of the United Mr. REID. For this little conclusion, cluding on the bill? States. The plurality characterized I will use leader time. The PRESIDING OFFICER. Senator PECTER such a rule as creating ‘‘perverse incen­ I ask unanimous consent that 5 min­ S ’s side controls 33 minutes. Mr. LEVIN. On the Democratic side? tives,’’ noted that it would simply en­ utes from Senator ROCKEFELLER and The PRESIDING OFFICER. Senator courage the military to hold detainees Senator KENNEDY—they both have a WARNER controls 16 minutes, and the abroad, and concluded that it should half hour on their respective amend­ proponent of the amendment controls not create a ‘‘determinative constitu­ ments—be transferred to Senators 33. tional difference.’’ The same effect CLINTON and JOHN KERRY. They will Mr. LEVIN. And on the bill itself, is would, of course, be felt if enemy sol­ each have 5 minutes to speak. And that there time left? diers’ habeas rights were made turn on I have 12 minutes under my control re­ The PRESIDING OFFICER. Senator whether they were held inside or out­ maining on the bill and that time be REID has allocated the remainder of side of the United States. The fact that equally divided between Senators FEIN­ the debate time on the bill itself. the Hamdi plurality rejected this type STEIN and FEINGOLD. They will each Mr. LEVIN. All time is allocated? of geographical gamesmanship in one have 6 minutes to speak on the bill. The PRESIDING OFFICER. Correct. context casts doubt on the theory that Mr. WARNER. Madam President, re­ Mr. LEVIN. Madam President, I ask it endorsed it in a closely related con­ serving the right to object, and I will unanimous consent that I be allowed to text. (3) Had Hamdi extended habeas not object, but I listened carefully. You proceed for 30 seconds. rights to alien enemy combatants held courteously advised me that this re­ The PRESIDING OFFICER. Is there inside the United States, that would quest works within the confines of the objection? Without objection, it is so have been a major ruling of tremen­ standing unanimous consent, is my un­ ordered. dous consequence. Because courts typi­ derstanding, in terms of the allocation Mr. LEVIN. Madam President, I wish cally do not hide elephants in of time. to thank the Senator from Connecticut mouseholes, cf. Whitman v. ATA, it is Mr. REID. This adds no time to the for one of the most passionate state­ fair to conclude that no such bill. ments I have ever heard on this floor— groundbreaking ruling is squirreled Mr. WARNER. That is correct. I heartfelt, right on target. The distinc­ away in one ambiguous sentence in the wanted to make that clear to my col­ tions made in this bill which will allow Hamdi plurality opinion on the floor leagues. statements to be admitted into evi­ Wednesday evening, I presented the ar­ Mr. LEAHY. Reserving the right to dence that were produced by cruel gument that the constitutional writ of object. I shall not, of course. As a mat­ treatment is unconscionable. It is said habeas corpus does not extend to alien ter of clarification, there is still some that, well, statements made after De­ enemy soldiers held during wartime. specific time reserved to the Senator cember 30 of 2005 won’t be allowed, but Senator SPECTER responded by quoting from Vermont; is that correct? those that are produced by cruel and from a passage in Justice O’Connor’s The PRESIDING OFFICER. There re­ inhuman treatment prior to December plurality opinion in Hamdi v. Rums­ mains 23 minutes on the bill. 30 of 2005 are OK. It is unconscionable. feld, 542 U.S. 507 (2004), that he believes Mr. REID. That is 23 minutes, plus It is unheard of. It is untenable, and establishes that alien combatants are the good offices of Senator SPECTER the Senator from Connecticut has entitled to habeas rights if they are may give the Senator additional time. pointed it out very accurately, bril­ held within the United States. That Mr. LEAHY. Thank you. liantly. I thank him for his statement. statement, towards the beginning of f Mr. WARNER. Madam President, we section III.A of the court’s opinion, is a will proceed on Specter’s amendment. part of a statement of general prin­ CONCLUSION OF MORNING In due course, I will find the time to ciples noting that ‘‘[a]ll agree’’ that, BUSINESS comment on my colleague’s 30 seconds. absent suspension, habeas corpus re­ The PRESIDING OFFICER. Morning I want to keep this thing in an orderly mains available to every ‘‘individual’’ business is now closed. progression. I would like to add the within the United States. Senator

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.008 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10355 SPECTER reads this statement, un­ ion to extend constitutional habeas have been allowed to sue our govern­ adorned by any qualification as to rights to alien enemy combatants ment in our courts to challenge their whether the individual in question is a whenever they are held inside the detention. And were their right to do U.S. citizen, an illegal immigrant, or United States is that, elsewhere in its so made to turn on whether they were an alien enemy combatant, to stand for opinion, the plurality is quite critical held inside or outside of the United the proposition that even the latter of a geographically-based approach to States, our Armed Forces inevitably has a constitutional right to habeas enemy combatant’s rights. At page 524, would have been forced to find some ac­ corpus when held within the United the plurality responds to a passage in commodations for them in foreign ter­ States. Justice Scalia’s dissent that it reads as ritory. And since holding enemy com­ I would suggest that this single, am­ arguing that the government’s ability batants near the war zone is neither biguous statement cannot be construed to hold someone as an enemy combat­ practical nor safe, our nation’s whole to bear that much weight, for three ant turns on whether they are held in­ ability to fight a war would be made to reasons. side or outside of the United States. turn on whether we could find some Elsewhere in its opinion, the Hamdi The plurality opinion states that mak­ third country where we could hold plurality repeatedly makes clear that ing the ability to hold someone as an enemy war prisoners. I would submit the only issue it is actually considering enemy combatant turn on whether that this elephant of a result simply is whether a U.S. citizen has habeas they are held in or out of the United will not fit in the small space for it and due process rights as an enemy States: created by the one ambiguous passage combatant. The plurality’s emphasis creates a perverse incentive. Military au­ in the Hamdi plurality opinion. on citizenship is repeatedly made clear thorities faced with the stark choice of sub­ For these three reasons, I believe throughout Justice O’Connor’s opinion. mitting to the full-blown criminal process or that Senator SPECTER is incorrect to For example, on page 509, in its first releasing a suspected enemy combatant cap­ interpret the Hamdi plurality opinion sentence, the plurality opinion says: tured on the battlefield will simply keep cit­ to extend constitutional habeas corpus ‘‘we are called upon to consider the le­ izen-detainees abroad. Indeed, the Govern­ rights to alien enemy combatants held gality of the detention of a United ment transferred Hamdi from Guantanamo inside the United States. States citizen on United States soil as Bay to the United States naval brig only Just to conclude by summarizing the after it learned that he might be an Amer­ an ‘enemy combatant’ and to address ican citizen. It is not at all clear why that point as follows: On eight separate the process that is constitutionally should make a determinative constitutional times, the plurality opinion in Hamdi owed to one who seeks to challenge his difference. refers to the rights of citizens. That is detention as such.’’ On page 516, the It is doubtful that this same plu­ the question before the court. This is plurality again notes: ‘‘The threshold rality—one that sees ‘‘perverse’’ effects what it rules on. This is our holding. question before us is whether the Exec­ in rules that would encourage the gov­ At no point does it extend it to citi­ utive has the authority to detain citi­ ernment to hold enemy combatants zens. There is one sentence rather zens who qualify as ‘enemy combat­ outside of the United States in order to loosely framed that refers to individ­ ants.’’’ On page 524, the plurality once avoid burdensome litigation—also in­ uals. Had the courts in that decision again emphasizes: ‘‘there remains the tended to rule that full constitutional intended to apply the habeas right to question of what process is constitu­ habeas rights attach to alien enemy all individuals in the United States tionally due to a citizen who disputes combatants as soon as they enter U.S. rather than citizens, it would most as­ his enemy-combatant status.’’ On page airspace. suredly have said so. 531: ‘‘We reaffirm today the funda­ I don’t think, with all due respect to Finally, Senator SPECTER’s argument mental nature of a citizen’s right to be that the ambiguous reference to ‘‘indi­ my great friend, the chairman of the free from involuntary confinement by viduals’’ on page 525 of Hamdi extends committee, that relying on that one his own government without due proc­ habeas rights to foreign enemy com­ loose word in one sentence of the opin­ ess of law.’’ On page 532: ‘‘neither the batants held inside U.S. territory is in­ ion overrides all of the other reasoning, process proposed by the Government consistent with the common sense in­ all of the other clear statements, and nor the process apparently envisioned the obvious intent of the opinion to re­ terpretive rule that one does not ‘‘hide by the District Court below strikes the late it to citizens only. With all due re­ elephants in mouseholes.’’ Whitman v. proper constitutional balance when a spect, I disagree with the reading of American Trucking Association, 531 U.S. United States citizen is detained in the the case and conclude that there is 457, 468 (2001). Although this rule of United States as an enemy combat­ nothing wrong with this legislation be­ construction typically is applied by the ant.’’ On page 533: ‘‘We therefore hold fore us limiting the rights of habeas to court to our enactments, I see no rea­ that a citizen-detainee seeking to chal­ those who are citizens and not extend­ son why its logic would not operate lenge his classification as an enemy ing it to alien enemy combatants. combatant must receive notice of the when applied in reverse, by members of The PRESIDING OFFICER. The Sen­ factual basis for his classification, and this body to the court’s opinions. ator from Pennsylvania is recognized. a fair opportunity to rebut the Govern­ For the Hamdi court to have ex­ Mr. SPECTER. Madam President, by ment’s factual assertion before a neu­ tended constitutional habeas rights to way of brief reply to the comments of tral decisionmaker.’’ On page 535: mili­ alien enemy soldiers held inside the the Senator from Arizona, he argues tary needs ‘‘are not so weighty as to United States would have been a major that the Hamdi decision does not apply trump a citizen’s core rights to chal­ decision of enormous consequence to to aliens but only to citizens, trying to lenge meaningfully the Government’s our nation’s warmaking ability. As the draw some inferences. But that does case and to be heard by an impartial Hamdi plurality itself noted, ‘‘deten­ not stand up in the face of explicit lan­ adjudicator.’’ And on page 536–37: ‘‘it tion to prevent a combatant’s return to guage by Justice O’Connor to this ef­ would turn our system of checks and the battlefield is a fundamental inci­ fect: balances on its head to suggest that a dent of waging war.’’ As I noted yester­ All agree that absent suspension the writ citizen could not make his way to day, during World War II the United of habeas corpus remains available to every court with a challenge to the factual States detained over 425,000 enemy war individual detained in the United States. basis for his detention by his govern­ prisoners inside the United States. Yet The Senator from Arizona can argue ment.’’ as Rear Admiral Hutson—no supporter all he wants about inferences, but that Whatever loose language may have of section 7 of the MCA—noted in his hardly stands up to an explicit state­ been used in the plurality’s statement testimony at Monday’s Judiciary Com­ ment on individuals. And Justice of general principles at the outset of mittee hearing, aside from one petition O’Connor knows the difference between its analysis, it is apparent that the filed by an American of Italian descent, referring to an individual or referring only issue that the plurality actually no habeas petitions challenging deten­ to a citizen or referring to an alien. studied and intended to address is the tion were filed by any of these World And ‘‘individuals’’ covers both citizens constitutional rights of the U.S. cit­ War II enemy combatants. It is simply and aliens. izen. inconceivable that all of the 425,000 Following the reference to individ­ Another thing that augurs against enemy combatants held inside the uals is the citation of the constitu­ interpreting the Hamdi plurality opin­ United States during this period could tional provision that you can’t suspend

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.011 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10356 CONGRESSIONAL RECORD — SENATE September 28, 2006 habeas corpus except in time of rebel­ tive in the charities you support, but great writ of habeas corpus, it would lion or invasion. you do not discriminate on the grounds eliminate it permanently. We do not Buttressing my argument is the of religion. Then one day there is a have to worry about nuances, such as Rasul v. Bush case where it applied knock on your door. The Government how long it will be suspended. It is specifically to aliens; and it is true thinks that the Muslim charity you gone. Gone. that the consideration was under the sent money to may be funneling money Over 200 years of jurisprudence in statute section 2241. There the Court to terrorists and thinks you may be in­ this country, and following an hour of says that section 2241 ‘‘draws no dis­ volved. And perhaps an overzealous debate, we get rid of it. My God, have tinction between Americans and aliens neighbor who saw a group of Muslims any Members of this Senate gone back held in Federal custody.’’ come to your House has reported ‘‘sus­ and read their oath of office upholding That again buttresses the argument I picious behavior.’’ You are brought in the Constitution? This cuts off all ha­ have made in two respects. First, Rasul for questioning. beas petitions, not just those founded specifically grants habeas corpus, al­ Initially, you are not very worried. on relatively technical claims but beit statutory, to aliens and says there After all, this is America. You are in­ those founded on claims of complete is no distinction. So on the face of the nocent, and you have faith in American innocence. explicit language of the Supreme Court justice. You know your rights, and you We hundred Members in the Senate, of the United States there is a con­ say: I would like to talk to a lawyer. we privileged men and women, are sup­ stitutional requirement, and it is fun­ But no lawyer comes. Once again, since posed to be the conscience of the Na­ damental that Congress cannot legis­ you know your rights, you refuse to an­ tion. We are about to put the darkest late in contradiction to a constitu­ swer any further questions. Then the blot possible on this Nation’s con­ tional interpretation of the Supreme interrogators get angry. Then comes science. It would not be limited to enemy combatants in the traditional Court. That requires a constitutional solitary confinement, then fierce dogs, sense of foreign fighters captured in amendment—not legislation. then freezing cold that induces hypo­ the battlefield, but it would apply to I yield the floor. thermia, then waterboarding, then any alien picked up anywhere in the The PRESIDING OFFICER. Who threats of being sent to a country world and suspected of possibly sup­ yields time? The Senator from where you know you will be tortured, Vermont. porting enemies of the United States. then Guantanamo. And then nothing, We do not need this bill for those Mr. LEAHY. Madam President, will for years, for decades, for the rest of truly captured on the battlefield who the Senator from Pennsylvania yield? your life. have taken up arms against the United Mr. SPECTER. Madam President, That may sound like an experience States. That is why the definition of how much time remains under my con­ from some oppressive and authori­ enemy combatant has been so expan­ trol? tarian regime, something that may sively redefined behind closed doors in The PRESIDING OFFICER. Thirty have happened under the Taliban, the dark of night. minutes. something that Saddam Hussein might This bill is designed instead to sweep Mr. SPECTER. Madam President, I have ordered or something out of others into the net. It would not even yield 10 minutes to the distinguished Kafka. There is a reason why that does require an administrative determina­ Senator from Vermont. not and cannot happen in America. It tion that the Government’s suspicions The PRESIDING OFFICER. The Sen­ is because we have a protection called have a reasonable basis in fact. By its ator from Vermont. habeas corpus, or if you do not like the plain language, it would deny all access Mr. LEAHY. Thank you, Madam Latin phrase by which it has been to the courts to any alien awaiting— President. If I require further time be­ known throughout our history, call it what a bureaucratic term, to deter­ yond 10 minutes I will take time from access to the independent Federal mine your basic human rights, ‘‘any that reserved to the Senator from courts to review the authority and the alien awaiting’’—a Government deter­ Vermont. legality by which the Government has mination as to whether the alien is an Let’s understand exactly what we are taken and is holding someone in cus­ enemy combatant. The Government talking about here. There are approxi­ tody. It is a fundamental protection. It would be free to delay as long as it mately 12 million lawful permanent is woven into the fabric of our Nation. liked—for years, for decades, for the residents in the United States today. Habeas corpus provides a remedy length of the conflict which is so unde­ Some came here initially the way my against arbitrary detentions and con­ fined and may last for generations. grandparents did or my wife’s parents stitutional violations. It guarantees an One need only look at Guantanamo. did. These are people who work for opportunity to go to court, with the Even our own Government says a num­ American firms, they raise American aid of a lawyer, to prove that, yes, you ber of people are in there by mistake, kids, they pay American taxes. are innocent. but we will not get around to making Section 7 of the bill before us rep­ As Justice Scalia stated in the that determination. Maybe in 5 years, resents a choice about how to treat Hamdi case: maybe 10, maybe 20, maybe 30. And we them. This bill could have been re­ The very core of liberty secured by the wonder why some of our closest allies stricted to traditional notions of Anglo-Saxon system of separated powers has ask us, what in heaven’s name has hap­ enemy combatants—foreign fighters been freedom from indefinite imprisonment pened to the conscience and moral captured on the battlefield—but the at the will of the Executive. compass of this great Nation? Are we drafters of this bill chose not to do so. Of course, the remedy that secures so terrified of some terrorists around Let’s be very clear. Once we get past that most basic freedom is habeas cor­ this country that we will run scared all of the sloganeering, all the fund- pus. and hide? Is that what we will do, tear raising letters, all the sound bites, all Habeas corpus does not give you any down all the structures of liberty in the short headlines in the paper, let’s new rights, it just guarantees you have this country because we are so fright­ be clear about the choice the bill a chance to ask for your basic freedom. ened? makes. Let’s be absolutely clear about If we pass this bill today, that will be It brings to mind that famous pas­ what it says to lawful permanent resi­ gone for the 12 million lawful, perma­ sage in ‘‘A Man for All Seasons.’’ dents of the United States. Then let’s nent residents who live and work Thomas More is talking to his protege, decide if it is the right message to send among us, to say nothing of the mil­ William Roper, and says something to them and if it is really the face of lions of other legal immigrants and the effect that England is planted America that we want to show. visitors who we welcome to our shores thick like a forest with laws. He said, Take an example. Imagine you are a each year. That will be gone for an­ Would you cut down those laws to get law-abiding, lawful, permanent resi­ other estimated 11 million immigrants after the devil? And Roper said, of dent, and in your spare time you do the Senate has been working to bring course I would cut down all the laws in charitable fundraising for inter­ out of the shadows with comprehensive England to get the devil. And then national relief agencies to lend a help­ immigration reform. More said, Oh, and when the last law ing hand in disasters. You send money The bill before the Senate would not was down and the devil turned on you, abroad to those in need. You are selec­ merely suspend the great writ, the what will protect you?

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.012 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10357 This legislation is cutting down laws to stop the Government from over­ There being no objection, the mate­ that protect all 100 of us, and now al­ reaching and lawlessness. rial was ordered to be printed in the most 300 million Americans. It is amaz­ This is so wrong. It grieves me, after RECORD, as follows: ing the Senate would be talking about three decades in this Senate, to stand SEPTEMBER 27, 2006. doing something such as this, espe­ here knowing we are thinking of doing To United States Senators and Members of Con­ cially after the example of Guanta­ this. It is so wrong. It is unconstitu­ gress. namo. We can pick up people inten­ tional. It is un-American. It is designed DEAR SENATORS AND REPRESENTATIVES: We, tionally or by mistake and hold them to ensure the Bush-Cheney administra­ the undersigned law deans and professors, write in our individual capacity to express forever. tion will never again be embarrassed our deep concern about two bills that are How many speeches have I heard in by a U.S. Supreme Court decision re­ rapidly moving through Congress. These my 32 years in the Senate during the viewing its unlawful abuses of power. bills, the Military Commissions Act and the cold war and after, criticizing totali­ The Supreme Court said, you abused National Security Surveillance Act, would tarian governments that do things your power. And they said, we will fix make the indefinite detention of those la­ such as that? And we can stand here that. We have a rubberstamp Congress beled enemy combatants and the executive’s proudly and say it would never happen that will set that aside and give us program of domestic surveillance effectively in America; this would never happen in power that nobody—no king or anyone unreviewable by any independent judge sit­ America because we have rights, we ting in public session. While different in else setting foot in this land—had ever character, both bills unwisely contract the have habeas corpus, and people are pro­ thought of having. jurisdiction of courts and deprive them of tected. In fact, the irony is this conservative the ability to decide critical issues that I am not here speculating about what Supreme Court—seven out of nine must be subject to judicial review in any free the bill says. This is not a critic’s char­ members are Republicans—has been and democratic society. acterization of the bill. It is what the the only check on the Bush-Cheney ad­ Although the Military Commissions Act of bill plainly says, on its face. It is what ministration because Congress has not 2006 (S. 3929/S. 3930) was drafted to improve and codify military commission procedures the Bush-Cheney administration is de­ had the courage to do that. Congress manding. It is what any Member who following the Supreme Court’s June 2006 de­ has not had the courage to uphold its cision in Hamdan v. Rumsfeld, it summarily votes against the Specter-Leahy own oath of office. eliminates the right of habeas corpus for amendment and for the bill today is With this bill, the Congress will have those detained by the U.S. government who going to be endorsing. completed the job of eviscerating its have been or may be deemed to be enemy The habeas stripping provisions in role as a check and balance on the ad­ combatants: Detainees will have no ability the bill go far beyond what Congress ministration. The Senate has turned to challenge the conditions of their deten­ tion in court unless and until the adminis­ did in the Detainee Treatment Act in its back on the Warner-Levin bill, a bi­ three respects. First, as the Supreme tration decides to try them before a military partisan bill reported by the Com­ commission. Those who are not tried will Court pointed out in Hamdan, the DTA mittee on Armed Services, so it can removed habeas jurisdiction only pro­ have no recourse to any independent court at jam through the Bush-Cheney bill. This any time. Enacting this provision into law spectively, for future cases. This new bill gives up the ghost. It is not a would be a grievous error. As several wit­ bill strips habeas jurisdiction retro­ check on the administration but a nesses testified before the Senate Judiciary actively, even for pending cases. This is voucher for future wrongdoing. Committee on Monday, Article I, Section 9 an extraordinary action that runs Abolishing habeas corpus for anyone of the Constitution specifies that ‘‘[t]he counter to long-held U.S. policies Privilege of the Writ of Habeas Corpus shall the Government thinks might have as­ not be suspended, unless when in Cases of disfavoring retroactive legislation. sisted enemies of the United States is Second, the DTA applied only to de­ Rebellion or Invasion the public Safety may unnecessary and morally wrong, a be­ tainees at Guantanamo. This new legis­ require it,’’ conditions that are plainly not trayal of the most basic values of free­ satisfied here. lation goes far beyond Guantanamo dom for which America stands. It Similarly, the National Security Surveil­ and strips the right to habeas of any makes a mockery of the Bush-Cheney lance Act of 2006 (S. 3876) would strip courts alien living in the United States if the administration’s lofty rhetoric about of jurisdiction over pending cases chal­ alien has been determined an enemy lenging the legality of the administration’s exporting freedom across the globe. We combatant, or even if he is awaiting a domestic spying program and would transfer can export freedom across the globe, determination—and that wait can take these cases to the court established by the but we will cut it out in our own coun­ years and years and years. Then, 20 Foreign Intelligence Surveillance Act of 1978 try. What hypocrisy. years later, you can say: We made a (FISA). The transfer of these cases to a se­ I read yesterday from former Sec­ cret court that issues secret decisions would mistake. Tough. It allows holding an retary of State Colin Powell’s letter in shield the administration’s electronic sur­ alien, any alien, forever, without the which he voiced concern about our veillance program from effective and trans­ right of habeas corpus, while the Gov­ moral authority in the war against ter­ parent judicial scrutiny. ernment makes up its mind as to These bills exhibit a profound and unwar­ rorism. The general and former head of whether he is an enemy combatant. ranted distrust of the judiciary. The historic And third, the impact of those provi­ the Joint Chiefs of Staff and former role of the courts is to ensure that the legis­ sions is extended by the new definition Secretary of State was right. lature promulgates and the executive faith­ of enemy combatant proposed in the Admiral John Hutson testified before fully executes the law of the land with due the Judiciary Committee that strip­ respect for the rights of even the most de­ current bill. The bill extends the defi­ spised. Any protections embodied in these nition to include persons who sup­ ping the courts of habeas corpus juris­ diction was inconsistent with our his­ bills would be rendered worthless unless the ported hostilities against the United courts can hold the executive accountable to States, even if they did not engage in tory and our tradition. The admiral enacted law. Moreover, the bills ignore a armed conflict against the United concluded: central teaching of the Supreme Court’s de­ States or its allies. That, again, is an We don’t need to do this. America is too cision in Hamdan v. Rumsfeld: the impor­ extraordinary extension of existing strong. tance of shared institutional powers and laws. When we do this, America will not be checks and balances in crafting lawful and a stronger nation. America will be a sustainable responses to the war on terror. If we vote today to abolish rights of Absent effective judicial review, there will access to the justice system to any weaker nation. We will be weaker be­ be no way to enforce any of the limitations alien detainee who is suspected—not cause we turned our back on our Con­ in either bill that Congress is currently seek­ determined, not even charged; these stitution. We turned our back on our ing to place upon the executive’s claimed people are not even charged, just sus­ rights. We turned our back on our his­ power. pected—of assisting terrorists, that tory. We recognize the need to prevent and pun­ will do by the back door what cannot I ask unanimous consent to have ish crimes of terrorism and to investigate and prosecute such crimes. But depriving our be done up front. That will remove the printed in the RECORD a letter from courts of jurisdiction to determine whether checks in our legal system that provide more than 60 law school deans and pro­ the executive has acted properly when it de­ against arbitrarily detaining people for fessors who state that the Congress tains individuals in this effort would endan­ life without charge. It will remove the would gravely disserve our global rep­ ger the rights of our own soldiers and nation­ mechanism the Constitution provides utation by doing this. als abroad, by limiting our ability to demand

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.014 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10358 CONGRESSIONAL RECORD — SENATE September 28, 2006 that they be provided the protections that Stuart L. Deutsch, Dean and Professor of Frank H. Wu, Dean, Wayne State Univer­ we deny to others. Eliminating effective ju­ Law, Rutgers School of Law-Newark. sity Law School. dicial review of executive acts as significant Stephen Dycus, Professor, Vermont Law David Yellen, Dean and Professor, Loyola as detention and domestic surveillance can­ School. University Chicago School of Law. not be squared with the principles of trans­ Allen K. Easley, President and Dean, Wil­ Mr. LEAHY. Kenneth Starr, the liam Mitchell College of Law. parency and rule of law on which our con­ former independent counsel and Solic­ stitutional democracy rests. Christopher Edley, Jr., Dean and Professor, The Congress would gravely disserve our Boalt Hall School of Law, UC Berkeley. itor General for the first President global reputation as a law-abiding country Cynthia L. Fountaine, Interim Dean and Bush, wrote that the Constitution’s by enacting bills that seek to combat ter­ Professor of Law, Texas Wesleyan University conditions for suspending habeas cor­ rorism by stripping judicial review. We re­ School of Law. pus have not been met and that doing spectfully urge you to amend the judicial re­ Stephen J. Friedman, Dean, Pace Univer­ it would be problematic. view provisions of the Military Commissions sity School of Law. The post-9/11 world requires us to Act and the National Security Surveillance Dean Bryant G. Garth, Southwestern Law School, Los Angeles, California. make adjustments. In the original Act to ensure that the rights granted by PATRIOT Act five years ago, we made those bills will be enforceable and reviewable Charles W. Goldner, Jr., Dean and Pro­ in a court of law. fessor of Law, William H. Bowen School of adjustments to accommodate the needs Sincerely, Law, University of Arkansas at Little Rock. of the Executive, and more recently, James J. Alfini, President and Dean, South Mark C. Gordon, Dean and Professor of we sought to fine-tune those adjust­ Texas College of Law. Law, University of Detroit Mercy School of ments. I think some of those adjust­ Michelle J. Anderson, Dean, CUNY School Law. ments sacrificed civil liberties unnec­ Thomas F. Guernsey, President and Dean, of Law. essarily, but I also believe that many Katharine T. Bartlett, Dean and A. Ken­ Albany Law School. Don Guter, Dean, Duquesne University provisions in the PATRIOT Act were neth Pye Professor of Law, Duke Law appropriate. I wrote many of the provi­ School. School of Law. Molly K. Beutz, Yale Law School. Jack A. Guttenberg Dean and Professor of sions of the PATRIOT Act, and I voted Harold Hongju Koh, Dean and Gerard C. & Law. for it. LeRoy Pernell, Dean and Professor, North­ Bernice Latrobe Smith Professor of Inter­ This bill is of an entirely different ern Illinois University College of Law. national Law, Yale Law School. Rex R. Perschbacher, Dean and Professor nature. The PATRIOT Act took a cau­ Harold J. Krent, Dean & Professor, Chi­ of Law, University of California at Davis tious approach to civil liberties and cago-Kent College of Law. School of Law. while it may have gone too far in some Lydia Pallas Loren, Interim Dean and Pro­ Raymond C. Pierce, Dean and Professor of areas, this bill goes so much further fessor of Law, Lewis & Clark Law School. Law, North Carolina Central University Dennis Lynch, Dean, University of Miami than that. It takes an entirely School of Law. School of Law. dismissive and cavalier approach to Peter Pitegoff Dean and Professor of Law, John Charles Boger, Dean, School of Law, basic human rights and to our Con­ University of Maine School of Law. University of North Carolina at Chapel Hill. Efre´n Rivera Ramos, Dean, School of Law, stitution. Jeffrey S. Brand, Dean, Professor and University of Puerto Rico. In the aftermath of 9/11, Congress Chairman, Center for Law & Global Justice, William J. Rich, Interim Dean and Pro­ provided in section 412 of the PATRIOT University of San Francisco Law School. fessor of Law, Washburn University School Act that an alien may be held without Katherine S. Broderick, Dean and Pro­ of Law. charge if, and only if, the Attorney fessor, University of the District of Colum­ James V. Rowan, Associate Dean, North­ bia, David A. Clarke School of Law. General certifies that he is a terrorist eastern University School of Law, Boston, or that he is engaged in activity that Brian Bromberger, Dean and Professor, Massachusetts. Loyola Law School. Edward Rubin, Dean and John Wade-Kent endangers the national security. He Robert Butkin, Dean and Professor of Law, Syverud Professor of Law, Vanderbilt Uni­ may be held for seven days, after which University of Tulsa College of Law. versity. he must be placed in removal pro­ Evan Caminker, Dean and Professor of David Rudenstine, Dean, Cardozo School of ceedings, charged with a crime, or re­ Law, University of Michigan Law School. Law. leased. There is judicial review through Judge John L. Carroll, Dean and Ethel P. Lawrence G. Sager, Dean, University of habeas corpus proceedings, with appeal Malugen Professor of Law, Cumberland Texas School of Law, Alice Jane Drysdale School of Law, Samford University. to the D.C. Circuit. Sheffield Regents Chair in Law, Capital Uni­ Compare that to section 7 of the cur­ Neil H. Cogan, Vice President and Dean, versity Law School. Whittier Law School. Joseph D. Harbaugh, Dean and Professor, rent bill. The current bill does not pro­ Mary Crossley, Dean and Professor of Law, Shepard Broad Law Center, Nova South­ vide for judicial review. It would pre­ University of Pittsburgh School of Law, eastern University. clude it. It does not require a certifi­ Mary C. Daly, Dean & John V. Brennan Lawrence K. Hellman, Dean and Professor cation by the Attorney General that Professor Law and Ethics, St. John’s Univer­ of Law, Oklahoma City University School of sity School of Law. the alien is a terrorist. It would apply Law. if the alien was ‘‘awaiting’’ a Govern­ Richard A. Matasar, President and Dean, Patrick E. Hobbs, Dean and Professor of New York Law School. Law, Seton Hall University School of Law. ment determination whether the alien Philip J. McConnaughay, Dean and Donald Jose´ Roberto Jua´ rez, Jr., Dean and Pro­ is an ‘‘enemy combatant.’’ And it is J. Farage Professor of Law, The Pennsyl­ fessor of Law, University of Denver Sturm not limited to seven days. It would en­ vania State University, Dickinson School of College of Law. able the Government to detain an alien Law. W. H. Knight, Jr., Dean and Professor, Uni­ for life without any recourse whatso­ Richard J. Morgan, Dean William S. Boyd versity of Washington School of Law, Se­ ever to justice. School of Law, University of Nevada, Las attle, Washington. What has changed in the past 5 years Vegas. Brad Saxton, Dean & Professor of Law, Fred L. Morrison, Popham Haik Quinnipiac University School of Law. that justifies not merely suspending Schnobrich/Lindquist & Vennum Professor of Stewart J. Schwab, the Allan R. Tessler but abolishing the writ of habeas cor­ Law and Interim Co-Dean, University of Dean & Professor of Law, Cornell Law pus for a broad category of people who Minnesota Law School, School. have not been found guilty, who have Kenneth M. Murchison, James E. & Betty Geoffrey B. Shields, President and Dean not even been charged with any crime? M. Phillips Professor of Law, Louisiana and Professor of Law, Vermont Law School. What has turned us? What has made us State University, Paul M. Hebert Law Cen­ Aviam Soifer, Dean and Professor, William so frightened as a nation that now the ter. S. Richardson School of Law, University of Cynthia Nance, Dean and Professor, Uni­ Hawai’i. United States will say, we can pick up versity of Arkansas, School of Law. Emily A. Spieler, Dean, Edwin Hadley Pro­ somebody on suspicion, hold them for­ Nell Jessup Newton, William B. Lockhart fessor of Law, Northeastern University ever, they have no right to even ask Professor of Law, Chancellor and Dean, Uni­ School of Law. why they are being held, and besides versity of California at Hastings College of Kurt A. Strasser, Interim Dean and Phillip that, we will not even charge them Law, I. Blumberg Professor, University of Con­ with anything, we will just hold them? Maureen A. O’Rourke, Dean and Professor necticut Law School. What has changed in the last 5 years? of Law, Michaels Faculty Research Scholar, Leonard P. Strickman, Dean, Florida Boston University School of Law. International University, College of Law. Is our Government is so weak or so Margaret L. Paris, Dean, Elmer Sahlstrom Steven L. Willborn, Dean & Schmoker Pro­ inept and our people so terrified that Senior Fellow, University of Oregon School fessor of Law, University of Nebraska Col­ we have to do what no bomb or attack of Law. lege of Law. could ever do, and that is take away

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.012 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10359 the very freedoms that define America? duty to vote for this amendment— those who had ‘‘vague concerns,’’ not We fought two world wars, we fought a the Specter-Leahy amendment—and too many years ago, this Congress civil war, we fought a revolutionary against this irresponsible and fla­ passed legislation that said that CIA- war, all these wars to protect those grantly unconstitutional bill. That is gathered information could not be rights. what I will do. shared with the FBI. We passed a law And now, think of those people who The Senator from Vermont answers in this Congress to appease the left in have given their lives, who fought so to the Constitution and to his con­ America, the critics of our efforts hard to protect those rights. What do science. I do not answer to political against communism, primarily. And we we do? We sit here, privileged people of pressure. have put a wall between the CIA and the Senate, and we turn our backs on Madam President, I reserve the re­ FBI. that. We throw away those rights. mainder of my time. So that was politically good. Every­ Why would we allow the terrorists to The PRESIDING OFFICER. Who body must have been happy about that. win by doing to ourselves what they yields time? I was not in the Senate then. Then could never do and abandoning the The Senator from Virginia. they complained that the CIA was out principles for which so many Ameri­ Mr. WARNER. Madam President, we talking with people who had criminal cans today and throughout our history have colleagues on this side who are records who may have been involved in have fought and sacrificed? What has ready to proceed. Now, there is a great violence, and this was somehow mak­ happened that the Senate is willing to deal of time left on the other side, but ing our CIA complicitous in dealing turn America from a bastion of free­ in order of preference, I say to Senator with dangerous people, and we banned dom into a cauldron of suspicion, ruled SESSIONS, if you are ready to proceed. that. We passed a statute that elimi­ by a government of unchecked power? Mr. SESSIONS. Madam President, I nated that. And everybody felt real Under the Constitution, a suspension will be pleased to do so. good that we had done something spe­ of the writ may only be justified during Mr. WARNER. Madam President, cial. an invasion or a rebellion, when the might I inquire of the amount of time The PRESIDING OFFICER. The Sen­ public safety demands it. Six weeks under my control for those in opposi­ ator’s time has expired. after the deadliest attack on American tion to the amendment? Mr. SESSIONS. Madam President, I soil in our history, the Congress that The PRESIDING OFFICER. Senator ask unanimous consent for an addi­ passed the PATRIOT Act rightly con­ WARNER controls 11 minutes. tional minute. cluded that a suspension of the writ Mr. WARNER. Eleven minutes. The PRESIDING OFFICER. Without would not be justified. The PRESIDING OFFICER. Senator objection, it is so ordered. But now, 6 weeks before a midterm SPECTER controls 20 minutes. Mr. SESSIONS. After 9/11, we real­ election, as the fundraising letters are Mr. SESSIONS. Madam President, if ized both of those were errors of the running around, the Bush-Cheney ad­ the chairman would approve, I would heart perhaps, but of the brain. And so ministration and its supplicants in ask for 3 minutes. what happened? We reversed both of Congress deem a complete abolition of Mr. WARNER. Yes. And following them. We reversed them both. And we the writ the highest priority, a priority that, Senator CORNYN for such time as need to be sure that the legislation we so urgent that we are allowed no time he may need. are dealing with today does not create to properly review, debate, and amend The PRESIDING OFFICER. The Sen­ a long-term battle with the courts over a bill we first saw in its current bill ator from Alabama. everybody who is being detained. That less than 72 hours ago. There must be a Mr. SESSIONS. Madam President, is a function of the military and the lot of fundraising letters going out. habeas corpus—the right to have your executive branch to conduct a war. Notwithstanding the harm the ad­ complaints heard while in custody—is Madam President, I yield the floor. ministration has done to national secu­ a part of our Constitution. But we have Mr. FEINGOLD addressed the Chair. rity—first by missing their chance to to remember habeas corpus did not The PRESIDING OFFICER. The Sen­ stop September 11 and then with their mean everything in the whole world ator from Wisconsin. mismanaged misadventures in Iraq— when it was adopted. So what did ‘‘ha­ Mr. FEINGOLD. Madam President, I there is no new national security cri­ beas’’ mean? What does it mean today understand I have 6 minutes on the bill sis. Apparently, there is only a Repub­ and at the time it was adopted? It was in general. lican political crisis. And that, as we never, ever, ever, ever intended or The PRESIDING OFFICER. The Sen­ know, is why this un-American, uncon­ imagined that during the War of 1812, if ator is correct. stitutional legislation is before us British soldiers were captured burning Mr. FEINGOLD. Madam President, I today. the Capitol of the United States—as oppose the Military Commissions Act. We have a profoundly important and they did—that they would have been Let me be clear: I welcomed efforts dangerous choice to make today. The given habeas corpus rights. It was to bring terrorists to justice. Actually, danger is not that we adopt a pre-9/11 never thought to be. Habeas corpus was it is about time. This administration mentality. We adopted a post-9/11 men­ applied to citizens, really, at that time. has too long been distracted by the war tality in the PATRIOT Act when we I believe that is so plain as to be with­ in Iraq from the fight against al-Qaida. declined to suspend the writ, and we out dispute. We need a renewed focus on the ter­ can do so again today. So to say: Habeas corpus, what does rorist networks that present the great­ The danger, as Senator FEINGOLD has it mean? What did those words mean est threat to this country. stated in a different context, is that we when the people ratified it? They did We would not be where we are today, adopt a pre-1776 mentality, one that not intend to provide it to those who 5 years after September 11, with not a dismisses the Constitution on which were attacking the United States of single Guantanamo Bay detainee hav­ our American freedoms are founded. America. We provide special protec­ ing been brought to trial, if the Presi­ Actually, it is worse than that. Ha­ tions for prisoners of war who lawfully dent had come to Congress in the first beas corpus was the most basic protec­ conduct a war that might be against place, rather than unilaterally creating tion of freedom that Englishmen se­ the United States. We give them great military commissions that did not cured from their King in the Magna protections. But unlawful combatants, comply with the law. The Hamdan de­ Carta. The mentality adopted by this the kind we are dealing with today, cision was a historic rebuke to an ad­ bill, in abolishing habeas corpus for a have never been given the full protec­ ministration that has acted for years broad swath of people, is not a pre-9/11 tions of the Geneva Conventions. as if it is above the law. mentality, it is a pre-1215—that is the Second, my time is limited, and I I have hoped that we would take this year, 1215—mentality, a mentality we have been so impressed with the debate opportunity to pass legislation that al­ did away with in the Magna Carta and that has gone on with Senators KYL lows us to proceed in accordance with our own Constitution. and CORNYN and GRAHAM, and I asso­ our laws and our values. That is what Every one of us has sworn an oath to ciate myself generally with those re­ separates America from our enemies. uphold the Constitution. In order to marks, but I want to recall that in a These trials, conducted appropriately, uphold that oath, I believe we have a spate of an effort to appease critics and have the potential to demonstrate to

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.016 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10360 CONGRESSIONAL RECORD — SENATE September 28, 2006 the world that our democratic con­ There is another reason we must not longstanding vital part of our Amer­ stitutional system of government is deprive detainees of habeas corpus, and ican tradition, and is enshrined in the our greatest strength in fighting those that is the fact that the American sys­ U.S. Constitution, article 1, section 9, who attack us. tem of government is supposed to set where it states: That is why I am saddened I must op­ an example for the world as a beacon of The Privilege of the Writ of Habeas Corpus pose this legislation because the trials democracy. shall not be suspended, unless when in Cases conducted under this legislation may A group of retired diplomats sent a of Rebellion or Invasion the public Safety send a very different signal to the very moving letter to explain their may require it. world, one that I fear will put our concerns about this habeas-stripping The Founders recognized the impor­ troops and personnel in jeopardy both provision. Here is what they said: tance of this right. Alexander Ham­ now and in future conflicts. To take To proclaim democratic government to the ilton in Federalist Paper No. 84 ex­ just a few examples, this legislation rest of the world as the supreme form of gov­ plained the importance of habeas cor­ would permit an individual to be con­ ernment at the very moment we eliminate pus, and its centrality to the American victed on the basis of coerced testi­ the most important avenue of relief from ar­ system of government and the concept bitrary governmental detention will not mony and hearsay, would not allow full serve our interests in the larger world. of personal liberty. He quoted William Blackstone, who warned against the judicial review of the conviction, and Many dedicated patriotic Americans ‘‘dangerous engine of arbitrary govern­ yet would allow someone convicted share these grave reservations about ment’’ that could result from unchal­ under these rules to be put to death. this particular provision of this bill. That is just simply unacceptable. Unfortunately, the suspension of the lengeable confinement, and the ‘‘bul­ Not only that, this legislation would Great Writ is not the only problem wark’’ of habeas corpus against this deny detainees at Guantanamo Bay with this legislation. Unfortunately, I abuse of government power. As a group of retired judges wrote to and elsewhere—people who have been do not have time to discuss them all. held for years but have not been tried But the bill also appears to permit Congress, habeas corpus ‘‘safeguards or even charged with any crime—the individuals to be convicted, and even the most hallowed judicial role in our ability to challenge their detention in sentenced to death, on the basis of co­ constitutional democracy—ensuring court. The legislation before us is bet­ erced testimony. According to the leg­ that no man is imprisoned unlawfully.’’ ter than that originally proposed by islation, statements obtained through This bill would fundamentally alter the President, which would have large­ cruel, inhuman, or degrading treat­ that historical equation. Faced with an ly codified the procedures the Supreme ment, as long as it was obtained prior administration that has detained hun­ Court has already rejected. And that is to December 2005, when the McCain dreds of people without trial for years thanks to the efforts of some of my Re­ amendment became law, would appar­ now, it would eliminate the right of ha­ publican colleagues, for whom I have ently be admissible in many instances beas corpus for anyone the executive great respect and admiration. But this in these military commissions. branch labels an alien ‘‘enemy combat­ bill remains deeply flawed, and I can­ Now, it is true that the bill would re­ ant.’’ not support it. quire the commission to find these That’s right. It would eliminate the One of the most disturbing provisions statements have sufficient and pro­ right of habeas corpus for any alien de­ of this bill eliminates the right of ha­ bative value. But why would we go tained by the United States, anywhere beas corpus for those detained as down this road of trying to convict in the world, and designated by the enemy combatants. I support an people based on statements obtained government as an enemy combatant. amendment by Senator SPECTER to through cruel, inhuman, or degrading And it would do so in the face of years strike that provision from the bill. interrogation techniques? Either we of abuses of power that—thus far—have Habeas corpus is a fundamental rec­ are a nation that stands against this been reined in primarily through ha­ ognition that in America the Govern­ type of cruelty and for the rule of law beas corpus challenges in our Federal ment does not have the power to detain or we are not. We cannot have it both courts. people indefinitely and arbitrarily. And ways. Let me be clear about what it does. in America, the courts must have the In closing, let me do something I do Under this legislation, some individ­ power to review the legality of execu­ not do very often, and that is quote my uals, at the designation of the execu­ tive detention decisions. former colleague, John Ashcroft. Ac­ tive branch alone, could be picked up, This bill would fundamentally alter cording to the New York Times, in a even in the United States, and held in­ that historical equation. Faced with an private meeting of high-level officials definitely without trial and without executive branch that has detained in 2003 about the military commission any access whatsoever to the courts. hundreds of people without trial for structure, then-Attorney General They would not be able to call upon the years now, it would eliminate the right Ashcroft reportedly said: laws of our great Nation to challenge of habeas corpus. Timothy McVeigh was one of the worst their detention because they would Under this legislation, some individ­ killers in U.S. history. But at least we had have been put outside the reach of the uals, at the designation of the execu­ fair procedures for him. law. tive branch alone, could be picked up, How sad that this Congress would That is unacceptable, and it almost even in the United States, and held in­ seek to pass legislation about which surely violates our Constitution. The definitely without trial and without the same cannot be said. rule of law is something deeper and any access whatsoever to the courts. Mr. President, I strongly support more profound than the collection of They would not be able to call upon the Senator SPECTER’s amendment to laws that we have on paper. It is a prin­ laws of our great Nation to challenge strike the habeas provision from this ciple that undergirds our entire soci­ their detention because they would bill. ety, and that has been central to our have been put outside the reach of the At its most fundamental, the writ of nation since its very founding. As law. habeas corpus protects against abuse of Thomas Paine explained at the time of Some have suggested that terrorists government power. It ensures that in­ our country’s birth in 1776, the rule of who take up arms against this country dividuals detained by the government law is that principle, that paramount should not be allowed to challenge without trial have a method to chal­ commitment, ‘‘that in America, the their detention in court. But that argu­ lenge their detention. Habeas corpus is law is king. . . . and there ought to be ment is circular. The writ of habeas al­ a fundamental recognition that in no other.’’ The rule of law tells us that lows those who might be mistakenly America, the government does not no man is above the law—and as an ex­ detained to challenge their detention have the power to detain people indefi­ tension of that principle—that no exec­ in court before a neutral decision- nitely and arbitrarily. And that in utive will be able to act unchecked by maker. The alternative is to allow peo­ America, the courts must have the our legal system. ple to be detained indefinitely with no power to review the legality of execu­ Yet by stripping the habeas corpus ability to argue that they are not, in tive detention decisions. rights of any individual who the execu­ fact—that they are not, in fact—enemy It goes without saying that this is tive branch decides to designate as an combatants. not a new concept. Habeas corpus is a enemy combatant, that is precisely

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.024 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10361 where we end up—with an executive concerns about this habeas-stripping there are many myths about this legis­ branch subject to no external check provision. Here is what they said: lation. We need to get to the facts and whatsoever. With an executive branch To proclaim democratic government to the get to the truth so people can under­ that is king. rest of the world as the supreme form of gov­ stand what the choices are. Now, it may well be that this provi­ ernment at the very moment we eliminate Our distinguished colleague from sion will be found unconstitutional as the most important avenue of relief from ar­ Wisconsin, in my view, also per­ an illegal suspension of the writ of ha­ bitrary governmental detention will not petrated another myth by saying this beas corpus. But that determination serve our interests in the larger world. war is all about Iraq, when, in fact, the will take years of protracted litigation. They went on to explain further: new leader of al-Qaida in Iraq, suc­ And for what? The President has been The perception of hypocrisy on our part— ceeding al-Zarqawi, just reported in an urging Congress to pass legislation so a sense that we demand of others a behav­ Associated Press story that 4,000 al- that Khalid Sheikh Mohammed, the al­ ioral ethic we ourselves may advocate but Qaida foreign fighters have been killed fail to observe—is an acid which can over­ in Iraq due to the war effort there. But leged mastermind of 9–11, and other whelm our diplomacy, no matter how well ‘‘high value’’ al-Qaida detainees can be intended and generous. this is a global war, and it requires a uniformed treatment of the terrorists tried. This bill is supposed to create a That is a direct quote. in a way that reflects our values but framework for prosecuting unlawful Let’s not go down this road. Let’s re­ also the fact that we are at war. enemy combatants for war crimes that move this provision from the bill. I think our colleagues need to be re­ the Supreme Court can accept fol­ As is already clear, I’m not the only minded of legislation which we passed lowing the decision this summer in the one who has serious concerns about in December of 2005, known as the De­ Hamdan case. There is absolutely no this provision. There is bipartisan sup­ tainee Treatment Act. When people reason why we need to restrict judicial port for this amendment. And Congress come here and suggest that we are review of the detention of individuals has received numerous letters object­ stripping all legal rights from terror­ who have not been charged with any ing to the habeas provision, including ists who are detained at Guantanamo crime. from Kenneth Starr; a group of former Bay, they are simply flying in the face That raises another point. People diplomats; two different groups of law of the Detainee Treatment Act that we who are actually subject to trial by professors; a group of retired judges; passed in December 2005, which pro­ military commission will at least be and a group of retired generals. Many, vides not only a review through a com­ able to argue their innocence before many dedicated patriotic Americans batant status review tribunal, with some tribunal, even if I have grave con­ have grave reservations about this par­ elaborate procedures to make sure cerns about how those military com­ ticular provision of the bill. missions would proceed under this leg­ They have reservations not because there is a fair hearing, but then a right islation. But people who have not been they sympathize with suspected terror­ to appeal to the District of Columbia charged with any crime will have no ists. Not because they are soft on na­ Circuit Court of Appeals, not only to guaranteed venue in which to proclaim tional security. Not because they don’t make sure that the right standards and prove their innocence. As three re­ understand the threat we face. No. were applied—that is, whether the tired generals and admirals explained They, and we in the Senate who sup­ military applied the right rules to the in a letter to Congress: port this amendment, are concerned facts—but also to attack the constitu­ The effect would be to give greater protec­ about this provision because we care tionality of the system should they tions to the likes of Khalid Sheikh Moham­ about the Constitution, because we choose to do so. So those who claim we med than to the vast majority of the Guan­ care about the image that America pre­ are simply stripping habeas corpus tanamo detainees. sents to the world as we fight the ter­ rights are simply flying in the face of How does this make any sense? Why rorists. Because we know that the writ the facts as laid out in the Detainee would we turn our back on hundreds of of habeas corpus provides one of the Treatment Act. Now, the question may be: Are we years of history and our Nation’s com­ most significant protections of human going to provide what the law requires? mitment to liberty? freedom against arbitrary government We have already, in the Detainee Are we going to provide additional action ever created. If we sacrifice it Treatment Act, said that no new ha­ rights and privileges that some would here, we will head down a road that beas challenges can be brought by de­ like to confer upon these high-value history will judge harshly and our de­ tainees at Guantanamo Bay. The Su­ detainees located at Guantanamo Bay? scendants will regret. But the fact is, to do what the pro­ preme Court found in Hamdan v. Rums­ Let me close with something that ponents of this amendment propose feld that the Detainee Treatment Act this group of retired judges said. did not apply to Hamdan’s pending ha­ would be to divert our soldiers from For two hundred years, the federal judici­ the battlefield and to tie their hands in beas petition, and went forward with ary has maintained Chief Justice Marshall’s considering his argument that the solemn admonition that ours is a govern­ ways with frivolous litigation and ap­ President’s military commission struc­ ment of laws, and not of men. The proposed peals. And the last thing that I would ture was illegal. And I would think legislation imperils this proud history by think any of us would want to do would that we should all be pleased that it abandoning the Great Writ. . . . be to provide an easy means for terror­ did so, because otherwise we would Mr. President, we must not imperil ists to sue U.S. troops in U.S. courts, have had to wait for several more years our proud history. We must not aban­ particularly when it is not required by for Hamdan’s trial to be completed be­ don the Great Writ. We must not jeop­ the Constitution, laws of the United fore he would have had any chance to ardize our Nation’s proud traditions States, not mandated by the Supreme challenge the President’s military and principles by suspending the writ Court, and we have provided an ade­ commission system in court. The Su­ of habeas corpus, and permitting our quate substitute remedy, which I be­ preme Court’s decision striking down government to pick people up off the lieve is entirely consistent with the those commissions would have oc­ street, even in U.S. cities, and detain U.S. Supreme Court’s decisions in this curred several years later. And we them indefinitely without court re­ area. would be right back where we are now, view. That is not what America is We have provided an avenue or a but with several more years of delay. about. process by which these detainees can There is another reason why we must Madam President, I yield the floor. have their rights protected, such rights not deprive detainees of habeas corpus, The PRESIDING OFFICER. The Sen­ as they have being unlawful combat­ and that is the fact that the American ator from Texas. ants attacking innocent civilians. system of government is supposed to Mr. CORNYN. Madam President, I America is conferring rights upon them set an example for the world, as a bea­ ask unanimous consent for 3 minutes that we do not have to confer, but we con of democracy. And this provision from our time. are conferring them because we believe will only serve to harm others’ percep­ The PRESIDING OFFICER. Without there ought to be a fair process and we tion of our system of government. objection, it is so ordered. ought to be consistent with our Con­ A group of retired diplomats sent a Mr. CORNYN. First of all, Madam stitution and with the decisions of the very moving letter explaining their President, I would like to point out U.S. Supreme Court.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.025 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10362 CONGRESSIONAL RECORD — SENATE September 28, 2006 The last thing I would think any of It’s not new, really. Partisans have I’m pleased that with the current us would want to do would be to tie the slowed our efforts to fight terror every Military Commissions legislation mov­ hands of our soldiers to permit terror­ step of the way. ing forward, we have clarified our ists to sue U.S. troops in Federal court Many on the other side voted against strict adherence to standards that for­ at will. the PATRIOT Act. bid torture in any way, shape or form The PRESIDING OFFICER (Mr. EN­ Many blocked reauthorization of the and we are allowing our CIA to move SIGN). The Senator’s time has expired. PATRIOT Act for months. The Demo­ forward with a humane interrogation The Senator from Missouri is recog­ crat Leader actually boasted, ‘‘We program whose techniques will not be nized. killed the PATRIOT Act.’’ published in the Federal Register, or Mr. BOND. Mr. President, I ask unan­ Thank Heavens that wasn’t true. even worse, in another newspaper dis­ imous consent for 10 minutes from Sen­ Now, I know that they all love our closure. ator WARNER’s side on the bill. country. They are not unpatriotic. Critics support trial procedures that The PRESIDING OFFICER. Without They just don’t understand the ter­ would give terrorists secret intel­ objection, it is so ordered. rorist enemies we face. ligence information. Mr. BOND. Mr. President, I appre­ These critics are not willing to do Why on Earth would we hand over ciate the opportunity to talk generally what is necessary to protect fully our classified evidence and information to about the bill. I have already spoken families from terrorists. terrorists so that information could be about the importance of not affording You don’t have to take my word for used against us in the future? habeas corpus to the unlawful combat­ it, just look at their record over the Remember the 1993 World Trade Cen­ ants when they have more protections last 5 years. Whether or not you would ter bombing? The prosecution of terror than international law requires, or say terror war critics have a weak suspects there involved giving over 200 than any other country provides. record on terror, they have certainly names of terror suspects to the attor­ Speaking on the bill, for the last 5 tried to block, slow down, and take neys representing the terrorists. They years, our most important job has been away our terror fighting tools. to protect our families from another Some congressional Democrats voted gave them that in a trial, and some terrorist attack. to cut and run from Iraq. Nothing months later, after an investigation of Our children, our mothers, fathers, would embolden terrorists more than the bombings in Africa, we captured grandparents, and grandchildren—none to see the U.S. turn tail and run home. the al-Qaida documents which had all of them deserved to die in the 9/11 at­ Osama bin Laden cited America quit­ of that information that had been tacks; none deserve to die in another ting Somalia, and failing to respond to given to the attorneys. So once you terrorist attack. That is why we are the U.S.S. Cole bombing, as signs of give it to a detainee or the detainee’s doing everything we can to protect our U.S. weakness and vulnerability. We attorney, you can count on it getting families by stopping terrorists, cap­ all know what happened later. out. turing them, learning their secrets, Democrats in the Senate have One other thing is important. Some foiling their plots, and bringing the blocked the appointment of senior would propose exposing our terror terrorists to justice. anti-terror officials. The 9/11 commis­ fighters to legal liability. They oppose Through our hard work, there has sion report recommended better co­ giving our terror fighters certainty and not been another direct attack on U.S. ordination between law enforcement clarity in how to go about their jobs. soil since 9/11. We have worked hard to and intelligence officials. Only last They leave them vulnerable to prosecu­ prevent and stop attacks in the last 5 week did Democrats stop blocking the tion and handcuff their efforts and years and must continue to prevent fu­ appointment of the senior Justice De­ leave the rest of us vulnerable to terror ture attacks. We dramatically boosted partment official for National Secu­ plots that went undiscovered. airport and airline security. We hired rity. Right now, these people are worried new airport screeners, implemented Partisans readily spread classified in­ and they are buying insurance. People new checks, and even put armed agents formation leaked to the public or the who are trying to carry out the very on flights where necessary. media. They call news conferences to important intelligence missions of the We added thousands of new FBI highlight cherry-picked intelligence in­ United States, if they ask any ques­ agents, thousands of new intelligence formation, or quote newspaper articles tions, or if they don’t give them four officers, and increased their budgets by betraying our Nation’s secret terror square meals a day and keep them in a billions to provide new armies against fighting programs. Don’t they think comfortable motel, they are afraid terrorism. this encourages the enemy or demor­ they are going to get sued. We need to We passed the PATRIOT Act to pro­ alizes our troops or allies? give protection to the people who are vide the tools needed to discover ter­ Some propose to handcuff our ability operating within the law as we are lay­ rorist plots and stop them. We reorga­ to discover terrorist plots. They pro­ ing it out to make sure they don’t nized our intelligence agencies to bring pose to make it hard to listen in on a cross over the line. a single focus and purpose against ter­ potential terrorist calling from a for­ The problem we have is that if the rorism. eign country, or to a foreign country to critics take away the valuable tools we We tore down the walls between law discuss terror plans. have in breaking apart terror plots, we enforcement and intelligence to get If al-Qaida calls in, we ought to be are going to be significantly less safe. terror planning and plot information to listening. That is authorized under the As the President said, the CIA interro­ authorities as quick as possible. Constitution. The Constitution clearly gation program has already succeeded All of this is going on as I speak, as gives the President the power to inter­ in breaking apart terror conspiracies we sleep at night, as our children go to cept phone calls under the foreign in­ and preventing several terror attacks. school, we are fighting the war on ter­ telligence exception in the amendment. Critics within the program are pre­ rorism. In my meetings with intelligence of­ venting us from punishing terrorists The President recently highlighted ficials both abroad and here at home I and gaining valuable information that some of the successes we have had be­ have heard repeatedly how the disclo­ could prevent future attacks. cause of our terror fighting tools and sure, not only of classified information, One thing I, along with the President efforts. He recounted how we have cap­ but also of our interrogation tech­ and my Republican colleagues, share tured terrorists, used new tools to niques, are extremely damaging. with the war critics is a strong opposi­ learn their secrets, captured additional Our personnel have encountered tion to torture. It is abhorrent, evil, terrorists, connected the dots of their enemy combatants trained to resist and has no place in the world. What I conspiracies, and foiled their terror at­ disclosed interrogation techniques oppose is how terror war critics would tack plans. thanks to leakers in our media. go soft on terror suspects, allowing But now some want to tie the hands If we lay out precisely the techniques them comforts they surely don’t de­ of our terror fighters, they want to that will be used and we print them in serve. take away the tools we use to fight ter­ the Federal Register, they will be in an Critics are being tough on targets. ror—handcuff us, hamper us—in our al-Qaida training manual within 48 Terrorists argue that we should treat fight to protect our families. hours. them like prisoners of war under the

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.029 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10363 Geneva Conventions. Article 72 of the These people flew airplanes into Mrs. FEINSTEIN. Mr. President, I Geneva Conventions on treatment of buildings for heaven’s sake, or should I strongly believe the true test of a na­ prisoners of war says POWs shall be al­ say for hell’s sake. tion comes when we face hard decisions lowed to receive parcels containing America must fight with honor. We and hard times. It is really not the foodstuffs. Is that what critics think must fight from the moral high ground. easy decisions that test our character the 9/11 Commission conspirators de­ But do not tell me we lack a moral and our commitment to fundamental serve? Cookie care packages? basis for our fight against terror. Show principles and values. It is when the Article 71 says POWs shall be allowed me someone who doubts America’s easy answer is not the right answer, to send and receive letters and cards. Is moral basis in this fight against terror but is politically expedient. that what opponents of the bill believe and I will show you someone who has We face one of those times right now. people who conspire to cut off our lost their own moral compass. The war against terror has challenged heads deserve—letters from home? The compass of America’s future our country to fight a nontraditional ‘‘Mail call Ramzi bin al-Shibh.’’ points to this bill. We live in an age enemy—one that is not part of any Article 60 requires us to grant all where we must fight terror. To win, we State or military. The enemy does not POWs monthly advances of pay. It even must fight tough in that fight against wear a uniform, it has no code of eth­ says how much: below sergeant, 8 Swiss terror. We must give our terror fight­ ics, and it relishes in the killing of in­ francs; officers, 50 Swiss francs; gen­ ers the tools they need and the protec­ nocents. It strikes in cowardly ways. erals, 75 Swiss francs. tions they require to protect our fami­ They have also challenged us as to Do the critics think Khalid Sheik lies from terror. whether we can continue during this Mohammed deserves 50 Swiss francs or We cannot fall into the traps our ter­ period in fighting this enemy to abide 75? ror war critics suggest: handcuffing our by the bedrock of our justice system, Critics of being tough on terrorists law enforcement and intelligence the Constitution. say that we should adhere to inter­ agents, blocking our terror fighting Before us on the floor of the Senate national standards of decency. Where leadership, releasing and spreading our is a bill to address how our country was the decency when international terror war secrets, giving terror sus­ will interpret the Geneva Conventions, troops withdrew without a fight from pects our terror fighting methods and and how we will treat those we appre­ Srebenica, Bosnia allowing the geno­ techniques, granting terrorists overly- hend and detain in this nontraditional, cide of its men and boys? comfortable protections, going soft on Where was the decency when the U.N. asymmetric war. terrorists who hold the secrets of their I truly believe that how we answer allowed Sudan, guilty of genocide in plots, their attacks. these challenges will not only test our Darfur, to serve on the Human Rights Our agents deserve better, our sol­ Commission, and allowed Cuba to help commitment to our Constitution, but diers deserve better, our families de­ it will also test our very foundation of monitor international human rights? serve better. This was neither moral nor decent. justice. It sends a message, also, to To start where I began, this is what other countries—a message that will Some say that the tough treatment all our efforts are about. Protecting we are debating will lead to bad treat­ ultimately dictate how our soldiers and our vulnerable families. Protecting our personnel are treated should they be ment of America’s soldiers in the fu­ children, protecting our mothers and ture. That is a close cousin to the argu­ captured by others. fathers, protecting grandparents and Earlier this month, a bipartisan ment that if we leave the terrorists grandchildren. None of the vulnerable alone they will stop attacking us, or group of Senators worked together to it protects deserved to die in the 9/11 develop a solution to these complex that America made them do it. attacks, and none deserve to die again Do we need a reminder of how badly issues, and the Armed Services Com­ in another terrorist attack. mittee reported a compromise military they are already treating us? The Wall I urge my colleagues to support this Street Journal reporter kidnapped by commissions bill to the Senate by a legislation. vote of 15 to 9. terrorists, Daniel Pearl, had his head Mr. WARNER. Mr. President, we are Unfortunately, that is not the bill cut off long before the criminal acts of anxious to move to a vote on the Spec­ that is before this body today. Instead, Abu Grahib or news of the CIA prisons. ter amendment to accommodate a House and Senate Republicans met The charred bodies of our Special number of colleagues. Therefore, I urge with the White House and made Forces dragged through the streets of that the remaining time on the Specter changes that significantly altered the Mogadishu tell us what the vague amendment under the control of Sen­ standards of the Geneva Convention impact of this legislation and changed ator SPECTER, and the time in opposi­ the bill in such a manner that I cannot got us. tion under my control, be now utilized As I said before, I support a torture at present support its passage without by colleagues, such that we can move ban. I also support provisions that substantial amendment. to that vote. I do not believe the bill before us is clearly ban cruel, inhuman treatment The PRESIDING OFFICER. The Sen­ constitutional. It is being rushed or intentionally causing great suffering ator from Michigan is recognized. or serious injury. These are serious Mr. LEVIN. That is not a unanimous through a month before a major elec­ felonies, as they should be. But what consent request, is it? tion in which the leadership of this we cannot do is give up tough treat­ Mr. WARNER. No. very body is challenged. ment short of this that protects our Mr. LEVIN. We have three Senators The first of my concerns is the issue families from attack. who have been allocated time specifi­ of habeas corpus. I very much support What do critics think would happen cally, and that time may be used rel­ the amendment offered by the chair­ if we went soft on terrorists? Would ative to the amendment or in general man of the Judiciary Committee. The they be satisfied with only name, rank debate on the bill. I will not agree to bill before us eliminates a basic right and serial number? Would they have us any restriction on the use of time that of the American justice system, and say to our terror suspects, ‘‘Oh gosh the Senator has been allocated. that is the right of habeas corpus re­ darn, I was so hoping you would will­ Mr. WARNER. I recognize that. It is view. It is constitutionally provided to ingly tell us your terror plots. Oh well, in our mutual interests to the move ensure that innocent people are not here’s your 50 Swiss franc advance pay, ahead on the bill. There will be time held captive or held indefinitely. don’t eat too much from your cookie after the vote for Senators to speak. Habeas corpus has been a cornerstone care package, we’ve scheduled a dentist You have 18 minutes on the bill. I have of our legal system. It goes back, as it appointment for you for Tuesday.’’ 47 under my control on general debate. has been said, to the days of the Magna Of course not, that would be absurd The PRESIDING OFFICER. The Sen­ Carta. Our Founding Fathers enshrined to think that terrorists will willingly ator from California is recognized. this right in the Constitution because tell us their plots. Terror war critics Mr. WARNER. Mr. President, the they understood mistakes happen and have been watching too many Law and time for the Senator from California is there is need for someone to appeal a Order TV shows if they think some under which category? mistake or a wrong conviction. hokey good cop—bad cop law enforce­ The PRESIDING OFFICER. General Just a few weeks ago, a man named ment approach will work on al-Qaida. debate time. Abu Bakker-Qassim, who was held at

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.032 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10364 CONGRESSIONAL RECORD — SENATE September 28, 2006 Guantanamo, described how he was been at the forefront of demanding hu­ Claims have been made that pro­ held for years, even though he had mane treatment of all people. We must viding detainees the right to hear why never been a terrorist or a soldier. He not turn our back on these funda­ they are being detained necessitates was never even on a battlefield. He had mental principles. providing them with classified infor­ been sold by Pakistani bounty hunters I am disappointed to be voting mation. I do not believe this to be true. to the United States military for $5,000. against this bill. I had hoped a real bi­ Similar to the military commission Qassim said it was only because of the partisan compromise could be reached. legislation, it would only allow a judge availability of habeas corpus that this The PRESIDING OFFICER. The Sen­ or an attorney with security clearance mistake was able to be corrected. That ator’s time has expired. Who yields to see the evidence against the defend­ is why Senator SPECTER’s amendment time? ant to evaluate its reliability and pro­ is right. Mr. SPECTER. Mr. President, I yield bative value. If innocent people are at Guanta­ 10 minutes to the distinguished Sen­ Permanent detention of foreigners namo—and they presumably are and ator from Oregon. without reason damages our moral in­ have been—or if abuses are taking The PRESIDING OFFICER. The dis­ tegrity regarding international rule of place—and its likely some have—there tinguished Senator is recognized for 10 law issues. To quote: ‘‘History shows must be an avenue to address these minutes. that in the wrong hands, the power to problems. Eliminating habeas corpus Mr. SMITH. Mr. President, this is a jail people without showing cause is a rights is a serious mistake and it will most difficult issue we are engaged in. tool of despotism.’’ A responsibility open the door to other efforts to re­ We are arguing about what I believe is this Nation has always assumed is to move habeas corpus. a cornerstone principle of the rule of ensure that no one is held prisoner un­ Next, I am very concerned about the law, and that is the issue of habeas cor­ justly. ability to use coerced testimony. This pus. Stripping courts of their authority to will be the first time in modern history I know this is an unusual war, and I hear habeas claims is a frontal attack that United States military tribunals don’t know its duration. No one fully on our judiciary and its institutions, as will be free to admit evidence that was does. But I do know if we are going to well as our civil rights laws. Habeas obtained through abusive tactics so be true to our Constitution and to the corpus is a cornerstone of our constitu­ long as the judge determines it is reli­ rule of law, we have to be true to that tional order, and a suspension of that able and relevant or so long as it was law. right, whether for U.S. citizens or for­ obtained before December 30, 2005. I have traveled as a Senator all over eigners under U.S. control, ought to We have heard from countless wit­ this globe and have spoken with great trouble us all. It certainly gives me nesses that coerced testimony is inher­ pride about our rule of law and the su­ pause. ently unreliable. We don’t want to send periority of democracy to other means The right to judicial appeal is en­ the message that coercion is an accept­ of government. While I support this bill shrined in our Constitution. It is part able tactic to use on Americans as in providing due process for these de­ and parcel of the rule of law. The Su­ well. tainees, I rise because I am concerned preme Court has described the writ of The fact is we had testimony in the about the provisions relating to habeas habeas corpus as ‘‘the fundamental in­ Judiciary Committee from the head of corpus. strument for safeguarding individual all of the Judge Advocate Corps who I am reminded of the words of Thom­ freedom against arbitrary and lawless said they did not believe torture as Jefferson who once said: State action.’’ worked. The habeas corpus secures every man here, Some of the darkest hours in our Na­ I am very concerned about the defini­ alien or citizen, against everything which is tion’s history have resulted from the tion of torture and the lack of clarity not law, whatever shape it may assume. suspension of habeas corpus, notably on cruel and inhumane treatment—es­ On another occasion he said: the internment of Japanese Americans pecially combined with giving the I would rather be exposed to the inconven­ during World War II. President discretion to decide what he iences attending too much liberty than to Obviously, I am not here to question believes interrogation methods are per­ those attending too small a degree of it. the wisdom of Abraham Lincoln. We missible. What we are talking about is section have had no wiser President. But one of We have already seen through press 7 of this bill, which will further strip the most controversial decisions of his reports that this administration pushes the Federal courts of jurisdiction to administration was the suspension of the boundaries on allowable interroga­ hear pending Gitmo cases as it applies habeas corpus for all military-related tion techniques and these abuses can­ to all pending and future cases. Had cases, ignoring the ruling of a U.S. cir­ not continue. this proposal been law earlier this cuit court against this order. He, in Finally, I am concerned about the year, the Supreme Court may not have fact, I believe, if my memory of history rules for what evidence may be used to had jurisdiction to hear the Hamdan serves me, imprisoned the entire Mary­ convict someone and then their limited case, which is what brings us here land Legislature because of their at­ ability to have a court review their today. tempts to secede from the Union. He case. At the heart of the habeas issue is did it. It happened. It is not necessarily If one is not allowed to know what whether the President should have the the proudest moment of his adminis­ the basis of conviction was and then is sole authority to indefinitely detain tration. But it is something that has only given limited judicial review of unlawful enemy combatants without been raging with controversy ever their conviction, how can we be con­ any judicial restraints. Congress will since. fident that we are not holding innocent provide the President with this unilat­ Habeas petitions are not clogging the people who were caught in the wrong eral authority by enacting legal re­ courts and are not frivolous. The ad­ place at the wrong time—such an out­ strictions aimed at stripping courts of ministration claims that the approxi­ come severely harms our standing in jurisdiction to hear habeas claims. In mately 200 pending habeas claims are the global community. doing so, the President does not have clogging our courts and are for the I believe these issues are too impor­ to show any cause for detaining an in­ most part frivolous. These petitions tant for us to rush through a bill of dividual labeled an ‘‘unlawful enemy are not an undue administrative bur­ this magnitude. combatant.’’ den. Judges always have the discretion These are difficult times and difficult Stripped of jurisdiction by recent to dismiss frivolous claims, and indefi­ issues. However, I do not believe the legislation, U.S. courts will not have nite detainment of a foreigner without expediency of the moment or the polit­ the ability to hear an individual’s re­ showing cause, Mr. President, is not ical winds of an impending election quest to learn why he is even being de­ frivolous. should lead us to abandon our core val­ tained. Providing detainees with the I suppose what brings me to the floor ues as a Nation. right to ask a court to evaluate the le­ today is my memory of my study of the The Founding Fathers created spe­ gality of their detention I believe law. While I was in law school, I was cific constitutional limitations. And would not cost U.S. lives. However, it particularly taken with the study of since that time the United States has will test American laws. the Nuremberg trials. The words of

