E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, SECOND SESSION

Vol. 152 WASHINGTON, WEDNESDAY, SEPTEMBER 27, 2006 No. 123 Senate The Senate met at 9:30 a.m. and was RECOGNITION OF THE MAJORITY I remind my colleagues that we have called to order by the President pro LEADER a policy meeting on this side of the tempore (Mr. STEVENS). The PRESIDENT pro tempore. The aisle to occur from 12:30 p.m. to 2:15 majority leader is recognized. p.m. today. If we can schedule debate PRAYER on one of these issues during that time, f The Chaplain, Dr. Barry C. Black, of- we will likely be able to remain in ses- fered the following prayer: PROGRAM sion in order to make progress. Let us pray. Mr. FRIST. Mr. President, we have a I have a brief statement. Does the Eternal Father, You are always the period of 1 hour of morning business to Democratic leader have comments? same. Help our legislative leaders to be start today’s session. Following morn- f honest and fair. May our lawmakers ing business, we have 1 hour of debate RECOGNITION OF THE MINORITY labor for justice and peace. As You use prior to a scheduled cloture vote on the LEADER them for Your purposes, deliver them pending amendment relating to mili- from moral paralysis and spiritual in- tary tribunals, to the military commis- The PRESIDENT pro tempore. The ertia. sions. Before that cloture vote begins, Democratic leader is recognized. Make them voices for those who are the Democratic leader and I will con- f captives of injustice and oppression. tinue to work toward an agreement WORKING ON A UNANIMOUS Use them to rescue the hopeless, to that would allow us to consider the CONSENT AGREEMENT help the hurting, and to have pity on military tribunal legislation as a free- the weak. Because of their faithfulness, standing measure under a specific time Mr. REID. Mr. President, I appreciate let this Nation prosper like flowers in a agreement. We started talking about the majority leader yielding. So every- well-kept garden. that yesterday and worked through the one understands where we are, let me As we praise You, Our Father, show night, and we will continue over the repeat what the majority leader said. Your glory throughout our world. course of the morning to reach that As things now stand, we are going to We pray in Your glorious Name. agreement. We are working in good have a cloture vote on the Hamdan Amen. faith toward an understanding on this matter, the Supreme Court detainee f bill and hope we will be able to work situation that now confronts the coun- PLEDGE OF ALLEGIANCE that out prior to that 11:30 a.m. vote. I try, sometime this evening. will keep our colleagues posted as to What we are going to try to do in the The PRESIDENT pro tempore led the the outcome of those talks. next hour or so is work out a unani- Pledge of Allegiance, as follows: If we are able to reach a consent mous consent agreement that there I pledge allegiance to the Flag of the agreement, then I will vitiate the order will be amendments allowed to be of- United States of America, and to the Repub- fered on the Hamdan matter. There lic for which it stands, one nation under God, for the cloture vote, and we will pro- indivisible, with liberty and justice for all. ceed directly to the military tribunals, would be amendments. We would agree the so-called Hamdan legislation, between the leader and me as to how f today. Votes will likely occur through- much time will be on the amendments. RESERVATION OF LEADER TIME out the afternoon either on the cloture I have cleared this matter with most The PRESIDENT pro tempore. Under vote on that issue or on amendments everyone. As I told the leader today, I the previous order, the leadership time that may be considered to the free- still have to work things out with two is reserved. standing bill. other members of the Judiciary Com- f We have a number of other important mittee. Hopefully, I can do that. If not, items to consider this week. The De- what will happen is cloture will be in- MORNING BUSINESS fense appropriations conference report voked on Hamdan and then 30 hours The PRESIDENT pro tempore. Under has been filed, and we do not expect will start, and there will be cloture on the previous order, there will be a pe- that to take very much time at all. It the fence bill, the barrier bill, some- riod for the transaction of morning may even be that we can do that at time tomorrow. We are trying to work business for up to 1 hour, with the first some point later today. our way through this so the Hamdan half of the time under the control of We have the Homeland Security ap- matter will have some debate on it and the Democratic leader or his designee propriations that will shortly be com- some amendments offered on it. We are and the second half of the time under pleted, as well as other conference re- doing our best to do that. the control of the majority leader or ports that are underway, such as port As I said yesterday, late in a session his designee. security, which may become available. such as this, everyone becomes a