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.034 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10365 Justice Robert H. Jackson inspired me Unlike the provision that was in­ Even in cases where DOD regulations then and inspire me still. He was our cluded in the Detainee Treatment Act provide detainees a right to Combatant chief counsel for the allied powers. last year, this court-stripping provi­ Status Review Tribunals—CSRTs— What he said on that occasion in his sion would apply on a world-wide basis, such tribunals may not be an adequate closing address to the international not just at Guantanamo. It would substitute for judicial review under a military tribunal is an inspiration. apply to detainees of all Federal agen­ writ of habeas corpus. CSRTs are per­ Said he: cies, not just the Department of De­ mitted to use coerced testimony, hear­ That four great nations, flushed with vic­ fense. It would attempt to expressly say evidence, and evidence that is tory and stung with injury stay the hand of strip the courts of jurisdiction over all never disclosed to the accused. Detain­ vengeance and voluntarily submit their cap­ pending cases. ees before those status review tribunals tive enemies to the judgment of the law is This provision goes beyond stripping are denied access to witnesses and doc­ one of the most significant tributes that the courts of habeas corpus jurisdic­ uments needed to rebut allegations Power has ever paid to Reason. tion. It also prohibits the U.S. courts made by the government. Courts re­ On the fairness of the Nuremberg from hearing or considering ‘‘any other viewing CSRT determinations are not proceedings, he said in his closing action against the United States or its authorized to make an independent de­ statement: agents relating to any aspect of the de­ termination whether there is a lawful Of one thing we may be sure. The future tention, treatment, or trial’’ of an basis for the detention. will never have to ask with misgiving, what alien detainee. As a result, this provi­ The court stripping provision in the could the Nazis have said in their favor. His­ sion would leave many detainees with­ bill does more than just eliminate ha­ tory will know that whatever could be said, out any alternative legal remedy at all, beas corpus rights for detainees. It also they were allowed to say. They have been even after released, even if there is prohibits the U.S. courts from hearing given the kind of a Trial which they, in the every reason to believe that the deten­ or considering ‘‘any other action days of their pomp and power, never gave to tion was in error, and even if the de­ any man. But fairness is not weakness. The against the United States or its agents extraordinary fairness of these hearings is an tainee was tortured or abused while in relating to any aspect of the detention, attribute to our strength. U.S. custody. treatment, or trial’’ of an alien de­ For example, the Canadian Govern­ I simply feel this particular provision tainee. ment recently concluded, after a com­ in this bill ought to be taken out. We A separate provision in the bill adds prehensive review, that one of its citi­ ought not to suspend the writ of habeas that no person—whether properly held zens had been handed over by U.S. au­ corpus. We should go the extra mile, as an alien detainee or not—may in­ thorities to a foreign country which not as a sign of weakness, but as evi­ voke the Geneva Conventions as a subjected him to torture and cruel and dence of our strength. source of rights in any court of the inhuman treatment, without any evi­ I intend to vote for the underlying United States. Other provisions estab­ dence that he was an enemy combatant bill and ultimately will leave the judg­ lish new defenses for individuals who or that he supported any terrorist ment of its constitutionality without may be accused of violating standards group. Under this habeas corpus court- habeas to the judgment of the judici­ for the treatment of detainees under stripping provision, this individual ary, but I believe we are called upon to U.S. and international law. would have no legal remedy in the U.S. Taken together, these provisions do go the extra mile to show our strength courts even after he was finally re­ not just deprive detainees of the ability and not our weakness, and ultimately leased from illegal detention, unless to challenge the basis on which they our Nation will be stronger if we stand the United States acknowledges that it have been detained—they are an effort by the rule of law. made a mistake when it determined to insulate the United States from any I yield the floor. that he was an enemy combatant. The PRESIDING OFFICER. The Sen­ judicial review of our treatment de­ The fundamental premise of last tainees, an effort to ensure that there ator from Pennsylvania. year’s Detainee Treatment Act, DTA, Mr. SPECTER. Mr. President, I will be no accountability for actions was that we could restrict future ha­ that violate the laws and the standards thank the distinguished Senator from beas corpus suits, because we were pro­ Oregon for those very cogent remarks, of the United States. viding an alternative course of access Last year, this Congress took an im­ especially in the context of additional to the courts. portant stand for the rule of law by en­ Republican support, stated bluntly, The language in the bill before us acting the Detainee Treatment Act, and in light of more moderate Repub­ would deprive many detainees of the which prohibits the cruel, inhuman or lican support. right to file a writ of habeas corpus degrading treatment of detainees in I yield the floor. without providing any alternative form the custody of any U.S. agency any­ The PRESIDING OFFICER. The Sen­ of relief. For example: The provision where in the world. That landmark ator from Michigan. applies on a worldwide basis, not just provision is at risk of being rendered Mr. LEVIN. Mr. President, the Demo­ at Guantanamo. DOD detainees outside meaningless, if we establish rules en­ cratic leader has yielded 2 minutes of Guantanamo do not have access to suring that it can never be enforced. his leadership time to me. I ask unani­ Combatant Status Review Tribunals— Earlier this month, we received a let­ mous consent that I be allowed to pro­ CSRTs—so they can’t get to court to ter from three retired Judge Advocates ceed on that basis. review CSRTs. Because this bill would General, who urged us not to strip the The PRESIDING OFFICER. Without deprive them of the writ of habeas cor­ courts of habeas corpus jurisdiction. objection, it is so ordered. pus or any other legal remedy, they That letter, signed by Admiral Hutson, Mr. LEVIN. Mr. President, I support would have no access to the courts at Admiral Guter, and General Brahms, the Specter-Leahy amendment on the all. stated: writ of habeas corpus. The habeas cor­ The provision applies to detainees of We urge you to oppose any further erosion pus language in this bill is as legally all Federal agencies, not just DOD. De­ of the proper authority of our courts and to abusive of the rights guaranteed in the tainees of other Federal agencies do reject any provision that would strip the U.S. Constitution as the actions at Abu not get CSRTs, so they can’t get to courts of habeas jurisdiction. Ghraib, Guantanamo, and the CIA’s se­ court to review CSRTs. Because this As Alexander Hamilton and James Madi­ cret prisons were physically abusive of bill would deprive them of the writ of son emphasized in the Federalist Papers, the the detainees themselves. habeas corpus or any other legal rem­ writ of habeas corpus embodies principles fundamental to our nation. It is the essence The Supreme Court has long held edy, they would have no access to the that all persons inside the United of the rule of law, ensuring that neither king courts at all. nor executive may deprive a person of liberty States, including lawful permanent The provision even applies to lawful without some independent review to ensure residents and other aliens, have a con­ resident aliens who are detained and that the detention has a reasonable basis in stitutional right to the writ of habeas held inside the United States. Because law and fact. That right must be preserved. corpus. Yet, this provision purports to this bill would deprive them of the writ Fair hearings do not jeopardize our security. apply even to aliens who are detained of habeas corpus or any other legal They are what our country stands for. inside the United States, including remedy, they would have no access to We have received similar letters from lawful permanent residents. the courts at all. nine distinguished retired Federal

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.035 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10366 CONGRESSIONAL RECORD — SENATE September 28, 2006 judges, from hundreds of law professors Some persons detained at Guanta­ Mr. President, I ask my colleagues to from around the United States, and namo may be terrorists guilty of plot­ join me in support of the amendment from many others. ting against the people and the Govern­ that has been offered to preserve the If we don’t strike this court-stripping ment of these United States. Of course writ of habeas corpus. language in the bill before us, if in­ terrorists must be properly detained Mr. REID. Mr. President, I have re­ stead of Congress being a check on ex­ and prosecuted for their evil deeds. But ceived a letter from over 100 law profes­ cessive executive power, Congress at­ some detainees may be innocent. Some sors and other distinguished citizens tempts to write a blank check to the may be persons simply swept up be­ expressing their opposition to the ha­ executive branch, our expectation is cause they were in the wrong place at beas corpus provisions in the military that the courts will find this provision the wrong time. How can we know tribunal bill. They urge support for the to be a legislative excess and strike it which truly deserve to be held and Specter-Leahy amendment to remedy down as unconstitutional. We have a tried as enemy combatants if we abol­ that flaw. I ask unanimous consent chance to do the right thing and not ish the legal right of the incarcerated that the letter be printed in the just to rely on the courts. This body is to fairly challenge their detention in RECORD. the body of last resort legislatively court? There being no objection, the mate­ when it comes to protecting that great The provision in the bill before us de­ rial was ordered to be printed in the writ of habeas corpus which is in the prives Federal courts of jurisdiction RECORD, as follows: Constitution. I hope we live up to that over matters of law that are clearly en­ Hon. BILL FRIST, responsibility today. trusted to them by the Constitution of Majority Leader, U.S. Senate, Washington, DC. Mr. BYRD. Mr. President, the mili­ the United States. The Constitution is Hon. DENNIS HASTERT, clear on this point: The only two in­ Speaker, House of Representatives, Washington, tary commissions bill before us would DC. stances in which habeas corpus may be strip from the U.S. Constitution of one Hon. HARRY REID, of its most precious protections: the suspended are in the case of a rebellion Democratic Leader, U.S. Senate, Washington, writ of habeas corpus. The Great Writ. or an invasion. We are not in the midst DC. The bill would deny those who are de­ of a rebellion, and there is no invasion. Hon. NANCY PELOSI, tained indefinitely—even those who It is notable that those who drafted the Democratic Leader, House of Representatives, may be innocent—the opportunity to Constitution deliberately used the Washington, DC. DEAR SENATOR FRIST, SENATOR REID, challenge their detention in court. word ‘‘suspended.’’ They did not say SPEAKER HASTERT AND REP. PELOSI: We agree Habeas corpus is a procedure whereby that habeas corpus could be forever de­ with the views set forth in the undated letter a Federal court may review whether an nied, abolished, revoked, or eliminated. sent this month to Members of Congress individual is being improperly de­ They said that, in only two instances, from Judge John J. Gibbons, Judge Shirley tained. The concept of habeas corpus is it could be ‘‘suspended,’’ meaning tem­ M. Hufstedler, Judge Nathaniel R. Jones, deeply rooted in the English common porarily. Not forever. Not like in this Judge Timothy K. Lewis, Judge William A. law and was specifically referenced in bill. Norris, Judge George C. Pratt, Judge H. Lee the Magna Carta of 1215, which stated: How can we, the U.S. Senate, in this Sarokin, Judge William S. Sessions, and bill abolish habeas corpus by approving Judge Patricia M. Wald. No Freeman shall be taken, or imprisoned, These nine distinguished, retired federal or be disseised of his Freehold, or Liberties, a provision that so clearly contravenes judges expressed deep concern about the law­ or free Customs, or be outlawed, or exiled, or the text of the Constitution? Where is fulness of a provision in the Military Com­ any otherwise destroyed; nor will we pass our respect for the checks and balances missions Act of 2006 stripping the courts of upon him, nor condemn him, but by lawful that were built into our system by the jurisdiction to test the lawfulness of Execu­ Judgment of his Peers, or by the Law of the Framers? They included an explicit tive detention outside the United States. Land. prohibition against blanket suspension This matter is even more urgent now. The The legal procedure for issuing writs provision would eliminate habeas for all al­ of the writ of habeas corpus precisely leged alien enemy combatants, whether law­ of habeas corpus was codified by the to protect innocent persons from being ful or unlawful, even if they are detained in English Parliament in response to con­ subject to arbitrary and unfair action the United States. cerns by the British people that no by the state. We concur with the request made by the monarch should be permitted to hold This flagrant attempt to deny a fun­ judges that Congress remove the provision innocent people against their will with­ damental right protected by the Con­ stripping habeas jurisdiction from the pro­ out due process of law. stitution reveals how White House and posed Military Commissions Act. Respectfully, (100 Signatures) It is precisely because the Founders Pentagon advisers continue to chip of the United States feared elimination away at the separation of powers. They The PRESIDING OFFICER. Who of the writ that, when they enumerated relentlessly pursue their dangerous yields time? Mr. GRAHAM. Mr. President, how the powers of the Congress in the very goal of consolidating power in the much time is remaining? first article of the U.S. Constitution, hands of the Executive at the expense The PRESIDING OFFICER. On which they included specific reference to the of the Congress, the judiciary, and, side? writ of habeas corpus and sought to sadly, the People. How can we even Mr. GRAHAM. On the Warner side. protect it. The language they included contemplate such an irresponsible and The PRESIDING OFFICER. Senator in article I, section 9, clause 2 of the dangerous course as this de facto can­ WARNER has 4 minutes in opposition to Constitution, also known as the ‘‘Sus­ celing of the writ of habeas corpus. the Specter amendment. pension Clause,’’ reads as follows. It The Constitution of the United Mr. WARNER. Mr. President, I yield states: States is a time-tested contract be­ that to the Senator from South Caro­ The Privilege of the Writ of Habeas Corpus tween our people and their Govern­ lina. shall not be suspended, unless when in Cases ment, for which thousands of American The PRESIDING OFFICER. The Sen­ of Rebellion or Invasion the public Safety military men and women have died. ator is recognized for 4 minutes. may require it. Why would we seek to violate its Mr. GRAHAM. Mr. President, this I wonder whether those who drafted terms? Aren’t we fighting the terror­ has been a very spirited debate and I the provision in this bill to eliminate ists precisely to preserve individual am going to give you a spirited answer habeas corpus have read this clause of liberties and the rule of law? If we as a to what I am proposing with my vote. the Constitution. Inconceivably, the people jettison the very democratic No. 1, my moral compass is very much U.S. Senate is being asked to abolish a ideals that have made our Nation great intact, and when people mention moral fundamental right that has been cen­ and we become, instead, exactly like compasses and the conscience of the tral to democratic societies, including those whom we seek to imprison— Senate, I am going to sleep very good our own, for centuries. The outrageous standing for nothing and capable of casting my vote. I think I have a de­ provision we debate today could im­ anything—then what are we fighting cent moral compass about what we prison indefinitely, without access to for? And if we indefinitely and illegally should be doing to people: What is hu­ the courts, not just suspects picked up detain innocent parties of other na­ mane, what is not; what is right, what overseas but even those taken into cus­ tions, with what credibility can we re­ is wrong. I have tried to balance the in­ tody on U.S. soil. quest that they release our own? terests of our troops and the interests

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.037 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10367 of our country when it comes to deal­ to see if the military applied the cor­ with the Koran they are provided as standard ing with people who find themselves in rect law, the procedures were followed, issue by GTMO, seeking court order that our capture. and the evidence justifies the decision they be allowed to keep various other supple­ Why not habeas for noncitizen, of the military. mentary religious materials, such as a To substitute a judge for the military ‘‘tafsir’’ or 4-volume Koran with com­ enemy combatant terrorists housed at mentary, in their cells. Gitmo? No. 1, the whole Congress has in a time of war to determine some­ agreed prospectively habeas is not thing as basic as who our enemy is is Mr. SPECTER. Mr. President, how available; the Detainee Treatment Act not only not necessary under our Con­ much time do I have remaining? will be available. The only reason we stitution, it impedes the war effort, it The PRESIDING OFFICER. There is are here is because of the Hamdan deci­ is irresponsible, it needs to stop, and it 12 minutes remaining. sion. The Hamdan decision did not should never have happened. I am con­ Mr. SPECTER. Mr. President, I think apply to the Detainee Treatment Act fident Congress has the ability, if we it would be appropriate, if I may have retroactively, so we have about 200 and choose to redefine the rights of an Senator WARNER’s concurrence, to tell some habeas cases left unattended and enemy combatant, noncitizen—what our colleagues that this will be the end we are going to attend to them now. rights they have in a time of war and of the time allocated for this amend­ Why do we—I and others—want to what has happened. ment and we could expect to vote at take habeas off the table and replace it The PRESIDING OFFICER. The Sen­ about 11:45 or 11:50? with something else? I don’t believe ator’s time has expired. Mr. WARNER. Mr. President, very judges should be making military deci­ Mr. GRAHAM. Mr. President, I will definitely. As soon as all time on this sions in a time of war. There is a rea­ ask unanimous consent to have printed amendment is allocated or yielded son the Germans and the Japanese and in the RECORD, if I may, examples of back, my intention is to move to a every other prisoner held by America the habeas petitions filed on behalf of vote. have never gone to Federal court and detainees against our troops. Mr. SPECTER. I thank my distin­ There being no objection, the mate­ asked the judge to determine their sta­ guished colleague. rial was ordered to be printed in the tus. That is not a role the judiciary Mr. President, I fully realize it is un­ RECORD, as follows: should be playing. They are not trained popular to speak for aliens, unpopular to make those decisions. EXAMPLES OF HABEAS PETITIONS FILED OF to speak on what might be interpreted BEHALF OF DETAINEES Under the Geneva Conventions arti­ to be in favor of enemy combatants, cle 5, the combatant tribunal require­ 1. Canadian detainee who threw a grenade but that is not what this Senator is that killed an Army medic in firefight and ment is a military decision. So I be­ doing. What I am trying to establish is who comes from family with longstanding al a course of judicial procedure to deter­ lieve very vehemently that the mili­ Qaeda ties moves for preliminary injunction tary of our country is better qualified forbidding interrogation of him or engaging mine whether they are enemy combat­ to determine who an enemy combatant in ‘‘cruel, inhuman, or degrading’’ treatment ants. is over a Federal judge. That is the way of him (n.b. this motion was denied by Judge I submit that the materials produced it has been, that is the way it should be Bates). on this floor and in the hearings of the and, with my vote, that is the way it is 2. ‘‘Al Odah motion for dictionary internet Judiciary Committee show conclu­ security forms’’—Kuwaiti detainees seek sively that the Combatant Status Re­ going to be. court orders that they be provided diction­ What is the problem? Why am I wor­ view Tribunals do not have an ade­ aries in contravention of GTMO’s force pro­ quate way of determining whether ried about having Federal judges turn­ tection policy and that their counsel be ing every enemy combatant decision given high-speed internet access at their these individuals are enemy combat­ into a trial? In 1950 the Supreme Court, lodging on the base and be allowed to use ants. What we are doing is defending denying habeas rights to German and classified DoD telecommunications facili­ the jurisdiction of the Federal courts Japanese prisoners, said: ties, all on the theory that otherwise their to maintain the rule of law. If the Fed­ ‘‘right to counsel’’ is unduly burdened. eral courts are not open, if the Federal Such trials would hamper the war effort 3. ‘‘Alladeen—Motion for TRO re trans­ and bring aid and comfort to the enemy. courts do not have jurisdiction to de­ fer’’—Egyptian detainee who Combatant Sta­ termine constitutionality, then how I agree with that. tus Review Tribunal adjudicated as no longer are we to determine what is constitu­ They would diminish the prestige of our an enemy combatant, and who was therefore commanders not only with enemies, but wa­ due to be released by the United States, files tional? vering neutrals. motion to block his repatriation to Egypt. My own background is one of a rev­ 4. ‘‘Paracha—Motion for PI re Condi­ erence for the law, a reverence for the I agree with that. tions’’—Motion by high level al Qaeda de­ independence of the judiciary, and a It would be difficult to devise a more effec­ tainee complaining about base security pro­ reverence for the rule of law as inter­ tive fettering of a field commander than to cedures, speed of mail delivery, and medical preted by our Constitution. If it hadn’t allow the very enemies he has ordered to re­ treatment; seeking an order that he be duce to submission to call him to account in transferred to the ‘‘least onerous conditions’’ been for the Federal courts, the Su­ his own civil courts and divert his efforts at GTMO and asking the court to order that preme Court of the United States, we and attention from the military offensive GTMO allow him to keep any books and would not have seen the decision in abroad to the legal defensive at home. reading materials sent to him and to ‘‘report Brown v. Board of Education in 1954. I agree with that. That is why we to the Court’’ on ‘‘his opportunities for exer­ The legislative branches were too shouldn’t be doing habeas cases in a cise, communication, recreation, worship, mired in politics, the executive was too time of war. Nor is it unlikely that the etc.’’ mired in politics, and it was only the 5. ‘‘Motion for PI re Medical Records’’— result of such enemy litigiousness Motion by detainee accusing military’s Supreme Court which could recognize would be conflict between judicial and health professionals of ‘‘gross and inten­ the injustice of segregation and it led military opinion—highly comforting to tional medical malpractice’’ in alleged viola­ to that decision. the enemies of the United States. tion of the 4th, 5th, 8th, and 14th Amend­ Similarly, it was the Federal courts These trials impede the war effort. It ments, 42 USC 1981, and unspecified inter­ which changed the criminal procedure allows a judge to take what has his­ national agreements. in this country as a matter of basic torically been a military function. 6. ‘‘Abdah—Emergency Motion re DVDs’’— fairness. Prior to the decision of the ‘‘emergency’’ motion seeking court order re­ What I am proposing for this body quiring GTMO to set aside its normal secu­ case of Brown v. Mississippi in 1936, the and our country is to allow the mili­ rity policies and show detainees DVDs that Federal courts did not establish stand­ tary to do what they are best at doing: are purported to be family videos. ards for State criminal courts. It was controlling the battlefield. Let them 7. ‘‘Petitioners’ Supp. Opposition’’—Filing determined as a matter of States rights define who an enemy combatant is by detainee requesting that, as a condition that States could establish their own under the Geneva Conventions require­ of a stay of litigation pending related ap­ determinations. But in that case, the ments, under the Combatant Status peals, the Court involve itself in his medical evidence was overwhelming about a Review Tribunal system, which is Ge­ situation and set the stage for them to sec­ brutal, coerced confession and, for the ond-guess the provision of medical care and neva Conventions compliant, in my other conditions of confinement. first time, the Supreme Court of the opinion, and let the Federal courts 8. ‘‘Al Odah Supplement to PI Motion’’— United States stepped in and said: come in after they made their decision Motion by Kuwaiti detainees unsatisfied States may not take an individual,

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.038 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10368 CONGRESSIONAL RECORD — SENATE September 28, 2006 take him across State lines, have a pus and was the basis for including in The distinguished chairman of the feigned hanging, extract a confession, the Constitution of the United States Armed Services Committee has said and use that to convict him. That was the principle that habeas corpus may that he does not want to have this mat­ done by the Federal courts. not be suspended. ter come back to Congress. But surely I had the occasion when I was in the I believe it is unthinkable, out of the as we are standing here, if this bill is Philadelphia district attorney’s office question, to enact Federal legislation passed and habeas corpus is stricken, to witness firsthand on a daily basis a today which denies the habeas corpus we will be on this floor again rewriting revolution in constitutional criminal right which would take us back some the law. procedure. I was litigating the issues in 900 years and deny the fundamental The PRESIDING OFFICER. The time the criminal courts when Mapp v. Ohio principle of the Magna Charta imposed of the Senator has expired. All time came down, imposing the rule of exclu­ on King John at Runnymede. has expired. sion of evidence in State courts if ob­ Mr. President, how much time do I Is there further debate on the amend­ tained in violation of the fourth have? ment? amendment and, when Escobedo came The PRESIDING OFFICER. There is Mr. WARNER. Mr. President, may I 1 down, limiting admissions and confes­ 3 ⁄2 minutes remaining. inquire, the distinguished Senator from sions if not in conformity with rules. Mr. SPECTER. Mr. President, the ar­ Michigan seeks a little additional time Then Miranda v. Ohio came down. I gument has been made that there is an on leader time, is that correct? alternative procedure which passes found those decisions as a prosecutor Mr. LEVIN. I have already accom­ constitutional muster. But the provi­ very limiting and impeding. But the plished that. I thank my friend. sions of the statute which set up the course of time has demonstrated that Mr. WARNER. At this time I would Combatant Status Review Tribunal are those decisions have improved the like to yield to the Senator from South conclusively insufficient on their face. quality of justice in America. Chief Carolina 3 minutes off of the time The statute provides that the Combat­ Justice Rehnquist, a recognized con­ under my control on the bill. ant Status Review Tribunal may be re­ servative, sought to eliminate or limit The PRESIDING OFFICER. The Sen­ viewed by the Court of Appeals for the Miranda when he came to the Supreme ator is recognized for 3 minutes. District of Columbia only to the extent Court of the United States. Later in his Mr. GRAHAM. What I am trying to that the ruling was consistent with the stress to the body is that this is a war career, he said in Miranda that the pro­ standards and procedures specified by tections of those warnings were appro­ we are fighting, not crime, and habeas the Secretary of Defense. corpus rights have not been given to priate and were helpful in our society. Now, to comply with the standards of any other prisoners under U.S. control There are four fundamental, undeni­ procedures determined by the Sec­ in the past, for very good reason. It im­ able principles and facts involved in retary of Defense does not mean ex­ pedes the war effort. the issue we are debating today. The clude on its face a factual determina­ Let me give you a flavor of what is first undeniable principle is that a tion as to what happens to the detain­ coming out of Guantanamo Bay. This statute cannot overrule a Supreme ees. Court decision on constitutional When the Senator from South Caro­ is what is happening to the troops de­ grounds, and a statute cannot con­ lina argues that judges should not fending America by the people who are tradict an explicit constitutional pro­ make military decisions, I agree with incarcerated, determined by our mili­ vision. That is point No. 1. him totally. But the converse of that is tary to be an enemy combatant. A Ca­ Point No. 2, the Constitution is ex­ that judges should make judicial deci­ nadian detainee, who threw a grenade plicit in the statement that habeas cor­ sions, to decide whether due process is that killed an Army medic in a fire- pus may be suspended only with rebel­ decided. The converse, that judges fight and who comes from a family lion or invasion. should not make military decisions, is with longstanding al-Qaida ties, moved Fact No. 3, uncontested. We do not the principle that the Secretary of De­ for a preliminary injunction forbidding have a rebellion or an invasion. fense ought not to decide what the con­ interrogation of him or engaging in Fact and principle No. 4, the Su­ stitutional standards are. The Sec­ cruel, inhuman or degrading treat­ preme Court says that aliens are cov­ retary of Defense should not decide ment. In other words, he was going to ered by habeas corpus. what the constitutional standards are. ask the judge to take over running the We have already had considerable ex­ That is up to the Supreme Court of the jail and his interrogation. position of the opinion by Justice United States, and the Supreme Court A Kuwaiti detainee sought a court O’Connor that the constitutional right of the United States has decided that order that would provide dictionaries of habeas corpus applies to individuals, aliens are entitled to the explicit con­ in contravention of Gitmo force protec­ which means citizens and aliens. The stitutional protection of habeas corpus. tion policy and that their counsel have case of Rasul v. Bush, which explicitly The argument is made that the high-speed Internet access. involved an alien, says this in the opin­ Swain case allows for alternative pro­ Another one applied for a motion ion of Justice Stevens speaking for the cedures. The Swain case involved a Dis­ that would allow them to change the Court: trict of Columbia habeas corpus pro­ base security procedures to allow Habeas corpus received explicit recogni­ ceeding which was virtually identical speedy mail delivery medical treat­ tion in the Constitution, which forbids the with habeas corpus provided under Fed­ ment. He sought an order transferring suspension of— eral statute 2241, so of course it was him to the least onerous condition at Then Justice Stevens cites the con­ satisfactory. Gitmo. He asked the court to allow stitutional provision. A number of straw men have been set him to keep any books and reading ma­ The privilege of the writ of habeas up: One, that we could not apply these terials sent to him and report to the corpus cannot be suspended unless in principles to the 18,000 detainees in court over his opportunities for exer­ the cases of rebellion or invasion, and Iraq—nobody seeks to do that; the cise, communication, recreation and neither is present here. So you have straw man that we should not give worship. the express holding of the Supreme search and seizure protections of the We are not going to turn this war Court in Rasul v. Bush that habeas cor­ fourth amendment—no one seeks to do over to a series of court cases, where pus applies to aliens. that; or the fifth amendment protec­ our troops are having to account for a Justice Stevens went on to say that: tion against the privilege of self-in­ bunch of junk by people trying to kill Executive imprisonment has been consid­ crimination. Americans. They will have their day in ered oppressive and lawless since John, at In essence and in conclusion, what court, but they are not going to turn Runnymede. this entire controversy boils down to is this whole war into a mockery with my What this bill would do in striking whether Congress is going to legislate vote. habeas corpus would take our civilized to deny a constitutional right which is I yield back. society back some 900 years to King explicit in the document of the Con­ Mr. WARNER. Mr. President, I be­ John at Runnymede which led to the stitution itself and which has been ap­ lieve there is no time remaining? adoption of the Magna Charta in 1215, plied to aliens by the Supreme Court of The PRESIDING OFFICER. There is which is the antecedent for habeas cor­ the United States. no time remaining.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.039 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10369 Mr. WARNER. I ask for the yeas and The PRESIDING OFFICER. That is (C) A description of each interrogation nays. correct. technique authorized for use and guidelines The PRESIDING OFFICER. Is there a Five minutes of the time of the Sen­ on the use of each such technique. sufficient second? There is a sufficient ator from West Virginia has been pre­ (D) A description of each legal opinion of second. the Department of Justice and the General viously allocated to the Senator from Counsel of the Central Intelligence Agency The question is on agreeing to the Massachusetts, Mr. KERRY. that is applicable to the detention and inter­ amendment. The clerk will call the Mr. KERRY. If I could correct that, rogation program. roll. my time is not supposed to come from (E) The actual use of interrogation tech­ The legislative clerk called the roll. the Senator from West Virginia. I be­ niques. Mr. MCCONNELL. The following Sen­ lieve I have time already allocated, so (F) A description of the intelligence ob­ ator was necessarily absent: the Sen­ it would be separate. tained as a result of the interrogation tech­ ator from Maine (Ms. SNOWE). niques utilized. Mr. ROCKEFELLER. If the situation The PRESIDING OFFICER (Mr. (G) Any violation of law or abuse under the is it is deducted from this Senator’s GRAHAM). Are there any other Senators detention and interrogation program by Cen­ in the Chamber desiring to vote? time, I would object. tral Intelligence Agency personnel, other The result was announced—yeas 48, The PRESIDING OFFICER. It is the United States Government personnel or con­ nays 51, as follows: understanding of the Chair that the tractors, or anyone else associated with the program. [Rollcall Vote No. 255 Leg.] Senator from Massachusetts, the unan­ imous consent was obtained at 10 (H) An assessment of the effectiveness of YEAS—48 the detention and interrogation program. o’clock with 5 minutes coming from Akaka Feingold Mikulski (I) An appendix containing all guidelines Baucus Feinstein Murray the time of the Senator from West Vir­ and legal opinions applicable to the deten­ Bayh Harkin Nelson (FL) ginia. tion and interrogation program, if not in­ Biden Inouye Obama Mr. LEVIN. Mr. President, that cluded in a previous report under this sub­ Bingaman Jeffords Pryor unanimous consent request was appar­ section. Boxer Johnson Reed (b) DIRECTOR OF CENTRAL INTELLIGENCE Byrd Kennedy Reid ently agreed to and is in place right AGENCY REPORTS ON DISPOSITION OF DETAIN­ Cantwell Kerry Rockefeller now? EES.— Carper Kohl Salazar The PRESIDING OFFICER. That is Chafee Landrieu Sarbanes (1) QUARTERLY REPORTS REQUIRED.—Not Clinton Lautenberg Schumer correct. later than three months after the date of the Conrad Leahy Smith The Senator from West Virginia. enactment of this Act, and every three Dayton Levin Specter AMENDMENT NO. 5095 months thereafter, the Director of the Cen­ Dodd Lieberman Stabenow Mr. ROCKEFELLER. Mr. President, I tral Intelligence Agency shall submit to the Dorgan Lincoln Sununu congressional intelligence committees a re­ Durbin Menendez Wyden send an amendment to the desk on be­ port on the detainees who, during the pre­ NAYS—51 half of myself, and Senators CLINTON, ceding three months, were transferred out of YDEN IKULSKI EINGOLD Alexander DeMint Lugar W , M and F . the detention program of the Central Intel­ Allard DeWine Martinez The PRESIDING OFFICER. The ligence Agency. Allen Dole McCain clerk will report. (2) ELEMENTS.—In addition to any other Bennett Domenici McConnell The Senator from West Virginia, [Mr. matter necessary to keep the congressional Bond Ensign Murkowski intelligence committees fully and currently Brownback Enzi Nelson (NE) ROCKEFELLER], for himself, Mrs. CLINTON, Mr. WYDEN, Ms. MIKULSKI, and Mr. FEINGOLD, informed about transfers out of the deten­ Bunning Frist Roberts tion program of the Central Intelligence Burns Graham Santorum proposes an amendment numbered 5095. Agency, each report under paragraph (1) Burr Grassley Sessions Mr. ROCKEFELLER. Mr. President, I Chambliss Gregg Shelby shall include (but not be limited to), for the Coburn Hagel Stevens ask unanimous consent the reading of period covered by such report, the following: Cochran Hatch Talent the amendment be dispensed with. (A) For each detainee who was transferred Coleman Hutchison Thomas The PRESIDING OFFICER. Without to the custody of the Department of Defense Collins Inhofe Thune objection, it is so ordered. for prosecution before a military commis­ Cornyn Isakson Vitter sion, the name of the detainee and a descrip­ Craig Kyl Voinovich The amendment is as follows: Crapo Lott Warner tion of the activities that may be the subject (Purpose: To provide for congressional over­ of the prosecution. NOT VOTING—1 sight of certain Central Intelligence Agen­ (B) For each detainee who was transferred Snowe cy programs) to the custody of the Department of Defense The amendment (No. 5087) was re­ At the end, add the following: for any other purpose, the name of the de­ tainee and the purpose of the transfer. jected. SEC. 11. OVERSIGHT OF CENTRAL INTELLIGENCE AGENCY PROGRAMS. (C) For each detainee who was transferred Mr. WARNER. I move to reconsider (a) DIRECTOR OF CENTRAL INTELLIGENCE to the custody of the Attorney General for the vote. AGENCY REPORTS ON DETENTION AND INTERRO­ prosecution in a United States district court, Mr. BOND. I move to lay that motion GATION PROGRAM.— the name of the detainee and a description of on the table. (1) QUARTERLY REPORTS REQUIRED.—Not the activities that may be the subject of the The motion to lay on the table was later than three months after the date of the prosecution. agreed to. enactment of this Act, and every three (D) For each detainee who was rendered or Mr. WARNER. Mr. President, the months thereafter, the Director of the Cen­ otherwise transferred to the custody of an­ managers of the bill have been notified tral Intelligence Agency shall submit to the other nation— there are still three amendments re­ congressional intelligence committees a re­ (i) the name of the detainee and a descrip­ maining, one by Senator ROCKEFELLER, port on the detention and interrogation pro­ tion of the suspected terrorist activities of gram of the Central Intelligence Agency dur­ the detainee; one by Senator KENNEDY, one from ing the preceding three months. (ii) the rendition process, including the lo­ Senator BYRD. If I understand from my (2) ELEMENTS.—In addition to any other cations and custody from, through, and to distinguished ranking member, we will matter necessary to keep the congressional which the detainee was rendered; and proceed to the amendment of Senator intelligence committees fully and currently (iii) the knowledge, participation, and ap­ ROCKEFELLER. informed about the detention and interroga­ proval of foreign governments in the ren­ Mr. ROCKEFELLER. I have yielded 5 tion program of the Central Intelligence dition process. minutes to the Senator from Massa­ Agency, each report under paragraph (1) (E) For each detainee who was rendered or chusetts, if that is okay, on a separate shall include (but not be limited to), for the otherwise transferred to the custody of an­ matter. period covered by such report, the following: other nation during or before the preceding The PRESIDING OFFICER. Without (A) A description of any detention facility three months— objection, it is so ordered. operated or used by the Central Intelligence (i) the knowledge of the United States Gov­ Mr. WARNER. Mr. President, the Agency. ernment, if any, concerning the subsequent ranking member is about to advise the (B) A description of the detainee popu­ treatment of the detainee and the efforts lation, including— made by the United States Government to Senator with regard to which amend­ (i) the name of each detainee; obtain that information; ment might be forthcoming. (ii) where each detainee was apprehended; (ii) the requests made by United States in­ Mr. LEVIN. If Senator ROCKEFELLER (iii) the suspected activities on the basis of telligence agencies to foreign governments is ready, I understand there is a time which each detainee is being held; and for information to be obtained from the de­ agreement of 1 hour equally divided. (iv) where each detainee is being held. tainee;

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.040 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10370 CONGRESSIONAL RECORD — SENATE September 28, 2006 (iii) the information provided to United (2) LAW.—The term ‘‘law’’ includes the vide a quarterly report to all members States intelligence agencies by foreign gov­ Constitution of the United States and any of the Intelligence Committees on the ernments relating to the interrogation of the applicable treaty, statute, Executive order, disposition of each detainee transferred detainee; or regulation. out of the CIA prisons, whether the de­ (iv) the current status of the detainee; Mr. ROCKEFELLER. Mr. President, (v) the status of any parliamentary, judi­ tainee was transferred to the Depart­ for 4 years the Central Intelligence ment of Defense for prosecution before cial, or other investigation about the ren­ Agency’s program was kept from the dition or other transfer; and a military commissioner for further de­ (vi) any other information about potential full membership of the Senate and tention, whether the detainee was risks to United States interests resulting House Intelligence Committees. transferred to the custody of the Attor­ from the rendition or other transfer. For 4 years the CIA imprisoned and ney General to stand trial in civilian interrogated suspected terrorists at se­ (c) CIA INSPECTOR GENERAL AND GENERAL court, or whether the detainee was ren­ cret black sites under a policy that COUNSEL REPORTS.— dered or otherwise transferred to the (1) ANNUAL REPORTS REQUIRED.—Not later prevented Congress from not only custody of another nation. than one year after the date of the enact­ knowing about the program but from ment of this Act, and annually thereafter, There needs to be a comprehensive acting on it and regulating it. and accurate accounting of detainees the Inspector General of the Central Intel­ For 4 years, the White House refused held by the CIA. Congress has a respon­ ligence Agency and the General Counsel of to brief Intelligence Committee mem­ the Central Intelligence Agency shall each bers about the program’s legal business sibility to know who is held by the submit to the congressional intelligence and operations, as is required by law. CIA, why they are held and for how committees a report on the detention, inter­ long they are held. rogation and rendition programs of the Cen­ For 4 years, the members of the Sen­ ate and the House Intelligence Com­ The CIA detention and interrogation tral Intelligence Agency during the pre­ program cannot function as a black ceding year. mittees, whose duty it is to authorize hole into which people disappear for (2) ELEMENTS.—Each report under para­ the funding of every CIA program, were graph (1) shall include, for the period covered kept in the dark by an administration years on end. by such report, the following: which ignored the legal requirement to We have been told by CIA leaders (A) An assessment of the adherence of the keep the Congress fully and currently that the agency does not want to be— Central Intelligence Agency to any applica­ informed on all intelligence activities. they say this constantly to us—they do ble law in the conduct of the detention, in­ The amendment I have offered re­ not want to be the prison warden for terrogation, and rendition programs of the the United States Government. The Central Intelligence Agency. verses the executive branch’s 4-year policy of indifference toward Congress. goal of the CIA program should be to (B) Any violations of law or other abuse on obtain, through lawful means, intel­ the part of personnel of the Central Intel­ My amendment corrects a serious ligence Agency, other United States Govern­ omission in the pending bill: the need ligence information that can identify ment personnel or contractors, or anyone for Congress to reassert its funda­ other terror suspects to prevent fur­ else associated with the detention, interro­ mental right to understand the intel­ ther terrorist attacks and then to bring gation, and rendition programs of the Cen­ ligence activities it authorizes and to justice those who we believe to be tral Intelligence Agency in the conduct of funds. criminals. This is the so-called such programs. My amendment would subject the endgame that everyone talks about. (C) An assessment of the effectiveness of CIA’s detention and interrogation to If the CIA detention program is al­ the detention, interrogation, and rendition lowed to function as some sort of pris­ programs of the Central Intelligence Agency. meaningful congressional oversight for (D) Any recommendations to ensure that the first time in 4 years by requiring a oner purgatory, we have then failed. the detention, interrogation, and rendition series of reviews and reports that will Also of concern to me is the lack of programs of the Central Intelligence Agency enable the Congress to evaluate the existing oversight in how the United are conducted in a lawful and effective man­ program’s scope and legality, as well as States transports or renders detainees ner. its effectiveness. to other countries for imprisonment (3) CONSTRUCTION OF REPORTING REQUIRE­ The amendment establishes this ab­ and interrogation. MENT.—Nothing in this subsection shall be sent congressional oversight in four The limited information the adminis­ construed to modify the authority and re­ ways. First, my amendment requires tration has shared with the Senate In­ porting obligations of the Inspector General telligence Committee on the CIA’s ren­ of the Central Intelligence Agency under sec­ the Director of the CIA to provide a tion 17 of the Central Intelligence Agency quarterly report to all members of the dition program does not by any means Act of 1949 (50 U.S.C. 403q) or any other law. Intelligence Committees in both the assure, at least this Senator, that the (d) CERTIFICATION OF COMPLIANCE.—Not House and the Senate detailing the de­ intelligence community has a program later than three months after the date of the tention facilities, how they are oper­ in place, so to speak, to assert what enactment of this Act, and promptly upon ated, and how they are used by the happens to these individuals when they any subsequent approval of interrogation CIA. are transferred to foreign custody, such techniques for use by the Central Intel­ It requires that the detainees held at as how they are treated, how they are ligence Agency, the Attorney General shall these facilities be listed by name as interrogated, whether they divulge in­ submit to the congressional intelligence telligence information of value, and committees— well as the basis for their detention (1) an unclassified certification whether or and the description of interrogation whether this information is then pro­ not each approved interrogation technique techniques used on them and the ac­ vided to the CIA. complies with the Constitution of the United companying legal rationale. The CIA’s rendition program deserves States and all applicable treaties, statutes, This quarterly report also requires far greater scrutiny and congressional Executive orders, and regulations; and the recording of any violation or abuse oversight than it has been given to (2) an explanation of why each approved under the CIA program as well as an date. technique complies with the Constitution of assessment of the effectiveness of the The third way in which this amend­ the United States and all applicable treaties, ment establishes a meaningful over­ statutes, Executive orders, and regulations. detention and interrogation program. This issue of the effectiveness of in­ sight of the CIA detention and interro­ (e) FORM OF REPORTS.—Except as provided in subsection (d)(1), each report under this terrogation techniques is incredibly gation program is to require the CIA section shall be submitted in classified form. important and often overlooked as an Inspector General and the CIA general (f) AVAILABILITY OF REPORTS.—Each report aspect of the debate over the CIA pro­ counsel each separately review the pro­ under this section shall be fully accessible by gram. Interrogations that coerce infor­ gram on an annual basis to report their each member of the congressional intel­ mation can produce bad intelligence— findings to the Intelligence Commit­ ligence committees. not necessarily, but they can produce tees. These independent Agency re­ (g) DEFINITIONS.—In this section: misleading intelligence—fabricated in­ views would assess the CIA’s compli­ (1) CONGRESSIONAL INTELLIGENCE COMMIT­ telligence to get out of the treatment, ance with any applicable law or regula­ TEES.—The term ‘‘congressional intelligence tion and the conduct of detention, in­ committees’’ means— information that can harm, not help, (A) the Select Committee on Intelligence our efforts to locate and capture ter­ terrogation and rendition activities as of the Senate; and rorists. well as to report to Congress any viola­ (B) the Permanent Select Committee on Second, my amendment would re­ tions of law or other abuse on the part Intelligence of the House of Representatives. quire the Director of the CIA to pro­ of personnel involved in the program.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.017 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10371 The annual reviews of the Inspector briefed on classified details of the days away. But, sadly, this has become General and the general counsel also CIA’s detention and interrogation pro­ too much the way the Senate does would evaluate the effectiveness of the gram. We were denied an opportunity business and often its most important detention and interrogation program; to consider this bill, in fact, on sequen­ business. effectiveness at obtaining valuable and tial referral, which is our due. Today, the leadership of the Senate reliable intelligence. In the mad dash to pass this bill be­ has decided that legislation that will Finally, my amendment requires the fore the Senate recesses, Senators are directly impact America’s moral au­ Attorney General to submit to Con­ being given only five opportunities, I thority in the world merits only a few gress an unclassified certification believe, to amend the bill, effectively hours of debate. What is at stake is the whether or not each interrogation preventing the Senate from trying to authority that is essential to winning technique approved for use by the CIA produce the best bill possible on the and to waging a legitimate and effec­ complies with the United States Con­ most important subject possible with tive war on terror, and also one that is stitution and all applicable treaties, respect to the gathering of intel­ critical to the safety of American statutes and regulations. I believe this ligence. It does not have to be this troops who may be captured. is a very important certification. way. If, in a few hours, we squander that All Americans, not just the Congress, Finally, I am troubled by what I view moral authority, blur lines that for need an ironclad assurance from our as misleading statements about the decades have been absolute, then no Nation’s top enforcement officer that current state of the CIA detention and speech, no rhetoric, and no promise can the CIA program and the interrogation interrogation program made by Presi­ restore it. techniques it employs are lawful in all dent Bush and senior administration Four years ago, we were in a similar respects. The CIA officers in the field, officials. I say this for the record, and situation. An Iraq war resolution was I might say, above all, need this assur­ strongly. rushed through the Senate because of ance. The President and others have stated election-year politics—a political cal­ I do not believe there is anything in recent weeks that the CIA program endar, not a statesman’s calendar. And particularly controversial about this was halted as a result of the Supreme 4 years later, the price we are paying is amendment, and I hope that Democrats Court’s Hamdan decision on June 29, clear for saying to a President and an and Republicans alike can embrace the 2006. This assertion is false. administration that we would trust need for restoring respect for the over­ Significant aspects of this program them. sight role of the Intelligence Commit­ were halted following the passage of Today, we face a different choice—to tees of the Congress over intelligence. the Detainee Treatment Act in 2005, prevent an irreversible mistake, not to Only through reports that will be prohibiting cruel, inhuman, or degrad­ correct one. It is to stand and be count­ provided under this amendment will ing treatment of detainees, well before ed so that election-year politics do not the Congress have the information it the Supreme Court decision. further compromise our moral author­ lawfully deserves to understand the The President has also been very ity and the safety of our troops. CIA’s detention and interrogation pro­ forceful in his public statements as­ Every Senator must ask him or her­ gram and determine whether the pro­ serting that the post-Hamdan applica­ self: Does the bill before us treat Amer­ gram is producing the unique intel­ tion of Geneva Conventions Common ica’s authority as a precious national ligence mission that justifies its con­ Article 3 has created legal uncertain­ asset that does not limit our power but tinued operation. ties about the CIA interrogation proce­ magnifies our influence in the world? Only when the President works with dures that the Congress must resolve Does it make clear that the U.S. Gov­ the Congress are we able to craft intel­ through legislation—only us—in order ernment recognizes beyond any doubt ligence programs that are legally for the CIA program to continue. This that the protections of the Geneva sound and operationally effective. Only assertion is misleading, and it is false Conventions have to be applied to pris­ when the President works with the as well. oners in order to comply with the law, Congress can America stand strong in Concerns over the legal exposure of restore our moral authority, and best its fight against terrorism. CIA officers have existed since the pro­ protect American troops? Does it make Intelligence gathering through inter­ gram’s inception and did not begin clear that the United States of Amer­ rogation is one of the most important with the Supreme Court’s Hamdan de­ ica does not engage in torture, period? tools we have in the war on terrorism. cision. These mischaracterizations il­ Despite protests to the contrary, I My amendment would provide the con­ lustrate to me why it is important for believe the answer is clearly no. I wish gressional oversight necessary to as­ Congress to understand all facts about it were not so. I wish this compromise sure that our intelligence officers in the CIA program. actually protected the integrity and the field have clear guidelines for effec­ Congress cannot and should not sit letter and spirit of the Geneva Conven­ tive and legal interrogation. on the sidelines blithely ignorant tions. But it does not. In fact, I regret Before yielding the floor, I will ad­ about the details of a critical intel­ to say, despite the words and the pro­ dress two other matters very briefly. ligence program that has been oper­ tests to the contrary, this bill permits Those who have taken the time to ating without meaningful congres­ torture. This bill gives the President read through the bill we are debating sional scrutiny for years. the discretion to interpret the meaning will find the word ‘‘coercion’’ repeat­ I thank the Presiding Officer and and application of the Geneva Conven­ edly in the text of the legislation. Co­ yield the floor. tions. It gives confusing definitions of ercion is a fitting word when consid­ The PRESIDING OFFICER. The Sen­ ‘‘torture’’ and ‘‘cruel and inhuman ering how the Senate finds itself ator from Massachusetts. treatment’’ that are inconsistent with rushed into voting on a bill with far- Mr. LEVIN. Mr. President, will the the Detainee Treatment Act, which we reaching legal and national security Senator from Massachusetts yield for a passed 1 year ago, and inconsistent implications. unanimous consent request? with the Army Field Manual. It pro­ The final text of the underlying bill Mr. KERRY. Yes. vides exceptions for pain and suffering was negotiated by a handful of Repub­ Mr. LEVIN. Mr. President, I ask ‘‘incidental to lawful sanctions,’’ but it lican Senators, many of whom I re­ unanimous consent that I be added as a does not tell us what the lawful sanc­ spect, and the White House. Democrats cosponsor to the Rockefeller amend­ tions are. were not consulted. I was not con­ ment. So what are we voting for with this sulted. This Senator was not consulted. The PRESIDING OFFICER. Without bill? We are voting to give the Presi­ Senator LEVIN was not consulted. We objection, it is so ordered. dent the power to interpret the Geneva were kept out of these closed-door ses­ The Senator from Massachusetts is Conventions. We are voting to allow sions. recognized. pain and suffering incident to some un­ I say that because the Senate Intel­ Mr. KERRY. Mr. President, the last defined lawful sanctions. ligence Committee is the only Senate week before we leave for a long recess This bill gives an administration committee responsible for authorizing has always been extraordinarily busy— that lobbied for torture exactly what it CIA activities and the only committee particularly when an election is only 42 wanted. And the administration has

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.042 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10372 CONGRESSIONAL RECORD — SENATE September 28, 2006 been telling people it gives them what do and can still do under the compromise bill chooses to reverse himself, all the they wanted. The only guarantee we that emerged last week. power remains in the President’s have that these provisions will prohibit We each need to ask ourselves, in the hands. And all the while, America’s torture is the word of the President. rush to find a ‘‘compromise’’ we can all moral authority is in tatters, Amer­ Well, I wish I could say the word of the embrace, are we strengthening Amer­ ican troops are in greater jeopardy, and President were enough on an issue as ica’s moral authority or eroding it? the war on terror is set back. fundamental as torture. But we have Are we on the sides of the thousands of Could the President’s power grab be been down this road. Paul Rieckhoffs in uniform today, or controlled by the courts? After all, it The administration said there were are we making their mission harder was the Supreme Court’s decision in weapons of mass destruction in Iraq, and even worse, putting them in great­ Hamdan that invalidated the Presi­ that Saddam Hussein had ties to al- er danger if they are captured? dent’s last attempt to consolidate Qaida, that they would exhaust diplo­ Paul writes eloquently: power and establish his own military macy before they went to war, that the If America continues to erode the meaning tribunal system. The problem now is insurgency was in its last throes. None of the Geneva Conventions, we will cede the that the bill strips the courts the of these statements were true. ground upon which to prosecute dictators power to hear such a case when it says The President said he agreed with and warlords. We will also become unable to ‘‘no person may invoke the Geneva Senator MCCAIN’s antitorture provi­ protect our troops if they are perceived as Conventions . . . in any habeas or civil sions in the Detainee Treatment Act. being no more bound by the rule of law than action.’’ Yet he issued a signing statement re­ dictators and warlords themselves. The ques­ What are we left with? Unfettered tion facing America is not whether to con­ serving the right to ignore them. Are tinue fighting our enemies in Iraq and be­ Presidential power to interpret what— we supposed to trust that word? yond but how to do it best. My soldiers and other than the statutorily proscribed He says flatly that ‘‘The United I learned the hard way that policy at the ‘‘grave violations’’—violates the Gene­ States does not torture,’’ but then he point of a gun cannot, by itself, create de­ va Conventions. No wonder the Presi­ tries to push the Congress into allow­ mocracy. The success of America’s fight dent was so confident that his CIA pro­ ing him to do exactly that. And even against terrorism depends more on the gram could continue as is. He gets to here he has promised to submit his in­ strength of its moral integrity than on troop keep setting the rules—rules his ad­ terpretations of the Geneva Conven­ numbers in Iraq or the flexibility of interro­ ministration have spent years now try­ gation options. tions to the Federal Register. Yet his ing to blur. Press Secretary announced that the ad­ I wish I could say this compromise Presidential discretion is not the ministration may not need to comply serves America’s moral mission and only problem. The definitions of what with that requirement. And we are sup­ protects our troops, but it doesn’t. No constitute ‘‘grave breaches’’ of Article posed to trust that? eloquence we can bring to this debate 3 are murky. Even worse, they are not Obviously, another significant prob­ can change what this bill fails to do. consistent with either the Detainee lem with this bill is the unconstitu­ We have been told in press reports Treatment Act or the recently revised tional limitation of the writ of habeas that it is a great compromise between Army Field Manual. These documents corpus. It is extraordinary to me that the White House and my good friends, prohibit ‘‘cruel, inhumane, or degrad­ in 2 hours, and a few minutes of a vote, Senator MCCAIN, Senator WARNER, and ing treatment’’ defined as ‘‘the cruel, the Senate has done away with some­ Senator GRAHAM. We have been told unusual, and inhumane treatment or thing as specific as habeas corpus, of that it protects the ‘‘integrity and let­ punishment prohibited by the Fifth, which the Constitution says: ‘‘[t]he ter and spirit of the Geneva Conven­ Eighth, and Fourteenth Amendments.’’ Privilege of the Writ of Habeas Corpus tions.’’ The definition is supported by an ex­ shall not be suspended, unless when in I wish that what we are being told is tensive body of case law evaluating Cases of Rebellion or Invasion the pub­ true. It is not. Nothing in the language what treatment is required by our con­ lic Safety may require it.’’ of the bill supports these claims. Let stitutional standards of ‘‘dignity, civ­ Well, we are not in a rebellion, nor me be clear about something—some­ ilization, humanity, decency, and fun­ are we being invaded. Thus, we do not thing that it seems few people are will­ damental fairness.’’ And, I think quite have the constitutional power to sus­ ing to say. This bill permits torture. tellingly, it is substantially similar to pend the writ. And I believe the Court This bill gives the President the discre­ the definition that my good friend, will ultimately find it unconstitu­ tion to interpret the meaning and ap­ Senator MCCAIN, chose to include in tional. plication of the Geneva Conventions. his bill. And there is simply no reason The United States needs to retain its This bill gives an administration that why the standard adopted by the Army moral authority to win the war on ter­ lobbied for torture exactly what it Field Manual and the Detainee Treat­ ror. We all want to win it. We all want wanted. ment Act, which this Congress has al­ to stop terrorist attacks. But we need We are supposed to believe that there ready approved, should not apply for to do it keeping faith with our values is an effective check on this expanse of all interrogations in all circumstances. and the Constitution of the United Presidential power with the require­ In the bill before us, however, there States. ment that the President’s interpreta­ is no reference to any constitutional Mr. President, a veteran of the Iraq tions be published in the Federal Reg­ standards. The prohibition of degrading War whom I know, Paul Rieckhoff, ister. conduct has been dropped. And, there wrote something the other day that We shouldn’t kid ourselves. Let’s as­ are caveats allowing pain and suffering every Senator ought to think about as sume the President publishes his inter­ ‘‘incidental to lawful sanctions.’’ No­ they wrestle with this bill. He wrote pretation of permissible acts under the where does it tell us what ‘‘lawful sanc­ that he was taught at Fort Benning, Geneva Convention. The interpreta­ tions’’ are. GA, about the importance of the Gene­ tion, like the language in this bill, is So, what are we voting for with this va Conventions. He didn’t know what it vague and inconclusive. A concerned bill? We are voting to give the Presi­ meant until he arrived in Baghdad. Senator or Congresswoman calls for dent the power to interpret the Geneva Paul wrote: oversight. Unless he or she is in the Conventions. We are voting to allow America’s moral integrity was the single majority at the time, there won’t be a pain and suffering incident to some un­ most important weapon my platoon had on hearing. Let’s assume they are in the defined lawful sanctions. The only the streets of Iraq. It saved innumerable majority and get a hearing. Do we real­ guarantee we have that these provi­ lives, encouraged cooperation with our allies ly think a bill will get through both sions really will prohibit torture is the and deterred Iraqis from joining the growing houses of Congress? A bill that directly word of the President. insurgency. But those days are over. Amer­ contradicts a Presidential interpreta­ The word of the President. I wish I ica’s moral standing has eroded, thanks to tion of a matter of national security? could say the words of the President its flawed rationale for war and scandals like Abu Ghraib, Guanta´ namo and Haditha. The My guess is that it won’t happen, but were enough on an issue as funda­ last thing we can afford now is to leave Arti­ maybe it will. Assume it does. The bill mental as torture. Fifty years ago, cle 3 of the Geneva Conventions open to rein­ has no effect until the President actu­ President Kennedy sent his Secretary terpretation, as President Bush proposed to ally signs it. So, unless the President of State abroad on a crisis mission—to

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.044 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10373 prove to our allies that Soviet missiles moral authority, but torture does not tary commission would not be allowed were being held in Cuba. The Secretary work. As LTG John Kimmons, the to consider because it is so unreliable. of State brought photos of the missiles. Army’s deputy chief of staff for intel­ That person would never get the As he prepared to take them from his ligence, put it: chance to challenge his detention; to briefcase, our ally, a foreign head of No good intelligence is going to come from prove that he is not, in fact, an enemy state said, simply, ‘‘put them away. abusive practices. I think history tells us combatant. The word of the President of the that. I think the empirical evidence of the We are not talking about whether de­ United States is good enough for me.’’ last five years, hard years, tell us that. Any tainees can file a habeas suit because We each wish we lived in times like piece of intelligence which is obtained under they don’t have access to the Internet those—perilous times, but times when duress, through the use of abusive tech­ or cable television. We are talking niques, would be of questionable credibility. about something much more funda­ America’s moral authority, our credi­ And additionally, it would do more harm bility, were unquestioned, unchal­ than good when it inevitably became known mental: whether people can be locked lenged. that abusive practices were used. We can’t up forever without even getting the But the word of the President today afford to go there. chance to prove that the Government is questioned. This administration said Neither justice nor good intelligence was wrong in detaining them. Allow there were weapons of mass destruc­ comes at the hands of torture. In fact, this to become the policy of the United tion in Iraq, that Saddam Hussein had both depend on the rule of law. It States and just imagine the difficulty ties to Al Qaeda, that they would ex­ would be wrong—tragically wrong—to our law enforcement and our Govern­ haust diplomacy before we went to authorize the President to require our ment will have arranging the release of war, that the insurgency was in its last sons and daughters to use torture for an American citizen the next time our throes. None of these statements were something that won’t even work. citizens are detained in other coun­ true, and now we find our troops in the Another significant problem with tries. crossfire of civil war in Iraq with no this bill is the unconstitutional elimi­ Mr. President, we all want to stop end in sight. They keep saying the war nation of the writ of habeas corpus. No terrorist attacks. We all want to effec­ in Iraq is making us safer, but our own less a conservative than Ken Starr got tively gather as much intelligence as intelligence agencies say it is actually it right: humanly possible. We all want to bring those who do attack us to justice. But, fanning the flames of jihad, creating a Congress should act cautiously to strike a whole new generation of terrorists and balance between the need to detain enemy we weaken—not strengthen—our abil­ putting our country at greater risk of combatants during the present conflict and ity to do that when we undermine our terrorist attack. It is no wonder then the need to honor the historic privilege of own Constitution; when we throw away that we are hesitant to blindly accept the writ of habeas corpus. our system of checks and balances; the word of the President on this ques­ Ken Starr says, ‘‘Congress should act when we hold detainees indefinitely tion today. cautiously.’’ How cautiously are we without trial by destroying the writ of The President said he agreed with acting when we eliminate any right to habeas corpus; and when we permit tor­ Senator MCCAIN’s antitorture provi­ challenge an enemy combatant’s in­ ture. We endanger our moral authority sions in the Detainee Treatment Act. definite detention? When we eliminate at our great peril. I oppose this legisla­ Yet, he issued a signing statement re­ habeas corpus rights for aliens de­ tion because it will make us less safe serving the right to ignore them. He tained inside or outside the United and less secure. I urge my colleagues to says flatly that ‘‘The United States States so long as the Government be­ do the same. The PRESIDING OFFICER. The Sen­ does not torture’’—and then tries to lieves they are enemy combatants? When we not only do this for future ator’s time has expired. bully Congress into allowing him to do Mr. WARNER. Mr. President, I yield cases but apply it to hundreds of cases exactly that. And even here, he has 5 minutes to our colleague from Mis­ currently making their way through promised to submit his interpretations souri. of the Geneva Convention to the Fed­ our court system? The PRESIDING OFFICER. The Sen­ The Constitution is very specific eral Register—yet his Press Secretary ator from Missouri is recognized for 5 when it comes to habeas corpus. It announced that the administration minutes. may not need to comply with that re­ says, ‘‘[t]he Privilege of the Writ of Ha­ Mr. BOND. Mr. President, I thank the quirement. beas Corpus shall not be suspended, un­ manager of the bill for yielding me 5 We have seen the consequences of less when in Cases of Rebellion or Inva­ minutes. simply accepting the word of this ad­ sion the public Safety may require it.’’ There is no question that this bill, ministration. No, the Senate cannot We are not in a case of rebellion, nor this military commissions bill, is abso­ just accept the word of this adminis­ are we being invaded. Thus, we really lutely essential if we are going to con­ tration that they will not engage in don’t have the constitutional power to tinue to have good intelligence and torture given the way in which every­ suspend the Great Writ. And, even if we move forward with the program of in­ thing they have already done and said did, the Constitution allows only for terrogating and containing detainees on this most basic question has already the writ to be suspended. It does not in an appropriate manner that will put our troops at greater risk and un­ allow the writ to be permanently taken maintain our standing, our honor, and dermined the very moral authority away. Yet, this is exactly what the bill puts tighter control on the United needed to win the war on terror. When does. It takes the writ away—forever— States than other countries do on their the President says the United States from anyone the administration deter­ unlawful combatants. doesn’t torture, there has to be no mines is an ‘‘enemy combatant,’’ even I respectfully suggest that the doubt about it. And when his words are if they are lawfully on U.S. soil and Rockefeller amendment is not only un­ unclear, Congress must step in to hold otherwise entitled to full constitu­ necessary, but the simple fact is, the him accountable. tional protections, and even if they unintended effect is it would com­ The administration will use fear to have absolutely no other recourse. plicate the passage of this important try and bludgeon anyone who disagrees Think of what this means. This bill is military commissions bill. It would ei­ with them. giving the administration the power to ther delay or perhaps even derail this Just as they pretended Iraq is the pick up any non-U.S. citizen inside or bill, which is absolutely essential if we central front in the war on terror even outside of the United States, determine are to get our CIA agents back in the as their intelligence agencies told in their sole and unreviewable discre­ field doing appropriately limited inter­ them their policy made terrorism tion that he is an unlawful combatant, rogation techniques to find out what worse, they will pretend America needs and hold him in jail—be it Guantanamo attacks are planned against the United to squander its moral authority to win Bay or a secret CIA prison—indefi­ States. the war on terror. nitely. Once the Combatant Status Re­ The President has pointed out, the They are wrong, profoundly wrong. view Tribunal determines that person interrogation is the thing that has un­ The President’s experts have told him is an enemy combatant, that is the end covered plots that could have been very that not only does torture put our of the story—even if the determination serious. We need to have our CIA pro­ troops at risk and undermine our is based on evidence that even a mili­ fessionals under carefully controlled

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.020 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10374 CONGRESSIONAL RECORD — SENATE September 28, 2006 circumstances doing the interrogation you something. I visited with intel­ are derelict in our duty. They know that gets the information. ligence agents around the world, some that we are at risk, that this is a war, As to the question about whether of whom have been in on the most sen­ and that there are many people out this is about oversight, well, our com­ sitive interrogations we have had. I there who are waiting to do damage mittee should be all about oversight. have asked them about that, and they and harm to our people. To have any­ We need to be looking at these things. have explained to me how they interro­ thing less than a terrorist prevention We need to be looking every day at gate people. These interrogations I program, which is the best we can put what the agencies are doing, what the have learned about comply—even together, is shameful. I cannot support intelligence community is doing. But though they were before the passage of any legislation that would prevent the as I have said here on the floor before, this law—with the detainee treatment CIA from protecting America and its unfortunately, for the last 4 years, we law. They do comply, and I think they citizens. have been looking in the rearview mir­ are appropriate. The important thing, The legislation before us allows the ror. It has been our fault, not the fault they say, is that what the terrorists Federal Government to continue using of the agencies, that we have not done don’t know is most important. They one of the most valuable tools we have enough oversight because when we don’t know how they are going to be in our war on terror—the CIA terrorist spent 2 years in the Phase I investiga­ questioned or what is going to happen interrogation program. tion, we found out the intelligence was to them. The uncertainty is the thing The global war on terror is a new flawed, the intelligence was inadequate that gets them to talk. If we lay out, in type of war against a new type of because our intelligence assets were an unclassified version, a description of enemy, and we must use every tool at cut 20 percent in the 1990s. We had no the techniques by the Attorney Gen­ our disposal to fight that war—not just human intel on the ground. eral, that description will be in al- some tools, but all of them. These tools But, most of all, there was no pres­ Qaida and Hezbollah and all of the include interrogation programs that sure, no coercion by administration of­ other terrorist organizations’ play­ help us prevent new terrorist attacks. ficials of the intelligence agencies, and book. They will train their assets that: The CIA interrogation program is there was no misrepresentation of the This is what you must be expected to such a program. It is helping us deny findings of the intelligence commu­ do, and Allah wants you to resist these terrorists the opportunity to attack nity—same intelligence that we in the techniques. America. It has allowed us to foil at Congress relied upon in supporting the Mr. ROCKEFELLER. Will the Sen­ least eight terrorist plots, including decision to go to war against the hot­ ator yield for a question? plans to attack west coast targets with bed of terrorism, Iraq. Mr. BOND. Yes, I am happy to. airplanes, blow up tall buildings across Now, I do not take issue with that Mr. ROCKEFELLER. Is the Senator our Nation, use commercial airliners to first phase. But Phase II has cost us an­ aware, when he talks about delaying attack Heathrow Airport and bomb our other 2 years, and we have not learned implementation of this program, that U.S. Marine base in Africa. anything more than we learned in the there are no CIA detainees? What are Mr. President, clearly, this program first phase and with the WMD and the we holding up? is valuable. Clearly, this program is 9/11 Commission. Mr. BOND. Mr. President, we are necessary in the global war on terror. If we would get back to looking out passing this bill so that we can detain We must take legislative action that the front windshield, instead of looking people. If we catch someone like Khalid will allow the program to continue. in the rearview mirror, we should be Shaikh Mohammed, we have no way to The CIA must be allowed to continue doing precisely this kind of interroga­ hold him, no way to ask him the ques­ going after those who have information tion in the oversight committee. And I tions and get the information we need, about planned terrorist attacks against take no issue with many of the ques­ because the uncertainty has brought our Nation and our friends. The CIA tions the Senator from West Virginia the program to a close. It is vitally im­ must be allowed to go after those who raises. As a matter of fact, I probably portant to our security, and unfortu­ are in combat with us. would have some of my own. But I do nately the Rockefeller amendment I applaud the White House, the Sen­ question the need for a very lengthy, would imperil it. ate leadership, and the Armed Services detailed report every 3 months. If you General Hayden promised to come be­ Committee for working together to read all of the requirements, this is a fore the committee, and I look forward, craft a bill that, No. 1, authorizes mili­ paperwork nightmare. They are going in our oversight responsibilities, to tary tribunals and establishes the trial to have to comply and tell us how they hearing how they are implementing and evidentiary rules for such tribu­ are going to comply, and we are going this act. nals; and No. 2, clarifies the standards to oversee them. I thank the Chair. the CIA must comply with in con­ I believe putting out this lengthy re­ Mr. ROCKEFELLER. That is simply ducting terrorist interrogations. We port gets us nowhere. Frankly, if our not true. must keep the bill in its current form, past experience is any guide, we will The PRESIDING OFFICER. Who fending off amendments that would put probably see those reports leaked to yields time? the CIA’s program in jeopardy. the press because reports have a way, Mr. WARNER. Mr. President, at this Regarding the Byrd sunset amend­ regrettably, of being leaked and being juncture, I ask unanimous consent that ment, we don’t know when the global disclosed. we step off of this amendment and war on terror will end, so we cannot ar­ I think there is one big problem with allow the distinguished Senator from bitrarily tie one hand behind the CIA’s the Rockefeller amendment. In the New Mexico to speak for up to 10 min­ back by suddenly terminating the in­ amendment, he requires every 3 utes regarding the bill. terrogation program with a sunset pro­ months the Attorney General—any The PRESIDING OFFICER. The Sen­ vision. time there are any new interrogation ator from New Mexico is recognized for We have already voted on the habeas techniques, the Attorney General shall 10 minutes. corpus amendment, and I am glad we submit an unclassified certification Mr. DOMENICI. Mr. President, I will did not add habeas provisions to this whether or not each approved interro­ speak on this vital subject. I rise to bill. We cannot give terrorists the right gation technique complies with the speak in support of the Military Com­ to bring a habeas corpus petition that Constitution of the United States, ap­ mission Act of 2006. seeks release from prison on the plicable treaty statutes, Executive or­ First off, we must all ask ourselves a grounds of unlawful imprisonment, as ders, relations, and an explanation of very simple question: Do we believe the the Specter amendment would. Such why it complies. United States must have a terrorist at­ legislation will clog our already over­ Mr. President, what we would just tack prevention program? burdened courts. order in this amendment is to spread I submit that the answer is a clear Additionally, such petitions are often out for the world—and especially for and resounding yes. I believe the Amer­ frivolous and disrupt operations at al-Qaida and its related organizations— ican people expect us to have a strong Guantanamo Bay. Examples of the friv­ precisely what interrogation tech­ terrorist attack prevention program olous petitions that have been filed in­ niques are going to be used. Let me tell and that they believe if we don’t, we clude an al-Qaida terrorist complaining

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.045 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10375 about base security procedures, speed best—the CIA—the tools they need to Let’s be clear. If we adopt what I be­ of mail delivery, and medical treat­ do their job to fight this war on terror lieve is an unnecessary amendment, ment; as well as a detainee asking that against these terrorists. contrary with the House, this bill will normal security policies be set aside so It is my privilege to be on the side of end up in conference with the House. If that he could be shown DVDs that are this bill. I believe the American people that happens, I fear the bill will lan­ alleged to be family videos. Such peti­ will be on the side of this bill. Some guish throughout the fall while Mem­ tions are not necessary. thought early that it was the wrong bers are out campaigning. Meanwhile, The underlying bill allows appeals of thing to do. Just as it happens with the CIA will be unable to interrogate judgments rendered by military com­ many bills, we got off on the wrong captured unlawful alien combatants. missions to the District of Columbia foot. But we are back straight, with Forgive me, Mr. President, but I Circuit Court of Appeals—a very sig­ both feet on the right path, and we think the American people deserve bet­ nificant court. These are appeals of must pass the bill as is. ter than to have this Nation’s efforts judgments rendered by the military I wonder if those who want to destroy against al-Qaida bog down because commissions. That is a totally appro­ this bill or make it ineffective would some in this body—and I don’t question priate way to do it. When I finally un­ really ask the American people in hon­ their intent—are insisting on an unnec­ derstood that, I could not believe that esty and sincerity, do they want the essary symbolic and redundant series some would come to the floor and CIA program to continue or are they of reporting requirements that could argue as they did. My colleagues have really trying to say we should not and will be answered through the reg­ said we are abandoning habeas corpus; allow the program? If my colleagues ular committee oversight. All we have we have never done anything like this are on the side of the latter, they to do is ask and then to listen and then before. They act as if we have decided ought to tell us and tell the American to respond. Where are our priorities? to be totally unjust and unfair when, as people. Then we would understand Where should they be? a matter of fact, this is about as fair a whom they are for and there would be As I have listened to the debate on treatment as you could give terrorist no question in the American people’s this bill in the relative safety and com­ suspects and still have an orderly proc­ minds. fort of Capitol Hill, I cannot help but ess. I think we have done the right I yield the floor. wonder whether some of us have lost thing. Giving terrorist suspects access The PRESIDING OFFICER. Who our perspective. While we must do our to the court known as the second high­ yields time? duty as elected officials—and we will est court in America provides an ade­ Mr. WARNER. Mr. President, I yield do that—we cannot forget that we are quate opportunity for review of detain­ to the chairman of the Intelligence a nation at war. Consequently, our first ees’ cases. Committee, the Senator from Kansas, and foremost duty should be to support I laud the occupant of the chair for such time as he needs. our troops and intelligence officers at explaining this matter early on to The PRESIDING OFFICER. The Sen­ home and abroad, not to mandate four many of us who did not understand the ator from Kansas is recognized. times a year reporting requirements issue, and it has become clear to many Mr. ROBERTS. Mr. President, I that are unprecedented in scope and de­ of us that we have done the right thing thank the chairman of the Armed Serv­ tail. The CIA will not be detecting and in terms of the habeas corpus rule that ices Committee, who is an ex officio interdicting unlawful alien combat­ we have adopted. It will be upheld, in member of the Intelligence Committee ants; it will be writing one report after my opinion, after I have read some and does extremely valuable work as another. other cases, by the courts. we try to work in a commensurate I am on the side of our hard-working Mr. President, my primary standard fashion on national security. intelligence officers and against the in determining whether to support this I rise in opposition to the amend­ terrorists. I think that is an obvious legislation is whether the legislation ment being offered by my good friend choice. I think most Members would will allow the CIA interrogation pro­ from West Virginia, Senator ROCKE­ think they would be in that position. gram to continue. The answer to that FELLER, who is vice chairman of our But I do not believe in making their question must be yes. If the answer to committee. The amendment calls for job more difficult by legislating addi­ that question is no, then we are fool­ yet another unnecessary and repeti­ tional reporting requirements which hardy, at a minimum, and totally stu­ tious requirement of reporting. are needless and burdensome and which pid at a maximum, if we decide that Now, I do not take issue with some of will likely delay enactment of this the kinds of enemies we have will not the numerous questions the Senator vital national security legislation. be subject to the CIA terrorist interro­ from West Virginia seeks. Some of If this were to pass, we can be reason­ gation program we have now. The pro­ these questions should be answered in ably certain that it will have a chilling gram must continue. the context of our regular committee effect on interrogation operations. We The administration has informed me oversight. are sending a signal to our intelligence that this bill, in its current form, will The issue is not if reasonable ques­ officers to be risk averse, the very allow the CIA terrorist interrogation tions are answered, but how and how thing we don’t want to do. In fact, the program to continue. I sought that in­ often. I really question the need for a very implication of this amendment is formation as a critical piece of infor­ formal quarterly report—four times a they are unable to carry out their du­ mation before I started looking at all year—unreasonable in scope and length ties with honor and respect for the law, of the amendments to see where we that will be a very unnecessary burden and that, my colleagues, is just not were. Therefore, this bill must pass, on the hard-working men and women true. and it must pass in its current form. at the CIA. So let us do our duty, as we should, We must remember that we are deal­ The simple fact is that the vice and get this bill done and to the Presi­ ing with terrorists, not white-collar chairman and other members of the dent. criminals. We are not even dealing committee have been fully briefed in Mr. President, I oppose the amend­ with the types of prisoners of war there the past, present, and prospective fu­ ment and I urge my colleagues to do were in the Second World War, some of ture about CIA’s detention and interro­ the same. whom, from the German area, might gation operations and will continue to I yield the floor. have been severely abusing the rights be briefed. The vice chairman and The PRESIDING OFFICER (Mr. of prisoners-of-war. But we still did not other members of the Intelligence VITTER). The Senator from Virginia is in any way have the situation we have Committee can get answers to their recognized. now with reference to prisoners of war questions and more through the course Mr. WARNER. Mr. President, I won­ in the Second World War. of the committee’s normal oversight der if I may engage my distinguished We must remember that we are deal­ activities. They only need to ask. chairman in a colloquy. I am privileged ing with terrorists who know no limits, I just mentioned the prospective fu­ to serve on his committee. Some years follow no rules, have no orderliness ture of the CIA’s interrogation pro­ ago I served on the committee and at about them. They are just going to do gram. That is because without this leg­ one time was vice chairman of the what we let them do. We must give our islation, there will be no CIA program. committee. So I draw on, if I may say

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.054 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10376 CONGRESSIONAL RECORD — SENATE September 28, 2006 with some modesty, a long experience think some of the questions are not the Chair and ranking member desire of working with the Intelligence Com­ reasonable—say they have questions to see him, my understanding is he mittee, and, as the chairman knows, about this, all they have to do is ask. makes himself available. It is not as if the chairman and ranking member of I can guarantee as chairman that those we have to wait until a report comes, the Armed Services Committee have in charge of this particular program at read it, and then decide to bring him always had a role of participation in the CIA will be there and have been down. The Chair, in consultation with his committee. I guess if I can add up there. the ranking member—he and his team all the years as chairman and ranking, The inspector general of the CIA has are quite responsive; am I not correct it is about 12 or 15, I think, of my 28 briefed the committee—I am not going in that? years on the Armed Services Com­ to get into the details of that brief­ Mr. ROBERTS. I am happy to re­ mittee. I have watched this committee ing—both the vice chair and myself in spond to the distinguished chairman. and have been a participant for many regards to any question on what has What he has described is accurate. It years. happened, with what has gone wrong may be the situation with General As I read through the amendment of­ allegedly or otherwise with the interro­ Hayden, the Inspector General, or any­ fered by our distinguished colleague gation and detention program, and we body else we request to appear before from West Virginia—he has the title of get an update as to where are those the committee that they may be in a vice chairman. That came about be­ cases. If there was egregious behavior, situation where there would be sen­ cause the chairman and the vice chair­ what is happening to those people? Are sitive intelligence information that at man traditionally on this committee they being prosecuted? And the answer that particular time would not be pro­ work to achieve the highest degree—I to that is yes. vided, but there certainly would be the guess the word is the committee work­ All we have to do is ask. As I look at promise that it will be provided if at ing together as an entity. this, I must say in scope, it is unprece­ all possible. I say to the chairman, it is my judg­ dented. They ask questions that I So I am not saying that it is a carte ment that this amendment is really in think, quite frankly, if I were an inter­ blanche kind of situation. That is to be the nature of a substitute for the over­ rogator working within the confines of expected. But the great preponderance sight responsibilities of the committee. the Central Intelligence Agency, would of requests we make of the General and As we both know, the world environ­ have a very chilling effect on me to of the Inspector General have been ment changes overnight. This business know that four times a year I would be very prompt and very full, and, again, of trying to operate on the basis of re­ held responsible for all of these ques­ all we have to do is ask. ports is simply, in my judgment, not tions which I think those in charge at It is just that—I don’t want to call it an effective way for the committee to the Agency can certainly respond to a book report, but that is about where function. The Senator from Kansas, as any committee request in terms of a we are. It is on some very important chairman, in consultation with the briefing. I would be a little nervous. matters. I know members of the com­ And that is not the case because, as vice chairman, has to call hearings and mittee feel very strongly about this. I I said in my remarks, the CIA will not meetings and briefings in a matter of can’t recall a time when members on be detecting and interdicting unlawful hours in order to keep the committee the committee have asked me for help alien combatants; it will be writing one currently informed about world situa­ to get information from the executive report after another, four times a year. tions. or from the CIA or from any of our in­ If we look at the length, breadth, and I say with all due respect to my col­ telligence agencies where I haven’t depth, it is not whether we get this in­ leagues here and to our vice chairman worked overtime to get that job done. formation, it is how we get the infor­ of the Intelligence Committee, this I thank the chairman for his ques­ mation. All we have to do is ask. amendment is a substitute for the com­ tion. This is a tremendous burden. I must Mr. WARNER. Mr. President, I thank mittee’s responsibilities, the basic re­ tell my colleagues that I don’t know my distinguished colleague. I think we sponsibilities to be performed by this where we are going to get enough staff have framed for the full Senate the pa­ committee. It is for that reason I op­ on the committee to respond to these rameters of what I regard are the pose the amendment. But I would like four mandated reports. It is going to be points to be considered at such time we to have the chairman’s views. a rather unique situation when we have vote on this amendment. Mr. ROBERTS. Mr. President, if the a lot of work to do. We have briefings, On that matter, I see the distin­ chairman will yield. as the Senator from Virginia indicated, guished vice chairman and my col­ Mr. WARNER. Yes. every week. We have one this after­ league. How much time remains under Mr. ROBERTS. Let me repeat what I noon—it is terribly important—re­ the control of the Senator from Vir­ said in my statement—and I share the quested by members. Yet I think we ginia? distinguished Senator’s views, more es­ are going to have to hire more people The PRESIDING OFFICER. There is pecially from his experience on both to do this if, in fact, we do this, and I 81⁄2 minutes remaining under the con­ committees, the Intelligence Com­ think the CIA will as well. trol of the Senator from Virginia. mittee and the Armed Services Com­ I am not too sure, again, if I were an Mr. WARNER. I thank the Chair. mittee. We both face the same kind of individual interrogator that I would I yield the floor. responsibilities, our oversight respon­ want to stay in the business. The PRESIDING OFFICER. The Sen­ sibilities. We take them very seriously. Mr. WARNER. Mr. President, I thank ator from West Virginia is recognized. We may have differences of opinion on my colleague. Another observation of Mr. ROCKEFELLER. Mr. President, the Intelligence Committee or on the all of us who have had the responsi­ if I might speak for 2 or 3 minutes. Armed Services Committee, but we do bility of being a chairman and ranking The PRESIDING OFFICER. Without our oversight. member of committees, I know it is objection, it is so ordered. The simple fact is that the vice sometimes difficult to get witnesses to Mr. ROCKEFELLER. Mr. President I chairman, myself, and other members appear, but I found thus far, certainly have a one-page summary. Some of the of the committee—and let me stress with General Hayden—and I have arguments I have heard are absolutely now full membership of the committee; known him for a number of years—I incredible. The fact of the matter is we worked very hard to get that ac­ have a high degree of confidence in his there isn’t any reporting done. For 4 cess—have been fully briefed in the ability to administer this Agency, the years this has gone on. People say: past and the present and also prospec­ CIA. It is of great importance to this Just call them in; call in the head of tively of the CIA’s detention and inter­ Senator because it is in Virginia, if I the CIA, whoever it is, before the com­ rogation operations. may say. I view the agency and each mittee. That doesn’t yield information. The vice chairman and other mem­ and every one of its employees as We have so many requests for informa­ bers of the Intelligence Committee, if someone for whom I have an obligation tion from the CIA that have not been people have problems, if people have to speak on their behalf when nec­ responded to. They are not responsive questions, if people need to get more essary. to the committee because they don’t briefs, if people want to basically get I find that General Hayden is very want to be responsive to the com­ into some—I say ‘‘some’’ because I forthcoming, very responsive. When mittee, because they are directed not

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The Senator Intelligence Committee can’t get it. say it is going to slow down the pas­ from Michigan heard that correctly. Members of the Armed Services Com­ sage of the bill. Now, that is brilliant. Mr. LEVIN. Well, Mr. President, just mittee can’t get it. All we have to do is We could have started this in a timely one example here. I have been trying to ask? How many times do we have to fashion, and all the House has to do is get a memo called the second Bybee ask before we get documents? accept the Senate amendment, if one memo now for 21⁄2 years. I haven’t There are 70 documents we still can’t were to pass. In a heartbeat, it is done. asked once, I haven’t asked twice, I get from the Department of Defense So what is in that argument? have probably asked a dozen times for relative to the operation of the Feith The Senator from Missouri has stat­ the Bybee memo, and my good friend, shop. All we have to do is ask? There ed—and this is very important for my the chairman of the Armed Services are documents we have asked of the In­ colleagues to hear—that the amend­ Committee, has asked for the Bybee telligence Committee for years beyond ment would require public disclosure of memo, without any luck. So the idea the Bybee amendment without any re­ the CIA’s interrogation techniques. that all we have to do is ask is just sponse. That is categorically false—wrong. It is simply wrong. The PRESIDING OFFICER. The Sen­ a dangerous thing to say. It is an irre­ Chairman WARNER asked on May 13, ator has used 4 minutes. sponsible thing to say on the floor of 2004—2004—that all legal reviews and Mr. LEVIN. I thank the Chair, and I the Senate. The reports on the CIA pro­ related documentation concerning ap­ thank my good friend from West Vir­ gram would be classified and they proval of interrogation techniques be ginia for trying to get some institu­ would be sent to the congressional In­ provided to the committee. It has tional support behind these requests telligence Committees and them alone. never been provided. that are made by Senators and com­ So we need to get that straight right On April 12, 2005, I submitted ques­ mittees frequently for documents. now. tions to John Negroponte, who was the The PRESIDING OFFICER. The Sen­ The information that is provided in nominee for the Director of National ator from Virginia is recognized. the reports is made to sound like we Intelligence, requesting to see if the in­ Mr. WARNER. Mr. President, in con­ are rewriting the Constitution 17 times telligence community has copies of the sultation with my distinguished rank­ in a hot summer’s several months. This so-called Bybee memo. ing member, I would like to inquire if is information which has not been pro­ In April of 2005, I asked General Hay­ there is further debate desired on this vided to us for 4 years, what these re­ den, on his nomination to be Deputy amendment. If not, my understanding ports would be asked to do, and then National Intelligence Director, to see if is the leadership will select a time— they could taper off if we found a re­ he could determine if the intelligence joint leadership—for votes on this sponsive intelligence community. But community has a copy of the second amendment and others at some point we have not been provided these in 4 Bybee memo and to provide it to the this afternoon and with the full expec­ years. Am I meant to be worried about committee. tation that this matter will be voted that? Is it the job of the Senate Intel­ Then on the intelligence budget hear­ on final passage. ligence Committee and the House to do ing, April 28, 2005, I asked Secretary So at this time, could I inquire as to oversight? Yes, it is, and we can’t be­ Cambone: Can you get us a copy of the the time for the Senator from Virginia cause they won’t give us the informa­ second Bybee memo? This has to do and the Senator from Michigan? tion. The chairman can say that he and with what interrogation techniques are The PRESIDING OFFICER. The time I are briefed, but that is seldom and on legal. This is written by the Office of is 18 minutes for the Senator from Vir­ very discrete matters that don’t cover Legal Counsel, this memo. He says he ginia and 5 minutes 10 seconds for the this bill. will get a reply to me. That was April Senator from West Virginia. So the Senator from Virginia, whom 2005. Mr. LEVIN. Mr. President, may I in­ I obviously greatly respect, suggests In May of 2005, I wrote the Director quire of the Senator from West Vir­ this amendment is a substitute for of Central Intelligence, Porter Goss, re­ ginia as to whether, if he has com­ oversight. This amendment, to the con­ questing the second Bybee memo. Then pleted debate on this amendment, he trary, is going to allow us to do over­ I get a letter from the Director of Con­ sight, and that is my point. It is our re­ would be willing to yield the balance of gressional Affairs, Joe Whipple, saying sponsibility under the law to do it. We his time to the Senator from Michigan the memorandum can only be released cannot do it. We are not allowed to do for use on the bill? by the Department of Justice. So in it. We are systematically prevented Mr. ROCKEFELLER. I would, with July, I write the Department of Jus­ from getting information from the peo­ the exception of 1 minute to summarize tice, the Attorney General: Can we get ple who are required by law to give it just before we vote on it, so you can a copy of the second Bybee memo? Let­ to us. That is called not being trans­ have the balance of the time. ter after letter after letter. Mr. LEVIN. Mr. President, I ask parent, and that is called us not know­ Then there is a hearing by the Senate unanimous consent that the balance of ing what is going on and thus not being Intelligence Committee, July 2005. This the time of the Senator from West Vir­ able to help with the war on terror. I thank the Chair. is a hearing on Benjamin Powell’s nom­ ginia minus that 1 minute be assigned The PRESIDING OFFICER. Who ination to be general counsel in the Of­ to the Senator from Michigan for use yields time? fice of the Director of National Intel­ or allocation on the bill itself. Mr. ROCKEFELLER. Mr. President, I ligence. I asked Mr. Powell: Can you The PRESIDING OFFICER. Is there yield 4 minutes to the Senator from provide us for the record a copy of that objection? Without objection, it is so Michigan. second Bybee memo? That decision, we ordered. The PRESIDING OFFICER. The Sen­ are told a week later, is not a decision Mr. WARNER. Mr. President, I would ator from Michigan is recognized for 4 he can make; that is within the De­ make a similar request that the bal­ minutes. partment of Justice’s purview, and on ance of my time be allocated to me for Mr. LEVIN. I thank the Chair, and I it goes. use on the bill. thank my friend from West Virginia. Another year of stonewalling, of de­ The PRESIDING OFFICER. Is there Mr. President, this amendment just nial, of coverup by the Department of objection? Without objection, it is so simply requires regular reports on de­ Justice of a memo which is so criti­ ordered. tention and interrogation programs. It cally important, according to press re­ Mr. WARNER. Therefore, I believe all will give us access to legal opinions. It ports and according now also to the ac­ time has been yielded back on both is essential that this amendment be knowledgment by the Department of sides, and we can prepare the floor now adopted. Justice. It sets a legal framework for for the receiving of an amendment

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.057 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10378 CONGRESSIONAL RECORD — SENATE September 28, 2006 from the distinguished Senator from Mr. KENNEDY. Mr. President, I have me on. The stretcher was then stood on end Massachusetts. here before me the Department of with my head almost touching the floor and I yield the floor. Army regulations and rules for interro­ my feet in the air. They then began pouring The PRESIDING OFFICER. The Sen­ gating prisoners. In the document I water over my face and at times it was im­ have here, which is the official mili­ possible for me to breathe without sucking ator from Massachusetts is recognized. in water. The torture continued and contin­ AMENDMENT NO. 5088 tary document to define permissible in­ ued. Yukio Asano was sentenced to fifteen Mr. KENNEDY. Mr. President, I be­ terrogation techniques, it outlines cer­ years of hard labor. We punished people with lieve my amendment No. 5088 is at the tain interrogations which are prohib­ fifteen years of hard labor when desk, and I ask for its immediate con­ ited and it lists these: forcing the per­ waterboarding was used against Americans sideration. son to be naked, perform sexual acts, in World War II. The PRESIDING OFFICER. The or pose in a sexual manner; applying What about the case of Matsukichi clerk will report. beatings, electric shock, burns, or Muta, another Japanese officer, tried The bill clerk read as follows: other forms of physical pain; on April 15 to 25, 1947, for, among other waterboarding; using dogs; inducing charges, causing a prisoner to receive The Senator from Massachusetts [Mr. KEN­ hypothermia or heat injury; con­ NEDY] proposes an amendment numbered shocks of electricity and beating pris­ 5088. ducting mock executions; depriving the oners. Shocks of electricity. He was person of necessary food, water, and Mr. KENNEDY. Mr. President, I ask sentenced to death by hanging. Death medical care. unanimous consent that the reading of by hanging. We could go on. Those techniques are prohibited by In another case prosecuted from the amendment be dispensed with. the Department of Defense. Those tech­ The PRESIDING OFFICER. Without March 3 to April 30, 1948—the Japanese niques are prohibited from being used officer was sentenced for exposing pris­ objection, it is so ordered. against adversaries in any kind of a The amendment is as follows: oners to extreme cold temperatures, conflict, blatant violations the require­ forcing them to spend long periods of AMENDMENT NO. 5088 ment for humane treatment, and what time in the nude, making the prisoner (Purpose: To provide for the protection of I would consider to be torture. Cer­ United States persons in the implementa­ stand in the cold for long periods of tainly the Army and Department of time, hour after hour, throwing water tion of treaty obligations) Defense have effectively found that out On page 83, between lines 8 and 9, insert on him and inducing hypothermia. This that these techniques do not work. officer received 15 years of hard labor. the following: They have banned them and there has (2) PROTECTION OF UNITED STATES PER­ Fifteen years. not been any objection to it. We didn’t tolerate those abuses, and SONS.—The Secretary of State shall notify What does our amendment say? Well, other parties to the Geneva Conventions we should not tolerate those abuses in­ it says we in the United States are not that— flicted on any Americans who are going going to tolerate those techniques if (A) the United States has historically in­ to be taken in the war on terror. That any of our military personnel are cap­ terpreted the law of war and the Geneva Con­ is what this amendment is all about. It tured. But not all of the people who are ventions, including in particular common will tell the Secretary of State to no­ Article 3, to prohibit a wide variety of cruel, representing the United States in the inhuman, and degrading treatment of mem­ war on terror are wearing a uniform. tify every signatory from 194 nations, bers of the United States Armed Forces and For example, we have SEALs, we have that if any of their governments are United States citizens; some special operations, special forces, going to use any of these techniques on (B) during and following previous armed we have CIA agents. We have contrac­ any Americans that are taken in this conflicts, the United States Government has tors and aid workers. We have more war on terror, that we will consider prosecuted persons for engaging in cruel, in­ this a violation of the Geneva Conven­ human, and degrading treatment, including people around the world looking out after our security interests than any tions and that they will be account­ the use of waterboarding techniques, stress able. positions, including prolonged standing, the other country in the world. use of extreme temperatures, beatings, sleep What does this amendment say? Well, This is to protect our servicemen and deprivation, and other similar acts; if our military personnel are not going servicewomen, those who are in the in­ (C) this Act and the amendments made by to do this those we capture, we are say­ telligence agencies, those performing this Act preserve the capacity of the United ing to countries around the world: You dangerous duties, those who are not States to prosecute nationals of enemy pow­ cannot do this against any American wearing the uniform in their battle ers for engaging in acts against members of personnel you are going to capture in against terror. We are putting every­ the United States Armed Forces and United this war on terror, or in any other con­ one on notice. States citizens that have been prosecuted by We did not make up this list. All the United States as war crimes in the past; flict. This amendment is about pro­ and tecting American personnel who are in­ these techniques are taken right out of (D) should any United States person to volved in the war on terror. It is saying the Defense Department’s code of con­ whom the Geneva Conventions apply be sub­ to foreign countries: If you use any of duct for interrogations. jected to any of the following acts, the these techniques, the United States I would take more time and review United States would consider such act to will say this is a war crime and you for my colleagues, where we tried indi­ constitute a punishable offense under com­ will be held accountable. How can any­ viduals in World War II and sentenced mon Article 3 and would act accordingly. body be against that? This administra­ individuals who performed these kinds Such acts, each of which is prohibited by the tion has sown confusion about our of abuses on Americans to long periods Army Field Manual include forcing the per­ of incarceration and even to death. son to be naked, perform sexual acts, or pose commitments to the Geneva Conven­ in a sexual manner; applying beatings, elec­ tions, so that protection does not exist I reserve the remainder of my time. tric shocks, burns, or other forms of physical now. That protection does not exist The PRESIDING OFFICER. Who pain to the person; waterboarding the per­ now. Restoring that protection is basi­ yields time? son; using dogs on the person; inducing hypo­ cally what this amendment is all Mr. WARNER. Mr. President, at this thermia or heat injury in the person; con­ about. moment I suggest the absence of a ducting a mock execution of the person; and I am not going to take much time, quorum, with the time not chargeable depriving the person of necessary food, but I just want to remind our col­ to either side. water, or medical care. leagues about how we viewed some of Mr. KENNEDY addressed the Chair. Mr. KENNEDY. Mr. President, I un­ these techniques in our conflicts in Mr. WARNER. I beg your pardon. I derstand we have an hour evenly di­ previous wars. thought my colleague yielded the floor. vided on the amendment. On the issue of waterboarding, the Mr. KENNEDY. I did. If you want to The PRESIDING OFFICER. Under United States charged Yukio Asano, a yield your time, I wouldn’t object to it, the agreement, the Senator has 25 min­ Japanese officer on May 1 to 28, 1947, but I object if you are calling for equal utes under his control. with war crimes. The offenses were re­ time. Mr. KENNEDY. Mr. President, I yield counted by John Henry Burton, a civil­ Mr. WARNER. No, I said charged to myself 10 minutes on the amendment. ian victim: neither side. The PRESIDING OFFICER. The Sen­ After taking me down into the hallway The PRESIDING OFFICER. Without ator from Massachusetts is recognized. they laid me out on a stretcher and strapped objection, it is so ordered.

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.058 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10379 The clerk will call the roll. and convicted. Those in the higher all familiar with the different examples The legislative clerk proceeded to ranks are not. No one has stood up and where these techniques—frighteningly call the roll. said clearly, those are violations of the familiar to the series of techniques Mr. KENNEDY. Mr. President, I ask Geneva Conventions. So we have Abu used in Iraq and Guantanamo—and are unanimous consent the order for the Ghraib, which all of us remember. And often frequently used against Ameri­ quorum call be rescinded. it has caused confusion. cans. The PRESIDING OFFICER. Without We have the circumstances in Guan­ I am reminded—I gave illustrations: objection, it is so ordered. tanamo—the conduct of General Miller, electric shocks, waterboarding, hypo­ Mr. KENNEDY. Mr. President, do I who brought these harsh interrogation thermia, heat injury. We all remember have additional time? How much time techniques to Guantanamo at Sec­ the 52 American hostages who were have I used? retary Rumsfeld’s direction. When the held in the U.S. Embassy in Iran. They The PRESIDING OFFICER. There Armed Services Committee questioned were subjected to the mock executions. are 18 minutes 20 seconds remaining on his whole standard of conduct, he The PRESIDING OFFICER. The Sen­ the time of the Senator. moved toward early retirement to ator has used 5 minutes. Mr. KENNEDY. I would like to yield avoid coming up and facing the music. Mr. KENNEDY. Mr. President, I hope myself 5 more minutes. This caused confusion about our com­ we could accept this amendment. I The PRESIDING OFFICER. Without mitments to the Geneva Conventions. yield myself 1 more minute. objection, it is so ordered. The Senator Then you had the Bybee memo­ It basically incorporates what the is recognized. randum, which was effectively the rule Senate did several years ago with war Mr. KENNEDY. Mr. President, it will of law for some 2 years, which per­ crimes. It is trying to respond to what be quite surprising to me if the Senate mitted torture, any kind of torture, the President says. He wants speci­ is not prepared to accept this amend­ and it said that any individual who is ficity about what is going to be prohib­ ment. I look back at the time that we going to be involved in torturing would ited and what will not be. actually passed the War Crimes Act of be absolved from any kind of crimi­ The Department of Defense has found 1996. At that time it was offered by nality if the purpose of their abusing these areas to be off limits for the mili­ Walter B. Jones, a Republican Con­ any individual was to get information tary. All we are saying is if other coun­ gressman. It was offered in response to and there was no specific intent to tries are going to do that to Ameri­ our Vietnam experience, where Amer­ have bodily harm for that individual. cans, they are going to be held ac­ ican servicemen—including one of our This caused confusion about our com­ countable. own colleagues and dear friends, Sen­ mitments to the Geneva Conventions. This is about protecting Americans. ator MCCAIN—had been subject to tor­ That was the Bybee amendment. Fi­ That is the least we ought to be able to ture during that period of time. nally, Attorney General Gonzales had do for those who are risking their lives When this matter came up, both in to repudiate that or he never would in very difficult circumstances. the House of Representatives and the have been approved as the Attorney I yield the floor. Senate of the United States, it passed General of the United States. That is Mr. LEVIN. Mr. President, I suggest in the Senate of the United States the record in the Judiciary Committee. the absence of a quorum and ask unani­ without a single objection. It passed I sat through those hearings. I heard mous consent that the time not be the House by voice vote. This is what it the Attorney General say they were re­ charged to either side. says, under War Crimes, chapter 118: pudiating the Bybee memorandum on The PRESIDING OFFICER. Without Whoever, whether inside or outside the that. objection, it is so ordered. The clerk United States, commits a war crime . . . This is against a considerable back­ will call the roll. And it talks about the cir­ ground of where we have seen some ex­ The legislative clerk proceeded to cumstances— traordinary abuses. call the roll. . . . as a member of the armed forces of the Then we have tried to clarify our Mrs. CLINTON. Mr. President, I ask United States or a national United States. It commitment. We have the action in unanimous consent that the order for is in Title 18 so those out of uniform are sub­ the Senate of the United States, by a the quorum call be dispensed with. ject to the code. vote of 90 to 9, accepting Senator The PRESIDING OFFICER. Without So that is the CIA. Those are the MCCAIN’s Amendment to prohibit objection, it is so ordered. SEALS. Those are the people involved cruel, inhumane, and degrading treat­ Mrs. CLINTON. Mr. President, the now in our war on terror. Then it con­ ment; to make the Army Field Manual Senate is currently debating a bill on tinues along to define a war crime as a the law of the land; to say we are not how we treat detainees in our custody, violation of Common Article 3 of the interested in torture. Senator MCCAIN and, more broadly, on how we treat the Geneva Conventions. That provision understands. He believes that principles on which our Nation was protects against cruel treatment and waterboarding is torture. He believes founded. torture. It prevents the taking of hos­ using dogs is torture. This is not com­ The implications are far reaching for tages. It prohibits outrages upon per­ plicated. We don’t have to cause confu­ our national security interests abroad; sonal dignity. Those are effectively the sion. We have it written down on this the rights of Americans at home, our kinds of protections that act affords. list of prohibited techniques. It is not reputation in the world; and the safety We heard a great deal from the ad­ my list of prohibited techniques, but it of our troops. ministration, from the President, that is written down by the Department of The threat posed by the evil and nihi­ he wanted specificity in the War Defense. This amendment says if a for­ listic movement that has spawned ter­ Crimes Act and the Geneva Conven­ eign country is going to practice these rorist networks is real and gravely se­ tions in terms of what is permitted and kinds of behavior against an American rious. We must do all we can to defeat what is not permitted. He felt those national who is out there in the war on the enemy with all the tools in our ar­ terms are too vague. Well, on that he is terror and is being picked up, we are senal and every resource at our dis­ right. There is confusion in the world. going to consider this to be a war posal. All of us are dedicated to defeat­ There is confusion in the world about crime. This is about protecting Ameri­ ing this enemy. our commitment to the Geneva Con­ cans. The challenge before us on this bill, ventions and what we think it means. I don’t understand the hesitancy on in the final days of session before the There is a good deal of confusion in the the other side, not being willing to ac­ November election, is to rise above world in the wake of what happened at cept this amendment. Let’s go on the partisanship and find a solution that Abu Ghraib. There we found out that record about what we say is absolutely serves our national security interests. I these harsh interrogation techniques prohibited and what we know has been fear that there are those who place a had been used. Sure, we have had 10 dif­ favored techniques that have been used strategy for winning elections ahead of ferent reviews of what happened over by our adversaries at other times. Let’s a smart strategy for winning the war there. What we always find out is it is go on the record for clarity. on terrorism. the lower lights, the corporals and the Looking back in history, at the end Democrats and Republicans alike be­ sergeants who are the ones being tried of World War II and otherwise, we are lieve that terrorists must be caught,

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.060 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10380 CONGRESSIONAL RECORD — SENATE September 28, 2006 captured, and sentenced. I believe that British Army in their treatment of our Armed Forces and former officials of the De­ there can be no mercy for those who unfortunate brethren.’’ partment of Defense, we write to express our perpetrated 9/11 and other crimes Therefore, George Washington, our profound concern about a key provision of S. commander-in-chief before he was our 3861, the Military Commissions Act of 2006, against humanity. But in the process introduced last week at the behest of the of accomplishing that I believe we President, laid down the indelible President. We believe that the language that must hold on to our values and set an marker of our Nation’s values even as would redefine Common Article 3 of the Ge­ example we can point to with pride, we were struggling as a Nation—and neva Conventions as equivalent to the stand­ not shame. Those captured are going his courageous act reminds us that ards contained in the Detainee Treatment nowhere—they are in jail now—so we America was born out of faith in cer­ Act violates the core principles of the Gene­ should follow the duty given us by the tain basic principles. In fact, it is these va Conventions and poses a grave threat to Supreme Court and carefully craft the principles that made and still make American service-members, now and in fu­ our country exceptional and allow us ture wars. right piece of legislation to try them. We supported your efforts last year to clar­ The President acted without authority to serve as an example. We are not ify that all detainees in U.S. custody must and it is our duty now to be careful in bound together as a nation by blood­ be treated humanely. That was particularly handing this President just the right lines. We are not bound by ancient his­ important, because the Administration de­ amount of authority to get the job tory; our Nation is a new nation. Above termined that it was not bound by the basic done and no more. all, we are bound by our values. humane treatment standards contained in During the Revolutionary War, be­ George Washington understood that Geneva Common Article 3. Now that the Su­ how you treat enemy combatants can preme Court has made clear that treatment tween the signing of the Declaration of of al Qaeda prisoners is governed by the Ge­ Independence, which set our founding reverberate around the world. We must convict and punish the guilty in a way neva Convention standards, the Administra­ ideals to paper, and the writing of our tion is seeking to redefine Common Article Constitution, which fortified those that reinforces their guilt before the 3, so as to downgrade those standards. We ideals under the rule of law, our val­ world and does not undermine our con­ urge you to reject this effort. ues—our beliefs as Americans—were al­ stitutional values. Common Article 3 of the Geneva Conven­ ready being tested. There is another element to this. I tions provides the minimum standards for We were at war and victory was hard­ can’t go back in history and read Gen­ humane treatment and fair justice that eral Washington’s mind, of course, but apply to anyone captured in armed conflict. ly assured, in fact the situation was These standards were specifically designed closer to the opposite. New York City one purpose of the rule of law is to or­ ganize a society’s response to violence. to ensure that those who fall outside the and Long Island had been captured. other, more extensive, protections of the General George Washington and the Allowing coercion, coercive treatment, Conventions are treated in accordance with Continental Army retreated across and torturous actions toward prisoners the values of civilized nations. The framers New Jersey to Pennsylvania, suffering not only violates the fundamental rule of the Conventions, including the American tremendous casualties and a body blow of law and the institutionalization of representatives, in particular wanted to en­ to the cause of American independence. justice, but it helps to radicalize those sure that Common Article 3 would apply in It was at this time, among these sol­ who are tortured. situations where a state party to the treaty, Zawahiri, bin Laden’s second in com­ like the United States, fights an adversary diers at this moment of defeat and de­ that is not a party, including irregular forces spair, that Thomas Paine would write, mand, the architect of many of the at­ tacks on our country, throughout Eu­ like al Qaeda. The United States military ‘‘These are the times that try men’s has abided by the basic requirements of Com­ souls.’’ Soon afterward, Washington rope and the world, has said repeatedly mon Article 3 in every conflict since the lead his soldiers across the Delaware that it is his experience that torture of Conventions were adopted. In each case, we River and onto victory in the Battle of innocents is central to radicalization. applied the Geneva Conventions—including, Trenton. There he captured nearly 1,000 Zawahiri has said over and over again at a minimum, Common Article 3—even to foreign mercenaries and he faced a cru­ that being tortured is at the root of enemies that systematically violated the Conventions themselves. cial choice. jihad; the experience of being tortured has a long history of serving We have abided by this standard in our How would General Washington treat own conduct for a simple reason: the same these men? The British had already radicalized populations; abusing pris­ standard serves to protect American service­ committed atrocities against Ameri­ oners is a prime cause of men and women when they engage in con­ cans, including torture. As David radicalization. flicts covered by Common Article 3. Pre­ Hackett Fischer describes in his Pul­ For the safety of our soldiers and the serving the integrity of this standard has be­ itzer Prize winning book, ‘‘Washing­ reputation of our Nation, it is far more come increasingly important in recent years ton’s Crossing,’’ thousands of American important to take the time to do this when our adversaries often are not nation- job right than to do it quickly and states. Congress acted in 1997 to further this prisoners of war were ‘‘treated with ex­ goal by criminalizing violations of Common treme cruelty by British captors.’’ badly. There is no reason we need to rush to judgment. This broken process Article 3 in the War Crimes Act, enabling us There are accounts of injured soldiers to hold accountable those who abuse our cap­ who surrendered being murdered in­ and the blatant politics behind it will tured personnel, no matter the nature of the stead of quartered, countless Ameri­ cost our Nation dearly. I fear also that armed conflict. cans dying in prison hulks in New York it will cost our men and women in uni­ If any agency of the U.S. government is ex­ harbor, starvation and other acts of in­ form. The Supreme Court laid out what cused from compliance with these standards, it expected from us. or if we seek to redefine what Common Arti­ humanity perpetrated against Ameri­ cle 3 requires, we should not imagine that cans confined to churches in New York I ask unanimous consent to have ECORD letters and our enemies will take notice of the technical City. printed in the R statements from former military lead­ distinctions when they hold U.S. prisoners Can you imagine. captive. If degradation, humiliation, phys­ The light of our ideals shone dimly in ers, from 9/11 families, from the reli­ ical and mental brutalization of prisoners is those early dark days, years from an gious community, retired judges, legal decriminalized or considered permissible end to the conflict, years before our scholars, and law professors. All of under a restrictive interpretation of Com­ improbable triumph and the birth of them have registered their concerns mon Article 3, we will forfeit all credible ob­ our democracy. with this bill and the possible impact jections should such barbaric practices be in­ on our effort to win the war against flicted upon American prisoners. General Washington wasn’t that far This is not just a theoretical concern. We from where the Continental Congress terrorism. There being no objection, the mate­ have people deployed right now in theaters had met and signed the Declaration of where Common Article 3 is the only source Independence. But it is easy to imagine rial was ordered to be printed in the of legal protection should they be captured. how far that must have seemed. Gen­ RECORD, as follows: If we allow that standard to be eroded, we eral Washington announced a decision SEPTEMBER 12, 2006. put their safety at greater risk. unique in human history, sending the Hon. JOHN WARNER, Chairman, Last week, the Department of Defense issued a Directive reaffirming that the mili­ following order for handling prisoners: Hon. CARL LEVIN, Ranking Member, Senate Armed Services Committee, tary will uphold the requirements of Com­ ‘‘Treat them with humanity, and let U.S. Senate, Washington, DC. mon Article 3 with respect to all prisoners in them have no reason to complain of DEAR CHAIRMAN WARNER AND SENATOR its custody. We welcome this new policy. Our our Copying the brutal example of the LEVIN: As retired military leaders of the U.S. servicemen and women have operated for too

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.022 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10381 long with unclear and unlawful guidance on P. Cullen, USA (Ret.); Brigadier Gen­ tration’s proposed Military Commissions Act detainee treatment, and some have been left eral Evelyn P. Foote, USA (Ret.); Brig­ of 2006 (the ‘‘Act’’). The Association is an to take the blame when things went wrong. adier General David R. Irvine, USA independent non-governmental organization The guidance is now clear. (Ret.); Brigadier General John H. of more than 22,000 lawyers, judges, law pro­ But that clarity will be short-lived if the Johns, USA (Ret.); Brigadier General fessors and government officials. Founded in approach taken by Administration’s bill pre­ Richard O’Meara, USA (Ret.); Brigadier 1870, the Association has a long history of vails. In contrast to the Pentagon’s new General Murray G. Sagsveen, USA dedication to human rights and the rule of rules on detainee treatment, the bill would (Ret.); Brigadier General John K. law, and a particularly deep historical en­ limit our definition of Common Article 3’s Schmitt, USA (Ret.); Brigadier General gagement with the law of armed conflict and terms by introducing a flexible, sliding scale Anthony Verrengia, USAF (Ret.); Brig­ military justice. that might allow certain coercive interroga­ adier General Stephen N. Xenakis, USA The Association has now reviewed the tion techniques under some circumstances, (Ret.); Ambassador Pete Peterson, amended version of this legislation intro­ while forbidding them under others. This USAF (Ret.); Colonel Lawrence B. duced on September 22, 2006, following the would replace an absolute standard—Com­ Wilkerson, USA (Ret.); Honorable compromise agreement between Senators mon Article 3—with a relative one. To do so Richard Danzig; Honorable William H. WARNER, MCCAIN and GRAHAM, on one side, and the Administration on the other. The will only create further confusion. Taft IV; Frank Kendall III, Esq. Moreover, were we to take this step, we compromise addresses two distinct aspects of would be viewed by the rest of the world as the Administration’s proposal: first, the op­ THE AMERICAN JEWISH COMMITTEE, having formally renounced the clear stric­ eration of the military commissions which New York, NY, September 27, 2006. tures of the Geneva Conventions. Our en­ have been envisioned, and second, aspects of DEAR SENATOR: We write on behalf of the emies would be encouraged to interpret the United States enforcement of its treaty obli­ American Jewish Committee, a national Conventions in their own way as well, plac­ gations under the Geneva Conventions. We human relations organization with over ing our troops in jeopardy in future con­ will address our concerns in this order, keep­ 150,000 members and supporters represented flicts. And American moral authority in the ing in mind particularly the position of our by 32 regional chapters, to urge you to op­ war would be further damaged. members who may be called upon to serve as All of this is unnecessary. As the senior pose the compromise Military Commissions defense counsel, prosecutors and judges in serving Judge Advocates General recently Act of 2006, S. 3930, and to vote against at­ the commissions process, and the interests of testified, our armed forces have trained to taching the bill to H.R. 6061, absent cor­ our members who presently or may in the fu­ Common Article 3 and can live within its re­ recting amendments. ture serve their nation in the uniformed quirements while waging the war on terror To be sure, the compromise that produced services or in the intelligence services. effectively. the current bill resulted in the welcome ad­ The compromise clarifies many of the As the United States has greater exposure dition of provisions making clear that the most important failings of the prior draft by militarily than any other nation, we have humane treatment standards of Common Ar­ bringing the military commissions process long emphasized the reciprocal nature of the ticle 3 of the Geneva Conventions provide a far closer to the standards established by the Geneva Conventions. That is why we be­ floor for the treatment of detainees as well Uniform Code of Military Justice and the lieve—and the United States has always as­ as specifying that serious violations are war Manual on Courts-Martial. The Association serted—that a broad interpretation of Com­ crimes. Nevertheless, S. 3930 is unacceptable shares the view presented by the service mon Article 3 is vital to the safety of U.S. in its present form for the following reasons: judge advocates general that the existing personnel. But the Administration’s bill The bill arguably opens the door to the use court-martial system, which in many re­ would put us on the opposite side of that ar­ of interrogation techniques prohibited by the spects is exemplary, provides an appropriate gument. We urge you to consider the impact Geneva Conventions. process for trial of traditional battlefield de­ that redefining Common Article 3 would It opens the door to the admission of evi­ tainees as well as the command and control have on Americans who put their lives at dence in military commissions obtained by structures of terrorist organizations engaged risk in defense of our Nation. We believe coercive techniques in contravention of con­ in combat with the United States, and that their interests, and their safety and protec­ stitutional standards and international trea­ the commissions should closely follow that tion should they become prisoners, should be ty. model. The changes produced here in that re­ your highest priority as you address this It permits the prosecution to introduce gard are therefore welcome. issue. evidence that has not been provided to a de­ However, the bill gives the military judge With respect, fendant in a form sufficient to allow him or discretion to admit coerced testimony if, as General John Shalikashvili, USA (Ret.); her to participate in the preparation of his will presumably be the case, the coercion oc­ curred before the enactment of the Detainee General Joseph Hoar, USMC (Ret.); Ad­ or her defense. Treatment Act on December 31, 2005. Hear­ miral Gregory G. Johnson, USN (Ret.); It unduly restricts defendants’ access to say can also be admitted into evidence un­ Admiral Jay L. Johnson, USN (Ret.); exculpatory evidence available to the gov­ less the accused carries a burden (tradition­ General Paul J. Kern, USA (Ret.); Gen­ ernment. ally accorded to the party offering the evi­ eral Merrill A. McPeak, USAF (Ret.); It unduly restricts access to the courts by dence, i.e., the prosecution) to show that the Admiral Stansfield Turner, USN (Ret.); habeas corpus and appeal. hearsay is not probative or reliable. This General William G.T. Tuttle, Jr., USA It interprets the definition of Common Ar­ shift of burden is inconsistent with histor­ (Ret.); Lieutenant General Daniel W. ticle 3 violations to exclude sexual assaults ical practice and would probably taint the Christman, USA (Ret.); Lieutenant such as those that occurred at Abu Ghraib. proceedings themselves, particularly if the General Paul E. Funk, USA (Ret.); There is no doubt that the authorities en­ trusted with our defense must be afforded accused is not given access to the facts un­ Lieutenant General Robert G. Gard Jr., derlying the evidence. Admission of evidence USA (Ret.); Lieutenant General Jay M. the resources and tools necessary to protect us from the serious threat that terrorists in this circumstance would discredit the pro­ Garner, USA (Ret.); Vice Admiral Lee ceedings, undermine the appearance of fair­ F. Gunn, USN (Ret.); Lieutenant Gen­ continue to pose to all Americans, and, in­ deed, the civilized world. But the homeland ness, and might, if it was critical to a con­ eral Arlen D. Jameson, USAF (Ret.); viction, constitute a grave breach of Com­ Lieutenant General Claudia J. Ken­ can be secured in a fashion consistent with the values of due process and fair treatment mon Article 3. These provisions do not serve nedy, USA (Ret.). the interests of the United States in dem­ Lieutenant General Donald L. Kerrick, for which Americans have fought and for which they continue to fight. We urge you to onstrating the heinous nature of terrorist USA (Ret.); Vice Admiral Albert H. acts, if such can be established in the mili­ Konetzni Jr., USN (Ret.); Lieutenant revisit and revise this legislation so that it accords with our highest principles. tary commissions. General Charles Otstott, USA (Ret.); The enforcement provisions raise far more Respectfully, Vice Admiral Jack Shanahan, USN troubling issues. In particular, we are con­ E. ROBERT GOODKIND, (Ret.); Lieutenant General Harry E. cerned by the definition of ‘‘cruel treat­ President. Soyster, USA (Ret.); Lieutenant Gen­ ment’’ which does not correspond to the ex­ RICHARD T. POLTIN, eral Paul K. Van Riper, USMC (Ret.); isting law interpreting and enforcing Com­ Legislative Director Major General John Batiste, USA mon Article 3’s notion of ‘‘cruel treatment.’’ (Ret.); Major General Eugene Fox, USA and Counsel. The definition incorporates a category of (Ret.); Major General John L. Fugh, ‘‘serious physical pain or suffering,’’ but de­ USA (Ret.); Rear Admiral Don Guter, THE ASSOCIATION OF THE BAR fines that category in a way that does not USN (Ret.); Major General Fred E. OF THE CITY OF NEW YORK, encompass many types of serious physical Haynes, USMC (Ret.); Rear Admiral New York, NY, September 27, 2006. suffering that can be and are commonly the John D. Hutson, USN (Ret.); Major Re Military Commission Act of 2006. result of ‘‘cruel treatment’’ prohibited by General Melvyn Montano, ANG (Ret.); Hon. BILL FRIST, Common Article 3. The Common Article 3 of­ Major General Gerald T. Sajer, USA U.S. Senate Majority Leader, fense of ‘‘cruel treatment’’ will remain pro­ (Ret.); Major General Michael J. Washington, DC. hibited, even if not specifically criminalized Scotti, Jr., USA (Ret.). DEAR MAJORITY LEADER FRIST: I am writ­ by this provision. There is really no basis to Brigadier General David M. Brahms, ing on behalf of the New York City Bar Asso­ doubt that Common Article 3 prohibits tech­ USMC (Ret.); Brigadier General James ciation to urge you to oppose the Adminis­ niques such as waterboarding, long-time

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.045 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10382 CONGRESSIONAL RECORD — SENATE September 28, 2006 standing, and hypothermia or cold cell if in­ lieve that torture and cruel treatment is As applied to issues of cruel, inhuman and deed they are not precluded as outright tor­ sometimes acceptable. Moreover, the Admin­ degrading treatment, the practical applica­ ture. However, the language of the current istration’s own representatives at the Pen­ tion of this moral outlook is clear: even if it draft would create a crime defined in terms tagon have strongly affirmed in just the last is expedient to inflict cruelty and degrada­ different from the accepted Geneva mean­ few days that torture and abuse do not tion on a prisoner during interrogation (and ings, thereby introducing ambiguity where produce reliable information. No legislation experts seem very much divided on this ques­ none previously existed. should have your support if it is at all am­ tion), the moral teachings of Christ, the This ambiguity produces risks for United biguous on this issue. Torah and the Prophets do not permit it for States personnel since it suggests that those Nor do we believe that it is in the interest those who bear the Imago Dei. who employ techniques such as of the United States to create a system of It will not do to say that the President’s waterboarding, long-time standing and hypo­ military courts that violate basic notions of policy on the treatment of detainees already thermia on Americans cannot be charged for due process and lack truly independent judi­ rules out torture because serious ambiguities war crimes. Moreover, Common Article 3 cial oversight. Not only does this violate our still remain—ambiguities that carry heavy contains important protections for United most cherished values and send the wrong moral implications and that are intended to States personnel who do not qualify for pris­ message to the world, it also runs the risk preserve options that some would rather not oner of war treatment under the Third Gene­ that the system will again be struck down publicly defend. va Convention. This may include reconnais­ resulting in even more delay. The terrorist attacks of September 11 were sance personnel, special forces operatives, We believe that we must have policies that one of the most heinous acts ever visited private military contractors and intelligence reflect what is best in the United States upon this nation. The Commander in Chief service paramilitary professionals. Erosion rather than compromising our values out of must provide U.S. authorities with the prac­ of Common Article 3 standards thus directly fear. As John McCain has said, ‘‘This is not- tical tools and policies to fight a committed, imperils the safety of United States per­ about who the terrorists are, this is about well-resourced, and immoral terrorist threat. sonnel in future conflicts. We strongly share who we are.’’ We urge you to reject the Ad­ At the same time, the President must also the perspective of five former chairs of the ministration’s ill-conceived proposals which defend the deepest and best values of our moral tradition. Joint Chiefs of Staff in their appeal to Con­ will make us both less safe and less proud as As Christians from the evangelical tradi­ gress to avoid any erosion of these protec­ a nation. tion, we support Senator McCain and his col­ tions. Sincerely, The draft also seeks to strike the ability of leagues in their effort to defend the peren­ Marilynn Rosenthal, Nicholas H. Ruth, nial moral values of this nation which are hundreds of detainees held as ‘‘enemy com­ Adele Welty, Nissa Youngren, Terry batants’’ to seek review of their cases embodied in international law and our do­ Greene, John LeBlanc, Andrea mestic statutes. The United States Congress through petitions of habeas corpus. The LeBlanc, Ryan Amundson, Barry Great Writ has long been viewed as one of must send an unequivocal message that Amundson, Colleen Kelly, Terry Kay cruel, inhuman and degrading treatment has the most fundamental rights under our legal Rockefeller, John William Harris. system. It is an essential guarantor of jus­ no place in our society and violates our most David Potorti, Donna Marsh O’Connor, cherished moral convictions. tice in difficult cases, particularly in a con­ Kjell Youngren, Blake Allison, Tia flict which the Administration suggests is of Sincerely, Kminek, Jennifer Glick, Lorie Van Rev. Dr. David Gushee, Union University, indefinite duration, possibly for generations. Auken, Mindy Kleinberg, Anthony Jackson, TN. Holding individuals without according them Aversano, Paula Shapiro, Valerie Gary Haugen, president, International Jus­ any right to seek review of their status or Lucznikowska, Lloyd Glick. tice Mission. conditions of detention raises fundamental James and Patricia Perry, Anne M. Rev. Dr. Roberta Hestenes, teaching pas­ questions of justice. This concern is com­ Mulderry, Marion Kminek, Alissa tor, Community Presbyterian Church, pounded by the draft’s provision that the Ge­ Rosenberg-Torres, Kelly Campbell, Danville, CA. neva Convention is unenforceable, thus leav­ Bruce Wallace, John M. Leinung, Frederica Mathewes-Green, author and ing detainees with no recourse should they Kristen Breitweiser, Patricia Casazza, commentator. receive cruel and inhuman treatment. Michael A. Casazza, Loretta J. Filipov, Dr. Brian D. McLaren, founder, Cedar On July 19, 2006, Michael Mernin, the chair Joan Glick. Ridge Community Church, Spencerville, MD. of our Committee on Military Affairs and Rev. Dr. Richard Mouw, president, Fuller Justice, testified before the Senate Armed Theological Seminary. SEPTEMBER 20, 2006. Dr. Glen Stassen, professor of Christian Services Committee concerning this legisla­ Re Evangelical religious leaders speak out Ethics, Fuller Theological Seminary. tive initiative. He appealed at that time for on cruel, inhuman, degrading treatment. caution and proper deliberation in the legis­ Dr. Nicholas Wolterstorff, professor of lative process and urged that a commission DEAR MEMBERS OF CONGRESS: The Congress Philosophical Theology, Yale University. of military law experts be convened to advise faces a defining question of morality in the Mrs. CLINTON. Now these values— coming hours: whether it is ever right for Congress on the weighty issues presented. George Washington’s values, the values The current legislative project continues to Americans to inflict cruel and degrading treatment on suspected terrorist detainees. of our founding—are at stake. We are show severe flaws which are likely to prove debating far-reaching legislation that embarrassing to the United States if it is en­ We are writing to express our strong support acted. We therefore strongly urge that the for the approach taken on this issue by Sen­ would fundamentally alter our Na­ matter receive further careful consideration ators McCain, Warner and Graham and a tion’s conduct in the world and the before it is acted upon and that the advice of strong, bipartisan majority of the Senate rights of Americans here at home. And prominent military justice and international Armed Services Committee. we are debating it too hastily in a de­ humanitarian law experts be secured and fol­ We read credible reports—some from FBI bate too steeped in electoral politics. lowed in the bill’s finalization. agents—that prisoners have been stripped The Senate, under the authority of Very truly yours, naked, sexually humiliated, chained to the floor, and left to defecate on themselves. the Republican majority and with the BARRY KAMINS, blessing and encouragement of the President. These and other practices like ‘‘waterboarding’’ (in which a detainee is Bush-Cheney administration, is doing a SEPTEMBER 14, 2006. made to feel as if he is being drowned) may great disservice to our history, our DEAR SENATOR: As members of families or may not meet the technical definition of principles, our citizens, and our sol­ who lost loved ones in the 9/11 attacks, we torture, but no one denies that these prac­ diers. are writing to express our deep concern over tices are cruel, inhuman, and degrading. The deliberative process is being bro­ the provisions of the Administration’s pro­ Today, the question before the Congress is ken under the pressure of partisanship posed Military Commissions Act of 2006. whether it will support Sen. McCain’s efforts and the policy that results is a trav­ There are those who would like to portray to make it clear to the world that the U.S. has outlawed such abuse or support an Ad­ esty. the legislation as a choice between sup­ Fellow Senators, the process for porting the rights of terrorists and keeping ministration proposal which creates grave the United States safe. We reject this argu­ ambiguity about whether prisoners can le­ drafting this legislation to correct the ment. We believe that adopting policies gally be abused in secret prisons without Red administration’s missteps has not be­ against terrorism which honor our values Cross access. fitted the ‘‘world’s greatest delibera­ and our international commitments makes Evangelicals have often supported the Ad­ tive body.’’ Legitimate, serious con­ us safer and is the smarter strategy. ministration on public policy questions be­ cerns raised by our senior military and We do not believe that the United States cause they believe that no practical expedi­ intelligence community have been should decriminalize cruel and inhuman in­ ency, however compelling, should determine marginalized, difficult issues glossed terrogations. The Geneva Convention rules fundamental moral issues of marriage, abor­ against brutal interrogations have long had tion, or bioethics. Instead, these questions over, and debates we should have had the strong support of the U.S. because they should be resolved with principles of re­ have been shut off in order to pass a protect our citizens. We should not be send­ vealed moral absolutes, granted by a right­ misconceived bill before Senators re­ ing a message to the world that we now be­ eous and loving Creator. turn home to campaign for reelection.

VerDate Aug 31 2005 04:38 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.049 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10383 For the safety of our soldiers and the The question before us is whether The bill has several other flaws as reputation of our Nation, it is far more this Congress will follow the decision well. important to take the time to do the of the Supreme Court and create a bet­ This bill would not only deny detain­ job right than to do it quickly and ter system that withstands judicial ex­ ees habeas corpus rights—a process badly. There is no reason other than amination—or attempt to confound that would allow them to challenge the partisanship for not continuing delib­ that decision, a strategy destined to very validity of their confinement—it eration to find a solution that works to fail again. would also deny these rights to lawful achieve a true consensus based on The bill before us allows the admis­ immigrants living in the United American values. sion into evidence of statements de­ States. If enacted, this law would give In the last several days, the bill has rived through cruel, inhuman and de­ license to this Administration to pick undergone countless changes—all for grading interrogation. That sets a dan­ people up off the streets of the United the worse—and differs significantly gerous precedent that will endanger States and hold them indefinitely with­ from the compromise brokered between our own men and women in uniform out charges and without legal recourse. the Bush administration and a few Sen­ overseas. Will our enemies be less like­ Americans believe strongly that de­ ate Republicans last week. ly to surrender? Will informants be less fendants, no matter who they are, We cannot have a serious debate over likely to come forward? Will our sol­ should be able to hear the evidence a bill that has been hastily written diers be more likely to face torture if against them. The bill we are consid­ with little opportunity for serious re­ captured? Will the information we ob­ ering does away with this right, in­ view. To vote on a proposal that tain be less reliable? These are the stead providing the accused with only evolved by the hour, on an issue that is questions we should be asking. And the right to respond to the evidence ad­ so important, is an insult to the Amer­ based on what we know about warfare mitted against him. How can someone from listening to those who have ican people, to the Senate, to our respond to evidence they have not fought for our country, the answers do troops, and to our Nation. seen? Fellow Senators, we all know we are not support this bill. As Lieutenant At the very least, this is worth a de­ holding this hugely important debate John F. Kimmons, the Army’s Deputy bate on the merits, not on the politics. Chief of Staff for Intelligence said, ‘‘No in the backdrop of November’s elec­ This is worth putting aside our dif­ good intelligence is going to come from tions. There are some in this body ferences—it is too important. more focused on holding on to their abusive interrogation practices.’’ Our values are central. Our national The bill also makes significant jobs than doing their jobs right. Some security interests in the world are changes to the War Crimes Act. As it is in this chamber plan to use our honest vital. And nothing should be of greater now written, the War Crimes Act and serious concerns for protecting our concern to those of us in this chamber makes it a federal crime for any soldier country and our troops as a political than the young men and women who wedge issue to divide us for electoral or national of the U.S. to violate, among other things, Common Article 3 are, right now, wearing our Nation’s gain. uniform, serving in dangerous terri­ How can we in the Senate find a of the Geneva Conventions in an armed tory. proper answer and reach a consensus conflict not of an international char­ After all, our standing, our morality, when any matter that does not serve acter. The administration has voiced our beliefs are tested in this Chamber the majority’s partisan advantage is concern that Common Article—which and their impact and their con­ mocked as weakness, and any true con­ prohibits ‘‘cruel treatment or torture,’’ sequences are tested under fire, they cern for our troops and values dis­ ‘‘outrages against human dignity,’’ and are tested when American lives are on missed demagogically as coddling the ‘‘humiliating and degrading treat­ the line, they are tested when our enemy? ment’’—sets out an intolerably vague This broken process and its blatant standard on which to base criminal li­ strength and ideals are questioned by politics will cost our Nation dearly. It ability, and may expose CIA agents to our friends and by our enemies. allows a discredited policy ruled by the jail sentences for rough interrogation When our soldiers face an enemy, Supreme Court to be unconstitutional tactics used in questioning detainees. when our soldiers are in danger, that is to largely continue and to be made But the current bill’s changes to the when our decisions in this Chamber worse. This spectacle ill-serves our na­ War Crimes Act haven’t done much to will be felt. Will that enemy surrender? tional security interests. clarify the rules for our interrogators. Or will he continue to fight, with fear The rule of law cannot be com­ What we are doing with this bill is for how he might be treated and with promised. We must stand for the rule of passing on an opportunity to clearly hate directed not at us, but at the pa­ law before the world, especially when state what it is we stand for and what triot wearing our uniform whose life is we are under stress and under threat. we will not permit. on the line? We must show that we uphold our most This bill undermines the Geneva Con­ When our Nation seeks to lead the profound values. ventions by allowing the President to world in service to our interests and We need a set of rules that will stand issue Executive orders to redefine what our values, will we still be able to lead up to judicial scrutiny. We in this permissible interrogation techniques by example? Chamber know that a hastily written happen to be. Have we fallen so low as Our values, our history, our inter­ bill driven by partisanship will not to debate how much torture we are ests, and our military and intelligence withstand the scrutiny of judicial over­ willing to stomach? By allowing this experts all point to one answer. Vladi­ sight. administration to further stretch the mir Bukovsky, who spent nearly 12 We need a set of rules that will pro­ definition of what is and is not torture, years in Soviet prisons, labor camps, tect our values, protect our security, we lower our moral standards to those and psychiatric hospitals for non­ and protect our troops. We need a set whom we despise, undermine the values violent human rights activities had of rules that recognizes how serious of our flag wherever it flies, put our this to say. ‘‘If Vice President Cheney and dangerous the threat is, and en­ troops in danger, and jeopardize our is right, that some ‘cruel, inhumane, or hances, not undermines, our chances to moral strength in a conflict that can­ degrading’ treatment of captives is a deter and defeat our enemies. not be won simply with military necessary tool for winning the war on Our Supreme Court in its Hamdan v. might. terrorism, then the war is lost al­ Rumsfeld decision ruled that the Bush Once again, there are those who are ready.’’ administration’s previous military willing to stay a course that is not Let’s pass a bill that’s been honestly commission system had failed to follow working, giving the Bush-Cheney ad­ and openly debated, not hastily cobbled the Constitution and the law in its ministration a blank check—a blank together. treatment of detainees. check to torture, to create secret Let’s pass a bill that unites us, not As the Supreme Court noted, the courts using secret evidence, to detain divides us. Bush administration has been oper­ people, including Americans, to be free Let’s pass a bill that strengthens our ating under a system that undermines of judicial oversight and account­ moral standing in the world, that de­ our Nation’s commitment to the rule ability, to put our troops in greater clares clearly that we will not retreat of law. danger. from our values before the terrorists.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.034 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10384 CONGRESSIONAL RECORD — SENATE September 28, 2006 We will not give up who we are. We will Secretary of State to notify other dealing with definitions on page 70 and not be shaken by fear and intimida­ countries around the world that seven 71, and then read on, you will find that tion. We will not give one inch to the specific categories of actions, each of it is difficult to read that without hav­ evil and nihilistic extremists who have which is specifically prohibited by the ing a sense of the kind of vagueness set their sights on our way of life. Army Field Manual, are punishable of­ which I think surrounds prohibited in­ I say with confidence and without fenses under common Article 3 of the terrogation techniques. It talks about fear that we are the United States of Geneva Conventions that would be substantial risks and extreme physical America, and that we stand now and prosecuted as war crimes if applied to pain. But the statute does not have forever for our enduring values to peo­ any United States person. Those seven specifics to define the areas which are ple around the world, to our friends, to categories of actions are: (1) Forcing prohibited. The techniques in my our enemies, to anyone and everyone. the detainee to be naked, perform sex­ amendment are the same ones the De­ Before George Washington crossed ual acts, or pose in a sexual manner; (2) partment of the Army and, to my best the Delaware, before he could achieve applying beatings, electric shock, knowledge, our colleague and friend that long-needed victory, before the burns, or other forms of physical pain; from Arizona has identified. Voting for tide would turn, before he ordered that (3) ‘‘waterboarding’’; (4) using military my amendment would provide those prisoners be treated humanely, he or­ working dogs; (5) inducing hypo­ specifics. dered that his soldiers read Thomas thermia or heat injury; (6) conducting The President has asked for speci­ Paine’s writing. He ordered that they mock executions; and (7) depriving the ficity, but he has refused to say wheth­ read about the ideals for which they detainee of necessary food, water, or er Common Article 3 would prohibit would fight, the principles at stake, medical care. these kinds of acts. That has left the the importance of this American I listened very carefully to what my world doubting our commitment to project. colleague from Virginia, the Chairman Common Article 3 and has endangered Now we find ourselves at a moment of the Armed Services Committee, had our people around the globe—those who when we feel threatened, when the to say about this amendment. He stat­ are working for the United States in world seems to have grown more dan­ ed: the war on terror. The administration’s gerous, when our Nation needs to ready Now Senator Kennedy’s amendment, de­ obfuscation comes at a great risk. itself for a long and difficult struggle pending on how the votes come, and I’m of This amendment provides the clarity against a new and dangerous enemy the opinion that this chamber will reject it, and sends a message to the world that that means us great harm. I don’t want that rejection to be mis­ these techniques are prohibited. They Just as Washington faced a hard construed by the world in any way as assert­ are prohibited from our military bring­ choice, so do we. It’s up to us to decide ing that the techniques mentioned in the ing them to bear on any combatants. how we wage this struggle and not up amendment are consistent with the Geneva We interpret the legislation so that to the fear fostered by terrorists. We Convention or that they could legitimately be employed against our troops or anyone any country in the world that has decide. signed on to the Geneva Conventions, This is a moment where we need to else.... Wemust not leave that impression as a consequence of the decisions soon to be any of those countries that are going remind ourselves of the confidence, made by way of vote on the Kennedy amend­ to practice activities prohibited by the fearlessness, and bravery of George ment. The types of conduct described in this field manual, that I consider to be tor­ Washington—then we will know that amendment, in my opinion, are in the cat­ ture, are going to be held by the United we cannot, we must not, subvert our egory of grave breaches of Common Article States interrogation committing a war ideals—we can and must use them to Three of the Geneva Convention. These are crime. This is important. It is essen­ clearly prohibited by the bill. win. tial. It is necessary. Finally, we have a choice before us. I I am in complete agreement with The general concept was improved hope we make the right choice. I fear Senator WARNER that each of these without objection a number of years that we will not; that we will be once practices is a grave breach of Common ago in the wake of the Vietnam situa­ again back in the Supreme Court, and Article 3. I agree that these practices tion, regarding the definition of war we will be once again held up to the are unlawful today and that they will crimes. We ought to restate and recom­ world as failing our own high stand­ continue to be unlawful if this bill is mit ourselves to protecting Americans ards. enacted into law. involved in the war on terror and en­ When our soldiers face an enemy, However, I am concerned that the ad­ sure they will not be subject to these when our soldiers are in danger, will ministration may have muddied the activities. that enemy surrender if he thinks he record on these issues through its un­ At the present time, without this will be tortured? Will he continue to willingness to clearly state what prac­ amendment, it will be left open. If we fight? How will our men and women be tices are permitted, and what practices accept this amendment, it would make treated? are prohibited, under Common Article it clear it is prohibited. That is what I hope we both pass the right kind of 3. While I reach the same conclusion as legislation and understand that it may we should do. Senator WARNER as to the lawfulness of I withhold the remainder of my time. very well determine whether we win the practices listed in the Kennedy The PRESIDING OFFICER (Mr. AL­ this war against terror and protect or amendment, I am afraid that others EXANDER). The Senator from Virginia. troops who are valiantly fighting for around the world may not. Mr. WARNER. I suggest the absence us. We agree that these practices are of a quorum and that it not be charge­ Thank you, Mr. President. prohibited by Common Article 3. We The PRESIDING OFFICER. Who able to either side. need to send a clear message to the yields time? The PRESIDING OFFICER. The world that this is the case, so that the Mr. WARNER. Mr. President, I sug­ clerk will call the roll. rest of the world will abide by the same gest the absence of a quorum, and I ask The legislative clerk proceeded to standard. That is why I strongly sup­ unanimous consent that it not be call the roll. port the Kennedy amendment. charged to either side. Mr. BYRD. Mr. President, I ask unan­ The PRESIDING OFFICER. Without Mr. KENNEDY. Mr. President, how imous consent that the order for the objection, it is so ordered. The clerk much time do I have remaining? quorum call be rescinded. will call the roll. The PRESIDING OFFICER. Ten min­ The PRESIDING OFFICER. Without The legislative clerk proceeded to utes remain under the Senator’s con­ objection, it is so ordered. call the roll. trol. Mr. BYRD. Mr. President, I ask unan­ Mr. KENNEDY. Mr. President, I ask Mr. KENNEDY. Mr. President, I yield imous consent the pending amendment unanimous consent that the order for myself 4 minutes. be laid aside so that I may offer an the quorum call be dispensed with. Mr. President, I want to point out amendment. The PRESIDING OFFICER. Without why this is so necessary and so essen­ Mr. WARNER. Mr. President, reserv­ objection, it is so ordered. tial. ing the right to object, and I will not Mr. LEVIN. Mr. President, the Ken­ In reviewing the underlying legisla­ object, I would simply like to make it nedy amendment would require the tion, if you look under the provisions clear in laying aside the amendment