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.000 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10224 CONGRESSIONAL RECORD — SENATE September 27, 2006 Charles Atlas—one person can stop opportunity to debate and amend this It creates a new teachers institute to anything. They have the right to do bill. We are just trying to put together improve teaching techniques—how we that. We understand that. But proce- an agreement to do that. If not, we will teach math and science—focusing on durally that is where we are now. have the cloture vote and still have education, on teachers who are respon- Hopefully, we can work our way that debate and that opportunity as we sible for putting forth that knowledge. through this and have some debate on go forward. It creates a DARPA-modeled ad- this detainee matter and move on to f vanced research projects agency at the the fence bill, hopefully work some- Department of Energy dedicated to the NATIONAL COMPETITIVENESS thing out on that, and put us on a goal of increasing innovation and com- INVESTMENT ACT OF 2006 glidepath to completing the work of petitiveness breakthroughs in tech- the body, as the majority wants to do, Mr. FRIST. Mr. President, I wish to nology. in the next couple of days. comment briefly on another issue, the It expands scholarship programs that Mr. LEAHY. Mr. President, will the National Competitiveness Investment are aimed to recruit and train math Senator yield on that point for a cou- Act of 2006, a bill that was introduced and science teachers—teachers who ple of moments? yesterday with bipartisan sponsor- really need to focus on the K–12 area. Mr. REID. Of course. ship—myself and Senator REID—a bill It encourages more students, more Mr. LEAHY. Mr. President, I com- that focuses on our global competitive- high school students, to take advanced mend the two leaders for trying to ness by focusing on education, by fo- placement courses and enter the inter- work out these issues. Over the years, cusing on the resources we should be national baccalaureate programs. I have seen leaders try to do it at the investing right here at home to make It will take an increased investment. end of a session. I don’t consider myself sure we are globally competitive with Over the next 5 years, our economy a Charles Atlas, but I do consider my- nations such as China and India. If we will exceed $76 trillion—$76 trillion is self a U.S. Senator. I have taken an don’t act, our Nation is going to lose how big our economy will grow. A 1- oath to uphold the Constitution of the our competitive edge. percent investment for the future is United States. The United States today has the really a small price to pay for that con- Some of us have sat in this Chamber strongest scientific and technological tinued security and leadership in the and in committee for 5 years while enterprise in the world, including the world. what was being done in detaining the best universities and the best corpora- I did not have the opportunity to prisoners violated our Constitution and tions investing in research. But there speak to this bill yesterday when it our traditions in the United States. is growing evidence and recognition was introduced. I encourage our col- Seven of the nine Members of the Su- that our educational system is failing leagues to join the bipartisan leader- preme Court are Republicans, inciden- to equip our young people and older ship—again, myself and Senator REID tally, and have said the same thing in people today to compete in this in- who are sponsors of this legislation. the Hamdan decision. creasingly global economy. We are fail- Mr. President, I yield the floor. I sug- We tried for 5 years to get the admin- ing in the very areas that have in the gest the absence of a quorum. istration to listen to us, to tell us past underpinned our strength, in areas The PRESIDENT pro tempore. The there are ways we could have worked such as mathematics, science, and en- clerk will call the roll. this out so the United States would fol- gineering. The legislative clerk proceeded to low its own laws, would follow its own We are going to have to invest in the call the roll. Constitution, would follow the ideals future in those specific areas if we are Mrs. BOXER. Mr. President, I ask on which this country was founded, and going to preserve our competitive edge, unanimous consent that the order for give that kind of example, a shining what has made this country great, as the quorum call be rescinded. light to the rest of the world. And now we have competed with other nations The PRESIDENT pro tempore. With- suddenly the