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.038 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10385 the times remaining under the control its responsibilities and this most im­ debate subjected to the same fate? Do of the Senator from Virginia and the portant issue has been shoved aside. we want it stricken also? Senator from Michigan remain in What is this new impetus spurring The original authorization of the PA­ place. We will now, to accommodate congressional action and a renewed in­ TRIOT Act is a case study of the risks our distinguished senior colleague, go terest in the issue? Did Congress find we run in legislating from the hip—too off of the Kennedy amendment and pro­ its way back to embracing its Article I much haste—and how, in our haste, we ceed to address his amendment. duties? No. Did the executive branch can place in jeopardy those things we The PRESIDING OFFICER. That wake up to realize it is not within its hold most dear. Apparently, the Senate would be the case. purview to dictate the laws of the land? has not recognized the error of its Without objection, it is so ordered. No. It was the Supreme Court’s deci­ ways. This legislation is complex. This The Senator from West Virginia is sion in the Hamdan case. legislation defines the processes and recognized. While the President grabbed the the procedures for bringing enemy AMENDMENT NO. 5104 wheel and the Congress dozed, the combatants to trial for offenses against (Purpose: To prohibit the establishment of Court stepped in to remind us of the our country, and it involves our obliga­ new military commissions after December separation of powers and the constitu­ tions under the Geneva Conventions. 31, 2011) tional role of each branch, thank God. This bill defines rules of evidence, it Mr. BYRD. Mr. President, I thank Yes, thank God for the separation of determines defendants’ access to secret the Chair, and I also thank my very powers envisioned by our forefathers. evidence, and it seeks to clarify what able and distinguished friend from Vir­ Thank God for the Supreme Court. Yes, constitutes torture. We cannot afford ginia. I said this before; I say it again: Thank to get this wrong. Mr. President, I shall offer an amend­ God for the Supreme Court. As with the PATRIOT Act, my ment today that provides a 5-year sun­ It is no coincidence that the tradi­ amendment offers us an opportunity to set to any Presidential authorization tional pathways of legislation through provide a remedy for the unanticipated of any military commission enacted the committee and amendment process consequences that may arise as a re­ under the legislation currently being and ample opportunity for debate are sult of hasty congressional action. debated. This amendment which I shall the best recourse against the enact­ Along with the sweeping changes made offer is essential to the ability of the ment of bad, bills. by the PATRIOT Act, the great hope Congress to retain its power of over­ This is the way the Senate was de­ included in it was the review that was sight and as an important check on fu­ signed to operate and this is how it required by the sunset provision. Ev­ ture executive actions. separates in the best interests of the eryone knows the saying that hind­ As I stand here now, Members are people. sight is 20–20, but the use of this type readying themselves to beat a path Unfortunately, because of the timing of congressional review gives us the op­ home to their States—I understand of the Supreme Court’s decision and portunity both to strengthen the parts that—so they may get in their final the charged atmosphere of the midterm of the law that may be found to be politicking. Unfortunately, though, in elections, we are again confronted with weak, and to right the wrongs of past the feverish climate of a looming elec­ slap-happy legislation that is changing transgressions. tion, the most important business of by the minute. So if we will not today legislate in a the Senate may suffer. I have seen that The bill reported by the Senate Com­ climate of steady deliberation, then let happen over the years. This is no sur­ mittee on Armed Services, which I sup­ us at least prescribe for ourselves an prise. We have seen before the fever of ported, was the product of a thorough antidote for any self-inflicted wounds. Let us prescribe for ourselves the rem­ politics can undermine the serious process, a deliberative process. Unfor­ edy of reason—the remedy of reason. business of the Congress once Novem­ tunately, this bill’s progress was halted Let this be the age of reason once ber and the winds of November draw by the administration’s objections, and more. Sunset provisions have histori­ nigh. We have seen the mistakes that the product suffered mightily. Then, in cally been used to repair the unfore­ can come when Congress rushes to leg­ closed-door negotiations with the seen consequences of acting in haste. islate without the benefit of thorough White House, many of the successes an­ You have heard that haste makes vetting by committees, without ade­ nounced less than a week ago in the waste. If ever there were a piece of leg­ quate debate, without the opportunity previous version were trashed. When the administration met stiff islation that cries out to be reviewed to offer amendments. with the benefit of hindsight, it is the Likewise, when legislation is pushed opposition to its views by former JAG—judge advocate general—officers current bill. as a means of political showboating— My amendment, which I hold in my and previous members of its own Cabi­ we all know what that is—instead of by hand, provides that opportunity net, it realized it must come back to a diligent commitment to our constitu­ through a 5-year sunset provision. Now, the table. Last Friday’s version of the tional duties, the results can be disas­ what is wrong with that? There is bill was superseded by Monday’s trous. nothing wrong with that—a 5-year sun­ version, and changes are still forth­ In fact, there have been various pro­ set provision. And I thank Senator posals to bring congressional oversight coming. In such a frenzied, frenetic, OBAMA and I thank Senator CLINTON to the military tribunals which were and uncertain state, who really knows for their cosponsorship of my amend­ first authorized in November, 2001. Sen­ the nature of the beast? This bill could ment. I urge my colleagues to support ators SPECTER, LEAHY, and DURBIN very well be the most important piece it. were instrumental in attempting to of legislation—certainly one of the Mr. President, I send my amendment push back against unilateral actions by most important pieces of legislation— to the desk. the President to establish these com­ this Congress enacts, and the adoption The PRESIDING OFFICER. The missions. These attempts were to re­ of my amendment, which I shall offer, clerk will report. assert the power of the Congress—yes, ensures—ensures—a reasonable review The assistant legislative clerk read the constitutional duty embodied in of the law authorizing military tribu­ as follows: Article I of this Constitution that is nals. The Senator from West Virginia [Mr. vested in the Congress and in the Con­ There is nothing more important to BYRD], for himself and Mr. OBAMA, and Mrs. gress alone, to make our country’s scrutinize than the process of bringing CLINTON, proposes an amendment numbered laws and specifically to make rules suspected terrorists to justice for their 5104: concerning captures on land and water. crimes in a fair proceeding, without On page 5, line 19, add at the end the fol­ Let me say that again. I will repeat the taint—without the taint—of a kan­ lowing: ‘‘The authority of the President to the verbiage of the Constitution: to garoo court. Those are the values of establish new military commissions under our country. We dare not handle the this section shall expire on December 31, make our country’s laws and specifi­ 2011. However, the expiration of that author­ cally to ‘‘make rules concerning cap­ matter sloppily. The Supreme Court ity shall not be construed to prohibit the tures on land and water.’’ has once struck down the President’s conduct to finality of any proceedings of a Nothing came of these proposals. approach to military commissions, has military commission established under this Since then, the Congress has ignored it not? Do we want the product of this section before that date.’’.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.065 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10386 CONGRESSIONAL RECORD — SENATE September 28, 2006 The PRESIDING OFFICER. Who generally refer to as terrorism—but but to continue in their trust in this yields time? more specifically the militant institution, in the Senate and in the The Senator from Virginia. jihadists—we have to fight with every House, to exercise their constitutional Mr. WARNER. Mr. President, we are single tool we have at our disposal, responsibilities in such a way that we about to receive a copy of the amend­ consistent with the law of this Nation will not let the executive branch at ment. But I listened very carefully to and international law. And, therefore, any time transcend what we believe are my distinguished colleague’s remarks. we are here in this particular time ad­ certain parameters that we have set As he well knows, in my relatively dressing a bill which provides for met­ forth in this bill regarding the trials short 28 years in the Senate, I have lis­ ing out justice, a measure of justice, to and the conduct of interrogations. tened to him and I have the highest re­ certain individuals who have been ap­ I think an extraordinary legislation spect for his judgment, and particu­ prehended in the course of the war that I was privileged to be involved in, larly as it relates to how the legisla­ against this militant jihadist terrorist which garnered 90-some votes, was the tive body should discharge its constitu­ group. Detainee Act, sponsored by our distin­ tional responsibilities and how, also, it I find it remarkable, as I have guished colleague, Mr. MCCAIN. That should not try to discharge its con­ worked it through with my other col­ was landmark legislation. From that stitutional responsibilities. And I guess leagues, that they are alien, they are legislation has come now what we call my opposition falls, most respectfully, unlawful by all international standards the Army Field Manual, in which we in the latter category because I find in the manner they conduct the war. published to the world what America this Congress has a very high degree of Yet this great Nation, from the passage will do in connection with those per­ vigilance in overseeing the exercise of of this bill, is going to mete out a sons—the unlawful aliens who come the executive powers as it relates to measure of justice as we understand it. into our custody by virtue of our mili­ the war against those whom I view as Now, the Senator’s concern is—and it tary operations, and how they will be jihadists, those who have no respect always should be; it goes back to the dealt with in the course of interroga­ for, indeed, the religion which they time of George Washington and the tion. That was an extraordinary asser­ have ostensibly committed their lives Congress at that time—the fear of the tion by the Congress, within the pa­ to, and those who have no respect for overexercise of the authorities within rameters of its powers, as to what they human life, including their human life. the executive branch. But I think to should do, the executive branch. It is a most unusual period in the his­ put a clause and restriction, such as But a sunset date for the authority tory of our great Republic. The good the Senator recommends in his amend­ to hold military commissions, in my Senator, having been a part of this ment, into this bill would, in a sense, judgment, is not in the best interests, Chamber for nearly a half century, has inhibit the ability of the President to at this time in this war, of our country. seen a lot of that history unfold. The rapidly exercise all the tools at his dis­ I know there are other speakers. How Senator and I have often discussed the posal. much time do I have remaining? World War II period. That is when my I say to the Senator, your bill says: The PRESIDING OFFICER. Nineteen grasp of history began to come into The authority of the President to establish minutes 20 seconds. focus. And, indeed, the Senator himself new military commissions under this section Mr. WARNER. I thank the Chair, and was engaged in his activities in the war shall expire. . . . However, the expiration of I yield the floor. effort, as we all were in this Nation. that authority shall not be construed to pro­ The PRESIDING OFFICER. The Sen­ The ensuing conflicts, while they hibit the conduct to finality of any pro­ ator from West Virginia is recognized. have been not exactly like World War ceedings of a military commission estab­ Mr. BYRD. Mr. President, the Sen­ II, have been basically engaging those lished under this section before that date. ator knows my great respect for him. individuals acting in what we refer to That could be misconstrued. This war It is an abiding respect. When I look at as their adhering to a state, an existing we are engaged in, most notably on the him, I see a man—a Member of this government that has promulgated fronts of Afghanistan and Iraq today, Senate—who has had vast experience rules and regulations, such as they we see where it could spread across our and worn many coats of honor. I see a may be, for the orders issued to their globe and has—not to the degree of the man who stands by his word, who keeps troops, most of whom wore uniforms, significance of Iraq or Afghanistan, but his word, and is always very meticu­ certainly to a large degree in the war it has spread. Other nations have be­ lous in criticizing another Senator or that followed right after World War II, come the victims, subject to the criticizing legislation. He is most cir­ the Korean war. Most of those individ­ threats, subject to the overt actions cumspect, most respectful to his col­ uals in that conflict had some vestige such as took place in Spain and other leagues, and most respectful to the of a uniform, conducting their warfare places of the world. We should not have Constitution. But I am abhorrent—I under state-sponsored regulations. I overhanging this important bill any cannot write very well anymore. I had a minor part in that conflict and such restriction as you wish to impose would like to be able to write down remember it quite well. by virtue of what we commonly call a words that other Senators say in a de­ Vietnam came along, and there we sunset. I think that would not be cor­ bate. But I cannot write. So I may have saw the beginning of the blurring of rect. It could send the wrong message. misinterpreted, or I may misstate the state sponsored. Nevertheless, it was We have to rely upon the integrity of words. But I cannot understand why present. The uniforms certainly lacked the two branches of the Congress to be this legislation would not be in the the clarity that had been in previous ever watchful in their oversight, ever best interests of my country. conflicts. And on the history goes. unrestrained in the authority they I believe the Senator said—he cer­ But this one is so different, I say to have under the Constitution. As we tainly implied strongly—that this leg­ my good friend, the Senator from West commonly say around here, what the islation would not be in the best inter­ Virginia. And I think our President, Congress does one day, it can undo the ests of our country. If I am wrong, I given his duty as Commander in Chief next day. know the Senator will correct me. Let under the Constitution, has to be given If, in the course of exercising our au­ me read, though, the amendment: the maximum flexibility as to how he thority under the doctrine of the sepa­ On page 5, line 19, add at the end the fol­ deals with these situations. We see ration of powers—how many times lowing: ‘‘the authority of the President to have I heard the distinguished Senator establish new military commissions under that in a variety of issues around here. this section shall expire on December 31, But, nevertheless, it is the exercise of from West Virginia discuss the doc­ 2011. However, the expiration of that author­ executive authority, and that exercise trine of the separation of powers? So ity shall not be construed to prohibit the of executive authority must also be often. I remember when we were vigi­ conduct to finality of any proceedings of a subject to the oversight of the Con­ lantly trying to protect those powers military commission established under this gress of the United States. reserved unto the Congress from an en­ section before that date.’’ But I feel that in the broad powers croachment by the executive branch. Mr. President, what is wrong with conferred on the executive branch to So for that reason I most respectfully that language? How would that lan­ carry out its duty to defend the Nation say that I do not and I urge other col­ guage not be in the interest of our in the ongoing threat against what we leagues not to support this amendment country? I think we are all subject to

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.071 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10387 error. Adam and Eve were driven from The world then came together—and I I say to my good friend, it is just not the Garden of Eden because of error. So say the world—after that and enacted wise to go in and try and put any im­ from the very beginning of history, the these three treaties. The United States print on this that expiration could very history of mankind, this race of was in the lead of putting those trea­ occur. It could raise, again, the debate, human beings, there has been evidence ties in. Those treaties were for the pur­ and I do not think that is in the inter­ of errors, mistakes. People did not pose of ensuring that future mankind, est of the country. I think this debate, foresee the future, and this language is generations, hopefully, would not expe­ this legislation has been settled, and I a protection against that. rience what literally millions of people don’t think it was ever the President’s What is wrong with providing an ex­ experienced by death and maiming— intention in the course of the prepara­ piration date for the authority given to not only soldiers but civilians. tion of his legislation, but some fear it the President in this bill, after a period Mr. President, we believed that the could. of 5 years? Can we not be mistaken? administration’s approach to this could Mr. BYRD. Mr. President, it could be Might we not see the day when we wish be interpreted by the world as some­ a Democratic President, as far as I am that we had an automatic opportunity how we were not behind those treaties. concerned. I think this is wise on the to review this? Five years is a long If we were to put a sunset in here after part of the Senate in conducting its time. Five years is ample time. all of the deliberation and all of the constitutional oversight, to say that So I must say that I am somewhat work on the current bill that is before we will do it this far and then we will surprised that my friend, the great this body, it could once again raise the take another look at it in the light of Senator from Virginia, would seek to specter that, well, if in fact the United the new day, in the light of the new oppose this amendment. Let me read it States was trying to not live up to the times, the new circumstances; we will once again. This is nothing new, having treaties that brought on this debate in take another look at it. We are not sunset provisions in bills. I think they the Senate, then at the end of 5 years passing any judgment on that legisla­ are good. We can always review them, we go back to where we were. That tion 5 years out. and if mistakes have not been made, we could happen. We do not want to send I am flabbergasted—flabbergasted— can renew them. There is that oppor­ that message. We want to send a mes­ that my friend would take umbrage at tunity. But it does guarantee that sage that this Nation has reconciled, this legislation. there will come a time when this legis­ hopefully, this body, as we vote this I only have a few minutes left. lation will be reviewed. Only the word afternoon, and will send a strong bipar­ Mr. LEVIN. Will the Senator from of Almighty God is so perfect that tisan message that we are reconciled West Virginia yield for 3 minutes? there is no sunset provision in the Holy behind this legislation to ensure that Mr. BYRD. Yes, I yield 3 minutes. Writ. No. But the sunset provision in the eyes of the world we are going to Mr. LEVIN. Mr. President, I think there is with us, and the time will live fully within the confines of the the Senator from West Virginia is, come when all of us will take a voyage treaties of 1949. more than any other person in the his­ into the sunset. Mr. BYRD. We are not dealing with tory of this body, the custodian in his Mr. WARNER. May I reply at the ap­ the treaties of 1949. person of the Constitution of the propriate time? Mr. WARNER. I respectfully say that United States. The bill that is before Mr. BYRD. Absolutely. I will yield our bill does, in my judgment. Clearly, us obviously raises a number of very right now. it constitutes an affirmation of the significant issues involving our Con­ treaties. I would not want to send a Mr. WARNER. Many times, the two stitution. of us have stood right here and had our message at this time that there could What the amendment of Senator come a point, namely, December 31, debates together. It is one of those rich BYRD does very wisely is say that after moments in the history of this institu­ 2011, that such assurances as we have 5 years, let us double back and given about those treaties might ex­ tion when two colleagues, without all doublecheck—double back and of the prepared text and so forth, can pire. That is what concerns me. Mr. BYRD. Mr. President, I am al­ doublecheck—so that we can be con­ draw upon their experience and knowl­ most speechless. I listened to the words fident that what we have done com­ edge and their own love for the Con­ that have just been uttered by my ports with the Constitution of the stitution of the United States and en­ friend. My amendment does not affect, United States. This amendment does it gage. in any way, the portions of this bill very carefully. It does not disturb any I say to my good friend, 3 weeks ago, that relate to the Geneva Conventions. pending proceeding under the commis­ there were headlines that three Sen­ It sunsets only the authority of the sion. The Senator has written this ators were in rebellion against their President to convene military commis­ amendment so carefully that he says President, three Senators were dis­ sions and, of course, the Senate can even though it will sunset, forcing us sidents, and on and on it went. Well, renew that authority. That is done in to go back and doublecheck, to look at the fact is, the three of us—and there many instances here. I think it is in­ our work, that it will not in any way were others who shared our views, but surance for our country and the wel­ disturb any existing or pending pro­ somehow the three of us were singled fare of our country and the welfare of ceeding. out—believed as a matter of conscience the people who serve in the military. I believe this is such an important we were concerned about an issue. We say 5 years. Do we want to make statement of our determination that The concern was that the bill pro­ that 6 years? Do we want to make it 7 we act in a way that is constitutional, posed by the administration, in our years? Fine. It will expire at that time. not in the heat of a moment which is judgment, could be construed as in It simply means that the Senate and obviously critical to us, but that we some way—maybe we were wrong—in­ the House take a look at it again and comport in every way with this Con­ dicating that America was not going to renew it. What is wrong with that? stitution. We ought to heed the words follow the treaties of 1949—most par­ Mr. WARNER. I say to my friend, Mr. of Senator BYRD, who understands the ticularly, Common Article 3. Common President, from a technical standpoint, importance of this Constitution and Article 3 means that article in each of he is correct. He is going in there and that this body be the guardian of the these three treaties. As my good friend incising out regarding commissions. Constitution. We are the body that knows—and we draw on our own indi­ But the whole debate has been focused must protect this Constitution. vidual recollections about the horrors around how those commissions will Mr. BYRD. Yes. of World War II. I was involved in the conduct themselves in accordance with Mr. LEVIN. And this, as he puts it, is foreign battlefield. We certainly knew the common understanding of Article an insurance policy that we will do just about it back here at home and studied 3, particularly. that. it. I was a youngster, a skinny young­ So while the Senator, in his very fine Mr. BYRD. Yes. ster in my last year in the Navy. So and precise way of dealing with the leg­ Mr. LEVIN. I ask unanimous consent much for that. But we were very con­ islation, takes out just that, it might that I be added as a cosponsor to the scious of what was going on, and the not be fully understood beyond our Byrd amendment. frightful treatment of human beings as shores. The headline could go out that The PRESIDING OFFICER. Without a consequence of that war. there is going to be an expiration. objection, it is so ordered.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.072 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10388 CONGRESSIONAL RECORD — SENATE September 28, 2006 Mr. BYRD. Mr. President, I have 4 I don’t know a more patriotic indi­ And instead of not just suspending, minutes remaining; do I? vidual or anybody I admire more. When but eliminating, the right of habeas The PRESIDING OFFICER. The Sen­ the Armed Services bill that was origi­ corpus—the seven century-old right of ator has 5 minutes 14 seconds remain­ nally conceived came out, I thought to individuals to challenge the terms of ing. myself: This is a proud moment in the their own detention, we could have Mr. BYRD. I yield 5 minutes to my Senate. I thought: Here is a bipartisan given the accused one chance—one sin­ friend, the distinguished Senator from piece of work that has been structured gle chance—to ask the Government Illinois, Mr. OBAMA. and well thought through that we can why they are being held and what they The PRESIDING OFFICER. The Sen­ all join together and support to make are being charged with. ator from Illinois is recognized. sure we are taking care of business. But politics won today. Politics won. Mr. OBAMA. Mr. President, I thank The fact is, although the debate we The administration got its vote, and my dear friend and colleague from have been having on this floor has ob­ now it will have its victory lap, and West Virginia. viously shown we have some ideolog­ now they will be able to go out on the I am proud to be sponsoring this ical differences, the truth is we could campaign trail and tell the American amendment with the senior Senator have settled most of these issues on ha­ people that they were the ones who from West Virginia. He is absolutely beas corpus, on this sunset provision, were tough on the terrorists. right that Congress has abrogated its on a whole host of issues. The Armed And yet, we have a bill that gives the oversight responsibilities, and one way Services Committee showed us how to terrorist mastermind of 9/11 his day in to reverse that troubling trend is to do it. court, but not the innocent people we adopt a sunset provision in this bill. All of us, Democrats and Repub­ may have accidentally rounded up and We did it in the PATRIOT Act, and licans, want to do whatever it takes to mistaken for terrorists—people who that allowed us to make important re­ track down terrorists and bring them may stay in prison for the rest of their visions to the bill that reflected our ex­ to justice as swiftly as possible. All of lives. perience about what worked and what us want to give our President every And yet, we have a report authored didn’t work during the previous 5 tool necessary to do this, and all of us by sixteen of our own Government’s in­ years. We should do that again with were willing to do that in this bill. telligence agencies, a previous draft of this important piece of legislation. Anyone who says otherwise is lying to which described, and I quote, ‘‘... ac­ It is important to note that this is the American people. tions by the United States government not a conventional war we are fighting, In the 5 years the President’s system that were determined to have stoked as has been noted oftentimes by our of military tribunals has existed, the the jihad movement, like the indefinite President and on the other side of the fact is not one terrorist has been tried, detention of prisoners at Guantanamo aisle. We don’t know when this war not one has been convicted, and in the Bay . . .’’ against terrorism might end. There is end, the Supreme Court of the United And yet, we have al-Qaida and the no emperor to sign a surrender docu­ States found the whole thing unconsti­ Taliban regrouping in Afghanistan ment. As a consequence, unless we tutional because we were rushing while we look the other way. We have build into our own processes some through a process and not overseeing it a war in Iraq that our own Govern­ mechanism to oversee what we are with sufficient care. Which is why we ment’s intelligence says is serving as doing, then we are going to have an are here today. al-Qaida’s best recruitment tool. And open-ended situation, not just for this We could have fixed all this several we have recommendations from the bi­ particular President but for every years ago in a way that allows us to de­ partisan 9/11 commission that we still President for the foreseeable future. tain and interrogate and try suspected refuse to implement 5 years after the And we will not have any formal mech­ terrorists while still protecting the ac­ fact. anism to require us to take a look and cidentally accused from spending their The problem with this bill is not that to make sure it is being done right. lives locked away in Guantanamo Bay. it is too tough on terrorists. The prob­ This amendment would make a sig­ Easily. This was not an either-or ques­ lem with this bill is that it is sloppy. nificant improvement to the existing tion. We could do that still. And the reason it is sloppy is because The PRESIDING OFFICER. The Sen­ legislation, and it is one of those we rushed it to serve political purposes amendments that would, in normal cir­ ator’s time has expired. Mr. OBAMA. Mr. President, I ask instead of taking the time to do the job cumstances, I believe, garner strong bi­ unanimous consent for 2 more minutes. right. partisan support. Unfortunately, we The PRESIDING OFFICER. Is there I have heard, for example, the argu­ are not in normal circumstances. objection? ment that it should be military courts, Let me take a few minutes to speak Mr. WARNER. Mr. President, and not Federal judges, who should more broadly about the bill before us. charged against the allocation under make decisions on these detainees. I I may have only been in this body for the proponent of the amendment. actually agree with that. a short while, but I am not naive to the The PRESIDING OFFICER. The pro­ The problem is that the structure of political considerations that go along ponent has no time remaining. the military proceedings has been poor­ with many of the decisions we make Mr. WARNER. We are under fairly ly thought through. Indeed, the regula­ here. I realize that soon—perhaps rigid time control, but I will give the tions that are supposed to be governing today, perhaps tomorrow—we will ad­ Senator from Illinois a minute. administrative hearings for these de­ journ for the fall. The campaigning Mr. OBAMA. I will conclude, then. I tainees, which should have been issued will begin in earnest. There are going appreciate the Senator from Virginia. months ago, still haven’t been issued. to be 30-second attack ads and negative Instead of allowing this President— Instead, we have rushed through a bill mail pieces criticizing people who don’t or any President—to decide what does that stands a good chance of being vote for this legislation as caring more and does not constitute torture, we challenged once again in the Supreme about the rights of terrorists than the could have left the definition up to our Court. protection of Americans. And I know own laws and to the Geneva Conven­ This is not how a serious administra­ that this vote was specifically designed tions, as we would have if we passed tion would approach the problem of and timed to add more fuel to the fire. the bill that the Armed Services com­ terrorism. I know the President came Yet, while I know all of this, I am mittee originally offered. here today and was insisting that this still disappointed because what we are Instead of detainees arriving at is supposed to be our primary concern. doing here today, a debate over the Guantanamo and facing a Combatant He is absolutely right it should be our fundamental human rights of the ac­ Status Review Tribunal that allows primary concern—which is why we cused, should be bigger than politics. them no real chance to prove their in­ should be approaching this with a som­ This is serious and this is somber, as nocence with evidence or a lawyer, we berness and seriousness that this ad­ the President noted today. could have developed a real military ministration has not displayed with I have the utmost respect for my col­ system of justice that would sort out this legislation. league from Virginia. It saddens me to the suspected terrorists from the acci­ Now let me make clear—for those stand and not be foursquare with him. dentally accused. who plot terror against the United

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.073 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10389 State, I hope God has mercy on their serves American ideals, American val­ Need I remind this institution of the soul, because I certainly do not. ues, and ultimately will make us more most elementary fact that every Sen­ For those who our Government sus­ successful in prosecuting the war on ator understands, that what we do one pects of terror, I support whatever terror about which all of us are con­ day can be changed the next. If there tools are necessary to try them and un­ cerned. comes a time when we feel this Presi­ cover their plot. Thank you, Mr. President. dent or a subsequent President does We also know that some have been Mr. BYRD. Mr. President, I ask the not exercise authority consistent with detained who have no connection to distinguished Senator from Virginia, this act, Congress can step in, and with terror whatsoever. We have already may I have 10 seconds? a more powerful action than a sunset, had reports from the CIA and various Mr. WARNER. I am going to give the a very definitive action. generals over the last few years saying Senator more than 10 seconds. I have Mr. President, it is my understanding that many of the detainees at Guanta­ to do a unanimous consent request on I have a few minutes left under this namo shouldn’t have been there—as behalf of the leadership. amendment. one U.S. commander of Guantanamo ORDER VITIATED—S. 295 The PRESIDING OFFICER (Mr. told the Wall Street Journal, ‘‘Some­ I ask unanimous consent that the COLEMAN). The time of the Senator times, we just didn’t get the right order with respect to S. 295 be vitiated. from Virginia is 91⁄2 minutes. folks.’’ And we all know about the re­ The PRESIDING OFFICER. Is there Mr. WARNER. I would like to have cent case of the Canadian man who was objection? that time transferred under my time suspected of terrorist connections, de­ Mr. LEVIN. Reserving the right to on the bill as a whole. I hope Senator object. tained in New York, sent to Syria, and CORNYN, who has expressed an interest No objection. tortured, only to find out later that it Mr. WARNER. I understand there is in this, gets the opportunity to use was all a case of mistaken identity and no objection. Will the Chair kindly that time to address this amendment. poor information. In the future, people rule? Now, Mr. President, as I look at the like this may never have a chance to The PRESIDING OFFICER. Without number of Senators who are desiring to prove their innocence. They may re­ objection, it is so ordered. speak on my side—and I think perhaps main locked away forever. The Senator from Virginia is recog­ it would be helpful if you could, I say The sad part about all of this is that nized. to my colleague, the ranking member, this betrayal of American values is un­ Mr. WARNER. Mr. President, I yield check on the other side—we still have necessary. such time as Mr. BYRD wishes to take. some debate, and we are prepared to We could have drafted a bipartisan, The PRESIDING OFFICER. The Sen­ get into debate on the Kennedy amend­ well-structured bill that provided ade­ ator from West Virginia. ment now. Therefore, I will undertake quate due process through the military Mr. BYRD. Mr. President, I thank my to do that just as soon as I finish. courts, had an effective review process friend from Virginia. I merely wanted But then we are in that time period that would’ve prevented frivolous law­ to thank the distinguished Senator where all time has expired or utilized suits being filed and kept lawyers from from Illinois, Mr. OBAMA, for his state­ or otherwise allocated on the several clogging our courts, but upheld the ment. I think it was well said, I think amendments. We will soon receive an basic ideals that have made this coun­ it was wise, and I thank him for his indication from the leadership as to try great. strong support of this amendment. the time to vote on the stacked votes. Instead, what we have is a flawed I also close by asking that the clerk But under the time reserved for the document that in fact betrays the best once again read this amendment. I will bill, I have, of course, the distinguished instincts of some of my colleagues on then yield the floor. I thank the Sen­ Senator from Arizona, Mr. MCCAIN, and both sides of the aisle—those who ator from Virginia. Senator GRAHAM are going to be given worked in a bipartisan fashion in the Mr. WARNER. Mr. President, I say to by me such time as they desire, and Armed Services Committee to craft a my good friend, I fully understand then subject to the time utilized by bill that we could have been proud of. what you endeavor to do here, and I re­ those two Senators, I would hope to And they essentially got steamrolled spectfully strongly disagree with it. I have time for Senator HUTCHISON, Sen­ by this administration and by the im­ think many of us share this. This is ator CHAMBLISS, and again Senator peratives of November 7. going to be a very long war against CORNYN, Senator GRASSLEY, and Sen­ That is not how we should be doing those people whom we generically call ator MCCONNELL, the distinguished ma­ business in the U.S. Senate, and that is terrorists. In the course of that war, jority whip. not how we should be prosecuting this this President and his successor must So I am going to manage that as fair­ war on terrorism. When we are sloppy have the authority to continue to con­ ly and as equitably as I can. That is and cut corners, we are undermining duct these courts-martial—these trials what we propose to do. I will go into those very virtues of America that will under these commissions—and not send the subject of the Kennedy amendment lead us to success in winning this war. out a signal to terrorists: If you get right now. At bare minimum, I hope we can at under the time limit and you don’t get The PRESIDING OFFICER. The Sen­ least pass this provision so that cooler caught, this thing may end. ator from Michigan is recognized. heads can prevail after the silly season Mr. WARNER. If you are not caught Mr. LEVIN. Mr. President, I am of politics is over. within this period of time, when this afraid that the way this now is set up, I conclude by saying this: Senator went into effect, then you are no the Senator from Virginia has about BYRD has spent more time in this longer going to be held accountable. I, six speakers who will have time, and Chamber than many of us combined. and I think every Member of this body, we have on this side, because of the in­ He has seen the ebb and flow of politics regret that this Nation or other na­ terest in the amendment process, used in this Nation. He understands that tions or a consortium of nations have up our time and had to use time on the sometimes we get caught up in the not captured Osama bin Laden. There bill, so that on our side we only have— heat of the moment. The design of the is a debate going on about that, and I how much time left on the bill, if I Senate has been to cool those passions am not going to get into that debate, could inquire of the Chair? and to step back and take a somber but the fact is he is still at large. There The PRESIDING OFFICER. The Sen­ look and a careful look at what we are could be other Osama bin Ladens, and ator from Michigan has 4 minutes re­ doing. it may take years to apprehend them, maining on the bill. The Senator from Passions never flare up more than no matter how diligently we pursue Vermont has 12 minutes remaining on during times where we feel threatened. them. We cannot send out a signal that the bill. I strongly urge, despite my great admi­ at this definitive time, it is the respon­ Mr. LEVIN. And the Senator from ration for one of the sponsors of the sibility of the President, of the execu­ Massachusetts has how many minutes underlying bill, that we accept this ex­ tive branch, to hold those accountable on his amendment? traordinarily modest amendment that for crimes against humanity. They The PRESIDING OFFICER. The Sen­ would allow us to go back in 5 years’ would not be held accountable if this ator from Massachusetts has 7 minutes time and make sure what we are doing provision went into power. 20 seconds.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.027 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10390 CONGRESSIONAL RECORD — SENATE September 28, 2006 Mr. LEVIN. How much time all to­ the category of grave breaches of Com­ can’t list those because it is going to gether on the majority side? mon Article 3 of the Geneva Conven­ be a bother to our State Department, The PRESIDING OFFICER. On the tions. These are clearly prohibited by notifying these countries. My, good­ bill, 50 minutes; on the Kennedy our bill. Rather than listing specific ness. amendment, 30 minutes. techniques, Congress has exercised its There has to be a better reason that Mr. LEVIN. I think everybody ought proper constitutional role by defining we are not going to protect our service to recognize the situation we are in. I such conduct in broad terms as a crime men and women from these kinds of hope we will withhold our comments under the War Crimes Act. The tech­ techniques. We are saying to those until those on the other side who have niques in Senator KENNEDY’s amend­ countries: If you use these techniques, been indicated as having time allo­ ment are not consistent with the Com­ you are a war criminal. What are those cated to them speak so that we will mon Article 3 and would strongly pro­ techniques? They are in the Depart­ have some time to respond to them. test their use against our troops or any ment of Defense listing. That is what The PRESIDING OFFICER. The Sen­ others. they are. How often are they used? I ator from Virginia is recognized. So I say with respect to my good gave the illustrations of how they were AMENDMENT NO. 5088 friend, this is not an amendment that I used repeatedly, whether it has been by Mr. WARNER. Mr. President, I would would in any way want to be a part of Iran or whether it has been by Japan, now like to address the amendment of­ this bill. or any of our adversaries in any other fered by the senior Senator from Mas­ The PRESIDING OFFICER. The Sen­ war. sachusetts. ator from Massachusetts is recognized. The PRESIDING OFFICER. The Sen­ I have read this very carefully and I Mr. KENNEDY. Mr. President, I ator has consumed 3 minutes. have studied it, I say to my good would like to inquire of the Senator Mr. KENNEDY. I yield myself 1 friend. There are certain aspects of this from Virginia, and I yield myself 3 minute. I want to put in the RECORD amendment that are well-intentioned. minutes. As I understand, one of the the excellent letter from Jack Vessey, But I strongly oppose it, and I do en­ reasons this amendment is being re­ who is a distinguished former Joint courage colleagues to oppose it, be­ jected is because of the burden that it Chief of Staff: cause the question of the separation of is going to place on our State Depart­ I continue to read and hear that we are powers is involved here, and that is the ment to notify the 194 countries that facing a different enemy in the war on ter­ we expect, if these techniques are used ror. No matter how true that may be, inhu­ subject on which this Chamber has res­ manity and cruelty are not new to warfare onated many times. But here I find the against Americans, they would be con­ nor to enemies we have faced in the past. In amendment invades the authority of sidered a war crime. That is a possible my short 46 years in the armed forces, Amer­ the executive branch in the area of the difficulty for us? That is a burden for icans confronted the horrors of the prison conduct of its foreign affairs by requir­ our State Department? Or, rather is he camps of the Japanese in World War II, the ing the Secretary of State to notify objecting because, we can’t foresee all North Koreans in 1950 to 1953, and the North other state parties to the Geneva Con­ of the different kinds of techniques Vietnamese in the long years of the Vietnam that might be used against individuals War, as well as knowledge of the Nazi’s holo­ ventions of certain U.S. interpretations caust depredations in World War II. Through of the Geneva Conventions, in par­ and therefore we shouldn’t list these. those years, we held to our own values. We ticular Common Article 3 and the law We list them in the Army Field Manual should continue to do so. of war. specifically. They are not pulled out of The Kennedy amendment does it. It is up to the executive branch in its the air; they are listed specifically in That is what this amendment is about. discretion to take such actions in the Army Field Manual. That is where I reserve the remainder of my time. terms of its relations with other sev­ they come from. And a number of the I ask unanimous consent the letter eral states in this world—not the Con­ Members on the other side of the aisle be printed in the RECORD. gress directing that they must do so— have said that those techniques are There being no objection, the mate­ such communications with foreign gov­ prohibited. So we have taken the De­ rial was ordered to be printed in the ernments. But in the balance of pow­ partment of Defense list and incor­ RECORD, as follows: ers, it is beyond the purview of the porated it. SEPTEMBER 12, 2006. Congress to say to the Secretary of Then the last argument is that: Well, Hon. JOHN MCCAIN, State: You shall do thus and so. if it is rejected, we don’t want this to U.S. Senate, This bill speaks for itself by defining be interpreted as a green light for these Washington, DC. grave breaches of Common Article 3 techniques. There must be stronger ar­ DEAR SENATOR MCCAIN: Sometimes, the that amount to war crimes under U.S. guments. Maybe I am missing some­ news is a little garbled by the time it reaches the forests of North-central Min­ law. Any congressional listing of spe­ thing around here. With all respect, I nesota, but I call your attention to recent cific techniques should be avoided sim­ have difficulty in understanding why reports that the Congress is considering leg­ ply because Congress cannot foresee all the Senator from Virginia, the chair­ islation which might relax the United States of the techniques considered to maybe man of the Armed Services Committee, support for adherence to Common Article 3 fall within the category of cruel and in­ does not address the fundamental issue of the Geneva Convention. If that is true, it human conduct, and therefore, they which is included in this amendment, would seem to weaken the effect of the would become violations of Article 3. and that is this amendment protects McCain Amendment on torture of last year. Americans who are out on the front If such legislation is being considered, I fear We can’t foresee all of those situations. that it may weaken America in two respects. Again, it is the responsibility of this lines of the war on terror, the SEALS, First, it would undermine the moral basis body to administer, to see that this bill the CIA, others who are fighting, and it which has generally guided our conduct in becomes law in a manner of oversight. gives warning to any country: You go war throughout our history. Second, it could Senator KENNEDY’s amendment, de­ ahead with any of these techniques and give opponents a legal argument for the mis­ pending on how the vote comes—and I you are committing a war crime and treatment of Americans being held prisoner am of the opinion that this Chamber will be held accountable. in time of war. Now, if I could get a good answer to In 1950, 3 years after the creation of the De­ will reject it—I don’t want that rejec­ partment of Defense, the then Secretary of tion to be misconstrued by the world in that, I would welcome it, but I haven’t Defense, General George C. Marshall, issued any way as asserting that the tech­ heard it yet. With all respect, I just a small book, titled The Armed Forces Offi­ niques mentioned in the amendment haven’t heard why the Senator is refus­ cer. The book summarized the laws and tra­ are consistent with the Geneva Con­ ing and effectively denying—opposition ditions that governed our Armed Forces ventions or that they could legiti­ to this amendment is denying that through the years. As the Senate deals with mately be employed against our troops kind of protection. I read, and it was the issue it might consider a short quote or anyone else. We must not leave that when the Senator was here, when we from the last chapter of that book which found out that similar kinds of tech­ General Marshall sent to every American Of­ impression as a consequence of the de­ ficer. The last chapter is titled ‘‘Americans cision soon to be made by way of a vote niques were used against Americans in in Combat’’ and it lists 29 general propo­ on the Kennedy amendment. World War II, and we sentenced offend­ sitions which govern the conduct of Ameri­ The types of conduct described in ers to 10, 15 years and even executed cans in war. Number XXV, which I long ago this amendment, in my opinion, are in some. Now we are saying: Oh, no, we underlined in my copy, reads as follows:

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.090 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10391 ‘‘The United States abides by the laws of on the floor of the U.S. Senate because Mr. CHAMBLISS. Mr. President, I war. Its Armed Forces, in their dealing with the opponents are saying that is uncon­ rise today in support of the Military all other peoples, are expected to comply stitutional and we cannot find a way to Commissions Act of 2006. This historic with the laws of war, in the spirit and the do it. I find this unwillingness to com­ legislation is the result of much work, letter. In waging war, we do not terrorize helpless non-combatants, if it is within our promise is outrageous. thought, and debate. power to avoid so doing. Wanton killing, tor­ Mr. President, I am prepared to call I commend the administration, I ture, cruelty or the working of unusual hard­ the roll on this one. commend Senator WARNER, Senator ship on enemy prisoners or populations is Mr. WARNER. Mr. President, at this MCCAIN, Senator GRAHAM, and all those not justified in any circumstance. Likewise, point I wish to have such time as re­ who were involved in the ultimate respect for the reign of law, as that term is mains under the control of the Senator compromise we have come to on this understood in the United States, is expected from Virginia accorded to me under the very sensitive and very complex issue. to follow the flag wherever it goes....’’ control of the time on the bill. I am pleased we were able to find com­ For the long term interest of the United The PRESIDING OFFICER. The time mon ground on this critical issue and States as a nation and for the safety of our will be so allocated. ensure that the President can author­ own forces in battle, we should continue to Mr. WARNER. Mr. President, I wish maintain those principles. I continue to read ize the appropriate agencies to move to inform the Chamber that we are at forward with an appropriate interroga­ and hear that we are facing a ‘‘different that juncture where we will consider enemy’’ in the war on terror; no matter how tion program. true that may be, inhumanity and cruelty the statements of others, very impor­ There is no question that this pro­ are not new to warfare nor to enemies we tant statements to be made. I listed gram provides essential intelligence have faced in the past. In my short 46 years them in a recitation of those who have that is vital to America’s success in in the Armed Forces, Americans confronted indicated their desire to speak. But I the war on terrorism. At the same the horrors of the prison camps of the Japa­ also bring to the attention of the body time, it honors our agreement under nese in World War II, the North Koreans in that I have just been told by the lead­ the Geneva Conventions and under­ 1950–53, and the North Vietnamese in the ership they are anxious to proceed to scores to other nations that America is long years of the Vietnam War, as well as the votes. knowledge of the Nazi’s holocaust depreda­ a nation of laws. This has been a dif­ tions in World War II. Through those years, At this time I would ask—if I can get ficult issue and I am pleased that both we held to our own values. We should con­ my colleague’s attention—that there sides worked so diligently to achieve tinue to do so. be yeas and nays on all of the pending this result. In this new era of threats, Thank you for your own personal courage amendments remaining. where the stark and sober reality is in maintaining those values, both in war and The PRESIDING OFFICER. Without that America must confront inter­ on the floor of the Senate. I hope that my in­ objection, the yeas and nays may be re­ formation about weakening American sup­ national terrorists committed to the quested on all pending amendments. destruction of our way of life, this bill port for Common Article 3 of the Geneva Mr. LEVIN. Will the Senator with­ is absolutely necessary. Our prior con­ Convention is in error, and if not that the hold that request for 2 minutes? Will Senate will reject any such proposal. cept of war has been completely al­ the Senator withhold? Very respectfully, tered, as we learned so tragically on Mr. WARNER. Surely. GENERAL JOHN W. VESSEY, USA (Ret.). Mr. President, we will now put in a September 11, 2001. We must address The PRESIDING OFFICER. The Sen­ quorum call to accommodate the rank­ threats in a different way. If we are ator from Virginia is recognized. ing member, such that the time is not going to get at the root of terrorist ac­ Mr. WARNER. Mr. President, my dis­ charged to either side. tivity, we need to be able to get crit­ tinguished colleague used two phrases The PRESIDING OFFICER. The ical information to do so. just now. He said: Burden. He used the clerk will call the roll. There has been much discussion dur­ word burden. He then said the word The assistant legislative clerk pro­ ing the course of the drafting of this bother. Senator, you walk straight into ceeded to call the roll. bill about the rule of law, and the rule the constitutional separation of powers Mr. WARNER. Mr. President, I ask of law relative to detainees is, indeed, in your language and you say: The Sec­ unanimous consent the order for the reflected in this bill. It provides for tri­ retary of State shall—that is a direct quorum call be rescinded. bunals, for judges, for counsel, for dis­ order—notify other parties to the Ge­ The PRESIDING OFFICER. Without covery, and for rules of evidence. neva Conventions. You are putting a objection, it is so ordered. Most importantly, however, in my direct order to the executive branch. I Mr. WARNER. Mr. President, the view, is that while this bill provides say that is a transgression of the long managers, together with the guidance important rule of law procedures for il­ constitutional history of this country from their respective leaders, are en­ legal enemy combatants, it does not and the doctrine of separation of pow­ deavoring to do the following. There give them the same protections which ers. are three amendments to be voted on we afford lawful enemy combatants or Mr. KENNEDY. Would the Senator and then final passage. We hope to our own military personnel, and that is support it if we changed it to ‘‘shall,’’ have as much time used on the bill as a critical distinction. And that is how that you, the chairman of our com­ we can, to be consumed prior to the it ought to be. We have made that dis­ mittee, will make that request and the initiation of the votes. But then subse­ tinction for no other reason than to President will go ahead and notify and quent to the three votes, there will be provide incentive for every nation follow those instructions? a block of time. A Senator on this side across the world to observe inter­ Mr. WARNER. Senator, I am not in has reserved 12 minutes. I intend to re­ national agreements for the proper the business of trying to amend your serve, on my side, time to Senator treatment of captives. It bears repeat­ amendment. MCCAIN. I am trying to work in that ing—this bill applies to the trial of ille­ Mr. KENNEDY. I am just trying to category of time following the votes. gal enemy combatants—those who accommodate you. You are saying that But until we are able to reconcile this, make no pretense whatsoever of con­ this is a constitutional issue. I just of­ I ask that we now proceed. formity with even minimal standards fered to try to accommodate the Chair­ Let me allow the Senator from Geor­ or international norms of civilized be­ man so we can ensure we are pro­ gia to proceed. He has indicated a de­ havior when it comes to the treatment tecting American servicemen from tor­ sire to speak for 5 or so minutes at this of those they capture. ture—from torture. And the response time. But I hope Senators are following We hear repeatedly that we should be is: Well, it is going to violate the Con­ what the two managers are saying. concerned about what we do, for fear stitution. I am interested in getting re­ Those desiring to speak on the bill, that we encourage others to treat our sults. with the exception of Senator MCCAIN, captured service men and women in a But I hear the Senator say that it is would they kindly come down and uti­ similar manner. But let’s be very clear unconstitutional that my amendment lize this time before the amendments here and state what every American says Department of State shall notify start? knows to be true. The al-Qaida terror­ other countries that if they are going I yield the floor. ists treat our captured service men and to torture, they are going to be held The PRESIDING OFFICER. The Sen­ women by beheading them and by drag­ accountable, and we are being defeated ator from Georgia. ging their bodies through the streets.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.028 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10392 CONGRESSIONAL RECORD — SENATE September 28, 2006 They need no encouragement or excuse I have gotten to know Senator WAR­ is not healthy for one branch of gov­ for their actions by reference to our NER very well over the last 30 days. I ernment to dominate the other two at treatment of their captives. had a high opinion of the Senator be­ a time of stress. As a result of the Supreme Court’s fore this process started, but I, quite I have pushed back against the ad­ ruling, we are creating military com­ frankly, am in awe of his ability to ministration when I believed they were missions that provide rule of law pro­ stand up for the institution as a U.S. pushing the executive power of the in­ tections which are embodied in this Senator, who was a former Secretary of herent authority of the President too bill—courts, judges, legal counsel, and the Navy, who tried to have a balanced far. Even though we are in a time of rules of evidence. So this bill appro­ approach about what we are trying to war, there is plenty of room for the priately meets our international obli­ do. Congress and the courts. gations and America’s sense of what is It is no secret that Senator MCCAIN is What I tried to do in helping draft right and it is in keeping with our one of my closest friends in this body, this bill, working with the President highest values. and I respect him in so many ways. But and working with our friends on the However, this bill will allow the unlike myself and most of us, Senator other side, is come up with a product President to move forward with a ter­ MCCAIN paid a heavy price while serv­ that would create a balance that I rorist interrogation program that will ing this country. He and his colleagues think would serve us well. ensure that we continue to get critical in Vietnam were treated very poorly as information about those who are plot­ My basic proposition that I have ap­ prisoners of war. When he speaks about plied to the problem is we are at war, ting to carry out hateful acts against the Geneva Conventions, he does so as America and against Americans. that 9/11 was an act of war, and since someone who has been in an environ­ that moment in time our Nation has I commend the President for his de­ ment where the Conventions would not termination to respond to the new re­ been at war with enemy combatants apply. But Senator MCCAIN believes who do not wear a uniform, who do not ality confronting us. I commend Chair­ very strongly in the Geneva Conven­ man WARNER and my colleagues on the represent a nation but are warriors for tions. When it comes to the Vietnam their cause, just as dedicated as Hitler Armed Services Committee who war, he has told me more than once worked in good faith to craft a bill was to his cause, and they are just as that if it were not for the insistence of vicious and barbaric as any enemy we which is the right bill to respond to the the United States and the inter­ challenges we face. And again, I am have ever fought. national community that constantly But we don’t need to be like them to pleased we were able to find common pushed back against the North Viet­ ground on this critical issue and ensure win. As a matter of fact, we need to namese, he thought the torture would show the world that we are different that the President can move forward have continued and all of them would with an appropriate interrogation than them. eventually be killed. But the North Vi­ When the Geneva Conventions were program. etnamese became concerned about I think it is important that we send applied to the war on terror, we had a international criticism after a point in a bill to the White House, to the desk problem. We had to renew the Military time. Commission Tribunal in line with Com­ of the President that is exactly the While the Geneva Conventions were mon Article 3. Common Article 3 is a same as the bill that has already been not applied evenly by any means, it did mini-human-rights tree that is com­ passed by the House so we can put this have an effect on the North Viet­ mon to all four Convention articles. program in place immediately. The namese. way we do that is to continue to defeat I have been a military lawyer for You have one about lawful combatants all the amendments that have been put over 20 years. I have had the honor of and unlawful combatants, civilians and forward, and that we send the Presi­ wearing the Air Force uniform while wounded people. Common Article 3 is dent the same bill that has already serving my country and being around throughout all of the treaties regard­ been passed by the House so that this great men and women in uniform. It ing the Geneva Conventions. It says program can be reinitiated imme­ has been one of the highlights of my you would have to have a regularly diately. life. I have never been shot at. The constituted court to pass judgment or I yield the floor. only people who wanted to kill me were render sentences against those who are Mr. WARNER. Mr. President, I thank probably some of my clients. But I do in your charge during time of war; that our distinguished colleague from Geor­ appreciate why the Geneva Conven­ is, unlawful combatants. gia, a very valued member of the tions exist and the fact that the law of The problem with the military com­ Armed Services Committee who has armed conflict is a body of law unique mission order authorized by the Presi­ from time to time participated in the to itself and has a rich tradition in our dent was that it deviated from the for­ extensive deliberations and consulta­ country and throughout the world and mal Code of Military Justice, the tions with regard to how the original it will work to make us safe and live court-martial model, without showing bill which we worked on should be within our values if we properly apply a practical reason. Within our Uniform shaped and finally amended. I thank it. Code of Military Justice, it says mili­ him. The reason we are here is because the tary commissions are authorized, but Again, I call to the attention of col­ Supreme Court ruled in the Hamdan they need to be like the court-martial leagues that I shall put in a quorum for case that the military commissions au­ system to the extent practicable. the purpose of trying to accommodate thorized by the President were in viola­ What I am proud of is we have cre­ Members on my side who desire to tion of Common Article 3 of the Geneva ated a new military commission based speak. Conventions. They were not regularly on the UCMJ and deviations are there I now see the distinguished Senator because of the practical need. A court from South Carolina. We are prepared constituted courts. It surprised me greatly that the Su­ martial is not the right forum to try to allocate to him such time as he may preme Court would find that the Gene­ enemy combatants—non-citizen terror­ desire. How much time does he need? ists—the military commission is the Mr. GRAHAM. Would 15 minutes be va Conventions applied to the war on right forum, but we are basing what we OK? terror. It was President Bush’s assump­ Mr. WARNER. Yes. tion and mine, quite frankly, that hu­ are doing on UCMJ, and the practical Mr. GRAHAM. I thank the chairman. mane treatment would be the standard. differences, I think, will be sustained The PRESIDING OFFICER. The Sen­ But this enemy doesn’t wear a uniform; by the Court. ator from South Carolina. it operates outside the Conventions, The confrontation rights that were Mr. GRAHAM. Mr. President, in 15 doesn’t represent a nation, and, there­ originally posed by the administration minutes I will try to explain the proc­ fore, would not be covered. But the Su­ gave me great concern. I do not believe esses as I know it to be in terms of how preme Court came to a different con­ that to win this war we need to create we arrived at this moment. clusion. Thus, we are here. a trial procedure where the jury can re­ No. 1, I am glad we are here. I think I say to my fellow Americans, it is ceive evidence classified in nature, con­ the country is better off having the bill not a weakness, it is strength that we vict the accused, and the accused never voted on in the current fashion. have three branches of government. It knows what the jury had to render a

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.030 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10393 verdict upon, could not answer that ac­ represents some grave departure, quite with certainty they would be wiped cusation, rebut or examine the evi­ frankly, I vehemently disagree with. I out. That concept doesn’t work when dence. didn’t get into this discussion and po­ your enemy doesn’t mind killing them­ That was the proposal which I litical fight to take all the heat that selves when they kill you. The only thought went too far and that would we have taken to turn around and do way we will protect ourselves effec­ come back to haunt us. As a result of something that undercuts the purpose tively is to know what they are up to this compromise, it has been taken of being involved in it to begin with. before they act. The way you find that out. The evidentiary standard that will be out is to have good intelligence. But We have a national security privilege used in a military commission trial of you have to do it with your value sys­ available to the Government to protect an enemy combatant was adopted from tem. that prosecutor’s file from being given the International Criminal Court. Abu Ghraib was an aberration, but it over to the defense or to the accused so I will place into the RECORD state­ has hurt this country. Anytime the our secrets can be protected. But we ments from every Judge Advocate Gen­ world believes America has adopted will now allow the prosecutor to give eral in all four branches of the services techniques and tactics that are not of that to the jury and let them bring it that have certified from their point of who we are, we lose our standing. So out on the side of the accused and the view that the evidentiary standard what we did regarding the CIA, we re­ accused never knowing what he was that the judge will apply to any state­ defined the War Crimes Act to meet convicted upon. That could come back ments coming into evidence against an our Geneva Conventions obligations. to haunt us if one of our soldiers falls enemy combatant are legally suffi­ The test for the Congress was, how can into enemy hands. cient, will not harm our standing in you have a clandestine CIA program We would not want a future convic­ the world, and, in fact, are the model of and then not run afoul of the Geneva tion based on evidence that our sol­ the International Criminal Court Conventions? What are the Geneva diers and CIA operative never saw. I which try the war criminals on a rou­ Conventions requirements of every think we have a military commission tine basis. country that signs the treaty to outlaw model that affords due process under The provision I added, along with domestically gray areas of the treaty? In Article 129 and 130 of the Geneva the law of war that our Nation can be Senator MCCAIN, dealing with the pro­ proud of, that will work in a way to visions of the Detainee Treatment Act, Conventions, it puts the burden on each country to do it internally, to cre­ render justice, and if a condition is ab­ 5th, 8th, and 14th amendment concepts ate laws to discipline their own per­ stained, it will be something we can be within the Detainee Treatment Act, sonnel who may violate the treaty in a proud of as a nation. I am hopeful that will also be a standard in the future de­ grave way. It lists six offenses that the world would see the condition signed to reinforce the relevance of the would be considered grave breaches of based on evidence, not vengeance. Detainee Treatment Act in our na­ the treaty under the conventions. My goal is to render justice to the tional policy, in our legal system, not Those six offenses were taken out of terrorists, even though they will not to undermine anything but to enforce the treaty and put in our domestic law, render justice to us. That is a big dis­ the concept the Detainee Treatment title 18, the War Crimes Act, and any­ tinction. Act and the judicial standard that our body in our Government who violates People ask me, Why do you care military judges will apply to terrorists that War Crimes Act is subject to being about the Geneva Conventions? These accused is the same that is applied in punished as a felon. people will cut our heads off and they International Criminal Court. We added three other crimes we came will kill us all. You are absolutely I have been a member of the JAG up with ourselves. right. Why do I care? court for over 20 years. I have had the Torture has always been a crime, so Because I am an American. And we honor of serving with many men and anyone who comes to the Senate and have led the way for over 50-something women who will be in that court-mar­ says the United States engages in tor­ years when it comes to the Geneva tial scene. The chief prosecutor, Moe ture, condones torture, that this agree­ Conventions applications. Davis, I met as a captain. There is no ment somehow legitimizes torture, you I am also a military lawyer, and I finer officer in the military than Colo­ don’t know what you are talking can tell every Member of this body— nel Davis. He is committed to render about. Torture is a crime in America. some of them have served in combat justice. I am very proud of the fact If someone is engaged in it, they are unlike myself; some know better than that the men and women who will be subject to being a felon, subject to the I. But we have had downed pilots in So­ doing these military commissions be­ penalty of death. Not only is torture a malia. A helicopter pilot was captured lieve in America just as much as any­ war crime, serious physical injury, by militia in Somalia. We dropped leaf­ body I have ever met, and they want to cruel and inhumane treatment men­ lets all over the city of Mogadishu. We render justice. tally and physically of a detainee is a told the militia leaders, ‘‘If you harm a What else do we try to accomplish? crime under title 18 of the war crimes helicopter pilot, you will be a war We reauthorize the military commis­ statute. criminal.’’ We blared that throughout sions in a way to be Geneva Conven­ Every CIA agent, every military town on loudspeakers with helicopters. tions-compliant to afford the defend­ member now has the guidance they After a period of time, they got the ants accused due process in the way need to understand the law. Before we message, and he was released. that will not come back to haunt us. got involved, our title 18 War Crimes We had two pilots shot down over What else did we have to deal with? A Act was hopelessly confusing. I Libya when Reagan bombed Qadhafi. I CIA program that is classified in na­ couldn’t understand it. We brought was on active duty in the Air Force. ture that needs to continue. There is a clarity. We have reined in the program. We told Qadhafi directly and indi­ debate in this country: Should we have We have created boundaries around rectly, if they harm these two pilots, a CIA interrogation program classified what we can do. We can aggressively they will be in violation of the Geneva in nature that would allow techniques interrogate, but we will not run afoul Conventions, and we will hunt you not in the Army Field Manual to get of the Geneva Conventions. We are not down to the ends of the Earth. good intelligence from high value tar­ going to let our people commit felonies I want to be able to say in future gets? The answer, from my point of in the name of getting good informa­ wars that there is no reason to abandon view, is yes, we should, but not because tion, but now they know what they can our Geneva Conventions obligations to we want to torture anybody, because and cannot do. render justice to these terrorists. we want to be inhumane as a nation. Who complies with that treaty? Who So not only do we have a military The reason we need a CIA program is it within our Government who would commission model that is Geneva Con­ classified in nature to get good infor­ implement our obligations under the ventions compliant; we have a model mation is because in this war informa­ treaty? The Congress has decided what that I think we should be proud of as a tion saves lives. a war crime would be to prohibit grave nation. Mutual assured destruction was the breaches of the treaty. The President, The idea that the changes between concept of the Cold War, where if the this President, like every other Presi­ the committee bill and the compromise Soviet Union attacked us, they knew dent, implements treaties. So what we

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.094 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10394 CONGRESSIONAL RECORD — SENATE September 28, 2006 said in this legislation, when it comes Over 200 cases have been filed. It is im­ I say to my friend from South Caro­ to nongrave breaches, all the other ob­ peding the war effort. lina, although I have had some modest ligations of the Geneva Conventions, A judge should not make a military experience as Secretary of the Navy the President will have the responsi­ decision during a time of war. The dealing with court-martials, and, in­ bility constitutionally to comply with military is far more capable of deter­ deed, when I was a young officer in the those obligations, not to rewrite title mining who an enemy combatant is Marines, I was involved in court- 18, not to sanction torture, not to vio­ than a Federal judge. They are not martials, the Senator brought together late the Detainee Treatment Act, but trained to do that. in this bill, in this deliberation, a very to fulfill the treaty the way every We have replaced a system where the special expertise of the years he has other President has in our constitu­ judges of this country can take over had. tional history. That is all we have military decisions and allow judges to Now he is a full colonel in the U.S. done. To say otherwise is just political review military decisions, once made, Air Force and a Judge Advocate Gen­ rhetoric. Not only have we allowed the for legal sufficiency. That is the way eral recognition. I thank the Senator CIA program to go forward in a way every other country in the world does for his invaluable contribution to put­ not to violate the Geneva Conventions, it. Habeas has no place in this war for ting the series of bills we have had— we have delegated to the President enemy prisoners. The Germans and the putting into those bills matters which what was already our constitutional Japanese—no prisoner in the history of he believed were in the best interests of responsibility to enforce the treaty— the United States has ever been able to the men and women of the Armed not to rewrite it but to enforce it and go to a Federal court and sue the peo­ Forces and, indeed, his consultation fulfill it. ple they are fighting who are pro­ throughout this process with the Judge My concern was that in the process tecting us against the enemy. Advocate Generals and other past and of complying with Hamdan, we would We are allowing the Federal courts to present Judge Advocates and some of be seen by the world as redefining the review every military decision made the younger officers who will be future treaty for our own purposes. We have about an enemy combatant as to Judge Advocate Generals. I thank the not redefined the Geneva Conventions. whether they made the right decision Senator from South Carolina for his We have, for the first time in our do­ based on competent evidence and strong contribution to this deliberative mestic law, clearly defined what a whether the procedures they used are process in the Senate. crime would be against the Geneva constitutional. We have rejected the Now I yield the floor to our last Conventions, and we have told the idea as a Congress of allowing the speaker before we proceed to the votes. President, as a Congress: It is your job courts to run the war when it comes to As I understand, we will be voting at to fulfill the other obligations outside defining who an enemy combatant is. the conclusion of this statement? of criminal law. That is the way it That was a decision which needed to be Mr. LEVIN. I don’t know if the unan­ should be, and it is something of which made. It is not destroying the writ of imous consent agreement has been fin­ I am extremely proud. habeas corpus. It is having a rational, ished yet. That is our hope. We have been at war for over 5 years. balanced approach to where the judges Mr. WARNER. We are finishing a Here we are 5 years later trying to fig­ can play a meaningful role in time of unanimous consent request, but I alert ure out the basic legal infrastructure. war and not play a role they are not the Senate that it is my strong hope It has been confusing. It has been con­ equipped to play. This will mean noth­ and prediction we will soon be voting tentious. We have had two Supreme ing if it does not withstand court scru­ in sequence on three amendments. Court cases where the Government’s tiny. I yield the floor. work product was struck down. I hope soon we will have an over­ The PRESIDING OFFICER. The Sen­ My hope is that our homework will whelming vote for the final product ator from Texas. be graded by the Supreme Court, that after the amendments are disposed of. Mr. CORNYN. Mr. President, I first this bill eventually will go to our Fed­ My goal for 2 years has been to try to compliment the distinguished chair­ eral courts, as it should, and the courts find national unity, to have the Con­ man of the Senate Committee on will say the following: the military gress, the executive branch, and even­ Armed Services, the Senator from Vir­ commissions are Geneva Conventions tually the courts on the same sheet of ginia, for being the calm and steady compliant and meet constitutional music where we can tell the world at hand on the rudder during the course of standards set out by our country when large that we have detention policies, the discussions and debates involving it comes to trying people. interrogation policies, and confine­ this important piece of legislation. His I am confident the court will rule ment policies that not only are hu­ work and demeanor have always been that way. I am confident the Supreme mane and just but will allow us to pro­ constructive and civil, and any dis­ Court will understand that the power tect ourselves from a vicious enemy agreements we have had are befitting we gave the President to fulfill the and live up to our obligations as a na­ of the great traditions of this institu­ treaty is consistent with his role as tion. We are very close to that day tion. I thank him for that. President and the war crimes we have coming. Mr. WARNER. If I may, I thank the written to protect the treaty from a I thank every Member of this Senate Senator from Texas. Several times we grave breach from our own people is who has worked to make this product came to the Senator’s office in the written in a way to sustain legal scru­ better. When you cast a vote, please re­ course of the deliberations on this bill tiny. member, we are at war, we are not because the Senator, too, brings to the I am also confident that Congress has fighting crime. debate a vast experience, having risen finally cleared up what has been a huge The PRESIDING OFFICER. The Sen­ through the ranks of the legal profes­ problem. What role should a judge have ator from Virginia. sion to become a judge in his State. in a time of war? Who should make the Mr. WARNER. Mr. President, we now The Senator is very well equipped and decision regarding enemy combatant have an additional speaker, the Sen­ did provide a very valuable input into status? ator from Texas. this debate. In every war we have been in up until As the Senator from South Carolina Mr. CORNYN. My thanks to the Sen­ now, the military has decided the bat­ has just completed his remarks, I have ator from Virginia. tlefield issues. Under the Geneva Con­ to say it has been an unusual experi­ Mr. President, not everyone who has ventions, it is a military decision to ence for all of us these past weeks. been engaging in this debate has been consider who an enemy combatant is. Working together with Senator MCCAIN as constructive. We have heard some The habeas cases that have existed in and the Senator from South Carolina outlandish statements that bear cor­ our courts from the last 3 or 4 years has enabled this Senate to proceed in a rection, some suggesting this bill have led to tremendous chaos at Guan­ way that is consistent with Senate would actually permit the use of tor­ tanamo Bay. Our own troops are being practices: namely, have a committee ture. Nothing—nothing—could be fur­ sued by the people we are fighting. go through a bill, have a markup, and ther from the truth. In fact, what this They are bringing every kind of action then proceed to work on a product. It bill does is make sure that the provi­ you can think of into Federal courts. brought together the consensus. sions of the Detainee Treatment Act,

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.096 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10395 which were passed in December of 2005 we are keeping faith with the Amer­ So, Mr. President, I hope our col­ in this same Senate, that ban torture, ican people that the Federal Govern­ leagues will vote against these ill-ad­ cruel, inhuman, and degrading treat­ ment will use every legal means avail­ vised amendments to this bill and will ment of detainees, that we comply with able to us to keep the American people send a clean bill to be reconciled with those laws which reflect upon our safe. the House version and sent to the international treaty obligations as well Now, we may disagree—and we do President right away so that before too as our domestic laws and which reflect disagree on the Senate floor—with the long we can see that some of the war our American values. level of rights that an accused terrorist criminals who sit detained at Guanta­ We are a nation at war. But there is should have. I happen to believe these namo Bay may be brought to justice, no equivalency with the way this war individuals, who are high-value detain­ people like Khalid Shaikh Mohammed, is fought and prosecuted by the United ees at Guantanamo Bay, do not deserve who was the mastermind of the 9/11 States and our allies, no equivalency the same panoply of rights preserved plot that killed nearly 3,000 Americans. with the manner in which the war is for American citizens in our legal sys­ Mr. President, I yield the floor. prosecuted by our enemies. We have tem. But I would hope that we would The PRESIDING OFFICER (Mr. learned that our enemies have been at all agree that the CIA interrogation CHAFEE). The Senator from Virginia. war against us for much longer than program must continue. We must not Mr. WARNER. Mr. President, I thank just September 11, 2001, and date back allow the brave patriots who conduct my distinguished colleague from many years before we even realized these interrogations to be at risk un­ Texas. He has been a valuable addition America was under attack. necessarily by providing a gray zone as to those who are trying to structure We know that this enemy, rep­ opposed to absolute clarity insofar as this piece of legislation. resented by Islamic extremism, justi­ it is within our power to give it so that Momentarily, I will seek a unani­ fies the use of murder against innocent we may interrogate these captured ter­ mous consent request ordering the civilians in order to accomplish its rorists to the fullest extent of the law. votes and the allocation of such time goals. To suggest that we are somehow tor­ as remains between Senators. America complies with all of its turing individuals or violating our own So at this point in time, I will sug­ international treaty obligations and laws that we passed just last year in gest the absence of a quorum, unless domestic laws. What this bill is about the Detainee Treatment Act under the the Senator from Massachusetts would is to try to provide our intelligence au­ McCain amendment banning torture, like to take the additional 3 minutes thorities the clear direction they need cruel and inhuman treatment, is abso­ that he has at this time on his amend­ so they know how to comply with those lutely untrue and irresponsible. The ment. laws and, at the same time, preserve an American people have a right to be­ Mr. KENNEDY. Yes. absolutely critical means of collecting lieve we will use every legal tool avail­ The PRESIDING OFFICER. The Sen­ intelligence through the interrogation able to us to help keep them safe ator from Massachusetts. Mr. KENNEDY. Mr. President, just of high-value detainees at Guantanamo against this new and different type of quickly, the proceedings we are going Bay. enemy. But no civilian employee of the U.S. Let me just say a word about who to have—if I can inquire—I use the 3 Government working at the CIA or that enemy is. We have heard we are minutes, and then we are moving to­ elsewhere is going to risk their career, engaged in a global war on terror, and ward a series of votes; is that right? that is absolutely true. But it does not Mr. WARNER. That is correct, I say their reputation, and their assets using necessarily tell us who that enemy is. to the Senator. some sort of cloudy law or gray law Unfortunately, it is an enemy that has Mr. KENNEDY. Then, I would ask that does not make clear what is per­ hijacked one of the world’s great reli­ when I have 30 seconds left—Mr. Presi­ mitted and what is not permitted. This gions, Islam, in pursuit of their ex­ dent, I have 31⁄2 minutes; am I correct? bill we are prepared to pass in a few tremist goals that justifies the murder The PRESIDING OFFICER. Three minutes provides that kind of clear di­ of innocent civilians in order to accom­ minutes. rection. What it says is that we in the plish those goals. Mr. KENNEDY. Three minutes. U.S. Congress are stepping up to take Some on the Senate floor have said Mr. WARNER. Mr. President, I may the responsibility ourselves to provide this debate is all about Iraq. It is not have misunderstood my colleague. that kind of clarity that will allow our just about Iraq. If it were just about That is the 3 minutes remaining on intelligence authorities to gain this Iraq, how would those critics explain your amendment held in abeyance. important intelligence while at the the attempted terrorist plot that was Mr. KENNEDY. That is correct. same time be secure in the knowledge broken up at Heathrow Airport just a Mr. President, I yield myself the 3 that what they are doing fully com­ few short weeks ago, or the attacks in minutes. plies with our law, including our inter­ Madrid or Beslan in Russia or Bali or AMENDMENT NO. 5088 national treaty obligations. elsewhere or, for that matter, New Mr. President, just for the benefit of We know the aggressive interroga­ York and Washington, DC? the membership, in my hand is the tion techniques that are legal under The fact is, we have prevented an­ Army manual. In the Army manual are the provisions of the McCain amend­ other terrorist attack on our own soil the prohibitions for instructions to all ment in the Detainee Treatment Act by using this interrogation program to the interrogators of the United States, have provided much valuable intel­ allow us to detect and deter and dis­ that they cannot use these kinds of ligence that has saved American lives. rupt terrorist activity, and the fact we harsh tactics which have been recog­ We know the CIA’s high-value terrorist have also taken the fight on the offen­ nized by Members as torture. detainee program works. For example, sive where the terrorists plot, plan, This amendment says if any country detainees have provided the names of train, and try to export their terrorist is going to use those similar tactics approximately 86 individuals whom al- attacks to the United States and else­ against those who would be rep­ Qaida deemed suitable for Western op­ where. resenting the United States in the war erations. Half of these individuals have If we would do what some would ap­ on terror—for example, the Central In­ now been removed from the battlefield parently want us to do and simply pull telligence Agency; for example, the and are no longer a threat to the the covers over our head and wish the SEALs; for example, contractors work­ United States of America or our allies. bad people would go away, America ing for the intelligence agency—then This program is effective and has would be less safe and we would not be they will have committed a war crime. saved American lives and must be pre­ able to stand here and say that due to I reviewed earlier in the debate where served. Yet there are people who would the vigilance of the American people, we have prosecuted Japanese and other go so far as to intimate that we are due to the vigilance of the U.S. Con­ war crimes, giving them 10 or 15 years, torturing people. But we are not tor­ gress and the executive branch of Gov­ and even execution when they went turing people. But we are using legal, ernment, we have been successful, ahead with this. That is why this is so aggressive interrogations consistent thank goodness, in preventing another important. with the U.S. Constitution, U.S. laws, terrorist attack on our own soil, after Now, my good friend, the chairman of and our treaty obligations. In doing so, 5 years from September 11, 2001. the committee, says we cannot do it

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.097 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10396 CONGRESSIONAL RECORD — SENATE September 28, 2006 because it violates the Constitution be­ The PRESIDING OFFICER. Without rible and tragic mistake in the Senate, cause it is instructing—instructing— objection, it is so ordered. including major changes in our con­ the President of the United States Mr. WARNER. Mr. President, I ask stitutional rights willy-nilly to get out through the State Department to no­ for the yeas and nays on the amend­ to campaign, I realize they have locked tify the 194 countries. ments and final passage. this in and there is not much one can Well, we thought it was not unconsti­ The PRESIDING OFFICER. Is there a do about it. I think it is a farce in the tutional on the Port Security Act, sufficient second? Senate. when we said: There appears to be a sufficient sec­ Mr. WARNER. Mr. President, I renew When the Secretary . . . , after conducting ond. the unanimous consent request. an assessment . . . , decides that an airport The yeas and nays were ordered. The PRESIDING OFFICER. Is there does not maintain and carry out effective se­ Mr. WARNER. Mr. President, I sug­ objection? curity measures, the Secretary . . . shall no­ gest the absence of a quorum. Without objection, it is so ordered. tify the appropriate authorities of the gov­ The PRESIDING OFFICER. The AMENDMENT NO. 5095 ernment of the foreign country. . . . clerk will call the roll. There will now be 4 minutes of de­ Here is port security. The assistant legislative clerk pro­ bate, equally divided, on the Rocke­ Here is on the pollution issues: ceeded to call the roll. feller amendment. The Secretary of State shall notify with­ Mr. WARNER. Mr. President, I ask The Senator from West Virginia is out delay foreign states concerned. . . . unanimous consent that the order for recognized. Mr. ROCKEFELLER. Mr. President, That is the second one. the quorum call be rescinded. my amendment would require, as I ex­ And I have the third illustration in The PRESIDING OFFICER. Without plained this morning, the CIA to pro­ terms of foreign carriers. objection, it is so ordered. In 15 minutes we got these cases. And vide the Congressional Intelligence Mr. WARNER. Mr. President, I ask here we are going to say we are going Committees, which are required by law unanimous consent that any remaining to refuse to protect Americans who are to be informed of what is going on in time be yielded back, other than as on the cutting edge of the war on ter­ the intelligence world, fully the most noted below, and that the Senate pro­ ror because we will not let our State basic and fundamental information it ceed to votes in relation to the amend­ Department go on an e-mail and notify needs to oversee the CIA detention and ments in the following order: the 192 countries because that is un­ interrogation program. The Rockefeller amendment No. 5095, constitutional? If the chairman of the Frankly, for the past 4 years we have the Byrd amendment No. 5104, and the Armed Services Committee feels that not had that information. The adminis­ Kennedy amendment No. 5088. way, we could strike that provision and tration has withheld this information I further ask unanimous consent that from us. I am not saying that in par­ just say it is the policy of the United there be 4 minutes for debate, equally States. Then we would not be instruct­ tisan fashion. It is a fact. divided, prior to each of the above It has been very frustrating as a ing anyone. Either way, this is about votes. protecting Americans. It is about pro­ member of the Intelligence Committee, I further ask unanimous consent that much less as a Member of the Senate. tecting Americans. prior to passage of the bill, Senator I believe those Americans who are We have made repeated requests and LEAHY be recognized for his remaining out there in the hills and in the moun­ the Intelligence Committee has been 12 minutes and, as set forth in the ini­ tains of Afghanistan today and to­ prevented from carefully reviewing the tial unanimous consent request, which program. The program has operated, as night, those people who are in the hills was provided for under the original a result, without any meaningful con­ and mountains and deserts of Iraq, consent order, Senator LEVIN be in con­ gressional oversight whatsoever, and those people who are out in Southeast trol of 4 minutes, Senator WARNER in that is our responsibility under the Asia or all over the world in order to control of 16 minutes, to be followed by law. try to deal with the problems of ter­ closing remarks by the two leaders All of my colleagues should be trou­ rorism ought to know, if they are in and, following that time, the Senate bled by this fact. We cannot assure our­ danger of getting captured, if any of proceed to passage of the bill; further, selves, we cannot assure the American their host countries are going to per­ that there then be 5 minutes equally people, and we cannot assure our form this kind of procedure and torture divided prior to the vote on invoking agents overseas that the CIA program on them, they will be war criminals. cloture on the border fence legislation; is both legally sound and effective, That is what this amendment is without the basic information required about. I hope it will be accepted. It provided further that with respect to the border fence bill, it be in order to under my amendment. should be. My amendment is simply about over­ Mr. President, I yield what time I file second degrees at the desk no later than 5 p.m. today under the provisions sight and accountability, nothing have to my ranking member. more, nothing less. Nothing in the The PRESIDING OFFICER. The Sen­ of rule XXII. The PRESIDING OFFICER. Is there amendment would require the public ator’s time has expired. disclosure of any classified document Mr. WARNER. Mr. President, at this objection? Mr. LEAHY. Mr. President, reserving or aspect of the CIA program. time we are waiting for clearance by Mr. President, I ask unanimous con­ the leadership of the UC. But I will ask the right to object, I did not under­ sent that Senator FEINSTEIN be added at this time we get the yeas and nays stand the part about the fence. Mr. WARNER. Can the Senator re­ as a cosponsor of my amendment. on all the votes, the amendments and The PRESIDING OFFICER. Without peat that? final passage. objection, it is so ordered. Mr. LEAHY. I did not understand the Mr. ROCKEFELLER. Mr. President, The Senator from Virginia is recog­ without objecting, does any unanimous part about the timing of the fence bill. nized. consent request allow me to close on Mr. WARNER. I will repeat it. Mr. WARNER. Mr. President, I spoke my amendment for 2 minutes? Mr. LEAHY. Just that part. in strong opposition to this amend­ Mr. WARNER. Mr. President, the UC, Mr. WARNER. It reads as follows: ment. Again, I think it tries to displace as presently drafted, gives 2 minutes to Following that time, the Senate pro­ the oversight that is performed by the each side for the purpose of addressing ceed to passage of the bill; further, Intelligence Committee. I would like to amendments. there then be 5 minutes equally divided add the following bit of information. Mr. ROCKEFELLER. I thank the prior to the vote on invoking cloture On September 28 of this year, GEN Senator. on the border fence legislation; pro­ Michael V. Hayden, who is the current Mr. WARNER. Mr. President, I once vided further that with respect to the Director of the CIA, wrote a letter to again restate the request for the yeas border fence bill, it be in order to file Chairman PAT ROBERTS of the Intel­ and nays on the amendments and final second degrees at the desk no later ligence Committee in the Senate. In it passage. I ask unanimous consent that than 5 p.m. today under the provisions he said: it be in order to ask for the yeas and of rule XXII. On September 6, 2006, I briefed the full nays on the amendments and final pas­ Mr. LEAHY. Mr. President, even SSCI membership on key aspects of the de­ sage. though I believe we have made a ter­ tainee program, providing a level of detail

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.119 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10397 previously not made available to SSCI mem­ Upon Senate passage of the military com­ fore the Senate today bears little re­ bers. I made clear to the committee that missions legislation, I stand ready to again semblance to that legislation. It has upon passage of the new detainee legislation, brief your committee and the bipartisan Sen­ been changed so many times, we don’t I would brief the SSCI on how CIA would ate leadership on the future of the detainee know the real implications of this ever- execute the future program, and I agreed to program. promptly notify the committee when any Sincerely, changing bill. The Byrd-Obama-Clin­ modifications to the program were proposed, MICHAEL V. HAYDEN, ton-Levin amendment sunsets the au­ or when the status of any individual detainee General, USAF Director. thority of the President to convene changed. Mr. WARNER. Mr. President, are we new military commissions after 5 I think that is dispositive of a very prepared to move to a vote? years. There is nothing wrong with clear indication by the executive The PRESIDING OFFICER. Yes. The that. branch to allow the Senate to perform question is on agreeing to the amend­ This amendment ensures that Con­ its oversight through the properly des­ ment of the Senator from West Vir­ gress will not simply stand aside and ignated committee, the Senate Com­ ginia. ignore its oversight responsibilities mittee on Intelligence. The yeas and nays have been ordered. after this bill is enacted. This amend­ Mr. ROCKEFELLER. Mr. President, The clerk will call the roll. ment will not stop any trials of sus­ how much time do I have remaining? The assistant legislative clerk called pected terrorists that commence before The PRESIDING OFFICER. The Sen­ the roll. the sunset date. It simply forces Con­ ator’s time has expired. Mr. MCCONNELL. The following Sen­ gress to revisit—revisit—the weighty Mr. WARNER. Mr. President, I ask ator was necessarily absent: the Sen­ constitutional implications of this bill unanimous consent that this letter be ator from Maine (Ms. SNOWE). in 5 years’ time and then be in a posi­ printed in the RECORD. tion, on the basis of new knowledge There being no objection, the mate­ The PRESIDING OFFICER. Are there and experience, to make a decision rial was ordered to be printed in the any other Senators in the Chamber de­ siring to vote? again. RECORD, as follows: The result was announced—yeas 46, It is a very reasonable amendment. I CENTRAL INTELLIGENCE AGENCY, nays 53, as follows: urge my colleagues to support it. Washington, DC, September 28, 2006. The PRESIDING OFFICER. The Sen­ Hon. PAT ROBERTS, [Rollcall Vote No. 256 Leg.] Chairman, Select Committee on Intelligence, YEAS—46 ator from Virginia is recognized. United States Senate, Washington, DC. Akaka Feingold Mikulski Mr. WARNER. Mr. President, I say to DEAR MR. CHAIRMAN: I write today regard­ Baucus Feinstein Murray our most distinguished senior col­ ing the Rockefeller amendment to the mili­ Bayh Harkin Nelson (FL) league that this amendment was well tary commissions legislation now pending on Biden Inouye Nelson (NE) debated on the floor, but I would bring Bingaman Jeffords the Senate floor. The CIA strongly opposes Obama to the attention of all Senators that we adoption of the Rockefeller amendment. Boxer Johnson Pryor Since the inception of its detention pro­ Byrd Kennedy Reed do not have any estimates of how long gram, the CIA has a strong and consistent Cantwell Kerry Reid the war on terrorism against the Carper Kohl Rockefeller record of keeping its oversight committees Chafee Landrieu jihadists is going to take place. We Salazar fully and currently informed of critical as­ Clinton Lautenberg may be having those who commit Sarbanes pects of the program. Further, the bipartisan Conrad Leahy Schumer crimes today not apprehended until leadership of Congress has been briefed regu­ Dayton Levin after this sunset provision. Then they larly by the CIA on this program since its in­ Dodd Lieberman Stabenow ception, and I personally briefed the Major­ Dorgan Lincoln Wyden go free. They are not subject, unless ity and Minority Leaders of the Senate only Durbin Menendez the Senate at that time somehow re­ weeks ago. The CIA remains committed to a NAYS—53 stores the importance of the next frank and open dialogue with the Congress President to continue—to continue, Alexander DeWine McCain on detailed aspects of the detainee program, Allard Dole McConnell Mr. President—bringing to justice and while ensuring the secrecy of this particu­ Allen Domenici Murkowski trial under our rules these individuals larly sensitive activity. Senate adoption of Bennett Ensign Roberts who are committing war crimes. So I the Rockefeller amendment would go far be­ Bond Enzi Santorum urge all Senators to oppose this amend­ yond traditional CIA reports to Congress by Brownback Frist Sessions mandating detailed information about as­ Bunning Graham Shelby ment. sets, methods, locations and individuals in­ Burns Grassley Smith Mr. BYRD. Mr. President, do I have Burr Gregg Specter any time remaining? volved in sensitive operations. In addition, Chambliss Hagel Stevens detailing in public law the amount of sen­ Coburn Hatch The PRESIDING OFFICER. The Sen­ Sununu sitive information that CIA must provide to Cochran Hutchison ator has 36 seconds. Congress will chill some of our Coleman Inhofe Talent Thomas Mr. BYRD. This amendment will not counterterrorism partners whose coopera­ Collins Isakson Cornyn Kyl Thune set any terrorists free. Let Senators tion is fully conditioned on the absolute se­ Vitter crecy of their support. Craig Lott who are here 5 years from now take a Crapo Lugar Voinovich new look on the basis of experience and Since becoming Director of the CIA, I have DeMint Martinez Warner made every effort to keep your committee make a decision in the light of the then apprised of the status of the detainee pro­ NOT VOTING—1 circumstances. That is all I am asking. gram. In July, I updated you and SSCI Vice Snowe This is nothing new. Chairman Rockefeller on the program, shar­ The amendment (No. 5095) was re­ The PRESIDING OFFICER. Is there ing sensitive aspects, including information further debate on the amendment? If about specific detainees, examples of action­ jected. able intelligence gained from the program Mr. MCCONNELL. Mr. President, I not, the question is on agreeing to the and about ways in which the program could move to reconsider the vote, and I Byrd amendment No. 5104. continue to be successful in the future. Fol­ move to lay that motion on the table. The yeas and nays have been ordered. lowing this briefing and despite its highly The motion to lay on the table was The clerk will call the roll. sensitive nature, at your request—and that agreed to. The legislative clerk called the roll. of Sen. Rockefeller—I fully supported brief­ AMENDMENT NO. 5104 Mr. MCCONNELL. The following Sen­ ing the entire SSCI membership. ator was necessarily absent: the Sen­ On September 6, 2006, I briefed the full The PRESIDING OFFICER. There SSCI membership on key aspects of the de­ will now be 4 minutes equally divided ator from Maine (Ms. SNOWE). tainee program, providing a level of detail on the Byrd amendment. The PRESIDING OFFICER. Are there previously not made available to SSCI mem­ Who yields time? any other Senators in the Chamber de­ bers. I made clear to the committee that The Senator from West Virginia is siring to vote? upon passage of new detainee legislation, I recognized. The result was announced—yeas 47, would brief the SSCI on how CIA would exe­ Mr. BYRD. Friends, Senators, lend nays 52, as follows: cute the future program and I agreed to promptly notify the committee when any me your ears. Friends, Senators, lend [Rollcall Vote No. 257 Leg.] modifications to the program were proposed me your ears. I voted to report a fair YEAS—47 or when the status of any individual detainee and balanced bill from the Armed Serv­ Akaka Bayh Bingaman changed. ices Committee, but the legislation be­ Baucus Biden Boxer

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.111 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10398 CONGRESSIONAL RECORD — SENATE September 28, 2006 Byrd Jeffords Nelson (FL) Here it is on voting rights. The At­ NAYS—53 Cantwell Johnson Nelson (NE) torney General is authorized and di­ Alexander DeWine McCain Carper Kennedy Obama Allard Chafee Kerry rected to institute suits that are going Dole McConnell Pryor Allen Clinton Kohl Domenici Murkowski Reed to be involved in poll taxes. Bennett Conrad Landrieu Ensign Nelson (NE) Reid Bond Dayton Lautenberg The Secretary of State shall notify Enzi Roberts Rockefeller Brownback Dodd Leahy without delay foreign states that are Frist Santorum Salazar Bunning Dorgan Levin Graham Sessions Sarbanes involved in pollution. The list goes on. Burns Durbin Lieberman Grassley Shelby Schumer If we can do it for pollution, we can do Burr Gregg Feingold Lincoln Smith Specter Chambliss Hagel Feinstein Menendez it for violation of basic and funda­ Stevens Coburn Harkin Mikulski Stabenow mental rights of Americans overseas. Hatch Cochran Sununu Inouye Murray Wyden Hutchison This is effectively about what we Coleman Inhofe Talent NAYS—52 adopted when we adopted the War Collins Isakson Thomas Cornyn Kyl Thune Alexander DeWine Crimes Act, which was virtually unani­ McCain Craig Lott Vitter Allard Dole McConnell mous, with not a single vote in opposi­ Crapo Lugar Voinovich Allen Domenici Murkowski tion. DeMint Martinez Warner Bennett Ensign Roberts Bond Enzi Santorum This is basically a restatement. I NOT VOTING—1 Brownback Frist Sessions hope it will be accepted overwhelm­ Snowe Bunning Graham Shelby ingly. Burns Grassley Smith The amendment (No. 5088) was re­ Burr Gregg Mr. WARNER. Mr. President, this is Stevens jected. Chambliss Hagel Sununu an amendment that requires close at­ Coburn Hatch Mr. WARNER. I move to reconsider Talent tention by all colleagues. Cochran Hutchison the vote. Coleman Inhofe Thomas In the preparation of this bill, we de­ Mr. LEVIN. I move to lay that mo­ Collins Isakson Thune fined in broad terms the conduct that Vitter tion on the table. Cornyn Kyl is regarded as a grave breach of Com­ Craig Lott Voinovich The motion to lay on the table was Crapo Lugar Warner mon Article 3. These are war crimes. agreed to. DeMint Martinez We the Congress should not try to pro­ Mr. WARNER. I ask the Presiding Of­ NOT VOTING—1 vide a specific list of techniques. We ficer to read the unanimous consent don’t know what the future holds. That Snowe that is in place so all Members under­ is not the responsibility of the Con­ stand what is to take place. The amendment (No. 5104) was re­ gress. We are not going to direct. We The PRESIDING OFFICER. Senator jected. try to make a list of techniques, that LEAHY will be recognized for his re­ Mr. WARNER. Mr. President, I move the United States describe every tech­ maining 12 minutes. Senator LEVIN is to reconsider the vote. nique that violates Common Article 3. under the control of 4 minutes, Senator Mr. MCCONNELL. I move to lay that We cannot foresee into the future every WARNER is under the control of 16 min­ motion on the table. technique that might violate Common utes, to be followed by closing remarks The motion to lay on the table was Article 3. We should not step on that by the two leaders. Following that agreed to. situation. It is not ours to do. time, the Senate will proceed to pas­ AMENDMENT NO. 5088 Under the separation of powers, it is sage of the bill. Further, that there The PRESIDING OFFICER. There reserved to the executive branch to then be 5 minutes equally divided prior are 4 minutes equally divided on the work this out. But if at any time it is to the vote on the motion to invoke Kennedy amendment. the judgment of any Member of this cloture on border fence legislation. Mr. KENNEDY. Mr. President, here is body, or collectively, that we are not Mr. WARNER. The Chair will now the Army Manual of 2006 printed after abiding by this law, I am confident recognize Senator LEAHY? the Senate of the United States went that this institution’s oversight will Mr. LEVIN. Mr. President, my under­ on record in accepting the McCain correct and quickly remedy the situa­ standing is that was the allocation of amendment prohibiting torture. In the tion. time, not necessarily the order of printed Army Manual is a list of the I yield the floor. speaking. prohibited activities where any person The PRESIDING OFFICER. The The PRESIDING OFFICER. The who is a member of the Defense De­ question is on agreeing to the amend­ agreement does not appear to be in any partment is prohibited to engage in ment. The yeas and nays have been or­ particular order. these kinds of activities because they dered the clerk will call the roll. Mr. WARNER. Mr. President, at the have made a finding that they are basi­ The assistant legislative clerk called appropriate time, I will allocate 14 cally and effectively torture. the roll. minutes to the distinguished Senator Today we have thousands of Ameri­ from Arizona, Mr. MCCAIN. Mr. MCCONNELL. The following Sen­ cans in the Central Intelligence Agen­ At this point in time, I recognize the ator was necessarily absent: the Sen­ cy, Special Forces, the SEALS, and extraordinary contributions of the ator from Maine (Ms. SNOWE). American contractors working for the staff persons who worked on this bill, CIA around the world fighting ter­ The PRESIDING OFFICER (Mr. and I shall include the entire list. rorism. All this amendment does is CHAFEE). Are there any other Senators We worked under the direction of give notice to each and every country in the Chamber desiring to vote? Charlie Abell, Scott Stucky, David that any country that is going to prac­ The result was announced—yeas 46, Morriss, Rick DeBobes, Peter Levine, tice these kinds of techniques on any nays 53, as follows: Chris Paul, Pablo Chavez, Richard American will be guilty effectively of a [Rollcall Vote No. 258 Leg.] Fontaine, Jen Olson, Adam Brake, war crime. YEAS—46 James Galyean, and legislative counsel That is effectively what we have done Akaka Feingold Mikulski Charlie Armstrong. with the Army Manual, and we ought Baucus Feinstein Murray I assure Members it was a challenge to protect our intelligence agency per­ Bayh Harkin Nelson (FL) from beginning to end. I cannot recall sonnel, our SEALS, and all of those Biden Inouye Obama seeing a more professional group of Bingaman Jeffords who are all over the world protecting Pryor staffers serving their Members in the Boxer Johnson Reed the United States. Byrd Kennedy Reid Senate. Arguments against? It is a violation Cantwell Kerry Rockefeller Mr. LEVIN. I suggest the absence of Carper Kohl Salazar of the Constitution because it is an in­ Chafee Landrieu a quorum, and I ask unanimous con­ Sarbanes struction to a member of the Cabinet Clinton Lautenberg sent that the time not be charged to ei­ Schumer about what they ought to do. Conrad Leahy Specter ther side or to any party. Here it is for airports. The Secretary Dayton Levin The PRESIDING OFFICER. Without Dodd Lieberman Stabenow of Transportation shall conduct an as­ Dorgan Lincoln Wyden objection, it is so ordered. sessment with foreign countries. Durbin Menendez The clerk will call the roll.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.032 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10399 The assistant legislative clerk pro­ played an instrumental role in bringing tion authorizes the President to modify ceeded to call the roll. needed clarity to the rules for the the requirements of the DTA, which Mr. INHOFE. I ask unanimous con­ treatment of detainees in U.S. custody. were enshrined in a law passed last De­ sent that the order for the quorum call I understand that you also played a cember. I would point out as well to be rescinded. key role in negotiating the provisions the distinguished ranking member that The PRESIDING OFFICER. Without of the military commissions bill re­ the President himself never proposed objection, it is so ordered. garding the War Crimes Act and Com­ to weaken the DTA. Rather, he pro­ UNANIMOUS CONSENT REQUEST—S. 2781 mon Article 3 of the Geneva Conven­ posed to make compliance with the Mr. INHOFE. Mr. President, I ask tions. As you said last year when the DTA tantamount to compliance with unanimous consent that the Senate Detainee Treatment Act was adopted, Common Article 3 of the Geneva Con­ proceed to the immediate consider­ this is not an area in which ambiguity ventions. That proposal is not included ation of Calendar 625, S. 2781, and I ask is helpful. For this reason, I hope that in this legislation. unanimous consent that the com­ you will help me in providing a clear Mr. MCCAIN. I agree entirely with mittee-reported amendment be, for the record of our intent on these issues. Senator WARNER’s comments. third time, passed and the motion to In particular, section 8(a)(3) of the Mr. LEVIN. Would you agree that reconsider be laid upon the table. bill provides that ‘‘the President has any interpretation issued by the Presi­ Mr. JEFFORDS. I object. I agree that the authority for the United States to dent under this section would only be wastewater security is an important interpret the meaning and application valid if it is consistent with U.S. obli­ issue. In fact, it is made even more im­ of the Geneva Conventions’’, that these gations under the Geneva Conventions portant because the Homeland Secu­ interpretations shall be issued by Exec­ and the Detainee Treatment Act? rity appropriations conferees have ex­ utive order, and that such an Executive Mr. MCCAIN. That is correct. empted these facilities from security order ‘‘shall be authoritative (as to Mr. WARNER. I agree. requirements—a decision that I under­ non-grave breach provisions of Com­ Mr. LEVIN. Section 8(b) of the bill stand was due in large part to the Sen­ mon Article 3) as a matter of United would amend the War Crimes Act to ator’s opposition to including these fa­ States law, in the same manner as provide that only ‘‘grave breaches’’ of cilities within the protections of that other administrative regulations.’’ Common Article 3 of the Geneva Con­ bill. Would you agree that nothing in this ventions constitute war crimes under Although I would like to have seen provision gives the President or could U.S. law. The provision goes on to de­ stronger chemical security provisions give the President the authority to fine those grave breaches to include, than those I understand are forth­ modify the Geneva Conventions or U.S. among other things, torture, and coming from the Homeland Security obligations under those treaties? ‘‘cruel or inhuman treatment’’. The appropriations conference, I anticipate Mr. MCCAIN. First, I say to my good term ‘‘cruel or inhuman treatment’ is supporting that measure. I would sup­ friend from Michigan that this legisla­ defined to include acts ‘‘intended to in­ port including wastewater facilities in tion clearly defines grave breaches of flict severe or serious physical or men­ that measure. But I will not support a Common Article 3, which are tal pain or suffering.’’ bill like S. 2781 that provides weaker criminalized and ultimately punishable Would you agree that the changes to protections. by death. It is critical for the Amer­ the War Crimes Act in section 8(b) do By contrast, I long ago introduced S. ican public to understand that we are not in any way alter U.S. obligations 1995, The Wastewater Treatment Works criminalizing breaches of Common Ar­ under the Geneva Conventions or under Security Act of 2005. I feel certain that ticle 3 that rise to the level of a felony. the Detainee Treatment Act? if I asked unanimous consent to pass Such acts—including cruel or inhuman Mr. MCCAIN. The changes to the War this bill, the Senator would object to treatment, torture, rape, and murder, Crimes Act are actually a responsible my request. I prefer a more construc­ among others—will clearly be consid­ modification in order to better comply tive pathway to providing essential ered war crimes. with America’s obligations under the protection to our communities. Where the President may exercise his Geneva Conventions to provide effec­ We should fill this gap in our Na­ authority to interpret treaty obliga­ tive penal sanction for grave breaches tion’s security, and in order to do so, tions is in the area of ‘‘nongrave’’ of Common Article 3. It is important to we need full and fair opportunity to breaches of the Geneva Conventions— note, as has the Senator from Michi­ offer amendments to cure the serious those breaches that do not rise to the gan, that in this section ‘‘cruel or in­ deficiencies in this bill. level of a war crime. In interpreting human treatment’’ is defined for pur­ Mr. President, I ask unanimous con­ the conventions in this manner, the poses of the War Crimes Act only. It sent to insert a statement in the President is bounded by the conven­ does not infringe, supplant, or in any RECORD concerning my objection to tions themselves. Nothing in this bill way alter the definition of cruel, inhu­ consideration of the Wastewater Secu­ gives the President the authority to man, or degrading treatment or pun­ rity bill. ishment prohibited in the DTA and de­ The PRESIDING OFFICER. The ob­ modify the conventions or our obliga­ fined therein with reference to the 5th, jection is heard. tions under those treaties. That under­ Mr. INHOFE. Mr. President, I wanted standing is at the core of this legisla­ 8th, and 14th amendments to the U.S. to call the Senate’s attention to the tion. Constitution. Nor do the changes to fact we do have wastewater legislation Mr. WARNER. I concur with the Sen­ the War Crimes Act alter U.S. obliga­ that has passed both the House and the ator from Arizona. tions under the Geneva Conventions. Mr. LEVIN. Would you agree that Senate, in the House by a vote of 413 to Mr. WARNER. I would associate my­ nothing in this provision gives the 2. It is something which is desperately self with the comments from the Sen­ President, or could give the President, needed. We need to attend to that as ator from Arizona. the authority to modify the require­ Mr. LEVIN. Would you agree that soon as possible. I suggest the absence of a quorum. ments of the Detainee Treatment Act? nothing in this section or in this bill The PRESIDING OFFICER. The Mr. WARNER. The purpose of this requires or should be interpreted to au­ clerk will call the roll. legislation is to strengthen, not to thorize any modification to the new The assistant legislative clerk pro­ weaken or modify, the Detainee Treat­ Army Field Manual on interrogation ceeded to call the roll. ment Act. For the first time, this legis­ techniques, which was issued last Mr. WARNER. Mr. President, I ask lation is required to ‘‘take action to month and provides important guid­ unanimous consent that the order for ensure compliance’’ with the DTA’s ance to our solders on the field as to the quorum call be rescinded. prohibition on cruel, inhuman, or de­ what is and is not permitted to the in­ The PRESIDING OFFICER. Without grading treatment, as defined in the terrogation of detainees? objction, it is so ordered. U.S. reservation to the Convention Mr. WARNER. The executive branch COMMON ARTICLE 3 AND WAR CRIMES Against Torture. He is directed to do so has the authority to modify the Army PROVISIONS OF THE MILITARY COMMISSIONS ACT through, among other actions, the es­ Field Manual on Intelligence Interro­ Mr. LEVIN. Senators WARNER and tablishment of administrative rules gation at any time. I welcomed the new MCCAIN, over the last year, you have and procedures. Nothing in this legisla­ version of the field manual issued last

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.120 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10400 CONGRESSIONAL RECORD — SENATE September 28, 2006 month and agree that it provides crit­ ple and our troops at greater risk. That the draft. They are serving our country ical guidance to our solders in the is why so many respected military in Iraq. They have an obligation to pro­ field. That said, the content of the field leaders oppose this bill. tect our laws, and they deserve the pro­ manual is an issue separate from those Throughout our history, America has tection of those same laws. at issue in this bill, and it was not my led the world in promoting human The Geneva Conventions were adopt­ intent to effect any change in the field rights and decency. We have fought ed in the wake of the horrific atrocities manual through this legislation. wars against tyranny and oppression. during World War II. These conven­ Mr. MCCAIN. I concur whole­ Our enemies have employed tactics tions reflect the international con­ heartedly with the Senator from Vir­ that were rightly and roundly con­ sensus on how individuals should be ginia. As the Senator form Virginia is demned by the civilized world. We treated in times of war. They set a aware, there is a provision in the bill maintained American strength and minimum floor of humane treatment before the Senate that defines ‘‘cruel honor by refusing to stoop to the level for all prisoners, military and civilian and inhuman treatment’’ under the of our enemies. And we should not alike. This floor is known as Common War Crimes Act. I would note first that stoop to the level of the terrorists in Article 3 because it is common to all of this definition is limited to criminal the war on terror. the conventions. Yet this bill also gives offenses under the War Crimes Act and I rise to express my profound opposi­ the President authority to decide what is distinct from the broader prohibition tion to this bill both in terms of its conduct violates Common Article 3 of contained in the Detainee Treatment substance and the procedure by which the Geneva Conventions. Again, the Act. That act defined the term ‘‘cruel, it reached the floor. The Armed Serv­ President’s authority to define the inhuman and degrading treatment’’ ice Committee reported out a bill that meaning of Common Article 3 is vir­ with reference to the reservation the I supported. That bill was not perfect, tually unreviewable. He is required to United States took to the Convention but it preserved our commitment to publish his interpretation in the Fed­ Against Torture. the Geneva Conventions, limited the eral Register, but the administration In the war crimes section of this bill, possibility that detainees would be has already made clear that it will not cruel and inhuman treatment is de­ treated abusively and set up procedures make public which interrogation tac­ fined as an act intended to inflict se­ for military tribunals that generally tics are being used. Moreover, the bill vere or serious physical or mental pain respected the fundamental require­ expressly states that the Geneva Con­ or suffering. It further makes clear ments of fairness. ventions cannot be relied upon in any that such mental suffering need not be Republican members of the Armed U.S. court as a source of rights. The prolonged to be prohibited. The mental Services Committee then began a proc­ President’s interpretation may well suffering need only be more than tran­ ess of secret negotiation with the likely escape judicial review, as well. White House that produced a bill that sitory. It is important to note that the As the final method of concealing its is far worse than the committee bill. ‘‘nontransitory’’ requirement applies activities, the administration has Indeed, we have continued to see to the harm, not to the act producing stripped the courts of their ability to changes in that bill as it has been the harm. Thus if a U.S. soldier is, for review the confinement or treatment of moved toward the floor in a rush to example, subjected to some terrible detainees. The administration won a achieve passage before the Senate re­ technique that lasts for a brief time provision that eliminates the ability of cesses for the election. This rush to but that causes serious and nontransi­ any detainee anywhere in the world to passage to serve a political agenda is tory mental harm, a criminal act has file a habeas corpus petition chal­ no way to produce careful and thought­ occurred. lenging the justification for or condi­ Mr. WARNER. That is my under­ ful legislation on profound issues of na­ tions of his or her confinement. The standing and intent as well, and I agree tional security and civil liberties. At provision applies to all existing peti­ with the Senator’s other clarifying re­ this point, most Members of this body tions and would require their dis­ marks. hardly know what they are being asked missal, including the Hamdan case In the same section, the term ‘‘seri­ to approve. itself. There is no justification for ous physical pain or suffering’’ is de­ The bill as it now appears on the stripping courts of jurisdiction to issue fined as a bodily injury that involves floor works profound and disastrous the great writ of habeas corpus, which one of four characteristics: ‘‘a substan­ changes in our law. has been a foundation of our legal sys­ tial risk of death,’’ ‘‘extreme physical This legislation sets out an overly tem with roots in the Magna Carta. pain,’’ ‘‘a burn or physical disfigure­ broad definition of unlawful enemy The availability of the Great Writ is ment or a serious nature,’’ or ‘‘signifi­ combatant. This definition would allow assured in the Constitution itself, cant loss or impairment of the function the President to pick up anyone citizen which permits its suspension only in of a bodily member, organ or mental and legal residents included anywhere times of invasion or rebellion. This faculty.’’ I do not believe that the term around the world, and throw them into provision of the bill is most likely un­ ‘‘bodily injury’’ adds a separate re­ prison in Guantanamo without even constitutional. quirement which must be met for an charging or trying them. These people act to constitute serious physical pain would never get a day in court to prove The administration has pursued a or suffering. their innocence. There is no check strategy to defeat accountability since Mr. MCCAIN. I am of the same view. whatsoever on the President’s ability it first began to take detainees into Mr. LEVIN. And would the Senator to detain people in an arbitrary man­ custody. It chose Guantanamo and se­ from Arizona agree with my view that ner. cret prisons abroad because it thought section 8(a)(3) does not make lawful or We already know that our military U.S. law would not apply. It fought give the President the authority to has made mistakes in detaining people. hard to prevent detainees from obtain­ make lawful any technique that is not We are currently holding dozens of peo­ ing counsel and then argued that U.S. permitted by Common Article 3 or the ple at Guanatanamo who we know Courts lacked jurisdiction to hear de­ Detainee Treatment Act? based on the military’s own records are tainees’ complaints. It sought the pro­ Mr. MCCAIN. I do agree. not guilty of anything. Yet they have hibition on habeas corpus petitions Mr. WARNER. I agree with both of not been let go. adopted in the Detainee Treatment Act my colleagues. This legislation also makes a distinc­ and then urged courts to misconstrue Mr. KENNEDY. Mr. President, in tion between citizens and lawful per­ it to wipe out all pending habeas cases. times of war, our obligation is to pro­ manent residents. Citizens cannot be This new effort to prohibit habeas peti­ tect our Nation and to protect those subject to military commissions and tions is a continuation of this effort to men and women who risk their lives to their flawed procedures. Yet lawful per­ escape judicial scrutiny. defend us. This bill fails that duty. By manent residents, those green card The bill also for the first time in our failing to renounce torture, it inflames holders who are on the path to citizen­ history would authorize the introduc­ an already dangerous world and makes ship, could be sent to military commis­ tion of evidence obtained by torture in new enemies for America in our war sions. Green Card holders must obey a judicial proceeding. Our courts have against terror. This puts cause or peo­ our laws, pay taxes, and register for always rejected this type of evidence

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.057 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10401 because it is inconsistent with funda­ bodies freedom and democracy. The them to protect them. Because of the mental notions of justice, and also be­ mastermind behind those attacks was Supreme Court’s decision in Hamdan, cause it is unreliable. We know that de­ Khalid Shaikh Mohammed, who is now the only way these terrorists will be tainees were subjected to harsh inter­ in custody and soon will be brought to brought to justice and our interroga­ rogation techniques, and made state­ justice. tors will be protected for doing their ments as a result. Under this legisla­ In the aftermath of these attacks, jobs is for Congress to write a new law tion, if those statements were made be­ Congress authorized our President to codifying procedures for military com­ fore the passage of the McCain Amend­ ‘‘use all necessary force against those missions and clarifying our obligations ment last winter, then they are admis­ nations, organizations, or persons he under the Geneva Conventions. sible. The Congress is saying for the determines planned, authorized, com­ I firmly believe that enemy combat­ first time in our nation’s history that mitted or aided the terrorist attacks ants in our custody enjoyed ample due statements obtained by torture are ad­ that occurred on September 11, 2001, or process in the military commissions missible. This fact, alone, is a stunning harbored such organizations or per­ established by the administration, statement about how far we have sons.’’ President Bush used this author­ which were brought to a halt by the strayed from our bedrock values. ization, combined with his constitu­ Supreme Court. The compromise that It defines conduct that can be pros­ tional powers to make these sorts of we are considering here today gives ecuted as a war crime in a very narrow judgments during times of war, to try more rights to terrorists who were way that appears designed to exclude enemy combatants in military com­ caught trying to harm America and many of the abusive interrogation missions. our allies than our own servicemem­ practices that this administration has Earlier this month, we observed the bers would receive elsewhere, more employed. While some have argued 5-year anniversary of the horrific at­ than is required by the Geneva Conven­ that cruel and inhumane practices such tacks on America. I cannot imagine tions—yet some are still demanding as waterboarding, induced hypothermia the reaction that would have come if, 5 more. and sleep deprivation would surely be years ago, Members of Congress had Mr. President, it is essential that we covered, the White House and the Re­ stood on this floor and suggested that protect human dignity at every oppor­ publican leadership have refused to we wouldn’t do all we could to prevent tunity, but we have gone well beyond commit to this basic interpretation of another attack on our country. Five that with this legislation. The legisla­ the bill. years ago, with the images of the col­ tion before us responds to the Supreme We tried to improve this bill. A num­ lapsing Twin Towers and the burning Court’s decision in Hamdan and seeks ber of amendments were offered and Pentagon and the smoldering Pennsyl­ to protect national security while en­ should have been adopted. I offered an vania field seared into our memories, suring that the terrorists who seek to amendment that responds to the lack we stood united in the proposition that destroy America are properly dealt of clarity about which practices are we intended to protect Americans first. with. This bill affords these unlawful prohibited by the bill. Because the ad­ In Hamdan v. Rumsfeld, which the enemy combatants rights that they ministration has refused to commit Supreme Court decided earlier this themselves would never consider grant­ itself to stop using specific abusive in­ year, the Court ruled that the adminis­ ing American soldiers. It is beyond rea­ terrogation procedures, our commit­ tration’s use of military commissions sonable, beyond fair, and beyond time ment to the standards of Common Arti­ to try unlawful enemy combatants vio­ for Congress to act. We must pass this cle 3 of the Geneva Conventions is in lated international law. This decision bill and reinstate the programs that, I doubt. That puts our own people at forced our interrogators, key in defend­ believe, have been a crucial part of our risk. As military leaders have repeat­ ing America from terrorist attack, to Nation’s security over the last 5 years. Mr. WARNER. Mr. President, I ask edly stated, our adherence to the Gene­ curtail their investigations. Without a unanimous consent to have printed in va Conventions is essential to protect clarification of the vague require­ ECORD a joint statement regard­ ments, these interrogators might be the R our own people around the world. ing alleged violations of the Geneva subject to prosecution for war crimes. America has thousands of people across Conventions. the globe who do not wear uniforms, It also brought to an end the prosecu­ There being no objection, the mate­ but put their lives on the line to pro­ tion of unlawful enemy combatants rial was ordered to be printed in the through the military commissions. tect this country every day. CIA RECORD, as follows: agents, Special Forces members, con­ It is key to point out that military tractors, journalists and others will all commissions have been used through­ JOINT STATEMENT OF SENATORS MCCAIN, WARNER, AND GRAHAM ON INDIVIDUAL be less safe if we turn our backs on the out American history to bring enemy combatants to justice since before the RIGHTS UNDER THE GENEVA CONVENTIONS, standards of Common Article 3. SEPTEMBER 28, 2006 United States was even officially The bill as it has reached the floor Mr. President, we are submitting this would diminish the security and safety formed. George Washington used them statement into the record because it has of Americans everywhere and further during the American Revolution, and been suggested by some that this legislation erode our civil liberties. I strongly op­ since our Constitution was ratified, would prohibit litigants from raising alleged pose this bill. Presidents have used military commis­ violations of the Geneva Conventions. This Mr. GRASSLEY. Mr. President, we sions to try those who seek to harm suggestion is misleading on three counts. hear on a daily basis about the war we Americans during every major conflict. First, it presumes that individuals cur­ rently have a private right of action under are currently engaged in, the war on Some of our most popular Presidents Geneva. Secondly, it implies that the Con­ terror, but I don’t think most of us from history have taken this route, in­ gress is restricting individuals from raising stop to think about what that actually cluding Abraham Lincoln and Franklin claims that the Geneva Conventions have means. Roosevelt. Whenever the leaders of this been violated as a collateral matter once As citizens of the greatest country in great Nation have seen threats posed they have an independent cause of action. the world, we have become so accus­ by those who refuse to abide by the Finally, this legislation would not stop in tomed to all the rights afforded us by rules of war, they have taken the nec­ any way a court from exercising any power our Constitution that we now take essary steps to protect us. it has to consider the United States’ obliga­ tions under the Geneva Conventions, regard­ them for granted. We are incredibly Our President has come to us and less of what litigants say or do not say in the fortunate to live in a nation where our asked for help in trying these terror­ documents that they file with the court. freedom and safety is our Govern­ ists whose sole goal is to kill those who The Supreme Court’s decision in Hamdan ment’s first priority. love freedom. He has asked for our help left untouched the widely-held view that the We aren’t living in the world I grew in ensuring that those investigating Geneva Conventions provide no private up in. Our Nation was rocked to its potential terrorist plots against our rights of action to individuals. And, in fact, core 5 years ago when we were at­ Nation and our citizens are secure from the majority in Hamdan suggested that the Geneva Conventions do not afford individ­ tacked on our own soil. Thousands of arbitrary prosecution for undefined uals private rights of action, although it did innocent Americans were murdered war crimes. These people are part of not need to reach that question in its deci­ simply because they lived in the one our first line of defense in securing the sion. This view has been underscored by judi­ country that, above all others, em­ safety of our country—we owe it to cial precedent—and even Salim Hamdan

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.098 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10402 CONGRESSIONAL RECORD — SENATE September 28, 2006 himself did not claim in his court filings that this bill does just that. It does so tack a U.S. city with a device that that he had a private right of action under by permitting the President’s CIA in­ could kill millions of people reflects Geneva. terrogation program to continue. This how vital it is to permit the intel­ Still, this legislation would not bar indi­ is of profound importance. ligence community to make full use of viduals from raising to our Federal courts in their pleadings any allegation that a provi­ If the attacks of September 11, 2001, the tools it needs to continue pro­ sion of the Geneva Conventions—or, for that taught us anything, it is that self-im­ tecting American lives. The com­ matter, any other treaty obligation that has posed limitations on our intelligence- promise preserves this crucial intel­ the force of law—has been violated. It is not gathering efforts can have devastating ligence-gathering tool and allows the the intent of Congress to dictate what can or consequences. For instance, the wall of CIA and others on the front lines to cannot be said by litigants in any case. separation between the intelligence continue protecting America. By the same token, this legislation explic­ community and the law enforcement In addition, this bill protects classi­ itly reserves untouched the constitutional community that existed prior to 2001 fied information from being released to functions and responsibilities of the judicial branch of the United States. Accordingly, proved to be an imposing hurdle to foil­ al-Qaida terrorists. This also is a seri­ when Congress says that the President can ing the September 11 attacks. Accord­ ous concern. The identities of U.S. in­ interpret the meaning of Geneva, it is mere­ ing to the report of the 9/11 Commis­ telligence officials and informants— ly reasserting a longstanding constitutional sion, in late summer 2001, the U.S. Gov­ men and women who put their lives at principle. Congress does not intend with this ernment, in effect, conducted its search risk to defend this Nation—must be legislation to prohibit the Federal courts for 9/11 hijacker Khalid Mihdhar with protected at all costs. from considering whether the obligations of one hand tied behind its back. As we If we needed any reminding why ter­ the United States under any treaty have all know, that search was unsuccessful. rorists should not be given sensitive in­ been met. To paraphrase an opinion written by Chief Justice Roberts recently, if treaties Comparable pre-9/11 efforts with re­ formation, we should just look at the are to be given effect as Federal law under spect to Zacarias Moussaoui were simi­ prosecution of the 1993 World Trade our legal system, determining their meaning larly frustrated in large part due to Center bombers. According to the man as a matter of Federal law is the province this wall. who prosecuted these Islamic extrem­ and duty of the judiciary headed by the Su­ Thankfully, with the PATRIOT Act, ists, intelligence from U.S. Govern­ preme Court. So, though the President cer­ we removed this wall of separation, and ment files was supplied to the defend­ tainly has the constitutional authority to now the intelligence and law enforce­ ants through the discovery process. interpret our Nation’s treaty obligations, ment arms of our Government can This information was later delivered such interpretation is subject to judicial re­ share information and more effectively directly to Osama bin Laden while he view. It is not the intent of Congress to in­ fringe on any constitutional power of the protect us here at home. was living in Sudan. Let me repeat Federal bench, a co-equal branch of govern­ Another lesson of September 11 was that. Information given to the jihadist ment. the premium that should be placed on defendants, individuals who tried to de­ Most importantly, the lack of judicial en­ human intelligence. Prior to Sep­ stroy the World Trade Center in 1993, forceability through a private right of action tember 11, we were woefully deficient was later given directly to bin Laden has absolutely no bearing on whether Geneva in our human intelligence regarding al- himself. is binding on the executive branch. Even if Qaida. Al-Qaida is an extremely dif­ Since we are at war, we should not be the Geneva Conventions are not enforceable ficult organization to infiltrate. You revealing classified information to the by individuals in our Nation’s courts, the President and his subordinates are bound to can’t just pay dues and become a mem­ enemy. That is just common sense. comply with Geneva, a set of treaty obliga­ ber. But interrogation offers a rare and This bill protects classified informa­ tions that forms part of our American juris­ valuable opportunity to gather vital tion. prudence. That is clear to us and to all who intelligence about al-Qaida’s capabili­ Finally, while this bill preserves our have negotiated this legislation in good ties and plans before they attack us. ability to continue to protect America, faith. The CIA interrogation program pro­ it also provides detainees with fair pro­ Mrs. BOXER. Mr. President, I view vided crucial human intelligence that cedural rights. this bill as a weak plan that will lead has saved American lives by helping to In fact, this legislation provides to delay after delay in convicting ter­ prevent new attacks. As the President broader protections for defendants rorists, endanger our troops on the has explained, 9/11 mastermind Khalid than did Nuremberg. Liberal law pro­ field, and surrender one of the bedrock Shaikh Mohammed told the CIA about fessor Cass Sunstein has written that constitutional principles of our justice planned attacks on U.S. buildings in the military commissions authorized system—habeas corpus. which al-Qaida members were under or­ by the President in 2001 ‘‘provide far We had a chance to improve this bill ders to set off explosives high enough greater procedural safeguards than any with amendments, but this rubber in the building so the victims could not previous military commission, includ­ stamp Senate defeated them one after escape through the windows. ing Nuremberg.’’ Let me say that another, leaving us with a flawed plan As the President also noted, the pro­ again: liberal law professor Cass that will face a serious court challenge, gram has also yielded human intel­ Sunstein noted that the President’s and that makes us less safe. ligence regarding al-Qaida’s efforts to 2001 military order provided far greater The Republicans even voted against a obtain biological weapons such as an­ procedural safeguards than any pre­ bipartisan bill that came out of the thrax. And it has helped lead to the vious military commission, including Senate Armed Services Committee. capture of key al-Qaida figures, such as Nuremberg. And in this legislation, we Mr. MCCONNELL. Mr. President, I KSM and his accomplice, Ramzi bin al provide defendants with even broader rise today in support of the Military Shibh. procedural safeguards than the Presi­ Commissions Act of 2006. I support this Another means of evaluating the im­ dent’s 2001 military order. legislation, first and foremost, because portance of this program is by consid­ This system is exceedingly fair since this bill recognizes that we are a Na­ ering a grim hypothetical. What if al- al-Qaida in no way follows the Geneva tion at war. We are a Nation at war, Qaida or other terrorists organizations Conventions or any other international and we are at war with Islamic extrem­ were able to get their hands on nu­ norm. Al-Qaida respects no law, no au­ ists. We are not conducting a law en­ clear, chemical, or biological weapons thority, no legitimacy but that of its forcement operation against a check- and were trying to attack a major U.S. own twisted strain of radical Islam. writing scam or trying to foil a bank city? Thousands or even millions of Al-Qaida grants no procedural rights heist. We are at war against extremists lives could be at stake. Under such a to Americans they capture. Look at who want to kill our citizens, cripple chilling scenario, wouldn’t we want our journalist Daniel Pearl, who was be­ our economy, and discredit the prin­ intelligence community to have all headed by al-Qaida in Pakistan in 2002. ciples we hold dear—freedom and de­ possible tools at its disposal? Would we Al-Qaida simply executes those they mocracy. want our intelligence community to re­ capture, even civilians like Pearl. Not Once you accept the premise that we spond with one hand tied behind its only do they unapologetically kill in­ are at war, the most important consid­ back as it did before September 11? nocent civilians, they broadcast these eration should be, Does this bill pro­ Unfortunately, that threat is all too brutal executions on the Internet for tect the American people? I submit real. The potential for al-Qaida to at­ all to see.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.041 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10403 Mr. President, I would just conclude and consumed enormous resources, and combatant or no longer poses any by stating that this legislation is vi­ have led to leaks of information that threat. The inquiry created here is not tally important. It is vitally important have made it harder for our troops unlike that for reviewing, in the civil­ because it is wartime legislation. It is there to do their job, to keep order at ian criminal justice context, the pro­ vitally important because this bill pro­ Guantanamo. Some of these detainee priety of an arrest. An arrest might be tects our national security, it protects lawyers have even bragged about what entirely legal, might be based on suffi­ classified information, and it protects a burden their activities have been on cient probable cause, even if the ar­ the rights of defendants. Most impor­ the military, and how they have dis­ restee is later conclusively found to be tant, it protects America. For these rupted interrogations at Guantanamo. innocent of committing any crime. The reasons, I urge its passage. Putting an end to that was the major arresting officer cannot be sued and Mr. CORNYN. Mr. President, once purpose of the DTA. Today, with the held liable for making that initial ar­ the Military Commissions Act, MCA, is MCA, we see to it that this goal is ef­ rest, so long as the arrest itself was signed into law and section 7 is effec­ fectuated. supported by probable cause, simply tive, Congress will finally accomplish Another major improvement that the because the suspect was not later con­ what it sought to do through the De­ MCA makes to the DTA is that it victed of a crime. Similarly, under 2241 tainee Treatment Act—DTA—last tightens the bar on nonhabeas lawsuits (e)(2), detainees will not be able to sue year. It will finally get the lawyers out contained in 28 U.S.C. § 2241(e)(2). That their captors and custodians if the of Guantanamo Bay. It will substitute paragraph, as enacted by the DTA, United States determines that it was the blizzard of litigation instigated by barred postrelease conditions-of-con­ the right decision to take the indi­ Rasul v. Bush with a narrow DC Circuit finement lawsuits, but only if the de­ vidual into custody. -only review of the Combatant Status tainee had been found to be properly Mr. SESSIONS. Mr. President, I Review Tribunal—CSRT—hearings. detained as an enemy combatant by would like to make a few comments Perhaps even more important than the U.S. Court of Appeals on review of about section 7 of the bill that is before the narrow standards of review created a CSRT hearing. Although nothing in us today. This section makes a number by the DTA is the fact that that review the DTA or MCA directly requires the of improvements to the Detainee is exclusive to the court of appeals. military to conduct CSRTs, this limi­ Treatment Act, which was passed by This is by design. Courts of appeals do tation on the bar to non-habeas actions the Congress and signed into law on not hold evidentiary hearings or other­ effectively did compel the military to December 30 of last year. First, section wise take in evidence outside of the ad­ hold CSRTs—and to somehow get the 7 will fulfill one of the original objec­ ministrative record. The DC Circuit detainee to appeal to the DC Circuit. tives of the DTA: to get the lawyers will operate no differently under the The alternative would have been to out of Guantanamo Bay. As my col­ CSRT review provisions of the DTA. allow the detainee to sue U.S. troops at league Senator GRAHAM has noted, The circuit court will review the ad­ Guantanamo after his release. these lawyers have even bragged about ministrative record of the CSRTs to The MCA revises section 2241(e)(2) by, the fact that their presence and activi­ make sure that the right standards among other things, adopting a much ties at Guantanamo have made it hard­ were applied, the standards that the narrower exception to the bar on post- er for the military to do its job. Mr. military itself set for CSRTs. And it release lawsuits. Under the MCA, Michael Ratner, the director of the will determine whether the CSRT sys­ 2242(e)(2) will bar nonhabeas lawsuits Center for Constitutional Rights, tem as a whole is consistent with the so long as the detainee ‘‘has been de­ which coordinated much of the de­ Constitution and with Federal stat­ termined by the United States to have tainee habeas litigation, had this to utes. been properly detained as an enemy say about his activities to a magazine: There is no invitation in the DTA or combatant or is awaiting such deter­ The litigation is brutal for [the United MCA to reconsider the sufficiency of mination.’’ This new language does States.] It’s huge. We have over one hundred the evidence. Weighing of the evidence several things. First, it eliminates the lawyers now from big and small firms work­ is a function for the military when the requirement that the DC Circuit review ing to represent the detainees. Every time an attorney goes down there, it makes it that question is whether someone is an a CSRT, or that a CSRT even be held, much harder [for the U.S. military] to do enemy combatant. Courts simply lack before nonhabeas actions are barred. what they’re doing. You can’t run an interro­ the competence—the knowledge of the This is important because many de­ gation . . . with attorneys. What are they battlefield and the nature of our for­ tainees were released before CSRTs going to do now that we’re getting court or­ eign enemies—to judge whether par­ were even instituted. We do not want ders to get more lawyers down there? ticular facts show that someone is an those who were properly detained as This is what Congress thought that it enemy combatant. By making review enemy combatants to be able to sue was putting an end to when it enacted exclusive to the DC Circuit, the DTA the U.S. military. And we do not want the DTA in 2005. That act provided that helps to ensure that the narrow review to force the military to hold CSRT ‘‘no court, justice, or judge shall have standards it sets do not somehow grow hearings forever, or in all future wars. jurisdiction to hear or consider’’ claims into something akin to Federal courts’ Instead, under the new language, the filed by Guantanamo detainees, except habeas corpus review of State criminal determination that is the precondition under the review standards created by convictions. The court’s role under the to the litigation bar is purely an execu­ that Act. The DTA was made effective DTA is to simply ensure that the mili­ tive determination. It is only what the immediately upon the date of its en­ tary applied the right rules to the United States has decided that will actment. And as Justice Scalia noted facts. It is not the court’s role to inter­ matter. in his Hamdan v. Rumsfeld dissenting pret those facts and decide what they In addition, the language of (e)(2) fo­ opinion, the DTA’s jurisdictional re­ mean. cuses on the propriety of the initial de­ moval made no exception for lawsuits Because review under the DTA and tention. There inevitably will be de­ that were pending when the statute MCA will be limited to the administra­ tainees who are captured by U.S. was enacted. Justice Scalia also point­ tive record, there is no need for any troops, or who are handed over to us by ed out that ‘‘[a]n ancient and unbroken lawyer to ever again go to Guantanamo third parties, who initially appear to line of authority attests that statutes to represent an enemy combatant chal­ be enemy combatants but who, upon ousting jurisdiction unambiguously lenging his detention. The military, I further inquiry, are found to be apply to cases pending at their effec­ am certain, will make the paper record unconnected to the armed conflict. The tive date.’’ He also noted that up until available inside the United States. This U.S. military should not be punished the Hamdan decision, ‘‘one cannot cite is one of the major benefits of enacting with litigation for the fact that they a single case in the history of Anglo- the MCA. As I and others have noted initially detained such a person. As American law . . . in which a jurisdic­ previously, the hundreds of lawyer vis­ long as the individual was at least ini­ tion-stripping provision was denied im­ its to Guantanamo sparked by Rasul tially properly detained as an enemy mediate effect in pending cases, absent have seriously disrupted the operation combatant, the nonhabeas litigation is an explicit statutory reservation.’’ of the Naval facility there. They have now barred, even if the U.S. later de­ The Hamdan majority, on the other forced reconfiguration of the facility cides that the person was not an enemy hand, found that the Supreme Court’s

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.061 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10404 CONGRESSIONAL RECORD — SENATE September 28, 2006 precedents governing jurisdictional The biggest change that the MCA that in the future, lawyers will argue statutes were trumped in that case by makes to section 2241(e) is that the new that these standards invite the court a legislative intent to preserve the law applies globally, rather than just to reweigh the evidence, to take in evi­ pending lawsuits. This congressional to Guantanamo detainees. We are legis­ dence outside of the CSRT record, and intent, the majority concluded, was lating through this law for future gen­ to decide if the military was right manifested in minor changes that had erations, creating a system that will about its factual judgment. At this been made to the language of the bill operate not only throughout this war, time, however, both proponents and op­ and, most expressly, in statements but for future wars in which our Nation ponents of section 7 of the MCA seem made by Senators regarding the in­ fights. In the future, we may again find to agree on what kind of review it will tended effect of the bill. As Senator ourselves involved in an armed conflict allow. Earlier today, for example, I GRAHAM has explained in detail in re­ in which we capture large numbers of heard Senator SPECTER, who opposes marks in the CONGRESSIONAL RECORD enemy soldiers. It is not unlikely that section 7, criticize the paragraph 2 and on August 3, at 152 Cong. Rec. S8779, it the safest and most secure place to 3 review standards on the Senate floor. appears that the Supreme Court was hold those soldiers will be inside the He said, ‘‘the statute provides that the misled about the legislative history of United States. The fact that we hold Combatant Status Review Tribunal the DTA by the lawyers for Hamdan. those enemy soldiers in this country may be reviewed by the Court of Ap­ Those lawyers misrepresented the na­ should not be an invitation for each of peals for the District of Columbia only ture of the statements made in the them to sue our Government. We held to the extent that it was—the ruling Senate and caused the court to believe very large numbers of enemy soldiers was consistent with the standards and that Congress had an intent other than in this country during World War II. procedures specified by the Secretary that reflected in the text of the stat­ They did not sue our Government seek­ of Defense. Now, to comply with the ute. It certainly was not my intent, ing release. The Rasul decision would standards and procedures determined when I voted for the DTA, to exempt seem to have required that enemy com­ by the Secretary of Defense does not all of the pending Guantanamo law­ batants held in this country during mean—excludes on its face—a factual suits from the provisions of that act. wartime can sue. If that court allowed determination as to what happens to Section 7 of the Military Commis­ enemy combatants held in Cuba to sue, sions Act fixes this feature of the DTA the detainees.’’ it is inevitable that those held inside I have also come into possession of a and ensures that there is no possibility this country would have been allowed of confusion in the future. Subsection so-called fact sheet on the DTA review to sue as well. That is simply not ac­ standards that is being distributed on (b) provides that the bill’s revised liti­ ceptable. It would make it very dif­ gation bar ‘‘shall take effect on the Capitol Hill by Human Rights First, a ficult to fight a major war in the fu­ date of the enactment of this Act, and group that is lobbying Senators to op­ ture if every enemy war prisoner de­ shall apply to all cases, without excep­ pose the MCA and to support the Spec­ tained inside this country could sue tion, pending on or after the date of ter amendment that was defeated ear­ our military. Through section 7 of the the enactment of this Act which relate lier today. This fact sheet is titled, MCA, we not only solve our current to any aspect of the detention, trans­ ‘‘The Limited Review Allowed Under problems with Guantanamo, but we fer, treatment, trial, or conditions of the DTA is No Substitute for Habeas.’’ plan for future conflicts as well. We en­ detention of an alien detained by the Here is what the Human Rights First sure that, if need be, we can again hold United States since September 11, fact sheet says: enemy soldiers in prison camps inside 2001.’’ I don’t see how there could be The DTA restricts the court to deter­ our country if we need to, without be­ any confusion as to the effect of this mining whether the prior CSRTs followed coming embroiled in a tempest of liti­ act on the pending Guantanamo litiga­ their own procedures. gation. * * * * * tion. The MCA’s jurisdictional bar ap­ I imagine that, now that Congress plies to that litigation ‘‘without excep­ It has been suggested that the court of ap­ has clearly shut off access to habeas peals, in reviewing the CSRT decisions, can tion.’’ lawsuits, the lawyers suing on behalf of The new bill also bars all litigation fix the problem simply by choosing to review the detainees will shift their efforts to­ the evidence itself. But that is simply not by anyone found to have been properly ward arguing for an expansive interpre­ the way the statute reads. The government detained as an enemy combatant, re­ has taken the firm position in Bismullah gardless of whether the detainee has tation of the judicial review allowed under the DTA. Paragraphs 2 and 3 of that no review even of ‘‘significant excul­ been through the DC Circuit under the patory evidence’’ is permitted under the DTA or has been through a Combatant section 1005(e) of the DTA allow the DC DTA. If Congress believes that the courts Status Review Tribunal hearing. The Circuit to review a CSRT enemy com­ should be allowed to review the evidence— previous version of this bar, in the batant determination. The Government and they clearly should be—then it should DTA, allowed detainees to bring condi­ has provided a CSRT hearing to every change the statute to say so. It is no solu­ tions-of-confinement lawsuits after detainee held at Guantanamo, with the tion to hope that the courts will ignore the their release if their detention was not likely exception of those transferred actual statutory language and rewrite the statute to correct the deficiency. reviewed by the DC Circuit. Obviously, there this month, so all of those de­ the Government could not force the de­ tainees will now be allowed to seek There you have it. Senators have tainee to appeal, and there are some DTA review in the DC Circuit. Para­ been told in floor debate by the chair­ who were released before CSRT hear­ graphs 2 and 3 allow the DC Circuit to man of the Judiciary Committee that ings were instituted. The new bill ask whether the military applied its the DTA ‘‘excludes on its face’’ any states that as long as the military de­ own standards and procedures for factual determination with regard to cides that it was appropriate to take CSRTs to the detainee, and they allow the Guantanamo detainees. The groups the individual into custody as an the court to ask whether those stand­ lobbying Senators with regard to the enemy combatant, as a security risk in ards are constitutional and are con­ MCA have pointed out that having relation to a war, that person cannot sistent with nontreaty Federal law. I courts make their own factual deter­ turn around and sue our military after think that those standards speak for minations, to judge the sufficiency of he is released. It should not be held themselves, that they clearly allow the evidence behind the military’s find­ against our soldiers that they take only a very limited review. In par­ ings, ‘‘is simply not the way the stat­ someone into custody, believing in ticular, they do not allow the courts to ute reads.’’ We are informed that the good faith that he appears to be con­ second-guess the military’s evidentiary Justice Department has taken the nected to hostilities against the United findings. The courts simply are not in ‘‘firm position’’ that no evidentiary re­ States, and then determine that the in­ a position, they do not have the exper­ view is permitted under the DTA. And dividual is not an enemy combatant tise, to judge whether particular evi­ we are told that if we disagree with and release the person. The fact of re­ dence suggests that an individual is an this system, if we think that ‘‘the lease should not be an invitation to enemy combatant. courts should be allowed to review the litigation, so long as the military finds I would like to note here that this is evidence,’’ then we ‘‘should change the that it was appropriate to take the in­ the consensus view of the DTA at this statute to say so.’’ The Senate is clear­ dividual into custody in the first place. time, at least for now. I have no doubt ly on notice as to how the DTA review