administration, after around the world. We are in a 21st cen- out objection, it is so ordered. meeting behind closed doors, predomi- tury global economy which depends on The Senator from Vermont is recog- nantly just with the Republicans, says: mathematics, science, and technology. nized. Here, in 2 hours’ time, we have a solu- Those are the foundations. They are f tion; accept it. I have some problems the engine to create that economic se- RETIRING FROM THE SENATE with that. I will discuss this with the curity for the next generation. leaders. Two years ago, the Senate Energy Mr. JEFFORDS. Mr. President, even As I said, I don’t stand here as Committee asked the National Acad- a diehard Red Sox fan has to give the Charles Atlas, but I stand here as a emies to identify policies that would devil his due. Probably the most mov- U.S. Senator with my rights and to enable the United States to success- ing moment in the history of baseball protect the rights of Americans. fully compete and prosper. The Na- was when longtime New York Yankees Mr. REID. Mr. President, reclaiming tional Competitiveness Investment Act first baseman Lou Gehrig walked on the floor for just a moment, I say to of 2006, a bipartisan bill we introduced the field to accept the tribute of his my friend from Vermont, I consider yesterday, incorporates the rec- fans and teammates. On Independence him a Charles Atlas today and any ommendations made by the National Day in 1939, he told the crowd at time I have ever served with him in the Academies and a number of other very Yankee Stadium that he considered Senate. He is one of the most senior similar studies that have been pro- himself the luckiest man on the face of Members in the Senate. He is the per- duced over the last 2 to 3 years. the Earth. son the Democrats have designated to The bill reflects the bipartisan lead- I consider myself pretty lucky, too. I be the arbiter of issues that go on in ership of many Senators, including was elected to the House of Represent- the Judiciary Committee, the busiest those of the three major Senate com- atives in 1974. That was not the best committee in the Senate. mittees responsible—Energy, Com- year to be a Republican candidate. Out I also say to my friend that he is not merce, and the HELP Committee. of an enormous freshman class of 92 only a U.S. Senator but a very good In these few moments, I wish to com- new Members, which included CHRIS one, and I look forward to working ment on what this bill does because it DODD and TOM HARKIN, only 17 of us with him to work through this issue, is important for people to understand were Republicans. And as CHUCK and with other members of the com- how we invest and where we invest to GRASSLEY and I walked down the aisle mittee, as I mentioned, not in name, improve that global competitiveness in of the House, he with crutches and I but there are others I need to work this 21st century economy. with a neck brace, one Democrat mut- with on the Judiciary Committee. The bill doubles our investment for tered: There’s two we almost got. The PRESIDENT pro tempore. The basic Federal research over the next 5 Time has gotten just about all of us. majority leader. years at the National Science Founda- With my retirement and that of HENRY Mr. FRIST. Mr. President, we will tion and increases investment for basic HYDE in the House, CHUCK GRASSLEY continue our discussions. The goal will research at NASA and other science-re- next year will become the last remain- be to make sure Senators do have the lated agencies. ing Member of the Republican class of

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.002 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10225 1974, an iron horse in his own right. Ours, too, is not always an easy task. The beautiful Capitol dome above us, The silver lining for me in the elec- I know it is hard for the public to un- completed even as the Civil War con- toral losses suffered by the Republicans derstand the reality of life in the Con- cluded, should serve to inspire us. I am was a chance to land senior positions gress, but the continual travel, the an optimist and have been every day of on the Agriculture and Education Sub- campaigns, and the unpredictable my life. With Lincoln, I hope that the committees that would quickly throw hours of our jobs can take a toll on our mystic cords of memory will stretch me into the thick of things. Through- families. I have been blessed with two from every battlefield and patriot out my career in the House, I focused wonderful children, Laura and Leon- grave to the hearts of the living, and on those two issues. ard, who are here with me today, and a that we will soon again be touched by In 1988, with the retirement of Bob feisty, funny, and an incredibly strong the better angels of our nature. Stafford, I ran for and won a