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.085 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10405 will work, what the statute says on its protections of the Geneva Convention and the Supreme Court said would be sufficient face, how the Justice Department has hence entitled to POW status? If the answer to detain an American citizen as an enemy construed that statute. By rejecting is yes, then the captives are held as prisoners combatant. Obviously, if these procedures the Specter amendment earlier today, of war entitled to be treated in accord with are sufficient for American citizens, they are the various requirements of the Convention. more than enough for foreign detainees who and by passing the MCA later today, If the answer is no, then the captives are have no colorable claim to due process the Senate makes clear that it does not held under humane conditions according to rights. disagree with the Justice Department the common law of war, though not covered Moreover, most of the guarantees em­ and does not want to change this sys­ by the various requirements of the Conven­ bodied in the CSRT parallel and even surpass tem. tion. The threshold determination in decid­ the rights guaranteed to American citizens I will close my remarks by quoting at ing whether the Convention applies is a who wish to challenge their classification as length from the testimony of U.S. At­ ‘‘group’’ decision, not an individualized deci­ enemy combatants. The Supreme Court has torney General William Barr, who sion. The question is whether the military indicated that hearings conducted to deter­ formation to which the detainee belonged spoke on the matters addressed by this mine a detainee’s prisoner-of-war status, was covered by the Convention. This requires pursuant to the Geneva Convention, could legislation before the Judiciary Com­ that the military force be that of a signatory mittee on June 15, 2005. Mr. Barr’s tes­ satisfy the core procedural guarantees owed power and that it also comply with the basic to an American citizen. In certain respects, timony informs our understanding of requirements of Article 4 of the Treaty, e.g., the protocols established in the CSRTs close­ the history, law, and practical reality the militia must wear distinguishing uni­ ly resemble a status hearing, as both allow underlying the DTA and the MCA. I forms, retain a military command structure, all detainees to attend open proceedings, to would commend his statement to any­ and so forth. Here, the President determined use an interpreter, to call and question wit­ one seeking to understand these stat­ that neither al-Qaeda nor Taliban forces nesses, and to testify or not testify before qualified under the Treaty. utes and the complex relationship be­ the panel. Furthermore, the United States The third kind of action we are taking goes has voluntarily given all detainees rights tween the President’s war-making beyond simply holding an individual as an power and the judiciary. This relation­ that are not found in any prisoner-of-war enemy combatant. It applies so far only to a status hearing, including procedures to en­ ship is superficially similar to, but is subset of the detainees and is punitive in na­ sure the independence of panel members and fundamentally different from, the judi­ ture. In some cases, we are taking the fur­ the right to a personal representative to help ciary’s oversight of the civilian crimi­ ther step of charging an individual with vio­ the detainee prepare his case. Nevertheless, nal justice system. I particularly found lations of the laws of war. This involves indi­ there appear to be courts and critics who to be true Mr. Barr’s emphasis that the vidualized findings of guilt. Throughout our continue to claim that the Due Process history we have used military tribunals to Clause applies and that the CSRT process proper role of the courts in this area is try enemy forces accused of engaging in war not accurately described as ‘‘def­ does not go far enough. I believe these asser­ crimes. Shortly after the attacks of 9/11, the tions are frivolous. erence’’ to military decisions because President established military commissions deference implies that the ultimate de­ to address war crimes committed by mem­ I am aware of no legal precedent that sup­ cisions still lie with the courts. As Mr. bers of al-Qaeda and their Taliban sup­ ports the proposition that foreign persons confronted by U.S. troops in the zone of bat­ Barr notes, ‘‘the point here is that the porters. Again, our experience in World War II pro­ tle have Fifth Amendment rights that they ultimate substantive decision rests can assert against the American troops. On with the President and that the courts vides a useful analog. While the vast major­ ity of Axis prisoners were simply held as the contrary, there are at least three reasons have no authority to substitute their enemy combatants, military commissions why the Fifth Amendment has no applica­ judgments for that of the President.’’ were convened at various times during the bility to such a situation. First, as the Su­ Here is an extended excerpt from At­ war, and in its immediate aftermath, to try preme Court has consistently held, the Fifth torney General Barr’s testimony re­ particular Axis prisoners for war crimes. One Amendment does not have extra-territorial garding the detention of alien enemy notorious example was the massacre of application to foreign persons outside the combatants: American troops at Malmedy during the Bat­ United States. As Justice Kennedy has ob­ served, ‘‘[T]he Constitution does not create, The determination that a particular for­ tle of the Bulge. The German troops respon­ sible for these violations were tried before nor do general principles of law create, any eign person seized on the battlefield is an juridical relation between our country and enemy combatant has always been recog­ military commissions. Let me turn to address some of the chal­ some undefined, limitless class of non-citi­ nized as a matter committed to the sound lenges being made to the way we are pro­ zens who are beyond our territory.’’ More­ judgment of the Commander in Chief and his ceeding with these al-Qaeda and Taliban de­ over, as far as I am aware, prior to their cap­ military forces. There has never been a re­ tainees. ture, none of the detainees had taken any quirement that our military engage in evi­ voluntary act to place themselves under the I. THE DETERMINATION THAT FOREIGN PERSONS dentiary proceedings to establish that each protection of our laws; their only connection ARE ENEMY COMBATANTS individual captured is, in fact, an enemy with the United States is that they con­ combatant. Nevertheless, in the case of the The Guantanamo detainees’ status as fronted U.S. troops on the battlefield. And fi­ detainees at Guantanamo, the Deputy Sec­ enemy combatants has been reviewed and re- nally, the nature of the power being used retary of Defense and the Secretary of the reviewed within the Executive Branch and against these individuals is not the domestic Navy have established Combatant Status Re­ the military command structure. Neverthe­ law enforcement power—we are not seeking view Tribunals (‘‘CSRTs’’) to permit each de­ less, the argument is being advanced that to subject these individuals to the obliga­ tainee a fact-based review of whether they foreign persons captured by American forces tions and sanctions of our domestic laws— are properly classified as enemy combatants on the battlefield have a Due Process right rather, we are waging war against them as and an opportunity to contest such designa­ under the Fifth Amendment to an evi­ foreign enemies, a context in which the con­ tion. dentiary hearing to fully litigate whether cept of Due Process is inapposite. As to the detention of enemy combatants, they are, in fact, enemy combatants. In over World War II provides a dramatic example. 225 years of American military history, there In society today, we see a tendency to im­ During that war, we held hundreds of thou­ is simply no precedent for this claim. pose the judicial model on virtually every sands of German and Italian prisoners in de­ The easy and short answer to this claim is field of decision-making. The notion is that tention camps within the United States. that it has been, as a practical matter, the propriety of any decision can be judged These foreign prisoners were not charged mooted by the military’s voluntary use of by determining whether it satisfies some ob­ with anything; they were not entitled to the CSRT process, which gives each detainee jective standard of proof and that such a lawyers; they were not given access to U.S. the opportunity to contest his status as an judgment must be made by a ‘‘neutral’’ arbi­ courts; and the American military was not enemy combatant. As discussed below, those ter based on an adversarial evidentiary hear­ required to engage in evidentiary pro­ procedures are clearly not required by the ing. What we are seeing today is an extreme ceedings to establish that each was a com­ Constitution. Rather they were adopted by manifestation of this—an effort to take the batant. They were held until victory was the military as a prudential matter. judicial rules and standard applicable in the achieved, at which time they were repatri­ Nonetheless, those procedures would plain­ domestic law enforcement context and ex­ ated. The detainees at Guantanamo are ly satisfy any conceivable due process stand­ tend them to the fighting of wars. In my being held under the same principles, except, ard that could be found to apply. In its re­ view, nothing could be more farcical, or unlike the Germans and Italians, they are cent Hamdi decision, the Supreme Court set more dangerous. actually being afforded an opportunity to forth the due process standards that would These efforts flow from a fundamental contest their designation as enemy combat­ apply to the detention of an American cit­ error—confusion between two very distinct ants. izen as an enemy combatant. The CSRT constitutional realms. In the domestic realm Second, once hostile forces are captured, process was modeled after the Hamdi provi­ of law enforcement, the government’s role is the subsidiary question arises whether they sions and thus provides at least the same disciplinary—sanctioning an errant member belonged to an armed force covered by the level of protection to foreign detainees as of society for transgressing the internal

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.086 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10406 CONGRESSIONAL RECORD — SENATE September 28, 2006 rules of the body politic. The Framers recog­ of military force against a particular indi­ duct of particular individuals in the field of nized that in the name of maintaining do­ vidual. What would that standard be? Rea­ battle. Like policeman, they would also face mestic tranquility an overzealous govern­ sonable suspicion, probable cause, substan­ the prospect of removal from the battlefield ment could oppress the very body politic it is tial evidence, preponderance of the evidence, to give evidence at post-hoc proceedings. meant to protect. The government itself or beyond a reasonable doubt? Does anyone Nor would the harm stop there. Under this could become an oppressor of ‘‘the people.’’ really believe that the Constitution pro­ due process theory, the military would have Thus our Constitution makes the funda­ hibits the President from using coercive to take on the further burden of detailed in­ mental decision to sacrifice efficiency in the military force against a foreign person—de­ vestigation of detainees’ factual claims once realm of law enforcement by guaranteeing taining him—unless he can satisfy a par­ they are taken to the rear. Again, this would that no punishment can be meted out in the ticular objective standard of evidentiary radically change the nature of the military absence of virtual certainty of individual proof? enterprise. To establish the capacity to con­ guilt. Both the original Constitution and the Let me posit a battlefield scenario. Amer­ duct individualized investigations and adver­ Bill of Rights contain a number of specific ican troops are pinned down by sniper fire sarial hearings as to every detained combat­ constraints on the Executive’s law enforce­ from a village. As the troops advance, they ant would make the conduct of war—espe­ ment powers, many of which expressly pro­ see two men running from a building from cially irregular warfare—vastly more cum­ vide for a judicial role as a neutral arbiter or which the troops believe they had received bersome and expensive. For every platoon of ‘‘check’’ on executive power. In this realm, sniper fire. The troops believe they are prob­ combat troops, the United States would have the Executive’s subjective judgments are ir­ ably a sniper team. Is it really being sug­ to field three platoons of lawyers, investiga­ relevant; it must gather and present objec­ gested that the Constitution vests these men tors, and paralegals. Such a result would in­ tive evidence of guilt satisfying specific con­ with due process rights as against the Amer­ ject legal uncertainty into our military op­ stitutional standards at each stage of a ican soldiers? When do these rights arise? If erations, divert resources from winning the criminal proceeding. The underlying premise the troops shoot and kill them—i.e., deprive war into demonstrating the individual in this realm is that it is better for society them of life—could it be a violation of due ‘‘fault’’ of persons confronted in the field of to suffer the cost of the guilty going free process? Suppose they are wounded and it battle, and thereby uniquely disadvantage than mistakenly to deprive an innocent per­ turns out they were not enemy forces. Does our military vis-a` -vis every other fighting son of life or liberty. The situation is en­ this give rise to Bivens’ Constitutional tort force in the world. tirely different in armed conflict where the actions for violation of due process? Alter­ Second, the introduction of an ultimate de­ entire nation faces an external threat. In natively, suppose the fleeing men are cap­ cision maker outside of the normal chain of armed conflict, the body politic is not using tured and held as enemy combatants. Does command, or altogether outside the Execu­ its domestic disciplinary powers to sanction the due process clause really mean that they tive Branch, would disrupt the unitary chain an errant member, rather it is exercising its have to be released unless the military can of command and undermine the confidence of national defense powers to neutralize the ex­ prove they were enemy combatants? Does frontline troops in their superior officers. ternal threat and preserve the very founda­ the Due Process Clause mean that the Amer­ The impartial tribunals could literally over­ tion of all our civil liberties. Here the Con­ ican military must divert its energies and re­ rule command decisions regarding battlefield stitution is not concerned with handicapping sources from fighting the war and dedicate tactics and set free prisoners of war whom the government to preserve other values. them to investigating the claims of inno­ American soldiers have risked or given their Rather it is designed to maximize the gov­ cence of these two men? lives to capture. The effect of such a pros­ ernment’s efficiency to achieve victory— This illustrates why military decisions are pect on military discipline and morale is im­ even at the cost of ‘‘collateral damage’’ that not susceptible to judicial administration possible to predict. would be unacceptable in the domestic and supervision. There are simply no judi­ The Supreme Court’s decision in Rasul v. realm. cially-manageable standards to either gov­ Bush does not undercut these long-standing It seems to me that the kinds of military ern or evaluate military operational judg­ principles. In Rasul, the Supreme Court ad­ decisions at issue here—namely, what and ments. Such decisions inevitably involve the dressed a far narrower question—whether the who poses a threat to our military oper­ weighing of risks. One can easily imagine habeas statute applies extraterritorially— ations—are quintessentially Executive in na­ situations in which there is an appreciable and expressly refrained from addressing ture. They are not amenable to the type of risk that someone is an enemy combatant, these settled constitutional questions. The process we employ in the domestic law en­ but significant uncertainty and not a pre­ Court, in concluding that the habeas statute forcement arena. They cannot be reduced to ponderance of evidence. Nevertheless, the reached aliens held at Guantanamo Bay, re­ neat legal formulas, purely objective tests circumstances may be such that the Presi­ lied on the peculiar language of the statute and evidentiary standards. They necessarily dent makes a judgment that prudence dic­ and the ‘‘ ‘extraordinary territorial ambit’ of require the exercise of prudential judgment tates treating such a person as hostile in the writ at common law.’’ Of course, the id­ and the weighing of risks. This is one of the order to avoid an unacceptable risk to our iosyncrasies of the habeas statute do not reasons why the Constitution vests ultimate military operations. By their nature, these have any impact on judicial interpretation military decision-making in the President as military judgments must rest upon a broad of the reach of the Fifth Amendment or Commander-in-Chief. If the concept of Com­ range of information, opinion, prediction, other substantive constitutional provisions. mander-in-Chief means anything, it must and even surmise. The President’s assess­ Moreover, the Court’s recognition in Rasul mean that the office holds the final author­ ment may include reports from his military that the United States exercises control, but ity to direct how, and against whom, mili­ and diplomatic advisors, field commanders, ‘‘not ultimate sovereignty’’ over the leased tary power is to be applied to achieve the intelligence sources, or sometimes just the Guantanamo Bay territory confirms the in­ military and political objectives of the cam­ opinion of frontline troops. He must decide applicability of the Fifth Amendment to paign. what weight to give each of these sources. He aliens held there. I am not speaking here of ‘‘deference’’ to must evaluate risks in light of the present Nevertheless, even if Guantanamo Bay is Presidential decisions. In some contexts, state of the conflict and the overall military somehow deemed sovereign United States courts are fond of saying that they ‘‘owe def­ and political objectives of the campaign. territory, the Fifth Amendment is still inap­ erence’’ to some Executive decisions. But Furthermore, extension of due process con­ plicable. The Supreme Court, in addition to this suggests that the court has the ultimate cepts from the domestic prosecutive arena as the requisite detention on sovereign United decision-making authority and is only giving a basis for judicial supervision of our mili­ States territory, demands that the aliens weight to the judgment of the Executive. tary operations in time of war would not only ‘‘receive constitutional protections’’ This is not a question of deference—the point only be wholly unprecedented, but it would when they have also ‘‘developed substantial here is that the ultimate substantive deci­ be fundamentally incompatible with the connections with this country.’’ Thus, under sion rests with the President and that courts power to wage war itself, so altering and de­ the Court’s formulation, ‘‘lawful but invol­ have no authority to substitute their judg­ grading that capacity as to negate the Con­ untary’’ presence in the United States ‘‘is ments for that of the President. stitution’s grant of that power to the Presi­ not of the sort to indicate any substantial The Constitution’s grant of ‘‘Commander- dent. connection with our country’’ sufficient to in-Chief’’ power must, at its core, mean the First, the imposition of such procedures trigger constitutional protections. The ‘‘vol­ plenary authority to direct military force would fundamentally alter the character and untary connection’’ necessary to trigger the against persons the Commander judges as a mission of our combat troops. To the extent Fifth Amendment’s due process guarantee is threat to the safety of our forces, the safety that the decisions to detain persons as sorely lacking with respect to enemy com­ of our homeland, or the ultimate military enemy combatants are based in part on the batants. and political objectives of the conflict. At circumstances of the initial encounter on the Whatever else may be said, there can be no the heart of these kinds of military decisions battlefield, our frontline troops will have to dispute that these individuals did not arrive is the judgment of what constitutes a threat concern themselves with developing and pre­ at Guantanamo Bay by free choice. Captured or potential threat and what level of coer­ serving evidence as to each individual they enemy combatants that have been trans­ cive force should be employed to deal with capture, at the same time as they confront ported to Guantanamo Bay for detention these dangers. These decisions cannot be re­ enemy forces in the field. They would be di­ thus are not entitled to Fifth Amendment duced to tidy evidentiary standards, some verted from their primary mission—the rapid due process rights. It should also be noted predicate threshold, that must be satisfied as destruction of the enemy by all means at that the Supreme Court’s decision in Rasul a condition of the President ordering the use their disposal—to taking notes on the con­ was a statutory ruling, not a constitutional

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.088 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10407 one. In other words, the Court concluded wanted to hear—that he had received of torture, while at the same time only that the federal habeas statute confers terrorist training in Afghanistan. The those same acts, if committed by a jurisdiction on federal district courts to hear truth, of course, is that he was never in military person, would subject that claims brought by aliens detained at Guanta­ namo Bay. The Court nowhere suggested Afghanistan, had no terrorist ties, and military person to prosecution under that the Constitution grants such aliens a is completely innocent. the Uniform Code of Military Justice. right of access to American courts. The cost to the United States for this What kind of a signal does this send? An important consequence follows: Con­ miscarriage of justice, in terms of our What kind of signal is this? The bill gress remains free to restrict or even to forfeited reputation and moral stand­ completely eliminates the ability of eliminate entirely the ability of enemy ing, has been disastrous—just as the noncitizens to bring a habeas corpus aliens at Guantanamo Bay to file habeas pe­ revelations of torture and abuse at Abu petition, effectively removing the only titions. Congress could consider enacting Ghraib. What is more, it has endan­ remaining check on the administra­ legislation that does so—either by creating special procedural rules for enemy alien de­ gered our troops in the field—now and tion’s decision regarding torture and tainees, by requiring any such habeas peti­ in the future—should they fall into the other abuses. tions to be filed in a particular court, or by hands of captors who say they have the Indeed, the habeas provisions in this prohibiting enemy aliens from haling mili­ right to subject American prisoners to bill would permit—get this—the bill tary officials into court altogether.’’ the same torture and abuse. would permit a legal permanent resi­ Mr. President, with the Military Again, it is not enough to be strong dent of the United States—a legal per­ Commissions Act, the Senate today en­ and wrong. We need to be strong and manent resident of the United States— acts Mr. Barr’s third suggestion. We smart. We need to be true to 230 years to be snatched off the street in the create a system that is consistent with of American jurisprudence, our Con­ dark of night, bound, blindfolded, sub­ our treaty obligations but that also is stitution, and the humane values that ject to indefinite detention, even tor­ consistent with military tradition and define us as Americans. ture, with absolutely no way for that the needs of our fighting forces in a Back during the dark days of McCar­ person to challenge it in court. time of war. It is a system that will thyism in the 1950s, former Senator Jo­ Is that what we want to become as a serve this Nation well. I look forward seph McCarthy went on a rampage. nation? A legal permanent resident in to the act’s passage and enactment. What he was basically saying to the the United States, of which there are Mr. HARKIN. Mr. President, since American people is that we have to be­ millions in this country, taken out of my years as a pilot with the U.S. Navy, come like the Communists in order to his or her home at night, and we don’t nothing has been more important to defeat them. Cooler heads prevailed know what happens to them? They go me than protecting the American peo­ but not until Senator McCarthy had into the dark dungeons of who knows ple and ensuring the security of our done a lot of damage in this country, where. Maybe Guantanamo Bay. country. not until a lot of innocent people were Habeas corpus is the only inde­ Today, we are at war with extremists blacklisted, denied employment, many pendent remedy available to people who want to do grievous harm to of whom committed suicide because being held in indefinite detention who, America. We all want to fight these ex­ they had no place to turn. The dark in fact, have no connection to ter­ tremists and defeat them. We all want days of Joseph McCarthy come back to rorism. to ensure that those who committed or us in the guise of this military tribunal I heard one of my colleagues on the supported acts of terror are brought to bill. other side of the aisle going on yester­ justice. The only disagreement is about We do not have to become like the day about this habeas provision. He how best to do that. What is the smart­ jihadists. We don’t have to become like went on about how habeas corpus is to est, most effective way to fight and de­ the terrorists in order to defeat them. protect U.S. citizens. It is in no way, feat our enemies? The best way to defeat them is the he went on, aimed at protecting enemy Unfortunately, as the newly declas­ same way we defeated Joseph McCar­ combatants who are picked up. sified National Intelligence Estimate thy and the Communists. We stayed Therein lies the problem. How do we testifies very clearly, our current true to our American ideals, our Amer­ know they are enemy combatants? Is it course is, in many ways, playing into ican jurisprudence, and the humane because the CIA says they are an the hands of the terrorists. It is stir­ values we cherish as a free society. Re­ enemy combatant? Who says they are ring up virulent anti-Americanism grettably, the bill before us fails this an enemy combatant? This is not around the world, it is drawing new re­ test. I cannot, in good conscience, sup­ World War II, folks, where the Germans cruits to the jihadists’ cause, and it is port it. are on one side and they have uni­ making America less safe. The bill includes no barrier on the forms, and the Japanese are on the We have to do a better job, and we President’s reinterpreting our obliga­ other side and they have uniforms. can do a better job. It is not good tions under the Geneva Conventions as This is an amorphous terrorist war enough to be strong and wrong. We he pleases, allowing practices such as where the terrorists don’t wear uni­ need to be strong and smart. This is es­ simulated drowning, induced hypo­ forms. They can be dressed like you or pecially true when it comes to our poli­ thermia, and extreme sleep depriva­ me. They can look just like you or me. cies on interrogating and trying sus­ tion. The President can allow all of So we don’t know. pected terrorists. Again, we all want to those to continue, in contravention of We have instances where people have extract information from these sus­ the Geneva Conventions. been thrown into Guantanamo, for ex­ pects. We all want to try them and, if The bill before us rewrites the War ample, and they were fingered by a guilty, punish them. The only disagree­ Crimes Act in a way that fails to give neighbor who didn’t like them and ment is about how best to do that. clarity as to interrogation techniques wanted their property or house or What is the smartest, most effective that are allowed or forbidden, effec­ didn’t like them because of something way to interrogate and to try these tively allowing the administration— they had done to them in the past. suspected terrorists? any administration—to continue the They fingered them and said: Guess There is plenty of evidence that our abusive techniques I just mentioned. what. They are big terrorists. People current course, which clearly includes The bill creates a very bizarre double were picked up and thrown in jail. torturing suspects and imprisoning standard, immunizing, on the one Habeas is the one provision that al­ them without trial, is not working. To hand, policymakers and the CIA and its lows someone snatched off the streets take just one case in point, consider contractors for committing acts of tor­ here or anywhere else suspected of the Canadian citizen, whom we now ture—immunizing them—while leaving being a terrorist to at least come for­ know to be completely innocent, who our military troops subject to prosecu­ ward and say: What are the charges was arrested by the CIA—I use the tion under the Uniform Code of Mili­ against me? word ‘‘arrested’’ loosely. He was picked tary Justice for the exact same prac­ We have seen this happen in Guanta­ up by the CIA, bound, gagged, blind­ tices. Let me repeat that. The bill cre­ namo, people kept for months, for folded, and sent to Syria for interroga­ ates this double standard: it immunizes years, without ever having a charge tion under torture. Not surprisingly, he the CIA, for example, and any contrac­ filed against them, and many of them told his torturers exactly what they tors with the CIA, for committing acts we found out were totally innocent.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.090 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10408 CONGRESSIONAL RECORD — SENATE September 28, 2006 What does this say to the rest of the sonnel? Why do we have a high stand­ the Geneva code, North Vietnamese, world? ard for our military and effectively no Vietcong, as well as civilian opponents Senator OBAMA from Illinois told the standard for the CIA and its contrac­ of the war—just civilians—who com­ story the other day about when he was tors? mitted no crimes whatsoever—were all in Chad in August and heard about an For me, this debate about illegal im­ crowded together in these cages, as I American citizen who was picked up in prisonment and officially sanctioned said, in clear violation of the Geneva Sudan and held by the Sudanese. He torture is not an abstraction. It strikes Conventions and the most fundamental made some calls to try to get this per­ very close to home for me. principles of human rights. son released. It was an American jour­ Thirty-six years ago this summer at At the same time, the U.S. Govern­ nalist. After a while, he was released. the height of the Vietnam war, I ment had been insisting that the North The American journalist came back brought back photographs of the so- Vietnamese abided by the Geneva Con­ and said: I was picked up by the Suda­ called tiger cages at Con Son Island ventions in their treatment of pris­ nese officials. I asked for permission to where the Vietcong and North Viet­ oners in North Vietnam. Yet here we contact the U.S. Embassy with a phone namese prisoners, as well as civilians were condoning and even supervising call so I could talk to our Embassy. who had committed no crime whatso­ the torture of civilian Vietnamese, The Sudanese captor said: Why ever, were being tortured and killed along with Vietnamese soldiers and should we let you do that? You don’t with the full knowledge and sanction of others in clear violation of the Geneva let the people in Guantanamo Bay do the U.S. Government. That was July of Conventions. that. 1970 when I was a staff person in the We may not have known about it— The use of habeas is not just to pro­ House of Representatives working with our public did not know about that— tect the people who are suspected so a congressional delegation on a fact- but the Vietnamese sure knew about it. that we know whether they really are finding trip to Vietnam. I thought we had learned our lesson an enemy combatant. It is also as a We had all heard reports about the from that, and then I saw Abu Ghraib protection for our troops, our soldiers, possible existence of these so-called and thought: Wait a minute. Haven’t our civilians, our business people trav­ tiger cages in which people were bru­ we learned our lesson? And, Mr. Presi­ eling around the world, people trav­ tally tortured and killed. Our State De­ dent, just as 37 years ago when the eling on vacation, journalists, just like partment and our military officials de­ tiger cages were first talked about, this one, who may be snatched, picked nied their existence. They said it was they were denied—and they thought up by a foreign government. We want only Communist propaganda. they could deny them because it was to be able to say to that government: Through various sources, I thought hard to get to the island. You couldn’t Produce the person. What are the that the reports about the tiger cages really get out there. As far as they charges? If we don’t allow it, we are were at least credible and should be in­ knew, no one had ever taken pictures giving the green light to every other vestigated further. of it and no one had really ever escaped would-be dictator anywhere in the Thanks to the courage of Congress­ from there, like a Devil’s Island kind of world to do the same thing—any gov­ man William Anderson of Tennessee place. So the military denied it. Our ernment anywhere. and Congressman Augustus Hawkins of Government denied it year after year If the moral argument against tor­ California and to Don Luce, an Amer­ until I was able to take the pictures ture does not hold any weight with this ican working for a nongovernmental and bring back the evidence. administration, they should just exam­ organization, and because of the brav­ Mr. President, I submit to you and ine the abundant evidence that torture ery of a young Vietnamese man who everyone here and the American people simply doesn’t work. This is not just gave us the maps on how to find the that had not that courageous soldier my opinion, this is what the experts prison, we were able to expose the tiger taken the pictures of Abu Ghraib and are saying. cages on Con Son Island. kept those pictures, they would have Let me quote from a letter signed by This young Vietnamese man about denied that ever happened. They would 20 former U.S. Army interrogators and whom I speak was let out of the tiger have denied to high Heaven that such interrogation technicians: cages, but they kept his brother, and things took place at Abu Ghraib. Prisoner/detainee abuse and torture are to they said: If you breathe one word Thankfully, one courageous young sol­ be avoided at all costs, in part because they about this, we are going to kill your dier decided this was wrong, it was in­ can degrade the intelligence collection effort brother. humane, it was not upholding the high­ by interfering with a skilled interrogator’s Why did they let him out of the tiger est human standards of America, and it efforts to establish rapport with the subject. cages? Because he was president of the was in violation of the Geneva Conven­ Simply put, torture does not help student body at Saigon University. tions. Had he not taken those pictures, gather useful, reliable, actionable in­ What had been his crime? He had dem­ it would be denied forever that ever telligence. In fact, it inhibits the col­ onstrated against the war. So they happened at Abu Ghraib. lection of such intelligence. picked up he and his brother and threw So now, as if we learned nothing from Earlier this month, the U.S. Army them in the tiger cages and tortured that previous tragedy of the tiger cages released its new field manual 222.3: them. 36 years ago or Abu Ghraib just a cou­ ‘‘Human Intelligence Collector Oper­ The students refused to go back to ple of years ago, here we go again deny­ ations,’’ which covers interrogations class—this was a big deal—until they ing obvious instances of torture and by the U.S. military in detail. This returned this young man to his univer­ abuse, effectively giving the green manual replaces the previous manual sity, which they did, but they kept his light to torture by U.S. Government and is to be used by our military per­ brother and said: If you breathe a word agents and contractors and watering sonnel around the world in performing of this, we will kill him. down the War Crimes Act. interrogations. This young man decided he needed to This is a betrayal of our laws. It is a The Army Field Manual explicitly take a chance, and he took a chance on betrayal of our values. It is a betrayal bans, among other things, beating pris­ me. He drew the maps and gave us the of everything that makes us unique oners, sexually humiliating them, story on how to find these tiger cages and proud to be Americans. threatening them with dogs, depriving which were well hidden, and without The administration apparently them of food and water, performing the maps we never would have found thinks that we will just go along with mock executions, shocking them with them. Fortunately, I had a camera and this betrayal because there is an elec­ electricity, burning them, causing a hidden tape recorder which proved tion in 6 weeks. Apparently they think other pain, or subjecting them to the useful when I returned to the United we are afraid of being branded weak on technique called waterboarding, which States. terrorism. Indeed, some are no doubt simulates drowning. Supporters of the war claim that the hoping that we will vote against this So if these techniques are explicitly tiger cages were not all that bad. But bill so they can use it as a bludgeon banned in the Army Field Manual, why then Life magazine published my pic­ against us in the election. All I can say shouldn’t they be explicitly banned for tures, and the world saw the horrific is: Shame on them. What is more, it is CIA personnel or CIA contract per­ conditions where, in clear violation of not going to work. Because opposing

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.138 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10409 this bill, which would give the green not be suspended, unless when in Cases of Therefore, even though our col­ light to torture, is far, far bigger than Rebellion or Invasion the public Safety may leagues achieved significant improve­ the outcome of the November election. require it.’’ The United States is neither in a ments, I cannot support this state of rebellion nor invasion. Con­ This is about preserving our core val­ sequently, it would be problematic for Con­ legislation. ues as Americans. It is about standing gress to modify the constitutionally pro­ Mr. WARNER. Mr. President, at this up for our troops and ensuring that tected writ of habeas corpus under current point in time I yield to the distin­ they do not become subject to the same events. guished Senator from Arizona 14 min­ acts of torture and retaliation. It is Accordingly, I believe this bill is utes. about standing up for American citi­ likely unconstitutional. I hope that I I would say that I have been privi­ zens, civilians, and others who may be am wrong. But I fear that I am right, leged to be a Member of this institu­ caught up in some foreign land with and that we will be back here in a few tion for now 28 years, and I first met false charges filed against them, and years debating this issue again. JOHN MCCAIN through his father when I yet not even being able to contact our We had one chance to get this right— was Secretary of the Navy. So that embassy. It is about protecting Ameri­ to ensure that we don’t end up back goes back 28 plus another 5 years that cans. And it is about changing course here again after a new round of litiga­ I have known of JOHN MCCAIN. and beginning to wage an effective war tion. There was no reason to rush. No This Chamber, and indeed all of against the terrorists who attacked us one challenges our right to detain the America, knows full well about the ex­ on September 11, 2001. high-value prisoners the President just traordinary record that this man has in It is time to quit being strong and transferred to Guantanamo. We are not the service of his Nation, showing un­ wrong, and it is time to start being about to release them—nor should we. selfishness, showing courage, showing strong and smart. Being strong and But rush we did. In the last week, foresight. I am proud to have worked with him wrong has been a disaster. It has there have been two different versions as a partner in these past weeks, in­ bogged us down in a civil war in Iraq. of the legislation that emerged from deed, months now, on this piece of leg­ It has turbocharged the terrorists. It closed-door negotiations with the ad­ ministration. My colleagues may be islation. has made America less safe. So it is I just want to express my gratitude, time to be strong and smart. It is time willing to trust the legal judgment and competence of this administration. But and I think the gratitude of many peo­ to be true to who we are as Americans. ple across this country, for the service It is time to say no to indefinite—in­ I am not. Since 9/11, several major cases have he is rendering the Senate and hope­ definite—incarceration. It is time to gone to the Supreme Court that relate fully will continue to render the Sen­ say no to taking away the right of to the laws governing the war on al- ate in the coming years. someone put away to at least have the Qaida and the President’s powers. And When I step down under the caucus, charges pressed against them. It is the administration has been wrong too it is my hope that JOHN MCCAIN is time to say no to torture in all its many times—wrong about whether ha­ elected to succeed me as chairman of forms now and at any time in the fu­ beas corpus rights applied to detainees the Senate Armed Services Committee. ture. in Guantanamo Bay, wrong about But at this point in time, I am proud Mr. President, I yield the floor. whether U.S. citizens detained as to yield, as manager, my time to the Mr. BIDEN. Mr. President, I want to enemy combatants had a right to Senator from Arizona. start by complimenting Senators WAR­ meaningful due process, and wrong Mr. LEVIN. Mr. President, will the NER, MCCAIN and GRAHAM and the work about whether the military commis­ Senator from Arizona yield? that they did to improve this bill, par­ sions the President established by Mr. MCCAIN. I would be glad to. ticularly in two areas. order were legal. Simply put, I am not Mr. LEVIN. Mr. President, I heartily First, our colleagues did the right willing to trust the administration’s join my good friend from Virginia in thing by rejecting the attempt by the legal judgment again. And it is clear his assessment of Senator MCCAIN. I administration to reinterpret, by stat­ that the administration has put its im­ know there has been some disagree­ ute, Common Article III of the Geneva print on this legislation in several ment as to who would go first, but that Conventions. That would have been an troubling respects, including in the should not in any way, I hope, cloud enormous mistake—and an invitation stripping of habeas rights. the real affection which I think every­ for other countries to define for them­ In the struggle in which we are en­ body in this body holds for Senator selves what the Geneva Conventions re­ gaged against radical fundamentalists, MCCAIN and the effort he has made for quire. we must be both tough and smart. This so long to try to bring some kind of de­ Second, our colleagues were right to bill is not smart because it risks con­ cency to the approaches we use to peo­ reject the use of secret evidence in tinued litigation about how we detain ple whom we detain. military commissions. Such a proposal and try unlawful enemy combatants. I thank the Senator. is not consistent with American juris­ It is also not smart because it risks The PRESIDING OFFICER. The Sen­ prudence, and would not have satisfied continued harm to the image of the ator from Arizona is recognized for 14 the requirements of the Supreme Court United States. The 9/11 Commission minutes. decision in Hamdan. concluded that ‘‘[a]llegations that the Mr. MCCAIN. Mr. President, I thank Overall, the bill provides a much bet­ United States abused prisoners in its both my friends of many years, Sen­ ter framework for trying unlawful custody make it harder to build the ator LEVIN and Senator WARNER, for enemy combatants than under the diplomatic, political, and military alli­ the collegiality, the bipartisanship, flawed order issued by the President. ances the government will need.’’ The and the effort that we all make under All this is positive, and our three col­ recently released National Intelligence their leadership on the Armed Services leagues deserve credit for their good Estimate made plain that there are Committee for the betterment of the work. several factors fueling the spread of the men and women who serve our country But the bill contains a significant jihadist movement, including ‘‘en­ and our Nation’s defense. I am honored flaw. It limits the right of habeas cor­ trenched grievances, such as corrup­ to serve under both. pus in a manner that is probably un­ tion, injustice, and fear of Western For the record, I believe I just cal­ constitutional. Don’t take my word for domination, leading to anger, humilia­ culated, I say to my dear friend from it. Listen to the words of a conserv­ tion, and a sense of powerlessness.’’ Virginia, it has been 33 years since I ative Republican, Kenneth Starr, who The mistreatment of detainees at Abu came home from Vietnam and found used to sit on this nation’s second Ghraib, and concerns about our policies that our distinguished Secretary of the highest court, and is now one of the governing detainees at Guantanamo Navy was very concerned about the country’s leading appellate advocates, Bay, undoubtedly fuel these grievances welfare of those who had the lack of in a letter written to Senator SPECTER and anger against the United States. talent that we were able to get shot earlier this week: Our detainee policies have also made it down. So I thank my friend from Vir­ Article 1, section 9, clause 2 of the United harder for our allies to support our ginia especially, and I thank my friend States Constitution provides that ‘‘[t]he anti-terrorism policies. We have to get from Michigan. I believe our com­ privilege of the Writ of Habeas Corpus shall this right. mittee conducts itself in a fashion

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.140 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10410 CONGRESSIONAL RECORD — SENATE September 28, 2006 which has been handed down to us from should be reviewed to develop a system that should be available if the accused com­ other great Members of the Senate, will best serve the interests of justice and petently demonstrates to the military judge such as Richard Russell and others. the United States. The Uniform Code of Mili­ he understands the potential disadvantages Mr. President, before I move on to tary Justice (10 U.S.C. § 801 et. seq.) (UCMJ) and consequences of self-representation and and the Manual for Courts-Martial (MCM) he voluntarily and knowingly waives the other issues, I have heard some criti­ provide superb starting points. The processes right to representation. The military judge cism on the Senate floor today about and procedures in the UCMJ and MCM have should have the authority to require that a the way in which the bill treats admis­ served us well and can be readily adapted to defense counsel remain present even if the sibility of coerced testimony. meet the needs of military conmnssions. waiver is granted and to revoke the waiver if A New York Times editorial today As I have testified, Congress could enact a the accused is disruptive or fails to follow said that in this legislation ‘‘coercion UCMJ Article 135a to establish the basic sub­ basic rules of decorum and procedure. This is defined in a way that exempts any­ stantive requirements for military commis­ right is obviously contingent on the sions, and an executive order could provide accused’s presence throughout the pro­ thing done before the passage of the detailed guidance, just as the MCM provides ceeding as well as access to the evidence. 2005 Detainee Treatment Act, and any­ detailed guidance for the trial of courts-mar­ Again, I recommend that Congress detail thing else Mr. Bush chooses’’ in their tial. Alternatively, Congress could create a the basic evidentiary requirements in the own inimitable style. separate Code of Military Commissions as a legislation and then permit an executive This is thoroughly incorrect, and I new chapter in Title 10, modeled to an appro­ order to flesh out the details, just as the would like to correct not only the im­ priate degree after the UCMJ, and similarly MCM provides evidentiary details for the leave the details to an executive order. Ei­ UCMJ. Evidence should be admissible if, in pression but the facts. the judgment of an experienced military This bill excludes any evidence ob­ ther approach must address the require­ ments of the Geneva Conventions and the judge, there are guarantees of its trust­ tained through illegal interrogation concerns articulated in Hamdan. worthiness, the evidence has probative value, techniques, including those prohibited There will necessarily be differences be­ and the interests of justice are best served by the 2005 Detainee Treatment Act. tween current court-martial procedures and by its admission. The goal is to bolster the Detainee the rules and procedures for military com­ There has been some comment that the ad­ Treatment Act by ensuring that the missions. However, the processes and proce­ mission of hearsay is improper. In my view, such criticisms reflect a misunderstanding of fruits of any illegal treatment will be dures in the UCMJ and MCM can be readily adapted to meet the needs of military com­ the rules of evidence used in Federal, mili­ per se inadmissible in the military tary and state trials today. Under the Mili­ commissions. missions and still meet the requirements of criminal justice systems established by com­ tary Rules of Evidence (MRE), hearsay is not For evidence obtained before passage mon Article 3 of the Geneva Conventions. admissible except as provided in the MREs or of the Detainee Treatment Act, we The legislation must appropriately address by statute. The MREs further define state­ adopted the approach recommended by access to evidence and the accused’s pres­ ments that are not hearsay and provide for the military JAGs. In order to admit ence during the trial. Specifically, it is my exceptions conditioned on the availability of such evidence, the judge—we leave it to strongly held view that all evidence admit­ the declarant. Additionally, there is a resid­ ted against an accused and provided to mem­ ual hearsay rule that permits the introduc­ the judge—must find that: it passes the tion of other statements, having equivalent legal reliability test—and, as applied in bers of a military commission must also be provided to the accused and accused’s coun­ circumstantial guarantees of trust­ practice, the greater the degree of co­ sel. Any statute that allows evidence to be worthiness, if the court determines that the ercion, the more likely the statement admitted outside the presence of the accused statement is material evidence; has more will not be admitted; the evidence pos­ would mean the military commission could probative value than other available evi­ sesses sufficient probative value; and convict (and possibly impose a sentence of dence; and serves the interests of justice. that the interests of justice would best death) without the accused ever fully know­ The Supreme Court recently narrowed the be served by admission of the state­ ing the evidence considered against him: application of residual hearsay as it applies Such a procedure is extremely problematic, to out-of-court statements that are testi­ ment into evidence. monial in nature. Such statements are now Mr. President, I ask unanimous con­ both constitutionally and from a Common Article 3 perspective. barred unless there is a showing that the sent that three different letters from The accused’s presence is a critical facet of witness is unavailable and the accused had a three different JAGs—Air Force, Navy, this legislation. The United States is more prior opportunity to cross-examine the wit­ and Marine Corps—be printed in the than a nation of laws; it is a country founded ness. The overall application of the residual RECORD. upon strong moral principles of fairness to hearsay rule is functionally very much like There being no objection, the mate­ all. Moreover, our country—to the delight of that used in international tribunals and re­ rial was ordered to be printed in the our adversaries—has been heavily criticized quires a military judge to find the evidence because of the perception that the pre- is probative and reliable. These existing pro­ RECORD, as follows: Hamdan military commission process was cedures provide a meaningful starting point DEPARTMENT OF THE AIR FORCE, unfair and did not afford ‘‘all the judicial for addressing the hearsay issues arising in HEADQUARTER U.S. AIR FORCE, guarantees which are recognized as indispen­ military commissions. Washington DC, August 28, 2006. sable by civilized peoples.’’ As to the use of classified evidence, I be­ Hon. JOHN MCCAIN, Now is the time to correct that perception lieve the procedures of MRE 505 adequately Russell Senate Office Building, and clearly establish procedures and rules protect national security. MRE 505 is based Washington DC. that meet that standard. These procedures on the Classified Information Procedures Act DEAR SENATOR MCCAIN: Thank you for and rules will do more than merely correct (CIP A) (Title 18, U.S.C. App III). CIP A is de­ your letter of 23 August 2006, in which you legal deficiencies; they will help reestablish signed to prevent unnecessary or inadvertent requested my written recommendations on the United States as the leading advocate of disclosures of classified information and ad­ the military commissions legislation Con­ the rule of law. I firmly believe doing so is vise the government of the national security gress is expected to consider next month. an important facet of winning the global war implications of going forward with certain You specifically ask for my personal views on terrorism. evidence. MRE 505 achieves a reasonable ac­ on the most pressing issues involving the Inextricably tied to that concept is an commodation of the United States’ interest legislation. awareness of reciprocity. We cannot hold out in protecting information and the accused’s As of the date of this letter, several bills as acceptable a military commission process need to be able to mount a defense. The rule have been introduced and I believe the ad­ that we would consider to be unfair and ille­ permits in camera, ex parte consideration of ministration is also considering legislation gal if used by a foreign authority to try cap­ the Government’s concerns by a judge, the for congressional consideration. I appreciate tured United States servicemen and women substitution of unclassified summaries or the opportunity to provide my personal per­ for alleged offenses. other alternative forms of evidence, and en­ spective and comments on the general na­ Additionally, concerns have been raised sures fairness to the accused. Under MRE ture of the potential legislation. about other evidentiary and procedural 505, both the prosecution and the accused I begin with the premise that legislation is issues, including the ability of the accused to rely on and know about the evidence going appropriate. As the Supreme Court noted represent himself, and the admissibility of to the court. The accused knows all that is again in Hamdan v. Rumsfeld. 548 U.S. , 126 hearsay, classified evidence, and an to be considered by the trier-of-fact, has an S.Ct. 2749 (2006), the President’s powers in accused’s own statements. opportunity to respond, and is able to assist wartime are at their greatest when specifi­ The right of an accused to represent him­ the defense counsel to respond appropriately. cally authorized by Congress. While different self pro se is well recognized in our jurispru­ Concerns about the admissibility of state­ approaches are feasible, I believe the Nation dence. In the context of military commis­ ments made by an accused primarily involve will be best served by a fresh start to the sions, it presents difficult issues. Current the current requirement to provide Miranda military commission process. Existing crimi­ procedures allow an accused to expressly warnings (codified more broadly in the nal justice systems, including the process es­ waive the right to be represented and con­ UCMJ at Article 31) and whether the state­ tablished by Military Commission Order 1, duct his defense personally. That option ment is the product of torture or coercion.

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.123 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10411 The military commission process must rec­ while acting on behalf of foreign govern­ commission. Conspiracy should be included, ognize the battlefield is not an orderly place. ments as well as terrorists not associated but only conspiracies to commit one of the The requirement to warn an individual be­ with al Qaida and/or the Taliban. substantive offenses specifically enumerated fore questioning is one area where deviation With regard to baseline standards of struc­ and there must be a requirement to prove from the established UCMJ framework may ture, procedure, and evidence, it is critically the defendant committed an overt act in fur­ well be warranted. important that independent military judges therance of the conspiracy. This would Generally, if a military judge concludes preside at military commissions and have mean, for example, that conspiracy to com­ the confession or admission of an accused is authority to make final rulings on all mat­ mit murder in violation of the laws of war involuntary, the statement is not admissible ters of law. Similarly, defense counsel must would be a cognizable offense, but affiliation in a court-martial over the accused’s objec­ have an independent reporting chain of com­ with a terrorist organization, standing tion. Commonly, a statement is involuntary mand, free from both actual and perceived alone, would not be cognizable. if it is obtained in violation of the self-in­ influence of prosecution and convening au­ I would also like to address Common Arti­ crimination privilege or due process clause thorities. cle 3 of the Geneva Conventions. Common of the Fifth Amendment to the Constitution The introduction of evidence outside the Article 3 is a baseline standard that U.S. of the United States; Article 31; or through presence of an accused is, in my view, incon­ Armed Forces have trained to for decades. the use of coercion, unlawful influence, or sistent with U.S. law and the law of war. The Its application to the War on Terror imposes unlawful inducement. Each situation is obvi­ Supreme Court held in Hamdan v. Rumsfeld, no new requirements on us. However, if Con­ ously fact determinative and the military 126 S.Ct. 2749 (2006), that absent a sufficient gress desires to clarify the Common Article judge decides whether the statement is vol­ practical need to deviate from existing U.S. 3 phrase ‘‘outrages upon personal dignity, in untary considering the totality of the cir­ laws and criminal trial procedures, an ac­ particular humiliating and degrading treat­ cumstances. I trust the judgment of experi­ cused must be present at trial and have ac­ ment,’’ this would be beneficial. The legisla­ enced military judges. Military commissions cess to all evidence presented against him. A tion might consider requiring an objective should not be permitted to consider evidence four-justice plurality also opined that Com­ standard be used in interpreting this phrase, mon Article 3 of the 1949 Geneva Conventions that is found to be unlawfully coerced and and define the language to encompass willful requires, at a minimum, that an accused be thus involuntary. acts of violence, brutality, or physical in­ Finally, appellate jurisdiction over mili­ present at trial and have access to the evi­ jury, and so severely humiliating or degrad­ tary commission decisions should be clearly dence presented against him. Justice Ken­ ing as to constitute an attack on human dig­ established. That jurisdiction would be most nedy, who was not part of the plurality, fur­ nity. Examples of such conduct include forc­ appropriately vested in the United States ther signaled in a separate concurring opin­ ing detainees to perform sexual acts, threat­ Court of Appeals for the District of Columbia ion that introduction of evidence outside the ening a detainee with sexual mutilation, sys­ presence of the accused would be ‘‘troubling’’ Circuit (consistent with the Detainee Treat­ tematically beating detainees, and forcing and, if done to the prejudice of the accused ment Act of 2005). them into slavery: Such an approach would would be grounds for reversal. Furthermore, I hope this information is helpful. Please accurately reflect established war crimes ju­ as a matter of policy, adopting such practice let me know if additional information or risprudence and adoption would prevent the for military commissions may encourage comments from me on this matter are de­ perception that we are attempting to abro­ others to reciprocate in kind against U.S. sired. gate our obligations under the 1949 Geneva Sincerely, service members held in captivity. I recommend that the legislation adopt Conventions. JACK L. RIVES, Thank you again for this opportunity to Military Rule of Evidence 505 (M.R.E. 505), Major General, USAF, provide personal comment on military com­ which is partly based on the Classified Infor­ The Judge Advocate General. mission legislation. I hope that this informa­ mation Procedures Act (CIPA). M.R.E. 505 permits a military judge to conduct an in tion is helpful. DEPARTMENT OF THE NAVY, camera, ex parte review of the Government’s Sincerely, OFFICE OF THE JUDGE ADVOCATE interest in protecting classified information BRUCE MACDONALD, GENERAL, WASHINGTON NAVY YARD, and encourages the substitution of unclassi­ Rear Admiral, JAGC, U.S. Navy, Washington, DC, Aug. 31, 2006. fied summaries or alternative forms of evi­ Judge Advocate General. Hon. JOHN MCCAIN, dence in lieu of the classified information. Russell Senate Office Building, This type of procedure ensures that classi­ DEPARTMENT OF THE NAVY, Washington, DC. fied information is not disclosed under cir­ HEADQUARTERS U.S. MARINE CORPS, DEAR SENATOR MCCAIN. Thank you for cumstances that could injure national secu­ Washington, DC, Aug. 31, 2006. your letter of August 23, 2006 requesting my rity. Hon. JOHN MCCAIN, personal views on military commission legis­ While it is true that application of a Russell Senate Office Building, lation. M.R.E. 55–style process might conceivably Washington, DC. Before proceeding with discussion of spe­ result in the Government being unable to in­ DEAR SENATOR MCCAIN. Thank you for cific issues, I would like to note that I have troduce evidence against an accused under your letter of 23 August 2006, in which you had the opportunity to provide comment to certain circumstances, it is my view that we requested written recommendations from the DoD General Counsel and the Depart­ are better served by fully honoring the law the service Judge Advocates General on the ment of Justice regarding draft commission of war, which requires that we afford even military commissions legislation Congress is legislation. As of this writing, I have not terrorists the judicial guarantees which are expected to consider in September. You spe­ seen the final version of the Administra­ recognized as indispensable amongst civ­ cifically asked for our personal views on the tion’s draft. ilized peoples when we choose to prosecute. most pressing issues involving the legisla­ Although existing courts-martial rules are For it is that very same law that allows us tion. I appreciate the opportunity to provide not practical for the prosecution of unlawful to hold terrorists for the duration of hos­ my personal perspective and comments. enemy combatants, they provide a good tilities, however long those hostilities might Although I assumed the position of Staff starting point for the drafting of Commis­ last. Judge Advocate to the Commandant of the sion legislation. I recommend that legisla­ With regard to hearsay evidence, I have no Marine Corps on 25 August, I am certainly tion establish the jurisdiction of military objection to the introduction of hearsay evi­ familiar with the process to date, including commissions, set baseline standards of struc­ dence so long as the evidentiary standard is the previous testimony of my predecessor, ture, procedure, and evidence consistent clarified to exclude information that is unre­ Brigadier General Kevin M. Sandkuhler, and with U.S. law and the law of war, and pre­ liable, not probative, unfairly prejudicial, the Judge Advocates General. Like them, I scribe all substantive offenses. It also should confusing, or misleading, or when such ex­ believe that military commissions, in some authorize the President to promulgate sup­ clusion is necessary to protect the integrity form, are both appropriate and necessary in plemental rules of practice. In this regard, I of the proceedings. Such an approach would prosecuting alleged terrorists while con­ believe we should follow the military justice be consistent with the practice of inter­ tinuing to wage the Global War on Terror. I model, whereby Congress establishes the national war crimes tribunals supported by also believe that there is middle ground to be legal framework (the Uniform Code of Mili­ the United States in Rwanda and the former found between the Uniform Code of Military tary Justice, or in this case a Code for Mili­ Yugoslavia. Those tribunals satisfy the re­ Justice (UCMJ) and the original military tary Commissions) and the President pro­ quirements of the law of war including Com­ commissions process, which would comport mulgates supplemental rules of practice (a mon Article 3 of the Geneva Conventions of with the requirements of Common Article 3 Manual for Courts-Martial, or in this case a 1949. of the Geneva Conventions. Manual for Military Commissions) . With regard to statements alleged to have Any legislation must be approached with Within that context, I recommend that the been derived from coercion, the presiding an eye toward both precedent and reci­ jurisdiction of military commissions be ex­ military judge should have the discretion procity. We must account for the values for panded to permit prosecution of all unlawful and authority to inquire into the underlying which our nation has always stood, and also enemy combatants who engage in or attempt factual circumstances and exclude any state­ be cognizant of the fact that the solution we to engage in hostilities against the United ment derived from coercion, in order to pro­ create may influence how our service mem­ States. In particular, we need the ability to tect the integrity of the proceeding. bers are judged internationally in the future. prosecute before military commissions irreg­ As I noted earlier, the legislation should I share in the strong position previously ular belligerents who violate the laws of war enumerate all offenses triable by military expressed by the Judge Advocates General

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.068 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10412 CONGRESSIONAL RECORD — SENATE September 28, 2006 regarding the fundamental importance of an And the other two Judge Advocate Common Article 3 would add to those doubts. accused’s access to evidence and presence at Generals say the same thing, that the Furthermore, it would put our own troops at trial. Simply put, an accused (and his coun­ provisions of this bill are exactly in risk. sel) must be provided the evidence admitted line with their opinions. Frankly, that I am as familiar with The Armed Forces against him. This may require the govern­ had a great deal of weight in our adopt­ Officer as is Jack Vessey. It was written ment to balance the need for prosecution on after all the horrors of World War II and particular charges against the need to pro­ ing them. General George C. Marshall, then Secretary tect certain classified information. This bal­ Almost exactly 3 months ago, the Su­ of Defense, used it to tell the world and to ancing concept is not new. Domestically, the preme Court decided the remind our soldiers of our moral obligations government must often weigh the sanctity of groundbreaking case of Hamdan v. with respect to those in our custody. sensitive information against having to dis­ Rumsfeld. In that case, a majority of Sincerely, close it for use in a successful prosecution the Court ruled that the military pro­ GENERAL COLIN L. POWELL, USA (RET.). believe that the indispensable ‘‘judicial guar­ cedures used to try detainees held at antees’’ referenced in Common Article 3 re­ SEPTEMBER 12, 2006. quire the same sort of deliberative decision- Guantanamo Bay fell short of the standards of the Uniform Code of Mili­ Hon. JOHN MCCAIN, making in the context of these commissions. U.S. Senate, Where the government intends to prosecute tary Justice and the Geneva Conven­ Washington, DC. an accused using classified information, tions. DEAR SENATOR MCCAIN: Sometimes, the Military Rule of Evidence (MRE) 505 should The Court also determined that Com­ news is a little garbled by the time it serve as the evidentiary benchmark. mon Article 3 of the Geneva Conven­ reaches the forests of North-central Min­ The commissions should be presided over tions applies to al-Qaida because our nesota, but I call your attention to recent by a certified and qualified (pursuant to Ar­ reports that the Congress is considering leg­ ticle 26 of the UCMJ) military judge, who is conflict with that terrorist organiza­ tion is ‘‘not of an international char­ islation which might relax the United trained to make measured evidentiary rul­ States’ support for adherence to Common ings. While I recommend that Congress allow acter.’’ Some of my colleagues may disagree with the Court’s decision, but Article 3 of the Geneva Convention. If that is for an executive order to promulgate specific true, it would seem to weaken the effect of applicable evidentiary rules (same as with once issued it became the law of the the McCain Amendment on torture of last the Manual for Courts-Martial, or MCM), I land. year. If such legislation is being considered, do offer comment here on what I believe are Unfortunately, the Hamdan decision I fear that it may weaken America in two re­ two more notable evidentiary issues: hearsay left in its wake a void and uncertainty spects. First, it would undermine the moral and statements by an accused. basis which has generally guided our conduct Regarding hearsay evidence, the residual that Congress needed to address—and in war throughout our history. Second, it hearsay exception found in the Military address quickly—in order to continue could give opponents a legal argument for Rules of Evidence (MRE) provides a solid fighting the war on terrorism. I believe the mistreatment of Americans being held foundation upon which to build for the com­ this act allows us to do that in a way prisoner in time of war. missions. This exception requires that a that protects our soldiers and other In 1950, 3 years after the creation of the De­ military judge find the evidence to be pro­ personnel fighting on the front lines bative and reliable—a standard with inter­ partment of Defense, the then Secretary of and respects core American principles Defense, General George C. Marshall, issued national acceptance. In practice, this stand­ of justice. I would like to thank Sen­ ard could allow for alternatives to live testi­ a small book, titled The Armed Forces Offi­ mony, such as by video teleconference, which ators GRAHAM and WARNER and many cer. The book summarized the laws and tra­ take into account the global nature of the others for their unceasing work on this ditions that governed our Armed Forces conflict. bill. through the years. As the Senate deals with I share previously expressed concerns I would like to take a few moments the issue, it might consider a short quote from the last chapter of that book which about the admissibility of statements made to describe some of the key elements of by an accused as a product of torture or co­ General Marshall sent to every American Of­ the legislation. ficer. The last chapter is titled ‘‘Americans ercion. Without exception, statements ob­ As is by now well known, Senators tained by torture, as defined in Title 18 of in Combat’’ and it lists 29 general propo­ the U.S. Code, must be inadmissible. Coer­ WARNER, GRAHAM, and I, and others, sitions which govern the conduct of Ameri­ cion is a more nebulous concept. As a result, have resisted any redefinition or modi­ cans in war. Number XXV, which I long ago military judges should retain discretion to fication of our Nation’s obligations underlined in my copy, reads as follows: determine whether statements so alleged are under Common Article 3 of the Geneva ‘‘The United States abides by the laws of admissible. After an examination of all the Conventions. We did so because we care war. Its Armed Forces, in their dealing with facts and circumstances surrounding the deeply about legal protections for all other peoples, are expected to comply statement, the military judge could deter­ American fighting men and women and with the laws of war, in the spirit and the mine if it is inadmissible because it is either about America’s moral standing in the letter. In waging war, we do not terrorize unreliable or lacking in probative value. helpless non-combatants, if it is within our In closing, I submit that the jurisdiction of world. More than 50 retired military power to avoid so doing. Wanton killing, tor­ the military commissions should be broad generals and flag officers expressed ture, cruelty or the working of unusual hard­ enough to facilitate the prosecution of all grave concern about redefining our Ge­ ship on enemy prisoners or populations is unlawful enemy combatants, and not merely neva obligations, including five former not justified in any circumstance. Likewise, members of al Qaida, the Taliban, and asso­ Chairmen of the Joint Chiefs of Staff. respect for the reign of law, as that term is ciated organizations. Jurisdiction must ex­ Mr. President, I ask unanimous con­ understood in the United States, is expected tend to other terrorist groups, regardless of sent to have printed in the RECORD let­ to follow the flag wherever it goes. . . .’’ their level of organization, and the indi­ For the long term interest of the United vidual ‘‘freelancers’’ so common on the cur­ ters from GEN Colin Powell, GEN Jack States as a nation and for the safety of our rent battlefield. Vessey, and GEN Hugh Shelton, and a own forces in battle, we should continue to Thank you again for the opportunity to letter from the former Commandant of maintain those principles. I continue to read provide comment. I look forward to con­ the Marine Corps, General Krulak. and hear that we are facing a ‘‘different tinuing to work toward resolution of this There being no objection, the mate­ enemy’’ in the war on terror; no matter how matter. rial was ordered to be printed in the true that may be, inhumanity and cruelty Very respectfully, RECORD, as follows: are not new to warfare nor to enemies we JAMES C. WALKER, have faced in the past. In my short 46 years Brigadier General, USMC, SEPTEMBER 13, 2006. in the Armed Forces, Americans confronted Staff Judge Advocate to the Commandant. DEAR SENATOR MCCAIN: I just returned to town and learned about the debate taking the horrors of the prison camps of the Japa­ Mr. MCCAIN. Mr. President, the JAG place in Congress to redefine Common Arti­ nese in World War II, the North Koreans in of the Air Force says: cle 3 of the Geneva Convention. I do not sup­ 1950–53, and the North Vietnamese in the . . . through the use of coercion, unlawful port such a step and believe it would be in­ long years of the Vietnam War, as well as influence, or unlawful inducement. Each sit­ consistent with the McCain amendment on knowledge of the Nazi’s holocaust depreda­ uation is obviously fact determinative and torture which I supported last year. tions in World War II. Through those years, the military judge decides whether the state­ I have read the powerful and eloquent let­ we held to our own values. We should con­ ment is voluntary considering the totality of ter sent to you by one of my distinguished tinue to do so. the circumstances. I trust the judgment of predecessors as Chairman of the Joint Chiefs Thank you for your own personal courage experienced military judges. Military com­ of Staff, General Jack Vessey. I fully endorse in maintaining those values, both in war and missions should not be permitted to consider in tone and tint his powerful argument. The on the floor of the Senate. I hope that my in­ evidence that is found to be unlawfully co­ world is beginning to doubt the moral basis formation about weakening American sup­ erced and thus involuntary. of our fight against terrorism. To redefine port for Common Article 3 of the Geneva

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.071 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10413 Convention is in error, and if not that the honor? If we do, we begin to mimic the very when we see them. However, neither I Senate will reject any such proposal. behavior we abhor. nor any other responsible Member of Very respectfully, 4. Many countries already look at the this body should want to prosecute and GENERAL JOHN. W. VESSEY, USA (Ret.). United States as arrogant. This redefinition/ potentially sentence to death any indi­ reinterpretation would only serve to vidual for violating such a vague stand­ SEPTEMBER 20, 2006. strengthen that conviction. The idea that Hon. JOHN MCCAIN, the United States would ‘‘pick and choose’’ ard. U.S. Senate, what portion of the Geneva Convention to The specificity that the bill provides Washington, DC. follow . . . and what portion to ‘‘redefine/re­ to the War Crimes Act—and its retro­ DEAR SENATOR MCCAIN: I have followed interpret’’ . . . goes against who we are as a active effect—will actually make pros­ with great interest the debate over whether people and as a Nation. The unintended con­ ecuting war criminals a realistic goal. to redefine in law Common Article 3 of the sequence of this type of action is that it None of my colleagues should object to Geneva Conventions. I join my distinguished opens the door for other nations to make in­ that goal. predecessors as Chairman of the Joint Chiefs terpretations of their own . . . across a It is also important to note that the of Staff, Generals Vessey and Powell, in ex­ gamut of issues. The world is a dangerous acts that we propose to enumerate in pressing concern regarding the contemplated place and our actions might well serve as the War Crimes Act are not the only change. Such a move would, I believe, hinder precedents during the first battle of the our efforts to win America’s wars and pro­ NEXT war. activities prohibited under this legisla­ tect American soldiers. 5. Finally, Duty-Honor-Country and Sem­ tion. The categories enumerated in the Common Article 3 and associated Geneva per Fidelis are NOT just ‘‘bumper stickers’’. War Crimes Act list only those viola­ provisions have offered legal protections to These words, and others like them, form the tions of Common Article 3 that are so our troops since 1949. American soldiers are ethos of our Armed Forces. When you start grave as to constitute felonies poten­ trained to Geneva standards and, in some to tamper with the laws governing warfare tially punishable by death. The legisla­ cases, these standards constitute the only . . . laws recognized by countries around the tion states explicitly that there are protections remaining after capture. Given world . . . you run the risk of bringing into other, nongrave breaches of Common our military’s extraordinary presence around question the very ethos that these men and the world, Geneva protections are critical. Article 3. women hold dear. This legislation also requires the Should the Congress redefine Common Ar­ Semper Fidelis, ticle 3 in domestic statute, the United States C.C. KRULAK, President to publish his interpreta­ would be inviting similar reciprocal action General, USMC (Ret), tions of the Geneva Conventions, in­ by other parties to the treaty. Such an ac­ 31st Commandant of the Marine Corps. cluding what violations constitute tion would send a terrible signal to other na­ Mr. MCCAIN. These men express one nongrave breaches, in the Federal Reg­ tions that the United States is attempting to ister—in the Federal Register—for water down its obligations under Geneva. At common view: that modifying the Ge­ neva Conventions would be a terrible every American to see. These interpre­ a time when we are deeply engaged in a war tations will have the same force as any of ideas, as well as a war on the battlefield, mistake and would put our personnel this would be an egregious mistake. I firmly at greater risk in this war and the other administrative regulation pro­ believe that not only is such a move unnec­ next. If America is seen to be doing mulgated by the executive branch and, essary, it potentially subjects our men and anything other than upholding the let­ thus, may be trumped—may be women in uniform to unnecessary danger. ter and spirit of the conventions, it trumped—by law passed by Congress. The legislation sponsored by Senator War­ Simply put, this legislation ensures will be harder, not easier, to defeat our ner, which would enumerate war crime of­ that we respect our obligations under enemies. I am pleased that this legisla­ fenses while remaining silent on America’s Geneva, recognizes the President’s con­ tion before the Senate does not amend, obligations under Common Article 3, is a stitutional authority to interpret trea­ redefine, or modify the Geneva Conven­ better course of action. By doing so, our men ties, and brings accountability and and women in field will have the clarity they tions in any way. The conventions are transparency to the process of inter­ require, we can still interrogate terrorists, preserved intact. pretation by ensuring that the Execu­ and our service personnel will have the undi­ The bill does provide needed clarity tive’s interpretation is made public— luted protections offered by the Geneva Con­ for our personnel about what activities the Executive’s interpretation is made vention. constitute war crimes. For the first Respectfully, public. The legislation would also guar­ time, there will be a list of nine spe­ GENERAL H. HUGH SHELTON. antee that Congress and the judicial cific activities that constitute criminal branch will retain their traditional SENATOR MCCAIN: This is the first time I violations of Common Article 3, pun­ roles of oversight and review with re­ have publically spoken about the adminis­ ishable by imprisonment or even death. spect to the President’s interpretation tration policy regarding the war against ter­ There has been much public discussion ror but my professionalism and my con­ of nongrave breaches of Common Arti­ about specific interrogation methods cle 3. science leads me to comment on the pro­ that may be prohibited. But it is un­ posed ‘‘interpretation/change’’ to the Geneva In short, whereas last year only one Convention. reasonable to suggest that any legisla­ law—the torture statute—was deemed My concerns are as follows: tion could provide an explicit and all- to apply to the treatment of all enemy I. A redefinition or reinterpretation of the inclusive list of what specific activities detainees, now there is a set of overlap­ Geneva Convention, a document that has are illegal and which are permitted. ping and comprehensive legal stand­ been taught to every recruit and officer can­ Still, I am confident that the cat­ didate since its inception, would imme­ ards that are in force: the Detainee egories included in this section will Treatment Act, with its prohibition on diately attack the moral dimension with criminalize certain interrogation tech­ which every Soldier, Sailor, Marine and Air­ cruel, inhuman, and degrading treat­ man is inculcated during their time as a niques, like waterboarding and other ment as defined by the fifth, eighth, member of the US Armed Forces. By weak­ techniques that cause serious pain or and fourteenth amendments to the ening the moral link that these young men suffering that need not be prolonged— Constitution, Common Article 3 of the and women depend on . . . by allowing a re­ I emphasize ‘‘that need not be pro­ Geneva Conventions, and the War definition of a lawful Convention . . . we run longed.’’ Crimes Act. This legislation will the risk of undermining the foundation upon Some critics of this legislation have allow—my colleagues, have no doubt— which they willingly fight and die for our asserted that it gives amnesty to U.S. Country. this legislation will allow the CIA to 2. The mothers and fathers who give their personnel who may have committed continue interrogating prisoners with­ sons and daughters to our care brought their war crimes since the enactment of the in the boundaries established in the children up to do ‘‘right’’ . . . to obey the War Crimes Act. Nothing—nothing— bill. law . . . to take the moral high ground. We could be further from the truth. As Let me state this flatly: It was never do these parents a grave disservice by ‘‘legal­ currently written, the War Crimes Act our purpose to prevent the CIA from izing’’ a different standard for their children. makes criminal any and all behavior detaining and interrogating terrorists. 3. This issue is NOT about what our enemy that constitutes a violation of Common On the contrary, it is important to the does to our servicemen and women when cap­ Article 3—specifically, any act that tured! This issue is all about how we, as war on terror that the CIA have the Americans, act. Do we walk our talk. Do we constitutes an ‘‘outrage upon personal ability to do so. At the same time, the change the rules of the game because our dignity.’’ Observers have commented CIA’s interrogation program has to enemy acts in a horrific manner. Do we give that, though such outrages are difficult abide by the rules, including the stand­ up our honor because our enemy is without to define precisely, we all know them ards of the Detainee Treatment Act.

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.064 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10414 CONGRESSIONAL RECORD — SENATE September 28, 2006 I, like many of my colleagues, find the floor, I simply say that I have been said in their favor?’ History will know troubling the reports that our intel­ reading the CONGRESSIONAL RECORD that whatever could be said, they were ligence personnel feel compelled to trying to find the bill that page so vo­ allowed to say. They have been given purchase liability insurance because of ciferously denounced. The hyperbolic the kind of a trial which they, in the the lack of legal clarity that exists in attack is aimed not at any bill this days of their pomp and power, never the wake of the Hamdan decision. This body is today debating, nor even at the gave to any man. But fairness is not legislation provides an affirmative de­ administration’s original position. I weakness. The extraordinary fairness fense for any Government personnel can only presume that some would pre­ of these hearings is an attribute of our prosecuted under the War Crimes Act fer that Congress simply ignore the strength.’’ for actions they reasonably believed to Hamdan decision and pass no legisla­ He was right and his wisdom was be legal at the time. That is a long- tion at all. That, I suggest to my col­ echoed this week at our Judiciary standing precedent. In addition, it leagues, would be a travesty. Committee hearing when Admiral would eliminate any private right of This is a very long, difficult task. Hutson and Lieutenant Commander action against our personnel based on a This is critical for the future security Swift testified that fairness and lawful­ violation of the Geneva Conventions. of this Nation, and we have done the ness are our greatest strengths. This The intent of this provision is to pro­ very best we can. I believe we have legislation doesn’t live up to that ideal. tect officers, employees, members of come up with a good product. I believe It strips away fairness. the Armed Forces, and other agents of good-faith negotiations have taken The actions by the U.S. Government, the United States from suits for money place. I hope we will pass this legisla­ this administration, for all its talk of damages or any other lawsuits that tion very soon. I think you will find strength, have made us less safe, and could harm the financial well-being of that people will be brought to justice its current proposal is one that smacks our personnel who were engaged in law­ and we can move forward with trials of weakness and shivering fear. Its leg­ ful—I emphasize ‘‘lawful’’—activities. with treating people under the Geneva islative demands reflect a cowering It is important to note, however, that Conventions and restoring America’s country that is succumbing to the the fact that the Geneva Conventions prestige in the world. threat of terrorism. I believe we Ameri­ lack a private right of action—and the I thank my colleagues. cans are better than that. I believe we fact that this legislation does not cre­ Mr. WARNER. Mr. President, I wish are stronger than that. I believe we are ate such a right—has absolutely no to commend our distinguished col­ fairer than that. And I believe America bearing on whether the Conventions league on an excellent summary of the should be a leader in the fight for are binding on the executive branch. bill and his heartfelt expressions and human rights and the rule of law, and Even if the Geneva Conventions do not interpretations of this bill, which I that will strengthen us in our fight enable detainees to sue our personnel share. against terrorists. for money damages, the President and The PRESIDING OFFICER. The Sen­ We have taken our eye off the ball in his subordinates are nevertheless ator from Vermont is recognized. this fight against terrorists. That is es­ bound to comply with Geneva. That is Mr. LEAHY. Mr. President, it is from sentially what all of our intelligence clear to me and to all who have nego­ strength that America should defend agencies concluded in the National In­ tiated this legislation in good faith. our values and our Constitution. It telligence Estimate that the adminis­ This point is critical, because our takes a commitment to those values to tration had for six months while this personnel deserve not only the legal demand accountability from the Gov­ was rolling along, but that they only protections written into this legisla­ ernment. In standing up for American shared a part of this past weekend. Our tion, but also the undiluted protections values and security, I will vote against retooled and reorganized intelligence offered since 1949 by the Geneva Con­ this bill. agencies, with leadership handpicked ventions. Should the United States be I can give you many reasons, but let by the administration, have concluded, seen as amending, modifying, or rede­ me take one. We will turn back the contrary to the campaign rhetoric of fining the Geneva Conventions, it protections of the Great Writ of habeas the President and Vice President, that would open the door for our adversaries corpus. Since 13th century Anglo juris­ the Iraq war has become a ‘‘cause cele­ to do the same, now and in the future. prudence, we have had the Great Writ. bre’’ that has inspired a new genera­ The United States should champion the We have had habeas corpus since the tion of terrorists. It hasn’t stopped ter­ Geneva Conventions, not look for ways birth of our Nation. We fought a revo­ rorists, it has inspired new terrorists. to get around them, lest we invite oth­ lution to make sure we could retain it. Surely, the shameful mistreatment of ers to do the same. America has more We fought a civil war, and we fought detainees at Guantanamo, at Abu personnel deployed, in more places, through two world wars. Now, in a Ghraib, at secret CIA prisons, and that than any other country in the world, matter of hours, in a debate that has so by torturers in other countries to and this unparalleled exposure only often skirted the issues, we are ready whom we have turned over people, have serves to further demonstrate the crit­ to strip back habeas corpus. I cannot become other ‘‘causes celebre’’ and re­ ical importance of our fulfilling the vote for that. cruiting tools for our enemies. letter and the spirit of our inter­ Senator SMITH spoke stirringly ear­ Surely, the continued occupation of national obligations. To do any dif­ lier today of the dangers of the bill’s Iraq, when close to three-quarters of ferently would put our fighting men habeas provision, which would elimi­ Iraqis want U.S. forces to depart their and women directly at risk. We owe it nate the independent judicial check on country, is another circumstance being to our fighting men and women to up­ Government overreaching and lawless­ exploited by enemies to demonize our hold the Geneva Conventions, just as ness. He quoted from great defenders of great country. we have done for 57 years. liberty. It was Justice Robert H. Jack­ Passing laws that remove the re­ For these reasons, this bill makes son who said in his role as Chief Coun­ maining checks against mistreatment clear that the United States will fulfill sel for the Allied Powers responsible of prisoners will not help us win the all of its obligations under those Con­ for trying German war criminals after battle for the hearts and minds of the ventions. We expect the CIA to conduct World War II: ‘‘That four great nations, generation of young people around the interrogations in a manner that is flushed with victory and stung with in­ world being recruited by Osama bin fully consistent not only with the De­ jury stay the hand of vengeance and Laden and al-Qaida. Authorizing indefi­ tainee Treatment Act and the War voluntarily submit their captive en­ nite detention of anybody the Govern­ Crimes Act, but with all of our obliga­ emies to the judgment of the law is one ment designates, without any pro­ tions under Common Article 3 of the of the most significant tributes that ceeding or without any recourse, put­ Geneva Conventions. Power ever has paid to Reason.’’ He ting them into the secret prisons we Finally, I note that there has been closed the Nuremberg trials about condemned during the Cold War, is opposition to this legislation from which Senator DODD spoke earlier by what our worse critics claim the some quarters, including the New York saying: ‘‘Of one thing we may be sure. United States would do. That is not Times editorial page. Without getting The future will never have to ask, with what American values, our traditions, into a point-by-point rebuttal here on misgiving, ‘What could the Nazis have and our rule of law would have us do.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.125 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10415 This is not just a bad bill, this is truly law and to the U.S. military abiding by the essence in August and early Sep­ a dangerous bill. its Geneva obligations might be draw­ tember 2001 when the 9/11 attacks could I have been asking Secretary Rums­ ing to a close. Despite the resistance of still have been prevented. This admin­ feld’s question for the last several the Vice President and the administra­ istration ignored warnings of a coming weeks: whether our actions are elimi­ tion, the new Army Field Manual ap­ attack and even proposed cutting the nating more of our enemies than are pears to outlaw several of what the Ad­ antiterror budget on September 10, the being created. But now we understand ministration euphemistically calls day before the worst foreign terrorist that we are creating more enemies ‘‘aggressive’’ tactics and that much of attack on U.S. soil in our history. This than we are eliminating. Our intel­ the world regards as torture and cruel administration was focused on Star ligence agencies agree that the global and degrading treatment. In rejecting Wars, not terrorism. Time was of the jihadist movement is spreading and the Kennedy amendment today, the essence when Osama bin Laden was adapting; it is ‘‘increasing in both Senate has turned away from the wise trapped in Tora Bora. But this admin­ number and geographic dispersion.’’ We counsel and judgment of military pro­ istration was more interested in going are putting ourselves more at risk. fessionals. Of course, the President in after Sadaam Hussein, who the Presi­ ‘‘If this trend continues,’’ our intel­ his signing statement already under­ dent recently admitted had ‘‘nothing’’ ligence agencies say, that is, if we do mined enactment of the antitorture to do with 9/11. not wise up and change course and law. After 5 years of this administration’s adopt a winning new strategy, ‘‘threats The administration is now obtaining unilateral actions that have left us less to U.S. interests at home and abroad license—before, they just did it quietly safe, time is now of the essence to take will become more diverse, leading to and against the law and on their own real steps to keep us safe from ter­ increasing attacks worldwide.’’ At­ say-so, but now they are obtaining li­ rorism. Real steps like those included tacks have been increasing worldwide cense—to engage in additional harsh in the Real Security Act, S. 3875. We over the last 5 years of these failing techniques that the rest of the world should be focusing on getting the ter­ policies and are, according to the judg­ will see as abusive, as cruel, as degrad­ rorists and securing the nuclear mate­ ment of our own, newly reconstituted ing, and even as torture. Fortunately, rial that this administration has al­ intelligence agencies, likely to in­ a growing number of our own people lowed for the last 5 years to be unac­ crease further in the days and months see it that way, too. counted for around the world. We and years ahead. The intelligence agen­ What is being lost in this debate is should be doing the things Senator cies go on to note ominously that ‘‘new any notion of accountability and the KERRY and others are talking about, jihadist networks and cells, with anti- guiding principles of American values such as strengthening our special American agendas, are increasingly and law. Where are the facts of what forces and winning the peace in Af­ likely to emerge’’ and further that the has been done in the name of the ghanistan, where the Taliban has re­ ‘‘operational threat will grow,’’ par­ United States? Where are the legal jus­ grouped and is growing in strength. ticularly abroad ‘‘but also in the home­ tifications and technicalities the ad­ Instead, the President and the Re­ land.’’ ministration’s lawyers have been seek­ publican Senate leadership call for This is truly chilling. The Bush-Che­ ing to exploit for 5 years? The Repub­ rubberstamping more flawed White ney administration not only failed to lican leadership’s legislation strips House proposals just in time for the stop 9/11 from happening, but for 5 away all accountability and erodes our runup to another election and for the years they have failed to bring Osama most basic national values without so fundraising appeals to go out. bin Laden to justice, even though they much as an accounting of these facts I had hoped that this time, for the had him cornered at Tora Bora. They and legal arguments. Senator ROCKE­ first time, even though the Senate is yanked the special forces out of there FELLER’s amendment to incorporate controlled by the President’s party, we to send them into Iraq. We have wit­ some accountability in the process could act as an independent branch of nessed the growth of additional en­ through oversight of the CIA interroga­ the Government and serve as a check emies. tion program was unfortunately re­ on this administration. After this de­ And what do our intelligence agen­ jected by the Republican leadership in bate and the rejection of all amend­ cies suggest is the way out of this dan­ the Senate. ments intended to improve this meas­ gerous quagmire? The National Intel­ Secrecy for all time is to be the Re­ ure, I see that day has long passed. I ligence Estimate suggests we have to publican rule of the day. Congressional will continue to speak out. That is my ‘‘go well beyond operations to capture oversight is no more. Checks and bal­ privilege as a Senator. But I weep for or kill terrorist leaders,’’ and we must ances are no more. The fundamental our country and for the American val­ foster democratic reforms. When Amer­ check that was last provided by the Su­ ues, the principles on which I was ica can be seen abandoning its basic preme Court is now to be taken away. raised and which I took a solemn oath American democratic values, its This is wrong. This should be unconsti­ to uphold. I applaud those Senators checks and balances, its great and won­ tutional. It is certainly unconscion­ who stood up several times on the floor derful legal traditions, and can be seen able. This is certainly not the action of today and voted to uphold the best of as becoming more autocratic and less any Senate in which I have served. It is American values. accountable, how will that foster not worthy of the United States of Going forward, the bill departs even democratic reforms elsewhere? ‘‘Do as I America. What we are saying is one more radically from our most funda­ say and not as I do’’ is a model that has person will make all of the rules; there mental values. And provisions that never successfully inspired peoples will be no checks and balances. There were profoundly troubling a week ago around the world, and it doesn’t inspire will be no dissent, and there will be no­ when the Armed Services Committee me. body else’s view, and we will remove, marked up the bill have gotten much The administration has yet to come piece by piece, every single law that worse in the course of closed-door revi­ clean to the Congress or the American might have allowed checks and bal­ sions over the past week. For example, people in connection with the secret ances. the bill has been amended to eliminate legal justifications it has generated We are rushing through legislation habeas corpus review even for persons and secret practices it has employed in that would have a devastating effect on inside the United States, and even for detaining and interrogating hundreds, our security and our values. I implore persons who have not been determined if not thousands, of people. Even they Senators to step back from the brink to be enemy combatants. It has moved cannot dismiss the practices at Guan­ and think about what we are doing. from detention of those who are cap­ tanamo as the actions of a few ‘‘bad ap­ The President recently said that tured having taken up arms against ples.’’ ‘‘time is of the essence’’ to pass legisla­ the United States on a battlefield to With Senate adoption of the tion authorizing military commissions. millions of law-abiding Americans that antitorture amendment last year and Time was of the essence when this ad­ the Government might suspect of sym­ the recent adoption of the Army Field ministration took control in January pathies for Muslim causes and who Manual, I had hoped that 5 years of ad­ 2001 and did not act on the dire warn­ knows what else—without any avenue ministration resistance to the rule of ings of terrorist action. Time was of for effective review.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.128 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10416 CONGRESSIONAL RECORD — SENATE September 28, 2006 Remember, we are giving a blank The habeas corpus secures every man here, ing those rationales and programs se­ check to a Government whose incom­ alien or citizen, against everything which is cret from Congress. The administration petence was demonstrated in historic not law, whatever shape it may assume. does not seem to want clarity when it dimensions by the lack of preparation Jefferson said on another occasion: refuses even to tell Congress what its in response to Hurricane Katrina. This I would rather be exposed to the inconven­ understanding of the law is following is the same Government which, in its iences attending too much liberty than to the withdrawal of a memo that said the fight against terrorism, has had Sen­ those attending too small a degree of it. President could authorize and immu­ ator KENNEDY and Congressman LEWIS With this bill, the Senate reverses nize torture. That memo was with­ on terrorist watch lists, and could not that profound judgment of history, drawn because it could not withstand get them off. This is a Government chooses against liberty, and succumbs the light of day. which repeatedly releases confidential to fear. It seems the only clarity this admin­ family information about our Armed When former Secretary of State istration wants is a clear green light Forces and veterans. It is a Govern­ Colin Powell wrote last week of his from Congress to do whatever it wants. ment which just refuses to admit any concerns with the administration’s That is not clarity. That is immunity mistakes or to make any corrections bill, he wrote about doubts concerning from crime. I cannot vote for that. but regards all of its representatives, our ‘‘moral authority in the war That is what the current legislation from Donald Rumsfeld to Michael against terrorism.’’ This General, would give to the President on interro­ Brown, as doing a ‘‘heckuva job.’’ former head of the Joint Chiefs of Staff gation techniques and on military com­ The proponents of this bill talk about and former Secretary of State, was missions. Justice O’Connor reminded sending messages. What message does right. Now we have heard from a num­ the nation before her retirement that it send to the millions of legal immi­ ber of current and former diplomats, even war is not a ‘‘blank check’’ when grants living in America, participating military lawyers, Federal judges, law it comes to the rights of Americans. in American families, working for professors and law school deans, the The Senate should not be a American businesses, and paying American Bar Association, and even rubberstamp for policies that undercut American taxes? Its message is that the first President Bush’s Solicitor America’s values. our Government may at any minute General, Kenneth Starr, that they have In reality, we already have clarity. pick them up and detain them indefi­ grave concerns with the habeas corpus Senior military officers tell us they nitely without charge, and without any stripping provisions of this bill. know what the Geneva Conventions re­ access to the courts or even to military I agree with Mr. Starr that we should quire, and the military trains its per­ tribunals, unless and until the Govern­ not suspend—and we should certainly sonnel according to these standards. ment determines that they are not not eliminate—the Great Writ. I also We have never had trouble urging other enemy combatants—a term that the agree with more than 300 law profes­ countries around the world to accept bill now defines in a tortured and sors, who described an earlier, less ex­ and enforce the provisions of the Gene­ unprecedentedly broad manner. And treme version of the habeas provisions va Conventions. There was enough that power and any errors cannot be re­ of this bill as ‘‘unwise and contrary to clarity for that. What the administra­ viewed or corrected by a court. What the most fundamental precepts of tion appears to want, instead, is to use message does that send about abuse of American constitutional traditions.’’ new legislative language to create power? What message does that send to And I agree with more than 30 former loopholes and to narrow our obliga­ the world about America’s freedoms? U.S. Ambassadors and other senior dip­ tions not to engage in cruel, degrading, Numerous press accounts have lomats, who say that eliminating ha­ and inhuman treatment. quoted administration officials who be­ In fact, the new legislation muddies beas corpus for aliens detained by the lieve that a significant percentage of the waters. It saddles the War Crimes those detained at Guantanamo have no United States will harm our interests Act with a definition of cruel or inhu­ connection to terrorism. In other abroad, and put our own military, dip­ man treatment so oblique that it ap­ words, the Bush-Cheney administration lomatic, and other personnel stationed pears to permit all manner of cruel and has been holding for several years, and abroad at risk. We cannot spread a extreme interrogation techniques. Sen­ message of freedom abroad if our mes­ intends to hold indefinitely without ator MCCAIN said this weekend that trial or any recourse to justice, a sub­ sage to those who come to America is some techniques like waterboarding stantial number of innocent people who that they may be detained indefinitely and induced hypothermia would be were turned in by anonymous bounty without any recourse to justice. banned by the proposed law. But Sen­ In the wake of the 9/11 attacks, and hunters or picked up by mistake in the ator FRIST and the White House dis­ fog of war or as a result of a tribal or in the face of the continuing terrorist avowed his statements, saying that personal vendetta. The most important threat, now is not the time for the they preferred not to say what tech­ purpose of habeas corpus is to correct United States to abandon its prin­ niques would or would not be allowed. errors like that—to protect the inno­ ciples. Admiral Hutson was right to That is hardly clarity; it is deliberate cent. It is precisely to prevent such point out that when we do, there would confusion. abuses that the Constitution prohibits be little to distinguish America from a Into that breach, this legislation the suspension of the writ of habeas ‘‘banana republic’’ or the repressive re­ throws the administration’s solution to corpus ‘‘unless when in Cases of Rebel­ gimes against which we are trying to all problems: more Presidential power. lion or Invasion the public Safety may rally the world and the human spirit. It allows the administration to promul­ require it.’’ But court review has now Now is not the time to abandon Amer­ gate regulations about what conduct embarrassed the Bush administration, ican values, to shiver and quake, to would and would not comport with the as the U.S. Supreme Court has three rely on secrecy and torture. Those are Geneva Conventions, though it does times rejected its lawyers’ schemes. ways of repression and oppression, not not require the President to specify And, so how does the administration the American way. which particular techniques can and respond? It insists that there be no We need to pursue the war on terror cannot be used. This is a formula for more judicial check on its actions and with strength and intelligence, but we still fewer checks and balances and for errors. need to uphold American ideals. The more abuse, secrecy, and power-grab­ When the Senate accedes to that de­ President says he wants clarity as to bing. It is a formula for immunity for mand, it abandons American principles the meaning of the Geneva Conven­ past and future abuses by the Execu­ and all checks on an imperial Presi­ tions and the War Crimes Act. Of tive. dency. The Senator from Vermont will course, he did not want clarity when I worked hard, along with many oth­ not be a party to retreat from Amer­ his administration was using its twist­ ers of both parties, to pass the current ica’s constitutional values. Vermonters ed interpretation of the law to author­ version of the War Crimes Act. I think don’t retreat. ize torture and cruel and inhumane the current law is a good law, and the Senator SMITH, speaking this morn­ treatment of detainees. He did not concerns that have been raised about it ing about the habeas provisions of this want clarity when spying on Ameri­ could best be addressed with minor ad­ bill, quoted Thomas Jefferson, who cans without warrants. And he cer­ justments, rather than with sweeping said: tainly did not want clarity while keep­ changes.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.130 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10417 In 1996, working with the Department graft into the War Crimes Act. Despite wanted to hear. It is only one of many of Defense, Congress passed the War the President’s calls for clarity, the such documented cases of bad informa­ Crimes Act to provide criminal pen­ new provisions are so purposefully am­ tion resulting from torture. We gain alties for certain war crimes com­ biguous that we cannot know for sure nothing from allowing such informa­ mitted by and against Americans. The whether they are covered. If the Abu tion. next year, again with the Pentagon’s Ghraib abuses had come to light after The military commissions legislation support, Congress extended the War the perpetrators left the military, they departs in other unfortunate ways from Crimes Act to violations of the base­ might not have been able to be brought the Warner-Levin bill. Early this week, line humanitarian protections afforded to justice under the administration’s apparently at the White House’s re­ by Common Article 3 of the Geneva formulation. quest, Republican drafters added a Conventions. Both measures were sup­ The President and the Congress breathtakingly broad definition of ‘‘un­ ported by a broad bipartisan consensus, should not be in the business of immu­ lawful enemy combatant’’ which in­ and I was proud to sponsor the 1997 nizing people who have broken the law cludes people—citizens and noncitizens amendments. and made us less safe. If we lower our alike—who have ‘‘purposefully and ma­ The legislation was uncontroversial standards of domestic law to allow out­ terially supported hostilities’’ against for a good reason. As I explained at the rageous conduct, we can do nothing to the United States or its allies. It also time, the purpose and effect of the War stop other countries from doing the includes people determined to be un­ Crimes Act as amended was to provide same. This change in our law does not lawful enemy combatants by any for the implementation of America’s prevent other countries from pros­ ‘‘competent tribunal’’ established by commitment to the basic international ecuting our troops and personnel for the President or the Secretary of De­ standards we subscribed to when we violations of the Geneva Convention if fense. So the Government can select ratified the Geneva Conventions in they choose; it only changes our do­ any person, including a United States 1955. Those standards are truly uni­ mestic law. But it could give other citizen, whom it suspects of supporting versal: They condemn war criminals countries the green light to change hostilities—whatever that means—and whoever and wherever they are. their laws to allow them to treat our begin denying that person the rights That is a critically important aspect personnel in cruel and inhuman ways. and processes guaranteed in our coun­ of the Geneva Conventions and our own Let me be clear. There is no problem try. The implications are chilling. I am sorry the Republican leadership War Crimes Act. When we are dealing facing us about overzealous use of the passed up the chance to consider and with fundamental norms that define War Crimes Act by prosecutors. In fact, pass bipartisan legislation that would the commitments of the civilized as far as I can tell, the Ashcroft Jus­ have made us safer and help our fight world, we cannot have one rule for us tice Department and the Gonzales Jus­ on terrorism both by giving us the and one for them, however we define tice Department have yet to file a sin­ tools we need and by showing the world ‘‘us’’ and ‘‘them.’’ As Justice Jackson gle charge against anyone for a viola­ the values we cherish and defend. I will said at the Nuremberg tribunals, ‘‘We tion of the War Crimes Act. Not only not participate in a legislative retreat are not prepared to lay down a rule of have they never charged American per­ out of weakness that undercuts every­ criminal conduct against others which sonnel under the act, they have never thing this Nation stands for and that we would not be willing to have in­ used it to charge terrorists either. This bill does not clarify the War makes us more vulnerable and less se­ voked against us.’’ cure. In that regard, I am disturbed that Crimes Act. It authorizes and immu­ nizes abhorrent conduct that violates The Senator from Vermont, con­ the legislation before us narrows the sistent with my oath of office and my scope of the War Crimes Act to exclude our basic ideals. Perhaps that is why more than 40 religious organizations conscience and my commitment to the certain violations of the Geneva Con­ people of Vermont and the Nation, can­ ventions and, perhaps more disturb­ and human rights groups wrote to urge the Senate to take more time to con­ not—I will not—support this bill. ingly, to retroactively immunize past The PRESIDING OFFICER (Mr. sider the effects of this legislation on violations. Neither the Congress nor CHAFEE). Who yields time? The Sen­ the Department of Defense had any our safety, security, and commitment ator from Michigan. problem with the War Crimes Act when to the rule of law, and to vote against Mr. LEVIN. Mr. President, I believe I we were focused on using it to pros­ it if the serious problems in the bill are have 4 minutes allocated. ecute foreign perpetrators of war not corrected. The PRESIDING OFFICER. There is The proposed legislation would also crimes. I am concerned that this is yet 31⁄2 minutes remaining. another example of this administration allow the admission of evidence ob­ Mr. LEVIN. Mr. President, less than 2 overreaching, disregarding the law and tained through cruel and inhuman weeks ago, the Armed Services Com­ our international obligations, and treatment into military commission mittee voted on a military commis­ seeking to immunize others to break proceedings. This provision would once sions bill. The committee endorsed the law. It also could well prevent us again allow this administration to that bill on a bipartisan basis with a from prosecuting rogues who we all avoid all accountability for its mis­ 15-to-9 vote. Yesterday, 43 of us voted agree were out of line, like the soldiers guided policies which have contributed for the same bill on the Senate floor. who mistreated prisoners at Abu to the rise of a new generation of ter­ The bill would have provided the ad­ Ghraib. rorists who threaten us. Not only ministration with the tools that it The President said on May 5, 2004 would the military commissions legis­ needed to detain enemy combatants, about prisoner mistreatment at Abu lation before us immunize those who conduct interrogations, and prosecute Ghraib: violated international law and stomped detainees for any war crimes they may on basic American values, but it would have committed. I view those practices as abhorrent. allow them then to use the evidence Unfortunately, that bill went off the He continued: obtained in violation of basic prin­ tracks after it was approved by the But in a democracy, as well, those mis­ ciples of fairness and justice. Armed Services Committee. Instead of takes will be investigated, and people will be Allowing in this evidence would vio­ bringing to the Senate floor the bill brought to justice. late our basic standards of fairness that had been adopted by the Armed The Republican leader of the Senate without increasing our security. Maher Services Committee on a bipartisan said on the same day: Arar, the Canadian citizen arrested by basis, we are voting now on a dramati­ I rise to express my shock and condemna­ our government on bad intelligence cally different bill based on changes tion of these despicable acts. The persons and sent to Syria to be tortured, con­ made at the insistence of an adminis­ who carried them must face justice. fessed to attending terrorist training tration that has been relentless in its Many of the despicable tactics used camps. A Canadian commission inves­ determination to legitimize the abuse in Abu Ghraib—the use of dogs, forced tigating the case found that his confes­ of detainees, to protect those who au­ nudity, humiliation of various kinds— sions had no basis in fact. They merely thorize the abuses, and to distort mili­ do not appear to be covered by the nar­ reflected that he was being tortured, tary commission procedures in order to row definitions this legislation would and he told his torturers what they ensure criminal convictions.

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.131 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10418 CONGRESSIONAL RECORD — SENATE September 28, 2006 For example, the bill before us for its 900-year history, the writ of ha­ sonably believed to be lawful at the inexplicably fails to prohibit the use of beas corpus has always served as a time they were undertaken. statements or testimony obtained means of making the sovereign account This bill, however, goes far beyond through cruel and inhuman treatment for its actions. By depriving detainees protecting the front line interrogators as long as those statements or testi­ of the opportunity to demonstrate that and agents who believed that their ac­ mony was obtained before December 30, they were detained in error, this bill tions were lawful: it changes the law to 2005. not only deprives individuals of a crit­ ensure that the administration offi­ The argument has been made that ical right deeply embedded in Amer­ cials who provided the authorization the bill before us prohibits the use of ican law, it also helps ensure that the and knew or should have known that statements that are obtained through administration will not be held to ac­ there was no legal basis for that au­ torture. That was never in contention. count for the illegal or abusive treat­ thorization, will not be held account­ The problem is that it permits the use ment of detainees. able for their actions. of statements obtained through cruel Indeed, the court-stripping provision Last year, this Congress took an im­ and inhuman treatment that doesn’t in the bill does far more than just portant stand for the rule of law by en­ meet the strict definition of torture as eliminate habeas corpus rights for de­ acting the McCain amendment, which long as those statements were obtained tainees. It also prohibits the U.S. prohibits the cruel, inhuman, or de­ before December 30, 2005. courts from hearing or considering grading treatment of detainees in the This is a compromise on the issue of ‘‘any other action against the United custody of any U.S. agency anywhere cruelty—an issue on which there States or its agents relating to any as­ in the world. That landmark provision should be no compromise by our Nation pect of the detention, treatment, or is at risk of being rendered meaning­ less, if we establish rules ensuring that or by the Senate. If we compromise on trial’’ of an alien detainee. By depriv­ ing detainees of access to our courts, it can never be enforced. that, we compromise at our peril. The We need to provide the administra­ even if they have been subject to tor­ men and women who represent us in tion with the tools that are needed to uniform will be in much greater danger ture or to cruel and inhuman treat­ prosecute unlawful enemy combatants if we compromise on the issue of state­ ment, this provision seeks to ensure for any war crimes that they may have ments obtained through cruelty and in­ that the details of administration poli­ committed. However, we should not do human treatment. cies that appear to have violated our so in a way that is inconsistent with A compromise on this issue endan­ obligations under U.S. and inter­ our own values as a Nation. We need to gers our troops because if other nations national law will never be aired in practice what we preach to the rest of apply the same standard and allow court. the world. statements or confessions obtained A number of other provisions in the The bill before us will put our own through cruelty to be used at so-called bill before us appear to be directed at troops who might be captured in future trials of our citizens, we will have lit­ the same objective. For example, sec­ conflicts at risk if other countries de­ tle ground to stand on in our objecting tion 5 of the bill provides that no per­ cide to apply similar standards to us, is to them. son—whether that person is an enemy likely to result in the reversal of con­ This bill also does many other things combatant or anybody else—may in­ victions on appeal, and is inconsistent which are dramatic changes from the voke the Geneva Conventions as a with American values. For these rea­ bill that came out of the Armed Serv­ source of rights in a habeas corpus or sons, I will vote no on final passage. ices Committee. For instance, the bill other proceeding in any court of the The PRESIDING OFFICER. The mi­ would authorize the use of evidence United States. Section 948b(g) of the nority leader. seized without a search warrant or military commissions part of the bill Mr. REID. Mr. President, it is my un­ other authorization, even if that evi­ would similarly provide that no person derstanding I am to speak and the ma­ dence was seized from U.S. citizens in­ subject to trial by military commis­ jority leader will speak and then we side the United States in clear viola­ sion may invoke the Geneva Conven­ will vote; is that true? tion of the U.S. Constitution. tions as a source of rights. These provi­ The PRESIDING OFFICER. That is Both the committee bill and the bill sions, like the habeas corpus provision, correct. before us provide the executive branch appear to be designed to ensure that Mr. REID. Mr. President, on a bright with the tools it needs to hold enemy administration policies that may have and sunny September morning 5 years combatants accountable for any war violated our obligations under U.S. and ago, history changed in an instant. Our crimes they may have committed. On international law will never be aired in Nation was attacked. Nearly 3,000 of this issue we are in agreement. We all court. our citizens were murdered, and our agree that people who are responsible Other provisions in the bill narrow lives as we knew them were forever for the terrible events of September 11 the range of abuses that are covered by changed. the War Crimes Act. As a result of The family members of those who and other terrorist attacks around the died that day and we, their fellow these amendments, some actions that world should be brought to justice. Americans, have been waiting 5 years were war crimes at the time they took However, the bill before us differs for those who masterminded that out­ place will not be prosecutable. Indeed, dramatically from the Senate Armed rageous terrorist attack to be brought Services Committee bipartisan-ap­ because of a complex definition in the to justice. Osama bin Laden, a man proved bill, particularly when it comes bill, some actions that violated the whom we have seen on videotape brag­ to the accountability of the adminis­ War Crimes Act at the time they took ging and laughing about his role in tration for policies and actions leading place and will violate that act if they conceiving this deed, remains at large 5 to the abuses of detainees. take place in the future will not be years later. The American people are The bill before us contains provision prosecutable. In other words, this bill justifiably frustrated that he has not after provision designed to ensure that carves out a window to immunize ac­ been caught. They have a right to ask the administration will not be held ac­ tions of this administration from pros­ whether our military and intelligence countable for the abuse of prisoners in ecution under the War Crimes Act. resources were unwisely diverted from U.S. custody, for violations of U.S. law, The administration and its allies that solemn task. or for the use of such tactics that have have argued that these provisions are But some of Osama bin Laden’s lieu­ turned much of the world against us. necessary to protect CIA interrogators tenants were captured overseas years Over the last 2 days, we have debated from prosecution for actions that they ago. There is no disagreement whatso­ the habeas corpus provision in the bill. believed to be lawful and authorized at ever between Republicans and Demo­ Most of that debate has focused on the the time they were undertaken. How­ crats on the need to bring these people writ of habeas corpus as an individual ever, we addressed that problem with to justice. We all want to make sure right to challenge the lawfulness of de­ the enactment of the Detainee Treat­ the President has the tools he needs to tention. The writ of habeas corpus does ment Act last year. That law provides make this happen. serve that purpose. a defense to any U.S. agent who en­ For 5 years, Democrats stood ready But the writ of habeas corpus has al­ gaged in specific operational practices to work with the President and the Re­ ways served a second purpose as well: that were officially authorized or rea­ publican Congress to establish sound

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.132 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10419 procedures for military tribunals. Mr. The world is beginning to doubt the pens, we will be back here debating President, why do you think the Demo­ moral basis of our fight against ter­ how to bring terrorists to justice. cratic ranking member of the Judici­ rorism. To redefine Common Article 3 The families of the 9/11 victims and ary Committee has been so outraged at would add to those doubts. Further­ the Nation have been waiting 5 years what has been going on? He is outraged more, it would put our own troops at for the perpetrators of these attacks to because as the top Democrat on the Ju­ risk. be brought to justice. They should not diciary Committee, he introduced a bill Second, this bill authorizes a vast ex­ have to wait longer. We should get this in 2002 to solve the problems that are pansion of the President’s power to de­ right now; we should do it right. We now before the Senate—4 years ago. No tain people, even U.S. citizens, indefi­ are not doing so by passing this bill. wonder he is incensed. nitely and without charge. There are The national security policies of this Unfortunately, President Bush chose no procedures for doing so. There is no administration and this Republican to ignore Senator LEAHY and the Con­ due process provided, and no time limit Congress may have been tough, but gress and ignore the advice of uni­ on the detention is set. they certainly haven’t been smart. The formed military professionals. He set At the same time, the bill would de­ American people are paying a tremen­ up a flawed and imbalanced military prive Federal judges of the power to re­ dous price for their mistakes. History tribunal system that failed to pros­ view the legality of many such deten­ will judge our actions here today. I am ecute a single terrorist. Not surpris­ tions. Judges—all judges—would have convinced that future generations will ingly, it was ruled unconstitutional by no power to review the legality of view passage of this bill as a grave the U.S. Supreme Court. many such detentions. This is true error. I will be recorded as voting Forced by the Court decision to ask even in the case of a lawful permanent against this piece of legislation. Congress for help, the Bush administra­ resident arrested and held in the Mr. President, I dislike, I find repul­ tion initially asked us, the Congress, to United States, and even if that person sive, and I do not condone these evil rubberstamp basically the same system happens to be completely innocent. and horrible people, these terrorists. that the Supreme Court struck down. The Framers of our Constitution un­ They should be brought before the bar Their proposal for one-sided trials and derstood the need for checks and bal­ of justice and given what they deserve. murky interrogation rules was opposed ances. This bill has thrown that prin­ For 5 years, that has not been the case. by such well-respected leaders as GEN ciple right out the window. We Democrats want terrorists brought Colin Powell and former Secretary of Many of the worst provisions were to justice quickly and in a way in keep­ State George Shultz, both Republicans, not in the committee-reported bill and ing with our Constitution and, in this and many others, Democrats and Re­ were not in the compromise announced manner, give honor to the sacrifices publicans. last Friday. They were added over the made by American patriots in days I must say, a handful of principled weekend. Remember, there was a bill past. I yield the floor. Republican Senators, led by the chair­ that was put before the Senate last The PRESIDING OFFICER. The ma­ man of the Armed Services Committee, Thursday, and from Thursday to Mon­ jority leader is recognized. Senator WARNER, Senator GRAHAM day, it changed after, I say, back-room from South Carolina, and Senator Mr. FRIST. Mr. President, for the meetings with White House lawyers. past month we have debated how best MCCAIN from Arizona stepped forward We have tried to improve this legisla­ and forced the White House to back to keep America safe. On one point I tion. My friend, the ranking member of know all of our colleagues agree is that down from the worst elements of its ex­ the Armed Services Committee, Sen­ treme proposal. I appreciate the posi­ Khalid Sheikh Mohammed should be ator CARL LEVIN, proposed to sub­ tion of those Republican Senators, the brought to justice. He should be pros­ stitute the bipartisan bill reported by ecuted for masterminding the mass names I have given you. the Armed Services Committee. That I repeat, Mr. President, I admire murders of almost 3,000 Americans on amendment was rejected basically on a their courage. I appreciate the im­ September 11. I know the American party-line vote. provements they managed to make in people and the families of those vic­ Senators SPECTER and LEAHY, the this bill. But for them what is before us tims share that goal. two Members who are responsible for would be a lot worse. Every terrorist should be held ac­ However, since those Senators an­ the Judiciary Committee, the chair­ countable for their crimes against the nounced their agreement with the ad­ man and ranking member, offered an innocent, against our enduring free­ ministration last Friday, the com­ amendment to restore the right of judi­ doms, against the values that we all promise has become much worse. The cial review. This amendment was re­ share. Unfortunately, due to the Su­ bill before us now looks more and more jected on a party-line vote. preme Court’s decision in Hamdan v. like the administration bill these Sen­ And Senator ROCKEFELLER, the rank­ Rumsfeld, prosecutions of suspected ators fought so hard against. ing Democrat on the Intelligence Com­ terrorists like Khalid Sheikh Moham­ I believe the bill approved by the mittee, offered an amendment to im­ med are at a stand-still, and these Senate Armed Services Committee prove congressional oversight of the prosecutions will remain at a stand- would have given the President all nec­ CIA programs. This amendment was re­ still until we act to authorize military essary authority. It was supported by jected on a party-line vote. commissions to try these suspected the chairman and a bipartisan major­ Senator KENNEDY offered an amend­ terrorists. ity of that committee, as well as our ment to clarify that inhumane interro­ In addition to halting prosecutions of Nation’s uniformed military lawyers. gation tactics prohibited by the Army suspected terrorists, the Hamdan deci­ The bill before us diverges from the Field Manual could not be used on sion has undermined effective interro­ committee bill in many ways, but let Americans or on others. That amend­ gation methods employed by our intel­ me talk about two. ment was rejected on a party-line vote. ligence community. These methods First, it makes less clear that the Senator BYRD, who has seen things yield critical information that allows United States will abide by our obliga­ come and go in this body and who has us to prevent terrorist attacks and to tions under the Geneva Conventions. been a Member of Congress for more save innocent lives. The information The President says the United States than 50 years, offered an amendment to provided by these enemy combatants is does not engage in torture and there sunset military commissions so Con­ our primary source—our best source— should be no ambiguity on that point, gress would be required to reconsider of reliable intelligence. but this bill gives the President au­ this far-reaching authority after 5 Past interrogations have guided us to thority to reinterpret our obligations years of having it in effect. That com­ the precise location of terrorists in hid­ and limits judicial oversight of that monsense, realistic amendment was re­ ing, explained how al-Qaida leaders process, putting our own troops at risk jected on a party-line vote. communicate with operatives in Iraq, on the battlefield. I personally believe, having been in a and identified voices in intercepted A four-star general, former Secretary few courtrooms, that this legislation is calls. Without this information, we of State, former Chairman of the Joint unconstitutional. It will certainly be fight a blind war. Chiefs of Staff, GEN Colin Powell, struck down by the Supreme Court in The bill we will vote on in a few min­ wrote: the years ahead, and when that hap­ utes addresses the concerns raised by

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.133 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10420 CONGRESSIONAL RECORD — SENATE September 28, 2006 the Hamdan decision. It provides the Domenici Lautenberg Santorum ‘‘IV. Trial Procedure ...... 949a legislative framework authorizing Ensign Lieberman Sessions ‘‘V. Sentences ...... 949s Enzi Lott Shelby military tribunals to prosecute sus­ ‘‘VI. Post-Trial Procedure and Re­ Frist Lugar Smith view of Military Commissions ..... 950a Graham Martinez pected terrorists. It ensures certain Specter ‘‘VII. Punitive Matters ...... 950p protections and rights for the accused Grassley McCain Stabenow Gregg McConnell ‘‘SUBCHAPTER I—GENERAL PROVISIONS such as the right to counsel and the Stevens Hagel Menendez Sununu ‘‘Sec. Hatch Murkowski right to exclude evidence obtained Talent Hutchison Nelson (FL) ‘‘948a. Definitions. through torture. Thomas Inhofe Nelson (NE) ‘‘948b. Military commissions generally. Thune At the same time, the bill recognizes Isakson Pryor ‘‘948c. Persons subject to military commis­ that because we are at war with a dif­ Johnson Roberts Vitter sions. ferent type of enemy, we should not try Kyl Rockefeller Voinovich ‘‘948d. Jurisdiction of military commissions. Warner terrorist detainees in the same way as Landrieu Salazar ‘‘948e. Annual report to congressional com­ our uniformed military or civilian NAYS—34 mittees. criminals. Akaka Dodd Levin ‘‘§ 948a. Definitions The bill also protects classified infor­ Baucus Dorgan Lincoln ‘‘In this chapter: Bayh Durbin Mikulski ‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) mation from terrorists who could ex­ Biden Feingold ploit it to plan another terrorist at­ Murray The term ‘unlawful enemy combatant’ Bingaman Feinstein Obama means— tack. Boxer Harkin Reed Byrd Inouye ‘‘(i) a person who has engaged in hostilities Finally, the bill allows key intel­ Reid or who has purposefully and materially sup­ Cantwell Jeffords Sarbanes ligence programs to continue while en­ Chafee Kennedy ported hostilities against the United States Schumer suring that our detention and interro­ Clinton Kerry Wyden or its co-belligerents who is not a lawful gation methods comply with both do­ Conrad Kohl enemy combatant (including a person who is mestic and international laws, includ­ Dayton Leahy part of the Taliban, al Qaeda, or associated ing Geneva Conventions Common Arti­ NOT VOTING—1 forces); or ‘‘(ii) a person who, before, on, or after the cle 3. Snowe date of the enactment of the Military Com­ The bottom line is the bill before us The bill (S. 3930), as amended, was missions Act of 2006, has been determined to allows us to bring terrorists to justice passed, as follows: be an unlawful enemy combatant by a Com­ through full and fair military trials S. 3930 batant Status Review Tribunal or another while preserving intelligence pro­ competent tribunal established under the au­ Be it enacted by the Senate and House of Rep­ thority of the President or the Secretary of grams—intelligence programs that resentatives of the United States of America in Defense. have disrupted terrorist plots and Congress assembled, ‘‘(B) CO-BELLIGERENT.—In this paragraph, saved countless American lives. SECTION 1. SHORT TITLE; TABLE OF CONTENTS. Our national security demands that the term ‘co-belligerent’, with respect to the (a) SHORT TITLE.—This Act may be cited as United States, means any State or armed we pass this bill tonight. We need this the ‘‘Military Commissions Act of 2006’’. force joining and directly engaged with the tool in the war on terror. In the 5 years (b) TABLE OF CONTENTS.—The table of con­ United States in hostilities or directly sup­ since 9/11 we have not suffered another tents for this Act is as follows: porting hostilities against a common enemy. terrorist attack on U.S. soil. One rea­ Sec. 1. Short title; table of contents. ‘‘(2) LAWFUL ENEMY COMBATANT.—The term son we have remained safe is by stay­ Sec. 2. Construction of Presidential author­ ‘lawful enemy combatant’ means a person ing on the offense against emerging ity to establish military com­ who is— threats. This bill is another offensive missions. ‘‘(A) a member of the regular forces of a Sec. 3. Military commissions. strike against terrorism. State party engaged in hostilities against Sec. 4. Amendments to Uniform Code of the United States; For the safety and security of the Military Justice. ‘‘(B) a member of a militia, volunteer American people, Mr. President, I urge Sec. 5. Treaty obligations not establishing corps, or organized resistance movement be­ my colleagues to join us in supporting grounds for certain claims. longing to a State party engaged in such the Military Commission Act of 2006. Sec. 6. Implementation of treaty obliga­ hostilities, which are under responsible com­ Mr. President, I yield the floor. tions. mand, wear a fixed distinctive sign recogniz­ The PRESIDING OFFICER. The Sec. 7. Habeas corpus matters. able at a distance, carry their arms openly, Sec. 8. Revisions to Detainee Treatment Act question is on the engrossment and and abide by the law of war; or of 2005 relating to protection of ‘‘(C) a member of a regular armed force third reading of the bill. certain United States Govern­ who professes allegiance to a government en­ The bill was ordered to be engrossed ment personnel. gaged in such hostilities, but not recognized for a third reading and was read the Sec. 9. Review of judgments of military by the United States. third time. commissions. ‘‘(3) ALIEN.—The term ‘alien’ means a per­ The PRESIDING OFFICER. The Sec. 10. Detention covered by review of deci­ son who is not a citizen of the United States. question is, Shall the bill, as amended, sions of Combatant Status Re­ ‘‘(4) CLASSIFIED INFORMATION.—The term view Tribunals of propriety of pass? ‘classified information’ means the following: detention. ‘‘(A) Any information or material that has The yeas and nays have been ordered. SEC. 2. CONSTRUCTION OF PRESIDENTIAL AU­ been determined by the United States Gov­ The clerk will call the roll. THORITY TO ESTABLISH MILITARY ernment pursuant to statute, Executive The legislative clerk called the roll. COMMISSIONS. order, or regulation to require protection Mr. MCCONNELL. The following Sen­ The authority to establish military com­ against unauthorized disclosure for reasons ator was necessarily absent: the Sen­ missions under chapter 47A of title 10, of national security. United States Code, as added by section 3(a), ator from Maine (Ms. SNOWE). ‘‘(B) Any restricted data, as that term is may not be construed to alter or limit the Further, if present and voting, the defined in section 11 y. of the Atomic Energy authority of the President under the Con­ Act of 1954 (42 U.S.C. 2014(y)). NOWE Senator from Maine (Ms. S ) would stitution of the United States and laws of ‘‘(5) GENEVA CONVENTIONS.—The term ‘Ge­ have voted ‘‘yea.’’ the United States to establish military com­ neva Conventions’ means the international The PRESIDING OFFICER (Mr. missions for areas declared to be under mar­ conventions signed at Geneva on August 12, ALLEN). Are there any other Senators tial law or in occupied territories should cir­ 1949. cumstances so require. in the Chamber desiring to vote? ‘‘§ 948b. Military commissions generally SEC. 3. MILITARY COMMISSIONS. The result was announced—yeas 65, ‘‘(a) PURPOSE.—This chapter establishes (a) MILITARY COMMISSIONS.— nays 34, as follows: procedures governing the use of military (1) IN GENERAL.—Subtitle A of title 10, commissions to try alien unlawful enemy [Rollcall Vote No. 259 Leg.] United States Code, is amended by inserting combatants engaged in hostilities against YEAS—65 after chapter 47 the following new chapter: the United States for violations of the law of Alexander Burns Collins ‘‘CHAPTER 47A—MILITARY COMMISSIONS war and other offenses triable by military Allard Burr Cornyn ‘‘Subchapter commission. Allen Carper Craig Bennett Chambliss Crapo ‘‘I. General Provisions ...... 948a ‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS Bond Coburn DeMint ‘‘II. Composition of Military Com­ UNDER THIS CHAPTER.—The President is au­ Brownback Cochran DeWine missions ...... 948h thorized to establish military commissions Bunning Coleman Dole ‘‘III. Pre-Trial Procedure ...... 948q under this chapter for offenses triable by

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\CR\FM\G28SE6.134 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10421 military commission as provided in this lished under the authority of the President forces who is a member of the bar of a Fed­ chapter. or the Secretary of Defense that a person is eral court, or a member of the bar of the ‘‘(c) CONSTRUCTION OF PROVISIONS.—The an unlawful enemy combatant is dispositive highest court of a State, and who is certified procedures for military commissions set for purposes of jurisdiction for trial by mili­ to be qualified for duty under section 826 of forth in this chapter are based upon the pro­ tary commission under this chapter. this title (article 26 of the Uniform Code of cedures for trial by general courts-martial ‘‘(d) PUNISHMENTS.—A military commission Military Justice) as a military judge in gen­ under chapter 47 of this title (the Uniform under this chapter may, under such limita­ eral courts-martial by the Judge Advocate Code of Military Justice). Chapter 47 of this tions as the Secretary of Defense may pre­ General of the armed force of which such title does not, by its terms, apply to trial by scribe, adjudge any punishment not forbid­ military judge is a member. military commission except as specifically den by this chapter, including the penalty of ‘‘(c) INELIGIBILITY OF CERTAIN INDIVID­ provided in this chapter. The judicial con­ death when authorized under this chapter or UALS.—No person is eligible to act as mili­ struction and application of that chapter are the law of war. tary judge in a case of a military commis­ not binding on military commissions estab­ ‘‘§ 948e. Annual report to congressional com­ sion under this chapter if he is the accuser or lished under this chapter. mittees a witness or has acted as investigator or a ‘‘(d) INAPPLICABILITY OF CERTAIN PROVI­ counsel in the same case. ‘‘(a) ANNUAL REPORT REQUIRED.—Not later SIONS.—(1) The following provisions of this ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI­ than December 31 each year, the Secretary of title shall not apply to trial by military BILITY TO VOTE.—A military judge detailed Defense shall submit to the Committees on commission under this chapter: to a military commission under this chapter Armed Services of the Senate and the House ‘‘(A) Section 810 (article 10 of the Uniform may not consult with the members of the of Representatives a report on any trials Code of Military Justice), relating to speedy commission except in the presence of the ac­ conducted by military commissions under trial, including any rule of courts-martial cused (except as otherwise provided in sec­ this chapter during such year. relating to speedy trial. tion 949d of this title), trial counsel, and de­ ‘‘(b) FORM.—Each report under this section ‘‘(B) Sections 831(a), (b), and (d) (articles fense counsel, nor may he vote with the shall be submitted in unclassified form, but 31(a), (b), and (d) of the Uniform Code of members of the commission. may include a classified annex. Military Justice), relating to compulsory ‘‘(e) OTHER DUTIES.—A commissioned offi­ self-incrimination. ‘‘SUBCHAPTER II—COMPOSITION OF cer who is certified to be qualified for duty ‘‘(C) Section 832 (article 32 of the Uniform MILITARY COMMISSIONS as a military judge of a military commission Code of Military Justice), relating to pre­ ‘‘Sec. under this chapter may perform such other trial investigation. ‘‘948h. Who may convene military commis­ duties as are assigned to him by or with the ‘‘(2) Other provisions of chapter 47 of this sions. approval of the Judge Advocate General of title shall apply to trial by military commis­ ‘‘948i. Who may serve on military commis­ the armed force of which such officer is a sion under this chapter only to the extent sions. member or the designee of such Judge Advo­ provided by this chapter. ‘‘948j. Military judge of a military commis­ cate General. ‘‘(e) TREATMENT OF RULINGS AND PRECE­ sion. ‘‘(f) PROHIBITION ON EVALUATION OF FITNESS DENTS.—The findings, holdings, interpreta­ ‘‘948k. Detail of trial counsel and defense BY CONVENING AUTHORITY.—The convening tions, and other precedents of military com­ counsel. authority of a military commission under missions under this chapter may not be in­ ‘‘948l. Detail or employment of reporters and this chapter shall not prepare or review any troduced or considered in any hearing, trial, interpreters. report concerning the effectiveness, fitness, or other proceeding of a court-martial con­ ‘‘948m. Number of members; excuse of mem­ or efficiency of a military judge detailed to vened under chapter 47 of this title. The find­ bers; absent and additional the military commission which relates to his ings, holdings, interpretations, and other members. performance of duty as a military judge on precedents of military commissions under ‘‘§ 948h. Who may convene military commis­ the military commission. this chapter may not form the basis of any sions ‘‘§ 948k. Detail of trial counsel and defense holding, decision, or other determination of counsel a court-martial convened under that chap­ ‘‘Military commissions under this chapter ter. may be convened by the Secretary of Defense ‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) ‘‘(f) STATUS OF COMMISSIONS UNDER COM­ or by any officer or official of the United Trial counsel and military defense counsel MON ARTICLE 3.—A military commission es­ States designated by the Secretary for that shall be detailed for each military commis­ tablished under this chapter is a regularly purpose. sion under this chapter. constituted court, affording all the necessary ‘‘§ 948i. Who may serve on military commis­ ‘‘(2) Assistant trial counsel and assistant ‘judicial guarantees which are recognized as sions and associate defense counsel may be de­ tailed for a military commission under this indispensable by civilized peoples’ for pur­ ‘‘(a) IN GENERAL.—Any commissioned offi­ chapter. poses of common Article 3 of the Geneva cer of the armed forces on active duty is eli­ ‘‘(3) Military defense counsel for a military Conventions. gible to serve on a military commission commission under this chapter shall be de­ ‘‘(g) GENEVA CONVENTIONS NOT ESTAB­ under this chapter. tailed as soon as practicable after the swear­ LISHING SOURCE OF RIGHTS.—No alien unlaw­ ‘‘(b) DETAIL OF MEMBERS.—When convening ing of charges against the accused. ful enemy combatant subject to trial by a military commission under this chapter, ‘‘(4) The Secretary of Defense shall pre­ military commission under this chapter may the convening authority shall detail as mem­ scribe regulations providing for the manner invoke the Geneva Conventions as a source bers of the commission such members of the in which trial counsel and military defense of rights. armed forces eligible under subsection (a), as counsel are detailed for military commis­ in the opinion of the convening authority, ‘‘§ 948c. Persons subject to military commis­ sions under this chapter and for the persons are best qualified for the duty by reason of sions who are authorized to detail such counsel for age, education, training, experience, length ‘‘Any alien unlawful enemy combatant is such commissions. of service, and judicial temperament. No subject to trial by military commission ‘‘(b) TRIAL COUNSEL.—Subject to sub­ member of an armed force is eligible to serve under this chapter. section (e), trial counsel detailed for a mili­ as a member of a military commission when ‘‘§ 948d. Jurisdiction of military commissions tary commission under this chapter must such member is the accuser or a witness for be— ‘‘(a) JURISDICTION.—A military commission the prosecution or has acted as an investi­ ‘‘(1) a judge advocate (as that term is de­ under this chapter shall have jurisdiction to gator or counsel in the same case. try any offense made punishable by this fined in section 801 of this title (article 1 of ‘‘(c) EXCUSE OF MEMBERS.—Before a mili­ the Uniform Code of Military Justice) who— chapter or the law of war when committed tary commission under this chapter is as­ ‘‘(A) is a graduate of an accredited law by an alien unlawful enemy combatant be­ sembled for the trial of a case, the convening school or is a member of the bar of a Federal fore, on, or after September 11, 2001. authority may excuse a member from par­ ‘‘(b) LAWFUL ENEMY COMBATANTS.—Mili­ court or of the highest court of a State; and ticipating in the case. tary commissions under this chapter shall ‘‘(B) is certified as competent to perform not have jurisdiction over lawful enemy ‘‘§ 948j. Military judge of a military commis­ duties as trial counsel before general courts- combatants. Lawful enemy combatants who sion martial by the Judge Advocate General of violate the law of war are subject to chapter ‘‘(a) DETAIL OF MILITARY JUDGE.—A mili­ the armed force of which he is a member; or 47 of this title. Courts-martial established tary judge shall be detailed to each military ‘‘(2) a civilian who— under that chapter shall have jurisdiction to commission under this chapter. The Sec­ ‘‘(A) is a member of the bar of a Federal try a lawful enemy combatant for any of­ retary of Defense shall prescribe regulations court or of the highest court of a State; and fense made punishable under this chapter. providing for the manner in which military ‘‘(B) is otherwise qualified to practice be­ ‘‘(c) DETERMINATION OF UNLAWFUL ENEMY judges are so detailed to military commis­ fore the military commission pursuant to COMBATANT STATUS DISPOSITIVE.—A finding, sions. The military judge shall preside over regulations prescribed by the Secretary of whether before, on, or after the date of the each military commission to which he has Defense. enactment of the Military Commissions Act been detailed. ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject of 2006, by a Combatant Status Review Tri­ ‘‘(b) QUALIFICATIONS.—A military judge to subsection (e), military defense counsel bunal or another competent tribunal estab­ shall be a commissioned officer of the armed detailed for a military commission under

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.080 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10422 CONGRESSIONAL RECORD — SENATE September 28, 2006 this chapter must be a judge advocate (as so the military commission in the presence of ‘‘SUBCHAPTER IV—TRIAL PROCEDURE defined) who is— the military judge, the accused (except as ‘‘Sec. ‘‘(1) a graduate of an accredited law school provided in section 949d of this title), and ‘‘949a. Rules. or is a member of the bar of a Federal court counsel for both sides. ‘‘949b. Unlawfully influencing action of mili­ or of the highest court of a State; and ‘‘SUBCHAPTER III—PRE-TRIAL tary commission. ‘‘(2) certified as competent to perform du­ PROCEDURE ‘‘949c. Duties of trial counsel and defense ties as defense counsel before general courts- ‘‘Sec. counsel. martial by the Judge Advocate General of ‘‘948q. Charges and specifications. ‘‘949d. Sessions. the armed force of which he is a member. ‘‘948r. Compulsory self-incrimination prohib­ ‘‘949e. Continuances. ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE ited; treatment of statements ‘‘949f. Challenges. COUNSEL.—(1) The Chief Prosecutor in a mili­ obtained by torture and other ‘‘949g. Oaths. tary commission under this chapter shall statements. ‘‘949h. Former jeopardy. meet the requirements set forth in sub­ ‘‘948s. Service of charges. ‘‘949i. Pleas of the accused. section (b)(1). ‘‘§ 948q. Charges and specifications ‘‘949j. Opportunity to obtain witnesses and ‘‘(2) The Chief Defense Counsel in a mili­ ‘‘(a) CHARGES AND SPECIFICATIONS.— other evidence. tary commission under this chapter shall Charges and specifications against an ac­ ‘‘949k. Defense of lack of mental responsi­ meet the requirements set forth in sub­ cused in a military commission under this bility. section (c)(1). chapter shall be signed by a person subject ‘‘949l. Voting and rulings. ‘‘(e) INELIGIBILITY OF CERTAIN INDIVID­ to chapter 47 of this title under oath before ‘‘949m. Number of votes required. UALS.—No person who has acted as an inves­ a commissioned officer of the armed forces ‘‘949n. Military commission to announce ac­ tigator, military judge, or member of a mili­ authorized to administer oaths and shall tion. tary commission under this chapter in any state— ‘‘949o. Record of trial. case may act later as trial counsel or mili­ ‘‘(1) that the signer has personal knowl­ ‘‘§ 949a. Rules tary defense counsel in the same case. No edge of, or reason to believe, the matters set ‘‘(a) PROCEDURES AND RULES OF EVI­ person who has acted for the prosecution be­ forth therein; and DENCE.—Pretrial, trial, and post-trial proce­ fore a military commission under this chap­ ‘‘(2) that they are true in fact to the best dures, including elements and modes of ter may act later in the same case for the de­ of the signer’s knowledge and belief. proof, for cases triable by military commis­ fense, nor may any person who has acted for ‘‘(b) NOTICE TO ACCUSED.—Upon the swear­ sion under this chapter may be prescribed by the defense before a military commission ing of the charges and specifications in ac­ the Secretary of Defense, in consultation under this chapter act later in the same case cordance with subsection (a), the accused with the Attorney General. Such procedures for the prosecution. shall be informed of the charges against him shall, so far as the Secretary considers prac­ ‘‘§ 948l. Detail or employment of reporters as soon as practicable. ticable or consistent with military or intel­ and interpreters ‘‘§ 948r. Compulsory self-incrimination pro­ ligence activities, apply the principles of law ‘‘(a) COURT REPORTERS.—Under such regu­ hibited; treatment of statements obtained and the rules of evidence in trial by general lations as the Secretary of Defense may pre­ by torture and other statements courts-martial. Such procedures and rules of scribe, the convening authority of a military ‘‘(a) IN GENERAL.—No person shall be re­ evidence may not be contrary to or incon­ commission under this chapter shall detail quired to testify against himself at a pro­ sistent with this chapter. to or employ for the commission qualified ceeding of a military commission under this ‘‘(b) RULES FOR MILITARY COMMISSION.—(1) court reporters, who shall make a verbatim chapter. Notwithstanding any departures from the recording of the proceedings of and testi­ ‘‘(b) EXCLUSION OF STATEMENTS OBTAINED law and the rules of evidence in trial by gen­ mony taken before the commission. BY TORTURE.—A statement obtained by use eral courts-martial authorized by subsection ‘‘(b) INTERPRETERS.—Under such regula­ of torture shall not be admissible in a mili­ (a), the procedures and rules of evidence in tions as the Secretary of Defense may pre­ tary commission under this chapter, except trials by military commission under this scribe, the convening authority of a military against a person accused of torture as evi­ chapter shall include the following: commission under this chapter may detail to dence that the statement was made. ‘‘(A) The accused shall be permitted to or employ for the military commission inter­ ‘‘(c) STATEMENTS OBTAINED BEFORE ENACT­ present evidence in his defense, to cross-ex­ preters who shall interpret for the commis­ MENT OF DETAINEE TREATMENT ACT OF 2005.— amine the witnesses who testify against him, sion and, as necessary, for trial counsel and A statement obtained before December 30, and to examine and respond to evidence ad­ defense counsel and for the accused. 2005 (the date of the enactment of the De­ mitted against him on the issue of guilt or ‘‘(c) TRANSCRIPT; RECORD.—The transcript fense Treatment Act of 2005) in which the de­ innocence and for sentencing, as provided for of a military commission under this chapter gree of coercion is disputed may be admitted by this chapter. shall be under the control of the convening only if the military judge finds that— ‘‘(B) The accused shall be present at all authority of the commission, who shall also ‘‘(1) the totality of the circumstances ren­ sessions of the military commission (other be responsible for preparing the record of the ders the statement reliable and possessing than those for deliberations or voting), ex­ proceedings. sufficient probative value; and cept when excluded under section 949d of this ‘‘§ 948m. Number of members; excuse of mem­ ‘‘(2) the interests of justice would best be title. bers; absent and additional members served by admission of the statement into ‘‘(C) The accused shall receive the assist­ evidence. ‘‘(a) NUMBER OF MEMBERS.—(1) A military ance of counsel as provided for by section ‘‘(d) STATEMENTS OBTAINED AFTER ENACT­ commission under this chapter shall, except 948k. MENT OF DETAINEE TREATMENT ACT OF 2005.— as provided in paragraph (2), have at least ‘‘(D) The accused shall be permitted to rep­ A statement obtained on or after December five members. resent himself, as provided for by paragraph ‘‘(2) In a case in which the accused before 30, 2005 (the date of the enactment of the De­ (3). a military commission under this chapter fense Treatment Act of 2005) in which the de­ ‘‘(2) In establishing procedures and rules of may be sentenced to a penalty of death, the gree of coercion is disputed may be admitted evidence for military commission pro­ military commission shall have the number only if the military judge finds that— ceedings, the Secretary of Defense may pre­ of members prescribed by section 949m(c) of ‘‘(1) the totality of the circumstances ren­ scribe the following provisions: this title. ders the statement reliable and possessing ‘‘(A) Evidence shall be admissible if the ‘‘(b) EXCUSE OF MEMBERS.—No member of a sufficient probative value; military judge determines that the evidence military commission under this chapter may ‘‘(2) the interests of justice would best be would have probative value to a reasonable be absent or excused after the military com­ served by admission of the statement into person. mission has been assembled for the trial of a evidence; and ‘‘(B) Evidence shall not be excluded from case unless excused— ‘‘(3) the interrogation methods used to ob­ trial by military commission on the grounds ‘‘(1) as a result of challenge; tain the statement do not amount to cruel, that the evidence was not seized pursuant to ‘‘(2) by the military judge for physical dis­ inhuman, or degrading treatment prohibited a search warrant or other authorization. ability or other good cause; or by section 1003 of the Detainee Treatment ‘‘(C) A statement of the accused that is ‘‘(3) by order of the convening authority Act of 2005. otherwise admissible shall not be excluded for good cause. ‘‘§ 948s. Service of charges from trial by military commission on ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.— ‘‘The trial counsel assigned to a case be­ grounds of alleged coercion or compulsory Whenever a military commission under this fore a military commission under this chap­ self-incrimination so long as the evidence chapter is reduced below the number of ter shall cause to be served upon the accused complies with the provisions of section 948r members required by subsection (a), the trial and military defense counsel a copy of the of this title. may not proceed unless the convening au­ charges upon which trial is to be had. Such ‘‘(D) Evidence shall be admitted as authen­ thority details new members sufficient to charges shall be served in English and, if ap­ tic so long as— provide not less than such number. The trial propriate, in another language that the ac­ ‘‘(i) the military judge of the military may proceed with the new members present cused understands. Such service shall be commission determines that there is suffi­ after the recorded evidence previously intro­ made sufficiently in advance of trial to pre­ cient basis to find that the evidence is what duced before the members has been read to pare a defense. it is claimed to be; and

VerDate Aug 31 2005 03:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.080 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10423 ‘‘(ii) the military judge instructs the mem­ in reaching the findings or sentence in any fies before a military commission under this bers that they may consider any issue as to case; chapter. authentication or identification of evidence ‘‘(B) the action of any convening, approv­ ‘‘§ 949d. Sessions in determining the weight, if any, to be ing, or reviewing authority with respect to ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM­ given to the evidence. his judicial acts; or BERS.—(1) At any time after the service of ‘‘(E)(i) Except as provided in clause (ii), ‘‘(C) the exercise of professional judgment charges which have been referred for trial by hearsay evidence not otherwise admissible by trial counsel or defense counsel. military commission under this chapter, the under the rules of evidence applicable in ‘‘(3) Paragraphs (1) and (2) do not apply military judge may call the military com­ trial by general courts-martial may be ad­ with respect to— mission into session without the presence of mitted in a trial by military commission if ‘‘(A) general instructional or informational the members for the purpose of— the proponent of the evidence makes known courses in military justice if such courses ‘‘(A) hearing and determining motions to the adverse party, sufficiently in advance are designed solely for the purpose of in­ raising defenses or objections which are ca­ to provide the adverse party with a fair op­ structing members of a command in the sub­ pable of determination without trial of the portunity to meet the evidence, the inten­ stantive and procedural aspects of military issues raised by a plea of not guilty; tion of the proponent to offer the evidence, commissions; or ‘‘(B) hearing and ruling upon any matter and the particulars of the evidence (includ­ ‘‘(B) statements and instructions given in which may be ruled upon by the military ing information on the general cir­ open proceedings by a military judge or judge under this chapter, whether or not the cumstances under which the evidence was counsel. matter is appropriate for later consideration obtained). The disclosure of evidence under ‘‘(b) PROHIBITION ON CONSIDERATION OF AC­ or decision by the members; the preceding sentence is subject to the re­ TIONS ON COMMISSION IN EVALUATION OF FIT­ ‘‘(C) if permitted by regulations prescribed quirements and limitations applicable to the NESS.—In the preparation of an effectiveness, by the Secretary of Defense, receiving the disclosure of classified information in sec­ fitness, or efficiency report or any other re­ pleas of the accused; and tion 949j(c) of this title. port or document used in whole or in part for ‘‘(D) performing any other procedural func­ ‘‘(ii) Hearsay evidence not otherwise ad­ the purpose of determining whether a com­ tion which may be performed by the military missible under the rules of evidence applica­ missioned officer of the armed forces is judge under this chapter or under rules pre­ ble in trial by general courts-martial shall qualified to be advanced in grade, or in de­ scribed pursuant to section 949a of this title not be admitted in a trial by military com­ termining the assignment or transfer of any and which does not require the presence of mission if the party opposing the admission such officer or whether any such officer the members. of the evidence demonstrates that the evi­ should be retained on active duty, no person ‘‘(2) Except as provided in subsections (c) dence is unreliable or lacking in probative may— and (e), any proceedings under paragraph (1) value. ‘‘(1) consider or evaluate the performance shall— ‘‘(F) The military judge shall exclude any of duty of any member of a military commis­ ‘‘(A) be conducted in the presence of the evidence the probative value of which is sub­ sion under this chapter; or accused, defense counsel, and trial counsel; stantially outweighed— ‘‘(2) give a less favorable rating or evalua­ and ‘‘(i) by the danger of unfair prejudice, con­ tion to any commissioned officer because of ‘‘(B) be made part of the record. fusion of the issues, or misleading the com­ the zeal with which such officer, in acting as ‘‘(b) PROCEEDINGS IN PRESENCE OF AC­ mission; or counsel, represented any accused before a CUSED.—Except as provided in subsections (c) and (e), all proceedings of a military com­ ‘‘(ii) by considerations of undue delay, military commission under this chapter. mission under this chapter, including any waste of time, or needless presentation of cu­ ‘‘§ 949c. Duties of trial counsel and defense consultation of the members with the mili­ mulative evidence. counsel tary judge or counsel, shall— ‘‘(3)(A) The accused in a military commis­ ‘‘(a) TRIAL COUNSEL.—The trial counsel of a ‘‘(1) be in the presence of the accused, de­ sion under this chapter who exercises the military commission under this chapter fense counsel, and trial counsel; and right to self-representation under paragraph shall prosecute in the name of the United ‘‘(2) be made a part of the record. (1)(D) shall conform his deportment and the States. ‘‘(c) DELIBERATION OR VOTE OF MEMBERS.— ‘‘(b) DEFENSE COUNSEL.—(1) The accused conduct of the defense to the rules of evi­ When the members of a military commission dence, procedure, and decorum applicable to shall be represented in his defense before a under this chapter deliberate or vote, only trials by military commission. military commission under this chapter as the members may be present. ‘‘(B) Failure of the accused to conform to provided in this subsection. ‘‘(d) CLOSURE OF PROCEEDINGS.—(1) The the rules described in subparagraph (A) may ‘‘(2) The accused shall be represented by military judge may close to the public all or result in a partial or total revocation by the military counsel detailed under section 948k part of the proceedings of a military com­ military judge of the right of self-representa­ of this title. mission under this chapter, but only in ac­ tion under paragraph (1)(D). In such case, the ‘‘(3) The accused may be represented by ci­ cordance with this subsection. detailed defense counsel of the accused or an vilian counsel if retained by the accused, but ‘‘(2) The military judge may close to the appropriately authorized civilian counsel only if such civilian counsel— public all or a portion of the proceedings shall perform the functions necessary for the ‘‘(A) is a United States citizen; under paragraph (1) only upon making a spe­ defense. ‘‘(B) is admitted to the practice of law in a cific finding that such closure is necessary ‘‘(c) DELEGATION OF AUTHORITY TO PRE­ State, district, or possession of the United to— SCRIBE REGULATIONS.—The Secretary of De­ States or before a Federal court; ‘‘(A) protect information the disclosure of fense may delegate the authority of the Sec­ ‘‘(C) has not been the subject of any sanc­ which could reasonably be expected to cause retary to prescribe regulations under this tion of disciplinary action by any court, bar, damage to the national security, including chapter. or other competent governmental authority intelligence or law enforcement sources, ‘‘(d) NOTIFICATION TO CONGRESSIONAL COM­ for relevant misconduct; methods, or activities; or MITTEES OF CHANGES TO PROCEDURES.—Not ‘‘(D) has been determined to be eligible for ‘‘(B) ensure the physical safety of individ­ later than 60 days before the date on which access to classified information that is clas­ uals. any proposed modification of the procedures sified at the level Secret or higher; and ‘‘(3) A finding under paragraph (2) may be in effect for military commissions under this ‘‘(E) has signed a written agreement to based upon a presentation, including a pres­ chapter goes into effect, the Secretary of De­ comply with all applicable regulations or in­ entation ex parte or in camera, by either fense shall submit to the Committee on structions for counsel, including any rules of trial counsel or defense counsel. Armed Services of the Senate and the Com­ court for conduct during the proceedings. ‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN mittee on Armed Services of the House of ‘‘(4) Civilian defense counsel shall protect PROCEEDINGS.—The military judge may ex­ Representatives a report describing the any classified information received during clude the accused from any portion of a pro­ modification. the course of representation of the accused ceeding upon a determination that, after in accordance with all applicable law gov­ being warned by the military judge, the ac­ ‘‘§ 949b. Unlawfully influencing action of mili­ erning the protection of classified informa­ cused persists in conduct that justifies exclu­ tary commission tion and may not divulge such information sion from the courtroom— ‘‘(a) IN GENERAL.—(1) No authority con­ to any person not authorized to receive it. ‘‘(1) to ensure the physical safety of indi­ vening a military commission under this ‘‘(5) If the accused is represented by civil­ viduals; or chapter may censure, reprimand, or admon­ ian counsel, detailed military counsel shall ‘‘(2) to prevent disruption of the pro­ ish the military commission, or any member, act as associate counsel. ceedings by the accused. military judge, or counsel thereof, with re­ ‘‘(6) The accused is not entitled to be rep­ ‘‘(f) PROTECTION OF CLASSIFIED INFORMA­ spect to the findings or sentence adjudged by resented by more than one military counsel. TION.— the military commission, or with respect to However, the person authorized under regu­ ‘‘(1) NATIONAL SECURITY PRIVILEGE.—(A) any other exercises of its or his functions in lations prescribed under section 948k of this Classified information shall be protected and the conduct of the proceedings. title to detail counsel, in that person’s sole is privileged from disclosure if disclosure ‘‘(2) No person may attempt to coerce or, discretion, may detail additional military would be detrimental to the national secu­ by any unauthorized means, influence— counsel to represent the accused. rity. The rule in the preceding sentence ap­ ‘‘(A) the action of a military commission ‘‘(7) Defense counsel may cross-examine plies to all stages of the proceedings of mili­ under this chapter, or any member thereof, each witness for the prosecution who testi­ tary commissions under this chapter.

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‘‘(B) The privilege referred to in subpara­ date on which such regulations or modifica­ ‘‘(b) FINDING OF GUILT AFTER GUILTY graph (A) may be claimed by the head of the tions, as the case may be, go into effect. PLEA.—With respect to any charge or speci­ executive or military department or govern­ ‘‘§ 949e. Continuances fication to which a plea of guilty has been ment agency concerned based on a finding by ‘‘The military judge in a military commis­ made by the accused in a military commis­ the head of that department or agency sion under this chapter may, for reasonable sion under this chapter and accepted by the that— cause, grant a continuance to any party for military judge, a finding of guilty of the ‘‘(i) the information is properly classified; such time, and as often, as may appear to be charge or specification may be entered im­ and just. mediately without a vote. The finding shall constitute the finding of the commission un­ ‘‘(ii) disclosure of the information would be ‘‘§ 949f. Challenges detrimental to the national security. less the plea of guilty is withdrawn prior to ‘‘(a) CHALLENGES AUTHORIZED.—The mili­ ‘‘(C) A person who may claim the privilege announcement of the sentence, in which tary judge and members of a military com­ referred to in subparagraph (A) may author­ event the proceedings shall continue as mission under this chapter may be chal­ ize a representative, witness, or trial counsel though the accused had pleaded not guilty. lenged by the accused or trial counsel for to claim the privilege and make the finding ‘‘§ 949j. Opportunity to obtain witnesses and cause stated to the commission. The mili­ described in subparagraph (B) on behalf of other evidence tary judge shall determine the relevance and such person. The authority of the represent­ validity of challenges for cause. The military ‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense ative, witness, or trial counsel to do so is judge may not receive a challenge to more counsel in a military commission under this presumed in the absence of evidence to the than one person at a time. Challenges by chapter shall have a reasonable opportunity contrary. trial counsel shall ordinarily be presented to obtain witnesses and other evidence as ‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA­ and decided before those by the accused are provided in regulations prescribed by the TION.— offered. Secretary of Defense. ‘‘(A) ALTERNATIVES TO DISCLOSURE.—To ‘‘(b) PEREMPTORY CHALLENGES.—Each ac­ ‘‘(b) PROCESS FOR COMPULSION.—Process protect classified information from disclo­ cused and the trial counsel are entitled to issued in a military commission under this sure, the military judge, upon motion of one peremptory challenge. The military chapter to compel witnesses to appear and trial counsel, shall authorize, to the extent judge may not be challenged except for testify and to compel the production of other practicable— cause. evidence— ‘‘(i) the deletion of specified items of clas­ ‘‘(c) CHALLENGES AGAINST ADDITIONAL ‘‘(1) shall be similar to that which courts sified information from documents to be in­ MEMBERS.—Whenever additional members of the United States having criminal juris­ troduced as evidence before the military are detailed to a military commission under diction may lawfully issue; and commission; this chapter, and after any challenges for ‘‘(2) shall run to any place where the ‘‘(ii) the substitution of a portion or sum­ cause against such additional members are United States shall have jurisdiction thereof. mary of the information for such classified presented and decided, each accused and the ‘‘(c) PROTECTION OF CLASSIFIED INFORMA­ documents; or trial counsel are entitled to one peremptory TION.—(1) With respect to the discovery obli­ ‘‘(iii) the substitution of a statement of challenge against members not previously gations of trial counsel under this section, relevant facts that the classified information subject to peremptory challenge. the military judge, upon motion of trial counsel, shall authorize, to the extent prac­ would tend to prove. ‘‘§ 949g. Oaths ‘‘(B) PROTECTION OF SOURCES, METHODS, OR ticable— ‘‘(a) IN GENERAL.—(1) Before performing ACTIVITIES.—The military judge, upon mo­ ‘‘(A) the deletion of specified items of clas­ their respective duties in a military commis­ tion of trial counsel, shall permit trial coun­ sified information from documents to be sion under this chapter, military judges, sel to introduce otherwise admissible evi­ made available to the accused; members, trial counsel, defense counsel, re­ dence before the military commission, while ‘‘(B) the substitution of a portion or sum­ porters, and interpreters shall take an oath protecting from disclosure the sources, mary of the information for such classified to perform their duties faithfully. methods, or activities by which the United documents; or ‘‘(2) The form of the oath required by para­ States acquired the evidence if the military ‘‘(C) the substitution of a statement admit­ graph (1), the time and place of the taking judge finds that (i) the sources, methods, or ting relevant facts that the classified infor­ thereof, the manner of recording the same, activities by which the United States ac­ mation would tend to prove. and whether the oath shall be taken for all quired the evidence are classified, and (ii) ‘‘(2) The military judge, upon motion of cases in which duties are to be performed or the evidence is reliable. The military judge trial counsel, shall authorize trial counsel, for a particular case, shall be as prescribed may require trial counsel to present to the in the course of complying with discovery in regulations of the Secretary of Defense. military commission and the defense, to the obligations under this section, to protect Those regulations may provide that— extent practicable and consistent with na­ from disclosure the sources, methods, or ac­ ‘‘(A) an oath to perform faithfully duties tional security, an unclassified summary of tivities by which the United States acquired as a military judge, trial counsel, or defense the sources, methods, or activities by which evidence if the military judge finds that the counsel may be taken at any time by any the United States acquired the evidence. sources, methods, or activities by which the judge advocate or other person certified to ‘‘(C) ASSERTION OF NATIONAL SECURITY United States acquired such evidence are be qualified or competent for the duty; and PRIVILEGE AT TRIAL.—During the examina­ classified. The military judge may require ‘‘(B) if such an oath is taken, such oath tion of any witness, trial counsel may object trial counsel to provide, to the extent prac­ need not again be taken at the time the to any question, line of inquiry, or motion to ticable, an unclassified summary of the judge advocate or other person is detailed to admit evidence that would require the dis­ sources, methods, or activities by which the that duty. closure of classified information. Following United States acquired such evidence. ‘‘(b) WITNESSES.—Each witness before a such an objection, the military judge shall ‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon military commission under this chapter as practicable, trial counsel shall disclose to take suitable action to safeguard such classi­ shall be examined on oath. fied information. Such action may include the defense the existence of any evidence the review of trial counsel’s claim of privi­ ‘‘§ 949h. Former jeopardy known to trial counsel that reasonably tends lege by the military judge in camera and on ‘‘(a) IN GENERAL.—No person may, without to exculpate the accused. Where exculpatory an ex parte basis, and the delay of pro­ his consent, be tried by a military commis­ evidence is classified, the accused shall be ceedings to permit trial counsel to consult sion under this chapter a second time for the provided with an adequate substitute in ac­ with the department or agency concerned as same offense. cordance with the procedures under sub­ to whether the national security privilege ‘‘(b) SCOPE OF TRIAL.—No proceeding in section (c). should be asserted. which the accused has been found guilty by ‘‘(2) In this subsection, the term ‘evidence ‘‘(3) CONSIDERATION OF PRIVILEGE AND RE­ military commission under this chapter known to trial counsel’, in the case of excul­ LATED MATERIALS.—A claim of privilege upon any charge or specification is a trial in patory evidence, means exculpatory evidence under this subsection, and any materials the sense of this section until the finding of that the prosecution would be required to submitted in support thereof, shall, upon re­ guilty has become final after review of the disclose in a trial by general court-martial quest of the Government, be considered by case has been fully completed. under chapter 47 of this title. the military judge in camera and shall not ‘‘§ 949i. Pleas of the accused ‘‘§ 949k. Defense of lack of mental responsi­ be disclosed to the accused. ‘‘(a) ENTRY OF PLEA OF NOT GUILTY.—If an bility ‘‘(4) ADDITIONAL REGULATIONS.—The Sec­ accused in a military commission under this ‘‘(a) AFFIRMATIVE DEFENSE.—It is an af­ retary of Defense may prescribe additional chapter after a plea of guilty sets up matter firmative defense in a trial by military com­ regulations, consistent with this subsection, inconsistent with the plea, or if it appears mission under this chapter that, at the time for the use and protection of classified infor­ that the accused has entered the plea of of the commission of the acts constituting mation during proceedings of military com­ guilty through lack of understanding of its the offense, the accused, as a result of a se­ missions under this chapter. A report on any meaning and effect, or if the accused fails or vere mental disease or defect, was unable to regulations so prescribed, or modified, shall refuses to plead, a plea of not guilty shall be appreciate the nature and quality or the be submitted to the Committees on Armed entered in the record, and the military com­ wrongfulness of the acts. Mental disease or Services of the Senate and the House of Rep­ mission shall proceed as though the accused defect does not otherwise constitute a de­ resentatives not later than 60 days before the had pleaded not guilty. fense.

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‘‘(b) BURDEN OF PROOF.—The accused in a ‘‘(D) all the members present at the time use of irons, single or double, except for the military commission under this chapter has the vote is taken concur in the sentence of purpose of safe custody, is prohibited under the burden of proving the defense of lack of death. this chapter. mental responsibility by clear and con­ ‘‘(2) No person may be sentenced to life im­ ‘‘§ 949t. Maximum limits vincing evidence. prisonment, or to confinement for more than ‘‘The punishment which a military com­ ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE­ 10 years, by a military commission under mission under this chapter may direct for an FENSE.—Whenever lack of mental responsi­ this chapter except by the concurrence of offense may not exceed such limits as the bility of the accused with respect to an of­ three-fourths of the members present at the President or Secretary of Defense may pre­ fense is properly at issue in a military com­ time the vote is taken. scribe for that offense. mission under this chapter, the military ‘‘(3) All other sentences shall be deter­ judge shall instruct the members of the com­ mined by a military commission by the con­ ‘‘§ 949u. Execution of confinement mission as to the defense of lack of mental currence of two-thirds of the members ‘‘(a) IN GENERAL.—Under such regulations responsibility under this section and shall present at the time the vote is taken. as the Secretary of Defense may prescribe, a charge them to find the accused— ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR sentence of confinement adjudged by a mili­ ‘‘(1) guilty; PENALTY OF DEATH.—(1) Except as provided tary commission under this chapter may be ‘‘(2) not guilty; or in paragraph (2), in a case in which the pen­ carried into execution by confinement— ‘‘(3) subject to subsection (d), not guilty by alty of death is sought, the number of mem­ ‘‘(1) in any place of confinement under the reason of lack of mental responsibility. bers of the military commission under this control of any of the armed forces; or ‘‘(d) MAJORITY VOTE REQUIRED FOR FIND­ chapter shall be not less than 12. ‘‘(2) in any penal or correctional institu­ ING.—The accused shall be found not guilty ‘‘(2) In any case described in paragraph (1) tion under the control of the United States by reason of lack of mental responsibility in which 12 members are not reasonably or its allies, or which the United States may under subsection (c)(3) only if a majority of available because of physical conditions or be allowed to use. the members present at the time the vote is military exigencies, the convening authority ‘‘(b) TREATMENT DURING CONFINEMENT BY taken determines that the defense of lack of shall specify a lesser number of members for OTHER THAN THE ARMED FORCES.—Persons mental responsibility has been established. the military commission (but not fewer than confined under subsection (a)(2) in a penal or ‘‘§ 949l. Voting and rulings 9 members), and the military commission correctional institution not under the con­ ‘‘(a) VOTE BY SECRET WRITTEN BALLOT.— may be assembled, and the trial held, with trol of an armed force are subject to the Voting by members of a military commis­ not fewer than the number of members so same discipline and treatment as persons sion under this chapter on the findings and specified. In such a case, the convening au­ confined or committed by the courts of the on the sentence shall be by secret written thority shall make a detailed written state­ United States or of the State, District of Co­ ballot. ment, to be appended to the record, stating lumbia, or place in which the institution is ‘‘(b) RULINGS.—(1) The military judge in a why a greater number of members were not situated. military commission under this chapter reasonably available. ‘‘SUBCHAPTER VI—POST-TRIAL PROCE­ shall rule upon all questions of law, includ­ ‘‘§ 949n. Military commission to announce ac­ DURE AND REVIEW OF MILITARY COM­ ing the admissibility of evidence and all in­ tion MISSIONS terlocutory questions arising during the pro­ ceedings. ‘‘A military commission under this chapter ‘‘Sec. ‘‘(2) Any ruling made by the military judge shall announce its findings and sentence to ‘‘950a. Error of law; lesser included offense. upon a question of law or an interlocutory the parties as soon as determined. ‘‘950b. Review by the convening authority. ‘‘950c. Appellate referral; waiver or with­ question (other than the factual issue of ‘‘§ 949o. Record of trial mental responsibility of the accused) is con­ drawal of appeal. ‘‘(a) RECORD; AUTHENTICATION.—Each mili­ ‘‘950d. Appeal by the United States. clusive and constitutes the ruling of the tary commission under this chapter shall military commission. However, a military ‘‘950e. Rehearings. keep a separate, verbatim, record of the pro­ ‘‘950f. Review by Court of Military Commis­ judge may change his ruling at any time dur­ ceedings in each case brought before it, and sion Review. ing the trial. the record shall be authenticated by the sig­ ‘‘950g. Review by the United States Court of ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before nature of the military judge. If the record Appeals for the District of Co­ a vote is taken of the findings of a military cannot be authenticated by the military commission under this chapter, the military lumbia Circuit and the Su­ judge by reason of his death, disability, or preme Court. judge shall, in the presence of the accused absence, it shall be authenticated by the sig­ and counsel, instruct the members as to the ‘‘950h. Appellate counsel. nature of the trial counsel or by a member of ‘‘950i. Execution of sentence; procedures for elements of the offense and charge the mem­ the commission if the trial counsel is unable bers— execution of sentence of death. to authenticate it by reason of his death, dis­ ‘‘950j. Finality or proceedings, findings, and ‘‘(1) that the accused must be presumed to ability, or absence. Where appropriate, and sentences. be innocent until his guilt is established by as provided in regulations prescribed by the legal and competent evidence beyond a rea­ ‘‘§ 950a. Error of law; lesser included offense Secretary of Defense, the record of a mili­ sonable doubt; ‘‘(a) ERROR OF LAW.—A finding or sentence tary commission under this chapter may ‘‘(2) that in the case being considered, if of a military commission under this chapter contain a classified annex. there is a reasonable doubt as to the guilt of may not be held incorrect on the ground of ‘‘(b) COMPLETE RECORD REQUIRED.—A com­ an error of law unless the error materially the accused, the doubt must be resolved in plete record of the proceedings and testi­ prejudices the substantial rights of the ac­ favor of the accused and he must be acquit­ mony shall be prepared in every military cused. ted; commission under this chapter. ‘‘(3) that, if there is reasonable doubt as to ‘‘(b) LESSER INCLUDED OFFENSE.—Any re­ ‘‘(c) PROVISION OF COPY TO ACCUSED.—A viewing authority with the power to approve the degree of guilt, the finding must be in a copy of the record of the proceedings of the or affirm a finding of guilty by a military lower degree as to which there is no reason­ military commission under this chapter commission under this chapter may approve able doubt; and shall be given the accused as soon as it is au­ or affirm, instead, so much of the finding as ‘‘(4) that the burden of proof to establish thenticated. If the record contains classified includes a lesser included offense. the guilt of the accused beyond a reasonable information, or a classified annex, the ac­ doubt is upon the United States. cused shall be given a redacted version of the ‘‘§ 950b. Review by the convening authority ‘‘§ 949m. Number of votes required record consistent with the requirements of ‘‘(a) NOTICE TO CONVENING AUTHORITY OF ‘‘(a) CONVICTION.—No person may be con­ section 949d of this title. Defense counsel FINDINGS AND SENTENCE.—The findings and victed by a military commission under this shall have access to the unredacted record, sentence of a military commission under chapter of any offense, except as provided in as provided in regulations prescribed by the this chapter shall be reported in writing section 949i(b) of this title or by concurrence Secretary of Defense. promptly to the convening authority after of two-thirds of the members present at the ‘‘SUBCHAPTER V—SENTENCES the announcement of the sentence. time the vote is taken. ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO ‘‘Sec. ‘‘(b) SENTENCES.—(1) No person may be sen­ CONVENING AUTHORITY.—(1) The accused may ‘‘949s. Cruel or unusual punishments prohib­ tenced by a military commission to suffer submit to the convening authority matters ited. death, except insofar as— for consideration by the convening authority ‘‘949t. Maximum limits. ‘‘(A) the penalty of death is expressly au­ with respect to the findings and the sentence ‘‘949u. Execution of confinement. thorized under this chapter or the law of war of the military commission under this chap­ for an offense of which the accused has been ‘‘§ 949s. Cruel or unusual punishments pro­ ter. found guilty; hibited ‘‘(2)(A) Except as provided in subparagraph ‘‘(B) trial counsel expressly sought the ‘‘Punishment by flogging, or by branding, (B), a submittal under paragraph (1) shall be penalty of death by filing an appropriate no­ marking, or tattooing on the body, or any made in writing within 20 days after the ac­ tice in advance of trial; other cruel or unusual punishment, may not cused has been given an authenticated record ‘‘(C) the accused is convicted of the offense be adjudged by a military commission under of trial under section 949o(c) of this title. by the concurrence of all the members this chapter or inflicted under this chapter ‘‘(B) If the accused shows that additional present at the time the vote is taken; and upon any person subject to this chapter. The time is required for the accused to make a

VerDate Aug 31 2005 05:57 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.080 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10426 CONGRESSIONAL RECORD — SENATE September 28, 2006 submittal under paragraph (1), the convening not order a rehearing, the convening author­ for review in the Court of Appeals within 10 authority may, for good cause, extend the ity shall dismiss the charges. A rehearing as days after the date of such ruling. Review applicable period under subparagraph (A) for to the findings may not be ordered by the under this subsection shall be at the discre­ not more than an additional 20 days. convening authority when there is a lack of tion of the Court of Appeals. ‘‘(3) The accused may waive his right to sufficient evidence in the record to support ‘‘§ 950e. Rehearings make a submittal to the convening author­ the findings. A rehearing as to the sentence ‘‘(a) COMPOSITION OF MILITARY COMMISSION ity under paragraph (1). Such a waiver shall may be ordered by the convening authority FOR REHEARING.—Each rehearing under this be made in writing and may not be revoked. if the convening authority disapproves the chapter shall take place before a military For the purposes of subsection (c)(2), the sentence. commission under this chapter composed of time within which the accused may make a ‘‘§ 950c. Appellate referral; waiver or with­ members who were not members of the mili­ submittal under this subsection shall be drawal of appeal tary commission which first heard the case. deemed to have expired upon the submittal ‘‘(b) SCOPE OF REHEARING.—(1) Upon a re­ ‘‘(a) AUTOMATIC REFERRAL FOR APPELLATE of a waiver under this paragraph to the con­ hearing— REVIEW.—Except as provided under sub­ vening authority. section (b), in each case in which the final ‘‘(A) the accused may not be tried for any ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) decision of a military commission (as ap­ offense of which he was found not guilty by The authority under this subsection to mod­ proved by the convening authority) includes the first military commission; and ify the findings and sentence of a military a finding of guilty, the convening authority ‘‘(B) no sentence in excess of or more than commission under this chapter is a matter of shall refer the case to the Court of Military the original sentence may be imposed un­ the sole discretion and prerogative of the Commission Review. Any such referral shall less— convening authority. be made in accordance with procedures pre­ ‘‘(i) the sentence is based upon a finding of ‘‘(2)(A) The convening authority shall take guilty of an offense not considered upon the action on the sentence of a military commis­ scribed under regulations of the Secretary. ‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) In merits in the original proceedings; or sion under this chapter. each case subject to appellate review under ‘‘(ii) the sentence prescribed for the offense ‘‘(B) Subject to regulations prescribed by is mandatory. the Secretary of Defense, action on the sen­ section 950f of this title, except a case in which the sentence as approved under sec­ ‘‘(2) Upon a rehearing, if the sentence ap­ tence under this paragraph may be taken proved after the first military commission tion 950b of this title extends to death, the only after consideration of any matters sub­ was in accordance with a pretrial agreement accused may file with the convening author­ mitted by the accused under subsection (b) and the accused at the rehearing changes his ity a statement expressly waiving the right or after the time for submitting such mat­ plea with respect to the charges or specifica­ of the accused to such review. ters expires, whichever is earlier. tions upon which the pretrial agreement was ‘‘(2) A waiver under paragraph (1) shall be ‘‘(C) In taking action under this paragraph, based, or otherwise does not comply with signed by both the accused and a defense the convening authority may, in his sole dis­ pretrial agreement, the sentence as to those counsel. cretion, approve, disapprove, commute, or charges or specifications may include any ‘‘(3) A waiver under paragraph (1) must be suspend the sentence in whole or in part. The punishment not in excess of that lawfully ad­ filed, if at all, within 10 days after notice on convening authority may not increase a sen­ judged at the first military commission. the action is served on the accused or on de­ tence beyond that which is found by the fense counsel under section 950b(c)(4) of this ‘‘§ 950f. Review by Court of Military Commis­ military commission. sion Review ‘‘(3) The convening authority is not re­ title. The convening authority, for good cause, may extend the period for such filing ‘‘(a) ESTABLISHMENT.—The Secretary of De­ quired to take action on the findings of a fense shall establish a Court of Military military commission under this chapter. If by not more than 30 days. ‘‘(c) WITHDRAWAL OF APPEAL.—Except in a Commission Review which shall be composed the convening authority takes action on the case in which the sentence as approved under of one or more panels, and each such panel findings, the convening authority may, in section 950b of this title extends to death, shall be composed of not less than three ap­ his sole discretion, may— the accused may withdraw an appeal at any pellate military judges. For the purpose of ‘‘(A) dismiss any charge or specification by time. reviewing military commission decisions setting aside a finding of guilty thereto; or ‘‘(d) EFFECT OF WAIVER OR WITHDRAWAL.— under this chapter, the court may sit in pan­ ‘‘(B) change a finding of guilty to a charge A waiver of the right to appellate review or els or as a whole in accordance with rules to a finding of guilty to an offense that is a the withdrawal of an appeal under this sec­ prescribed by the Secretary. lesser included offense of the offense stated tion bars review under section 950f of this ‘‘(b) APPELLATE MILITARY JUDGES.—The in the charge. title. Secretary shall assign appellate military ‘‘(4) The convening authority shall serve judges to a Court of Military Commission on the accused or on defense counsel notice ‘‘§ 950d. Appeal by the United States Review. Each appellate military judge shall of any action taken by the convening au­ ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as meet the qualifications for military judges thority under this subsection. provided in paragraph (2), in a trial by mili­ prescribed by section 948j(b) of this title or ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) tary commission under this chapter, the shall be a civilian with comparable qualifica­ Subject to paragraphs (2) and (3), the con­ United States may take an interlocutory ap­ tions. No person may be serve as an appel­ vening authority of a military commission peal to the Court of Military Commission late military judge in any case in which that under this chapter may, in his sole discre­ Review of any order or ruling of the military person acted as a military judge, counsel, or tion, order a proceeding in revision or a re­ judge that— reviewing official. hearing. ‘‘(A) terminates proceedings of the mili­ ‘‘(c) CASES TO BE REVIEWED.—The Court of ‘‘(2)(A) Except as provided in subparagraph tary commission with respect to a charge or Military Commission Review, in accordance (B), a proceeding in revision may be ordered specification; with procedures prescribed under regulations by the convening authority if— ‘‘(B) excludes evidence that is substantial of the Secretary, shall review the record in ‘‘(i) there is an apparent error or omission proof of a fact material in the proceeding; or each case that is referred to the Court by the in the record; or ‘‘(C) relates to a matter under subsection convening authority under section 950c of ‘‘(ii) the record shows improper or incon­ (d), (e), or (f) of section 949d of this title or this title with respect to any matter of law sistent action by the military commission section 949j(c) of this title. raised by the accused. with respect to the findings or sentence that ‘‘(2) The United States may not appeal ‘‘(d) SCOPE OF REVIEW.—In a case reviewed can be rectified without material prejudice under paragraph (1) an order or ruling that by the Court of Military Commission Review to the substantial rights of the accused. is, or amounts to, a finding of not guilty by under this section, the Court may act only ‘‘(B) In no case may a proceeding in revi­ the military commission with respect to a with respect to matters of law. sion— charge or specification. ‘‘§ 950g. Review by the United States Court of ‘‘(i) reconsider a finding of not guilty of a ‘‘(b) NOTICE OF APPEAL.—The United States Appeals for the District of Columbia Cir­ specification or a ruling which amounts to a shall take an appeal of an order or ruling cuit and the Supreme Court finding of not guilty; under subsection (a) by filing a notice of ap­ ‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.— ‘‘(ii) reconsider a finding of not guilty of peal with the military judge within five days (1)(A) Except as provided in subparagraph any charge, unless there has been a finding after the date of such order or ruling. (B), the United States Court of Appeals for of guilty under a specification laid under ‘‘(c) APPEAL.—An appeal under this section the District of Columbia Circuit shall have that charge, which sufficiently alleges a vio­ shall be forwarded, by means specified in exclusive jurisdiction to determine the valid­ lation; or regulations prescribed the Secretary of De­ ity of a final judgment rendered by a mili­ ‘‘(iii) increase the severity of the sentence fense, directly to the Court of Military Com­ tary commission (as approved by the con­ unless the sentence prescribed for the offense mission Review. In ruling on an appeal under vening authority) under this chapter. is mandatory. this section, the Court may act only with re­ ‘‘(B) The Court of Appeals may not review ‘‘(3) A rehearing may be ordered by the spect to matters of law. the final judgment until all other appeals convening authority if the convening author­ ‘‘(d) APPEAL FROM ADVERSE RULING.—The under this chapter have been waived or ex­ ity disapproves the findings and sentence United States may appeal an adverse ruling hausted. and states the reasons for disapproval of the on an appeal under subsection (c) to the ‘‘(2) A petition for review must be filed by findings. If the convening authority dis­ United States Court of Appeals for the Dis­ the accused in the Court of Appeals not later approves the finding and sentence and does trict of Columbia Circuit by filing a petition than 20 days after the date on which—

VerDate Aug 31 2005 04:41 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00078 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.081 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10427 ‘‘(A) written notice of the final decision of ‘‘(A) the time for the accused to file a peti­ ‘‘(3) is a superior commander who, with re­ the Court of Military Commission Review is tion for review by the Court of Appeals for gard to acts punishable under this chapter, served on the accused or on defense counsel; the District of Columbia Circuit has expired knew, had reason to know, or should have or and the accused has not filed a timely peti­ known, that a subordinate was about to com­ ‘‘(B) the accused submits, in the form pre­ tion for such review and the case is not oth­ mit such acts or had done so and who failed scribed by section 950c of this title, a written erwise under review by that Court; or to take the necessary and reasonable meas­ notice waiving the right of the accused to re­ ‘‘(B) review is completed in accordance ures to prevent such acts or to punish the view by the Court of Military Commission with the judgment of the United States perpetrators thereof. Review under section 950f of this title. Court of Appeals for the District of Columbia ‘‘§ 950r. Accessory after the fact ‘‘(b) STANDARD FOR REVIEW.—In a case re­ Circuit and— ‘‘Any person subject to this chapter who, viewed by it under this section, the Court of ‘‘(i) a petition for a writ of certiorari is not knowing that an offense punishable by this Appeals may act only with respect to mat­ timely filed; chapter has been committed, receives, com­ ters of law. ‘‘(ii) such a petition is denied by the Su­ forts, or assists the offender in order to ‘‘(c) SCOPE OF REVIEW.—The jurisdiction of preme Court; or hinder or prevent his apprehension, trial, or the Court of Appeals on an appeal under sub­ ‘‘(iii) review is otherwise completed in ac­ punishment shall be punished as a military section (a) shall be limited to the consider­ cordance with the judgment of the Supreme ation of— commission under this chapter may direct. Court. ‘‘(1) whether the final decision was con­ ‘‘(d) SUSPENSION OF SENTENCE.—The Sec­ ‘‘§ 950s. Conviction of lesser included offense sistent with the standards and procedures retary of the Defense, or the convening au­ ‘‘An accused may be found guilty of an of­ specified in this chapter; and thority acting on the case (if other than the fense necessarily included in the offense ‘‘(2) to the extent applicable, the Constitu­ Secretary), may suspend the execution of charged or of an attempt to commit either tion and the laws of the United States. any sentence or part thereof in the case, ex­ the offense charged or an attempt to commit ‘‘(d) SUPREME COURT.—The Supreme Court cept a sentence of death. either the offense charged or an offense nec­ may review by writ of certiorari the final judgment of the Court of Appeals pursuant ‘‘§ 950j. Finality or proceedings, findings, and essarily included therein. to section 1257 of title 28. sentences ‘‘§ 950t. Attempts ‘‘§ 950h. Appellate counsel ‘‘(a) FINALITY.—The appellate review of ‘‘(a) IN GENERAL.—Any person subject to records of trial provided by this chapter, and ‘‘(a) APPOINTMENT.—The Secretary of De­ this chapter who attempts to commit any of­ the proceedings, findings, and sentences of fense punishable by this chapter shall be fense shall, by regulation, establish proce­ military commissions as approved, reviewed, dures for the appointment of appellate coun­ punished as a military commission under or affirmed as required by this chapter, are this chapter may direct. sel for the United States and for the accused final and conclusive. Orders publishing the ‘‘(b) SCOPE OF OFFENSE.—An act, done with in military commissions under this chapter. proceedings of military commissions under Appellate counsel shall meet the qualifica­ specific intent to commit an offense under this chapter are binding upon all depart­ this chapter, amounting to more than mere tions for counsel appearing before military ments, courts, agencies, and officers of the preparation and tending, even though fail­ commissions under this chapter. United States, except as otherwise provided ‘‘(b) REPRESENTATION OF UNITED STATES.— ing, to effect its commission, is an attempt by the President. Appellate counsel appointed under sub­ to commit that offense. ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS section (a)— ‘‘(c) EFFECT OF CONSUMMATION.—Any per­ FOR REVIEW OF MILITARY COMMISSION PROCE­ ‘‘(1) shall represent the United States in son subject to this chapter may be convicted DURES AND ACTIONS.—Except as otherwise any appeal or review proceeding under this provided in this chapter and notwithstanding of an attempt to commit an offense although chapter before the Court of Military Com­ any other provision of law (including section it appears on the trial that the offense was mission Review; and 2241 of title 28 or any other habeas corpus consummated. ‘‘(2) may, when requested to do so by the provision), no court, justice, or judge shall ‘‘§ 950u. Solicitation Attorney General in a case arising under this have jurisdiction to hear or consider any chapter, represent the United States before ‘‘Any person subject to this chapter who claim or cause of action whatsoever, includ­ solicits or advises another or others to com­ the United States Court of Appeals for the ing any action pending on or filed after the District of Columbia Circuit or the Supreme mit one or more substantive offenses triable date of the enactment of the Military Com­ by military commission under this chapter Court. missions Act of 2006, relating to the prosecu­ ‘‘(c) REPRESENTATION OF ACCUSED.—The ac­ shall, if the offense solicited or advised is at­ tion, trial, or judgment of a military com­ tempted or committed, be punished with the cused shall be represented by appellate coun­ mission under this chapter, including chal­ sel appointed under subsection (a) before the punishment provided for the commission of lenges to the lawfulness of procedures of the offense, but, if the offense solicited or Court of Military Commission Review, the military commissions under this chapter. United States Court of Appeals for the Dis­ advised is not committed or attempted, he trict of Columbia Circuit, and the Supreme ‘‘SUBCHAPTER VII—PUNITIVE MATTERS shall be punished as a military commission Court, and by civilian counsel if retained by ‘‘Sec. under this chapter may direct. ‘‘950p. Statement of substantive offenses. the accused. Any such civilian counsel shall ‘‘§ 950v. Crimes triable by military commis­ meet the qualifications under paragraph (3) ‘‘950q. Principals. ‘‘950r. Accessory after the fact. sions of section 949c(b) of this title for civilian ‘‘950s. Conviction of lesser included offense. ‘‘(a) DEFINITIONS AND CONSTRUCTION.—In counsel appearing before military commis­ ‘‘950t. Attempts. this section: sions under this chapter and shall be subject ‘‘950u. Solicitation. ‘‘(1) MILITARY OBJECTIVE.—The term ‘mili­ to the requirements of paragraph (4) of that ‘‘950v. Crimes triable by military commis­ tary objective’ means— section. sions. ‘‘(A) combatants; and ‘‘§ 950i. Execution of sentence; procedures for ‘‘950w. Perjury and obstruction of justice; ‘‘(B) those objects during an armed con­ execution of sentence of death contempt. flict— ‘‘(a) IN GENERAL.—The Secretary of De­ ‘‘§ 950p. Statement of substantive offenses ‘‘(i) which, by their nature, location, pur­ fense is authorized to carry out a sentence ‘‘(a) PURPOSE.—The provisions of this sub­ pose, or use, effectively contribute to the op­ imposed by a military commission under chapter codify offenses that have tradition­ posing force’s war-fighting or war-sustaining this chapter in accordance with such proce­ ally been triable by military commissions. capability; and dures as the Secretary may prescribe. This chapter does not establish new crimes ‘‘(ii) the total or partial destruction, cap­ ‘‘(b) EXECUTION OF SENTENCE OF DEATH that did not exist before its enactment, but ture, or neutralization of which would con­ ONLY UPON APPROVAL BY THE PRESIDENT.—If rather codifies those crimes for trial by mili­ stitute a definite military advantage to the the sentence of a military commission under tary commission. attacker under the circumstances at the this chapter extends to death, that part of ‘‘(b) EFFECT.—Because the provisions of time of the attack. the sentence providing for death may not be this subchapter (including provisions that ‘‘(2) PROTECTED PERSON.—The term ‘pro­ executed until approved by the President. In incorporate definitions in other provisions of tected person’ means any person entitled to such a case, the President may commute, law) are declarative of existing law, they do protection under one or more of the Geneva remit, or suspend the sentence, or any part not preclude trial for crimes that occurred thereof, as he sees fit. Conventions, including— before the date of the enactment of this ‘‘(A) civilians not taking an active part in ‘‘(c) EXECUTION OF SENTENCE OF DEATH chapter. ONLY UPON FINAL JUDGMENT OF LEGALITY OF hostilities; PROCEEDINGS.—(1) If the sentence of a mili­ ‘‘§ 950q. Principals ‘‘(B) military personnel placed hors de tary commission under this chapter extends ‘‘Any person is punishable as a principal combat by sickness, wounds, or detention; to death, the sentence may not be executed under this chapter who— and until there is a final judgment as to the le­ ‘‘(1) commits an offense punishable by this ‘‘(C) military medical or religious per­ gality of the proceedings (and with respect chapter, or aids, abets, counsels, commands, sonnel. to death, approval under subsection (b)). or procures its commission; ‘‘(3) PROTECTED PROPERTY.—The term ‘pro­ ‘‘(2) A judgment as to legality of pro­ ‘‘(2) causes an act to be done which if di­ tected property’ means property specifically ceedings is final for purposes of paragraph (1) rectly performed by him would be punishable protected by the law of war (such as build­ when— by this chapter; or ings dedicated to religion, education, art,

VerDate Aug 31 2005 04:41 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.081 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10428 CONGRESSIONAL RECORD — SENATE September 28, 2006 science or charitable purposes, historic intentionally, as a method of warfare, em- vere mental pain or suffering’ in section monuments, hospitals, or places where the ploys a substance or weapon that releases a 2340(2) of title 18, except that— sick and wounded are collected), if such substance that causes death or serious and ‘‘(I) the term ‘serious’ shall replace the property is not being used for military pur­ lasting damage to health in the ordinary term ‘severe’ where it appears; and poses or is not otherwise a military objec­ course of events, through its asphyxiating, ‘‘(II) as to conduct occurring after the date tive. Such term includes objects properly bacteriological, or toxic properties, shall be of the enactment of the Military Commis­ identified by one of the distinctive emblems punished, if death results to one or more of sions Act of 2006, the term ‘serious and non- of the Geneva Conventions, but does not in­ the victims, by death or such other punish- transitory mental harm (which need not be clude civilian property that is a military ob­ ment as a military commission under this prolonged)’ shall replace the term ‘prolonged jective. chapter may direct, and, if death does not re- mental harm’ where it appears. ‘‘(4) CONSTRUCTION.—The intent specified sult to any of the victims, by such punish- ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD­ for an offense under paragraph (1), (2), (3), (4), ment, other than death, as a military com- ILY INJURY.— or (12) of subsection (b) precludes the appli­ mission under this chapter may direct. ‘‘(A) OFFENSE.—Any person subject to this cability of such offense with regard to— ‘‘(9) USING PROTECTED PERSONS AS A chapter who intentionally causes serious ‘‘(A) collateral damage; or SHIELD.—Any person subject to this chapter bodily injury to one or more persons, includ­ ‘‘(B) death, damage, or injury incident to a who positions, or otherwise takes advantage ing lawful combatants, in violation of the lawful attack. of, a protected person with the intent to law of war shall be punished, if death results ‘‘(b) OFFENSES.—The following offenses shield a military objective from attack, or to to one or more of the victims, by death or shall be triable by military commission shield, favor, or impede military operations, such other punishment as a military com­ under this chapter at any time without limi­ shall be punished, if death results to one or mission under this chapter may direct, and, tation: more of the victims, by death or such other if death does not result to any of the vic­ ‘‘(1) MURDER OF PROTECTED PERSONS.—Any punishment as a military commission under tims, by such punishment, other than death, person subject to this chapter who inten­ this chapter may direct, and, if death does as a military commission under this chapter tionally kills one or more protected persons not result to any of the victims, by such pun- may direct. shall be punished by death or such other pun­ ishment, other than death, as a military ‘‘(B) SERIOUS BODILY INJURY DEFINED.—In ishment as a military commission under this commission under this chapter may direct. this paragraph, the term ‘serious bodily in­ chapter may direct. ‘‘(10) USING PROTECTED PROPERTY AS A jury’ means bodily injury which involves— ‘‘(2) ATTACKING CIVILIANS.—Any person sub­ SHIELD.—Any person subject to this chapter ‘‘(i) a substantial risk of death; ject to this chapter who intentionally en­ who positions, or otherwise takes advantage ‘‘(ii) extreme physical pain; gages in an attack upon a civilian population of the location of, protected property with ‘‘(iii) protracted and obvious disfigure- as such, or individual civilians not taking the intent to shield a military objective ment; or active part in hostilities, shall be punished, from attack, or to shield, favor, or impede ‘‘(iv) protracted loss or impairment of the if death results to one or more of the vic­ military operations, shall be punished as a function of a bodily member, organ, or men- tims, by death or such other punishment as military commission under this chapter may tal faculty. a military commission under this chapter direct. ‘‘(14) MUTILATING OR MAIMING.—Any person may direct, and, if death does not result to ‘‘(11) TORTURE.— subject to this chapter who intentionally in­ any of the victims, by such punishment, ‘‘(A) OFFENSE.—Any person subject to this jures one or more protected persons by dis- other than death, as a military commission chapter who commits an act specifically in- figuring the person or persons by any muti­ under this chapter may direct. tended to inflict severe physical or mental lation of the person or persons, or by perma­ ‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any pain or suffering (other than pain or suf- nently disabling any member, limb, or organ person subject to this chapter who inten­ fering incidental to lawful sanctions) upon of the body of the person or persons, without tionally engages in an attack upon a civilian another person within his custody or phys- any legitimate medical or dental purpose, object that is not a military objective shall ical control for the purpose of obtaining in- shall be punished, if death results to one or be punished as a military commission under formation or a confession, punishment, in- more of the victims, by death or such other this chapter may direct. timidation, coercion, or any reason based on punishment as a military commission under ‘‘(4) ATTACKING PROTECTED PROPERTY.—Any discrimination of any kind, shall be pun- this chapter may direct, and, if death does person subject to this chapter who inten­ ished, if death results to one or more of the not result to any of the victims, by such pun- tionally engages in an attack upon protected victims, by death or such other punishment ishment, other than death, as a military property shall be punished as a military as a military commission under this chapter commission under this chapter may direct. commission under this chapter may direct. may direct, and, if death does not result to ‘‘(15) MURDER IN VIOLATION OF THE LAW OF ‘‘(5) PILLAGING.—Any person subject to this any of the victims, by such punishment, WAR.—Any person subject to this chapter chapter who intentionally and in the absence other than death, as a military commission who intentionally kills one or more persons, of military necessity appropriates or seizes under this chapter may direct. including lawful combatants, in violation of property for private or personal use, without ‘‘(B) SEVERE MENTAL PAIN OR SUFFERING DE- the law of war shall be punished by death or the consent of a person with authority to FINED.—In this section, the term ‘severe such other punishment as a military com­ permit such appropriation or seizure, shall mental pain or suffering’ has the meaning mission under this chapter may direct. be punished as a military commission under given that term in section 2340(2) of title 18. ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA­ this chapter may direct. ‘‘(12) CRUEL OR INHUMAN TREATMENT.— TION OF THE LAW OF WAR.—Any person subject ‘‘(6) DENYING QUARTER.—Any person sub­ ‘‘(A) OFFENSE.—Any person subject to this to this chapter who intentionally destroys ject to this chapter who, with effective com­ chapter who commits an act intended to in- property belonging to another person in vio­ mand or control over subordinate groups, de­ flict severe or serious physical or mental lation of the law of war shall punished as a clares, orders, or otherwise indicates to pain or suffering (other than pain or suf- military commission under this chapter may those groups that there shall be no survivors fering incidental to lawful sanctions), in- direct. or surrender accepted, with the intent to cluding serious physical abuse, upon another ‘‘(17) USING TREACHERY OR PERFIDY.—Any threaten an adversary or to conduct hos­ within his custody or control shall be pun- person subject to this chapter who, after in­ tilities such that there would be no survivors ished, if death results to the victim, by death viting the confidence or belief of one or more or surrender accepted, shall be punished as a or such other punishment as a military com- persons that they were entitled to, or obliged military commission under this chapter may mission under this chapter may direct, and, to accord, protection under the law of war, direct. if death does not result to the victim, by intentionally makes use of that confidence ‘‘(7) TAKING HOSTAGES.—Any person subject such punishment, other than death, as a or belief in killing, injuring, or capturing to this chapter who, having knowingly seized military commission under this chapter may such person or persons shall be punished, if or detained one or more persons, threatens direct. death results to one or more of the victims, to kill, injure, or continue to detain such ‘‘(B) DEFINITIONS.—In this paragraph: by death or such other punishment as a mili­ person or persons with the intent of compel­ ‘‘(i) The term ‘serious physical pain or suf- tary commission under this chapter may di­ ling any nation, person other than the hos­ fering’ means bodily injury that involves— rect, and, if death does not result to any of tage, or group of persons to act or refrain ‘‘(I) a substantial risk of death; the victims, by such punishment, other than from acting as an explicit or implicit condi­ ‘‘(II) extreme physical pain; death, as a military commission under this tion for the safety or release of such person ‘‘(III) a burn or physical disfigurement of a chapter may direct. or persons, shall be punished, if death results serious nature (other than cuts, abrasions, or ‘‘(18) IMPROPERLY USING A FLAG OF TRUCE.— to one or more of the victims, by death or bruises); or Any person subject to this chapter who uses such other punishment as a military com­ ‘‘(IV) significant loss or impairment of the a flag of truce to feign an intention to nego­ mission under this chapter may direct, and, function of a bodily member, organ, or men- tiate, surrender, or otherwise suspend hos­ if death does not result to any of the vic­ tal faculty. tilities when there is no such intention shall tims, by such punishment, other than death, ‘‘(ii) The term ‘severe mental pain or suf- be punished as a military commission under as a military commission under this chapter fering’ has the meaning given that term in this chapter may direct. may direct. section 2340(2) of title 18. ‘‘(19) IMPROPERLY USING A DISTINCTIVE EM­ ‘‘(8) EMPLOYING POISON OR SIMILAR WEAP­ ‘‘(iii) The term ‘serious mental pain or suf- BLEM.—Any person subject to this chapter ONS.—Any person subject to this chapter who fering’ has the meaning given the term ‘se- who intentionally uses a distinctive emblem

VerDate Aug 31 2005 04:41 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00080 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.081 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10429 recognized by the law of war for combatant eign power, collects or attempts to collect cle 81 of the Uniform Code of Military Jus­ purposes in a manner prohibited by the law information by clandestine means or while tice), is amended— of war shall be punished as a military com­ acting under false pretenses, for the purpose (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; mission under this chapter may direct. of conveying such information to an enemy and ‘‘(20) INTENTIONALLY MISTREATING A DEAD of the United States, or one of the co-bellig­ (2) by adding at the end the following new BODY.—Any person subject to this chapter erents of the enemy, shall be punished by subsection: who intentionally mistreats the body of a death or such other punishment as a mili­ ‘‘(b) Any person subject to this chapter dead person, without justification by legiti­ tary commission under this chapter may di­ who conspires with any other person to com­ mate military necessity, shall be punished as rect. mit an offense under the law of war, and who a military commission under this chapter ‘‘(28) CONSPIRACY.—Any person subject to knowingly does an overt act to effect the ob­ may direct. this chapter who conspires to commit one or ject of the conspiracy, shall be punished, if ‘‘(21) RAPE.—Any person subject to this more substantive offenses triable by mili­ death results to one or more of the victims, chapter who forcibly or with coercion or tary commission under this chapter, and who by death or such other punishment as a threat of force wrongfully invades the body knowingly does any overt act to effect the court-martial or military commission may of a person by penetrating, however slightly, object of the conspiracy, shall be punished, if direct, and, if death does not result to any of the anal or genital opening of the victim death results to one or more of the victims, the victims, by such punishment, other than with any part of the body of the accused, or by death or such other punishment as a mili­ death, as a court-martial or military com­ mission may direct.’’. with any foreign object, shall be punished as tary commission under this chapter may di­ a military commission under this chapter rect, and, if death does not result to any of SEC. 5. TREATY OBLIGATIONS NOT ESTAB­ may direct. LISHING GROUNDS FOR CERTAIN the victims, by such punishment, other than CLAIMS. ‘‘(22) SEXUAL ASSAULT OR ABUSE.—Any per­ death, as a military commission under this (a) IN GENERAL.—No person may invoke son subject to this chapter who forcibly or chapter may direct. with coercion or threat of force engages in the Geneva Conventions or any protocols ‘‘§ 950w. Perjury and obstruction of justice; thereto in any habeas corpus or other civil sexual contact with one or more persons, or contempt action or proceeding to which the United causes one or more persons to engage in sex­ States, or a current or former officer, em­ ual contact, shall be punished as a military ‘‘(a) PERJURY AND OBSTRUCTION OF JUS­ ployee, member of the Armed Forces, or commission under this chapter may direct. TICE.—A military commission under this chapter may try offenses and impose such other agent of the United States is a party as ‘‘(23) HIJACKING OR HAZARDING A VESSEL OR punishment as the military commission may a source of rights in any court of the United AIRCRAFT.—Any person subject to this chap­ States or its States or territories. ter who intentionally seizes, exercises unau­ direct for perjury, false testimony, or ob­ struction of justice related to military com­ (b) GENEVA CONVENTIONS DEFINED.—In this thorized control over, or endangers the safe section, the term ‘‘Geneva Conventions’’ navigation of a vessel or aircraft that is not missions under this chapter. ‘‘(b) CONTEMPT.—A military commission means— a legitimate military objective shall be pun­ under this chapter may punish for contempt (1) the Convention for the Amelioration of ished, if death results to one or more of the any person who uses any menacing word, the Condition of the Wounded and Sick in victims, by death or such other punishment sign, or gesture in its presence, or who dis­ Armed Forces in the Field, done at Geneva as a military commission under this chapter turbs its proceedings by any riot or dis­ August 12, 1949 (6 UST 3114); may direct, and, if death does not result to (2) the Convention for the Amelioration of any of the victims, by such punishment, order.’’. (2) TABLES OF CHAPTERS AMENDMENTS.—The the Condition of the Wounded, Sick, and other than death, as a military commission Shipwrecked Members of the Armed Forces under this chapter may direct. tables of chapters at the beginning of sub­ title A, and at the beginning of part II of at Sea, done at Geneva August 12, 1949 (6 ‘‘(24) TERRORISM.—Any person subject to UST 3217); this chapter who intentionally kills or in­ subtitle A, of title 10, United States Code, are each amended by inserting after the item (3) the Convention Relative to the Treat­ flicts great bodily harm on one or more pro­ ment of Prisoners of War, done at Geneva tected persons, or intentionally engages in relating to chapter 47 the following new item: August 12, 1949 (6 UST 3316); and an act that evinces a wanton disregard for (4) the Convention Relative to the Protec­ ‘‘47A. Military Commissions ...... 948a’’. human life, in a manner calculated to influ­ tion of Civilian Persons in Time of War, done ence or affect the conduct of government or (b) SUBMITTAL OF PROCEDURES TO CON­ at Geneva August 12, 1949 (6 UST 3516). civilian population by intimidation or coer­ GRESS.—Not later than 90 days after the date SEC. 6. IMPLEMENTATION OF TREATY OBLIGA­ cion, or to retaliate against government con­ of the enactment of this Act, the Secretary TIONS. duct, shall be punished, if death results to of Defense shall submit to the Committees (a) IMPLEMENTATION OF TREATY OBLIGA­ one or more of the victims, by death or such on Armed Services of the Senate and the TIONS.— other punishment as a military commission House of Representatives a report setting (1) IN GENERAL.—The acts enumerated in under this chapter may direct, and, if death forth the procedures for military commis­ subsection (d) of section 2441 of title 18, does not result to any of the victims, by such sions prescribed under chapter 47A of title 10, United States Code, as added by subsection punishment, other than death, as a military United States Code (as added by subsection (b) of this section, and in subsection (c) of commission under this chapter may direct. (a)). this section, constitute violations of com­ ‘‘(25) PROVIDING MATERIAL SUPPORT FOR SEC. 4. AMENDMENTS TO UNIFORM CODE OF mon Article 3 of the Geneva Conventions TERRORISM.— MILITARY JUSTICE. prohibited by United States law. ‘‘(A) OFFENSE.—Any person subject to this (a) CONFORMING AMENDMENTS.—Chapter 47 (2) PROHIBITION ON GRAVE BREACHES.—The chapter who provides material support or re­ of title 10, United States Code (the Uniform provisions of section 2441 of title 18, United sources, knowing or intending that they are Code of Military Justice), is amended as fol­ States Code, as amended by this section, to be used in preparation for, or in carrying lows: fully satisfy the obligation under Article 129 out, an act of terrorism (as set forth in para­ (1) APPLICABILITY TO LAWFUL ENEMY COM­ of the Third Geneva Convention for the graph (24)), or who intentionally provides BATANTS.—Section 802(a) (article 2(a)) is United States to provide effective penal material support or resources to an inter­ amended by adding at the end the following sanctions for grave breaches which are en­ national terrorist organization engaged in new paragraph: compassed in common Article 3 in the con­ hostilities against the United States, know­ ‘‘(13) Lawful enemy combatants (as that text of an armed conflict not of an inter­ ing that such organization has engaged or term is defined in section 948a(2) of this title) national character. No foreign or inter­ engages in terrorism (as so set forth), shall who violate the law of war.’’. national source of law shall supply a basis be punished as a military commission under (2) EXCLUSION OF APPLICABILITY TO CHAPTER for a rule of decision in the courts of the this chapter may direct. 47A COMMISSIONS.—Sections 821, 828, 848, United States in interpreting the prohibi­ ‘‘(B) MATERIAL SUPPORT OR RESOURCES DE­ 850(a), 904, and 906 (articles 21, 28, 48, 50(a), tions enumerated in subsection (d) of such FINED.—In this paragraph, the term ‘mate­ 104, and 106) are amended by adding at the section 2441. rial support or resources’ has the meaning end the following new sentence: ‘‘This sec­ (3) INTERPRETATION BY THE PRESIDENT.— given that term in section 2339A(b) of title tion does not apply to a military commission (A) As provided by the Constitution and by 18. established under chapter 47A of this title.’’. this section, the President has the authority ‘‘(26) WRONGFULLY AIDING THE ENEMY.—Any (3) INAPPLICABILITY OF REQUIREMENTS RE­ for the United States to interpret the mean­ person subject to this chapter who, in breach LATING TO REGULATIONS.—Section 836 (article ing and application of the Geneva Conven­ of an allegiance or duty to the United 36) is amended— tions and to promulgate higher standards States, knowingly and intentionally aids an (A) in subsection (a), by inserting ‘‘, except and administrative regulations for violations enemy of the United States, or one of the co- as provided in chapter 47A of this title,’’ of treaty obligations which are not grave belligerents of the enemy, shall be punished after ‘‘but which may not’’; and breaches of the Geneva Conventions. as a military commission under this chapter (B) in subsection (b), by inserting before (B) The President shall issue interpreta­ may direct. the period at the end ‘‘, except insofar as ap­ tions described by subparagraph (A) by Exec­ ‘‘(27) SPYING.—Any person subject to this plicable to military commissions established utive Order published in the Federal Reg­ chapter who with intent or reason to believe under chapter 47A of this title’’. ister. that it is to be used to the injury of the (b) PUNITIVE ARTICLE OF CONSPIRACY.—Sec­ (C) Any Executive Order published under United States or to the advantage of a for­ tion 881 of title 10, United States Code (arti­ this paragraph shall be authoritative (except

VerDate Aug 31 2005 04:41 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00081 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.081 S28SEPT1 ccoleman on PROD1PC71 with SENATE S10430 CONGRESSIONAL RECORD — SENATE September 28, 2006 as to grave breaches of common Article 3) as spires or attempts to injure, or injures fied for the conduct stated in subparagraphs a matter of United States law, in the same whether intentionally or unintentionally in (D), (E), and (F) or paragraph (1) precludes manner as other administrative regulations. the course of committing any other offense the applicability of those subparagraphs to (D) Nothing in this section shall be con­ under this subsection, one or more persons an offense under subsection (a) by reasons of strued to affect the constitutional functions taking no active part in the hostilities, in­ subsection (c)(3) with respect to— and responsibilities of Congress and the judi­ cluding those placed out of combat by sick­ ‘‘(A) collateral damage; or cial branch of the United States. ness, wounds, detention, or any other cause, ‘‘(B) death, damage, or injury incident to a (4) DEFINITIONS.—In this subsection: by disfiguring the person or persons by any lawful attack. (A) GENEVA CONVENTIONS.—The term ‘‘Ge­ mutilation thereof or by permanently dis­ ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES neva Conventions’’ means— abling any member, limb, or organ of his TO PRISONER EXCHANGE.—Paragraph (1)(I) (i) the Convention for the Amelioration of body, without any legitimate medical or does not apply to an offense under subsection the Condition of the Wounded and Sick in dental purpose. (a) by reason of subsection (c)(3) in the case Armed Forces in the Field, done at Geneva ‘‘(F) INTENTIONALLY CAUSING SERIOUS BOD­ of a prisoner exchange during wartime. August 12, 1949 (6 UST 3217); ILY INJURY.—The act of a person who inten­ ‘‘(5) DEFINITION OF GRAVE BREACHES.—The (ii) the Convention for the Amelioration of tionally causes, or conspires or attempts to definitions in this subsection are intended the Condition of the Wounded, Sick, and cause, serious bodily injury to one or more only to define the grave breaches of common Shipwrecked Members of the Armed Forces persons, including lawful combatants, in vio­ Article 3 and not the full scope of United at Sea, done at Geneva August 12, 1949 (6 lation of the law of war. States obligations under that Article.’’. UST 3217); ‘‘(G) RAPE.—The act of a person who forc­ (2) RETROACTIVE APPLICABILITY.—The (iii) the Convention Relative to the Treat­ ibly or with coercion or threat of force amendments made by this subsection, except ment of Prisoners of War, done at Geneva wrongfully invades, or conspires or attempts as specified in subsection (d)(2)(E) of section August 12, 1949 (6 UST 3316); and to invade, the body of a person by pene­ 2441 of title 18, United States Code, shall (iv) the Convention Relative to the Protec­ trating, however slightly, the anal or genital take effect as of November 26, 1997, as if en­ tion of Civilian Persons in Time of War, done opening of the victim with any part of the acted immediately after the amendments at Geneva August 12, 1949 (6 UST 3516). body of the accused, or with any foreign ob­ made by section 583 of Public Law 105–118 (as (B) THIRD GENEVA CONVENTION.—The term ject. amended by section 4002(e)(7) of Public Law ‘‘Third Geneva Convention’’ means the inter­ ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act 107–273). national convention referred to in subpara­ of a person who forcibly or with coercion or (c) ADDITIONAL PROHIBITION ON CRUEL, IN­ graph (A)(iii). threat of force engages, or conspires or at­ HUMAN, OR DEGRADING TREATMENT OR PUN­ (b) REVISION TO WAR CRIMES OFFENSE tempts to engage, in sexual contact with one ISHMENT.— UNDER FEDERAL CRIMINAL CODE.— or more persons, or causes, or conspires or (1) IN GENERAL.—No individual in the cus­ (1) IN GENERAL.—Section 2441 of title 18, attempts to cause, one or more persons to tody or under the physical control of the United States Code, is amended— engage in sexual contact. United States Government, regardless of na­ (A) in subsection (c), by striking paragraph ‘‘(I) TAKING HOSTAGES.—The act of a person tionality or physical location, shall be sub­ (3) and inserting the following new para­ who, having knowingly seized or detained ject to cruel, inhuman, or degrading treat­ graph (3): one or more persons, threatens to kill, in­ ment or punishment. ‘‘(3) which constitutes a grave breach of jure, or continue to detain such person or (2) CRUEL, INHUMAN, OR DEGRADING TREAT­ common Article 3 (as defined in subsection persons with the intent of compelling any MENT OR PUNISHMENT DEFINED.—In this sub­ (d)) when committed in the context of and in nation, person other than the hostage, or section, the term ‘‘cruel, inhuman, or de­ association with an armed conflict not of an group of persons to act or refrain from act­ grading treatment or punishment’’ means international character; or’’; and ing as an explicit or implicit condition for cruel, unusual, and inhumane treatment or (B) by adding at the end the following new the safety or release of such person or per­ punishment prohibited by the Fifth, Eighth, subsection: sons. and Fourteenth Amendments to the Con­ ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.— ‘‘(2) DEFINITIONS.—In the case of an offense stitution of the United States, as defined in ‘‘(1) PROHIBITED CONDUCT.—In subsection under subsection (a) by reason of subsection (c)(3), the term ‘grave breach of common Ar­ (c)(3)— the United States Reservations, Declarations ticle 3’ means any conduct (such conduct ‘‘(A) the term ‘severe mental pain or suf­ and Understandings to the United Nations constituting a grave breach of common Arti­ fering’ shall be applied for purposes of para­ Convention Against Torture and Other cle 3 of the international conventions done graphs (1)(A) and (1)(B) in accordance with Forms of Cruel, Inhuman or Degrading at Geneva August 12, 1949), as follows: the meaning given that term in section Treatment or Punishment done at New ‘‘(A) TORTURE.—The act of a person who 2340(2) of this title; York, December 10, 1984. commits, or conspires or attempts to com­ ‘‘(B) the term ‘serious bodily injury’ shall (3) COMPLIANCE.—The President shall take mit, an act specifically intended to inflict be applied for purposes of paragraph (1)(F) in action to ensure compliance with this sub­ severe physical or mental pain or suffering accordance with the meaning given that section, including through the establishment (other than pain or suffering incidental to term in section 113(b)(2) of this title; of administrative rules and procedures. lawful sanctions) upon another person within ‘‘(C) the term ‘sexual contact’ shall be ap­ SEC. 7. HABEAS CORPUS MATTERS. his custody or physical control for the pur­ plied for purposes of paragraph (1)(G) in ac­ (a) IN GENERAL.—Section 2241 of title 28, pose of obtaining information or a confes­ cordance with the meaning given that term United States Code, is amended by striking sion, punishment, intimidation, coercion, or in section 2246(3) of this title; both the subsection (e) added by section any reason based on discrimination of any ‘‘(D) the term ‘serious physical pain or suf­ 1005(e)(1) of Public Law 109–148 (119 Stat. kind. fering’ shall be applied for purposes of para­ 2742) and the subsection (e) added by added ‘‘(B) CRUEL OR INHUMAN TREATMENT.—The graph (1)(B) as meaning bodily injury that by section 1405(e)(1) of Public Law 109–163 act of a person who commits, or conspires or involves— (119 Stat. 3477) and inserting the following attempts to commit, an act intended to in­ ‘‘(i) a substantial risk of death; new subsection (e): flict severe or serious physical or mental ‘‘(ii) extreme physical pain; ‘‘(e)(1) No court, justice, or judge shall pain or suffering (other than pain or suf­ ‘‘(iii) a burn or physical disfigurement of a have jurisdiction to hear or consider an ap­ fering incidental to lawful sanctions), in­ serious nature (other than cuts, abrasions, or plication for a writ of habeas corpus filed by cluding serious physical abuse, upon another bruises); or or on behalf of an alien detained by the within his custody or control. ‘‘(iv) significant loss or impairment of the United States who has been determined by ‘‘(C) PERFORMING BIOLOGICAL EXPERI­ function of a bodily member, organ, or men­ the United States to have been properly de­ MENTS.—The act of a person who subjects, or tal faculty; and tained as an enemy combatant or is awaiting conspires or attempts to subject, one or ‘‘(E) the term ‘serious mental pain or suf­ such determination. more persons within his custody or physical fering’ shall be applied for purposes of para­ ‘‘(2) Except as provided in paragraphs (2) control to biological experiments without a graph (1)(B) in accordance with the meaning and (3) of section 1005(e) of the Detainee legitimate medical or dental purpose and in given the term ‘severe mental pain or suf­ Treatment Act of 2005 (10 U.S.C. 801 note), no so doing endangers the body or health of fering’ (as defined in section 2340(2) of this court, justice, or judge shall have jurisdic­ such person or persons. title), except that— tion to hear or consider any other action ‘‘(D) MURDER.—The act of a person who in­ ‘‘(i) the term ‘serious’ shall replace the against the United States or its agents relat­ tentionally kills, or conspires or attempts to term ‘severe’ where it appears; and ing to any aspect of the detention, transfer, kill, or kills whether intentionally or unin­ ‘‘(ii) as to conduct occurring after the date treatment, trial, or conditions of confine­ tentionally in the course of committing any of the enactment of the Military Commis­ ment of an alien who is or was detained by other offense under this subsection, one or sions Act of 2006, the term ‘serious and non- the United States and has been determined more persons taking no active part in the transitory mental harm (which need not be by the United States to have been properly hostilities, including those placed out of prolonged)’ shall replace the term ‘prolonged detained as an enemy combatant or is await­ combat by sickness, wounds, detention, or mental harm’ where it appears. ing such determination.’’. any other cause. ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS (b) EFFECTIVE DATE.—The amendment ‘‘(E) MUTILATION OR MAIMING.—The act of a WITH RESPECT TO COLLATERAL DAMAGE OR IN­ made by subsection (a) shall take effect on person who intentionally injures, or con­ CIDENT OF LAWFUL ATTACK.—The intent speci­ the date of the enactment of this Act, and

VerDate Aug 31 2005 04:41 Sep 29, 2006 Jkt 049060 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 E:\CR\FM\A28SE6.081 S28SEPT1 ccoleman on PROD1PC71 with SENATE September 28, 2006 CONGRESSIONAL RECORD — SENATE S10431 shall apply to all cases, without exception, SECURE FENCE ACT OF 2006— funds to hire law enforcement and bor­ pending on or after the date of the enact­ Resumed der security agents, and to give them ment of this Act which relate to any aspect CLOTURE MOTION the resources and equipment they need of the detention, transfer, treatment, trial, to do their job. In the years imme­ or conditions of detention of an alien de­ The PRESIDING OFFICER (Mr. tained by the United States since September ALLEN). Under the previous order, pur­ diately after the September 11 attacks, 11, 2001. suant to rule XXII, the Chair lays be­ those funds had not only been left out fore the Senate the pending cloture of the President’s annual budgets but SEC. 8. REVISIONS TO DETAINEE TREATMENT had been continuously blocked by the ACT OF 2005 RELATING TO PROTEC­ motion, which the clerk will state. TION OF CERTAIN UNITED STATES The legislative clerk read as follows: White House in the appropriations GOVERNMENT PERSONNEL. CLOTURE MOTION process. I and others tried to add funds (a) COUNSEL AND INVESTIGATIONS.—Section We the undersigned Senators, in accord­ where possible, but not until recently 1004(b) of the Detainee Treatment Act of 2005 ance with the provisions of rule XXII of the did the administration begin to re­ (42 U.S.C. 2000dd–1(b)) is amended— Standing Rules of the Senate, do hereby spond to the inadequacies along the (1) by striking ‘‘may provide’’ and insert­ move to bring to a close debate on Calendar border. So much more is required and ing ‘‘shall provide’’; No. 615, H.R. 6061, a bill to establish oper­ needs to be done. (2) by inserting ‘‘or investigation’’ after ational control over the international land The bill before the Senate today is a ‘‘criminal prosecution’’; and and maritime borders of the United States. good bill. It would authorize two-layer (3) by inserting ‘‘whether before United Bill Frist, Lamar Alexander, Richard fencing along the southern border States courts or agencies, foreign courts or Burr, Gordon Smith, John Thune, agencies, or international courts or agen­ where our security is weakest, and set Johnny Isakson, John Cornyn, Judd timetables to which the Congress can cies,’’ after ‘‘described in that subsection’’. Gregg, Jim Inhofe, Saxby Chambliss, hold the administration. But this bill (b) PROTECTION OF PERSONNEL.—Section Sam Brownback, Tom Coburn, Jeff Ses­ 1004 of the Detainee Treatment Act of 2005 sions, Richard Shelby, Craig Thomas, will amount to little or no protection (42 U.S.C. 2000dd–1) shall apply with respect Michael B. Enzi, Lisa Murkowski. without the resources to implement it. to any criminal prosecution that— Mr. BYRD. Mr. President, I support The administration must do more. (1) relates to the detention and interroga­ cloture on H.R. 6061, the Secure Fence Without its continued support and a tion of aliens described in such section; Act. The sooner the Congress passes committed effort to prevent illegal im­ (2) is grounded in section 2441(c)(3) of title this bill, the sooner the Congress can migration, the protective barrier called 18, United States Code; and put aside the misguided amnesty legis­ for in this bill will amount to nothing (3) relates to actions occurring between more than a line drawn in the sands of September 11, 2001, and December 30, 2005. lation passed by the Senate earlier this year. The American people have lis­ our porous Southern border. SEC. 9. REVIEW OF JUDGMENTS OF MILITARY Mr. KENNEDY. Mr. President, now tened and rejected the call to offer U.S. COMMISSIONS. we have 4 minutes that can be equally citizenship to illegal aliens. They have Section 1005(e)(3) of the Detainee Treat­ divided between those in favor and said NO to amnesty! Hallelujah! ment Act of 2005 (title X of Public Law 109– Comprehensive immigration reform those in opposition; am I correct? 148; 119 Stat. 2740; 10 U.S.C. 801 note) is The PRESIDING OFFICER. The Sen­ is a euphemism for amnesty, and I op­ amended— ator is correct. (1) in subparagraph (A), by striking ‘‘pur­ pose it absolutely and unequivocally. I Mr. KENNEDY. Mr. President, I yield suant to Military Commission Order No. 1. voted against the amnesty bill passed myself 2 minutes. dated August 31, 2005 (or any successor mili­ by the Senate, and I will continue to Let us review where we in the Senate tary order)’’ and inserting ‘‘by a military vote against amnesty as long as I am have been on the issue of immigration. commission under chapter 47A of title 10, in the Senate. Last May, we passed by 63 votes, with United States Code’’; I have seen how amnesties encourage 1 favorable vote missing, a comprehen­ (2) by striking subparagraph (B) and insert­ illegal immigration, with the amnes­ ing the following new subparagraph (B): sive measure to try to deal with a com­ ‘‘(B) GRANT OF REVIEW.—Review under this ties of the 1980s and 1990s cor­ plex and difficult issue. The House of paragraph shall be as of right.’’; responding with an unprecedented rise Representatives passed this bill, but (3) in subparagraph (C)— in the population of unlawful aliens. they refused to meet with the Senate (A) in clause (i)— I have seen how amnesties open the of the United States. The House of Rep­ (i) by striking ‘‘pursuant to the military border to terrorists, with the perpetra­ resentatives held 60 hearings all over order’’ and inserting ‘‘by a military commis­ tors of terrorist plots against our coun­ the country at taxpayers’ expense— sion’’; and try taking advantage of amnesties to (ii) by striking ‘‘at Guantanamo Bay, millions and millions of dollars. What circumvent the regular border and im­ do they come up with? After all the Cuba’’; and migration checks. (B) in clause (ii), by striking ‘‘pursuant to pounding and finger-pointing, they such military order’’ and inserting ‘‘by the I have seen how amnesties afford spe­ came up with an 800-mile fence. military commission’’; and cial rules to some immigrants. Am­ Listen to Governor Napolitano: You (4) in subparagraph (D)(i), by striking nesty undermines that great and egali­ show me a 50-foot fence, and I will ‘‘specified in the military order’’ and insert­ tarian American promise that the rules show you a 51-foot ladder. ing ‘‘specified for a military commission’’. will be applied equally and fairly to ev­ This is a feel-good bumper-sticker SEC. 10. DETENTION COVERED BY REVIEW OF DE­ eryone. vote. It is not going to work. Why? Be­ CISIONS OF COMBATANT STATUS RE­ We are a nation of immigrants to be cause half of all the undocumented VIEW TRIBUNALS OF PROPRIETY OF sure, but that does not mean that we DETENTION. come here legally. They don’t come are obligated to give away U.S. citizen­ over the fence. Section 1005(e)(2)(B)(i) of the Detainee ship. According to immigration ex­ Do you hear us? This is going to cost Treatment Act of 2005 (title X of Public Law perts, until 1986, the Congress never $9 billion. 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is granted amnesty to any generation of Listen to what Secretary Chertoff amended by striking ‘‘the Department of De­ immigrants. The Congress encouraged fense at Guantanamo Bay, Cuba’’ and insert­ said about this issue. Secretary ing ‘‘the United States’’. immigrants to learn the Constitutional Chertoff said: ‘‘Don’t give us old fences. principles of our Government and the Give us 20th century solutions.’’ Tom Mr. WARNER. Mr. President, I move history of our country. Immigrants Ridge, the former head of Homeland to reconsider the vote. learned English, and tried to assimi­ Security, said the same thing. Mr. ENZI. I move to lay that motion late. U.S. citizenship was their reward. This is a waste of money. Let us do on the table. The Congress did not reward illegal what we should have done in the first The motion to lay on the table was aliens with U.S. citizenship. place. Let us sit down with the House, agreed to. Now that this idea of amnesty has the way this institution is supposed to been rejected by the Congress, perhaps Mr. WARNER. Mr. President, I thank work, rather than just take what is the administration will begin, at long the Presiding Officer. served up by the House of Representa­ last, to focus its efforts on actually re­ tives that said take it or leave it. That This matter has now been brought to ducing the number of illegal aliens al­ is what they are saying to the Senate. conclusion. ready in the country. Such an effort We have had a good debate which re­ I yield the floor. will require a significant investment of sulted in a comprehensive measure. Let

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