seat in the wife, Liz. They have had to put up with Mr. President, I wish you and all of Senate. Senator Stafford was a tough an awful lot over the years so that I my colleagues good luck and Godspeed. act to follow. He had held just about could serve Vermont. Mr. President, I yield the floor. every office in the State of Vermont Three decades is a blink of an eye in The PRESIDING OFFICER (Mr. and had an enormous impact on the history, but what a tremendous period VITTER). The minority leader is recog- Federal policy for education, the envi- of change in our country we have been nized. ronment, and elsewhere. I was lucky through. When I came to Washington, Mr. REID. Mr. President, Senator when I got to the Senate that there we were only three decades removed JEFFORDS has been a friend and col- were openings on both the Education from the Second World War. My child- league for many years. We had the op- and Environment Committees. hood heroes were heroes of that war, portunity to serve together in the Early on, I learned what the Senate and it seemed as though every family House of Representatives. We served can be at its best. In 1989, Congress was had a father or son or uncle who served together in the Senate. To say that he in the midst of reauthorizing the Clean and sacrificed in that war. But when I has made history during his time in Air Act. Even though I was a freshman, came to Washington, an entirely dif- Congress is an understatement. But the door was open for anyone who had ferent war was being waged in South- more important, he has made a dif- the time and interest. As John Chafee, east Asia. Vietnam has colored much of George Mitchell, and the rest of us our thinking since. Whether Vietnam ference. I have always been impressed forged a strong renewal of the Clean had too much or too little influence by his knowledge of the issues, his Air Act, I realized these were the mo- upon the ensuing three decades is a dedication to the public well-being, and ments I enjoyed most. I realized these much larger debate, but we would be the environment. I have had the good were the moments I enjoyed most when better served in world affairs today by fortune of serving with him on the En- smart and committed people worked being less haughty and more humble. vironment and Public Works Com- together to solve tough problems and I regret that my departure from Con- mittee. He is a stalwart. He is a true improve the lot for Americans. Every gress, like my arrival, finds our coun- believer that the environment is in dis- year since has provided similar mo- try at war. Young and even not so tress and things need to be done to ments, from rebuilding our roads to re- young Americans are sacrificing life change our environment. writing our food and drug laws. and limb while the rest of us are mak- He has worked to preserve the middle Probably the biggest and the most ing little or no sacrifice. It seems to class and to provide for the safety of rewarding challenge for me has been in me the very least we should do is pay the American people in so many dif- the area of education. From my first today for the fiscal costs of our poli- ferent ways. Senator JEFFORDS is a year in the House when we enacted the cies. Instead, we are floating IOUs man of conscience. No one can question Education of the Handicapped Act, to written on our children’s future. This that. He grew up in Vermont where the work that continues today on the High- year we have no budget, and we are un- Jeffords family first settled in the 18th er Education Act, I have tried to do my willing even to debate most of our century. His father was a longtime best to ensure that every child is given basic spending bills before the Novem- member of the Supreme Court. After the opportunity to reach his or her po- ber election. Thirty years from now, we JIM JEFFORDS graduated from Yale, he tential. could well face the biggest crisis in served in the Navy on active duty for 4 There is plenty of work left to be government since the Civil War, if Con- years. He served then in the Naval Re- done to reach this goal, and nowhere is gress and the White House do not adopt serve, retiring as a captain. Senator that more true than in the District of a more honest approach to govern- JEFFORDS studied law at Harvard—Yale Columbia. A decade ago, Congress ment. and Harvard—which shows his intel- stepped in to try and help the District The basic compact between genera- lect. He returned after having finished resolve the problems plaguing its over- tions is being broken. F.D.R. was right law school to Vermont to practice law. all budget and its schools in particular. to borrow heavily to finance World War Shortly thereafter, he was elected to As chair of the DC Appropriations Sub- II, but are we justified in doing so the Vermont State Senate and then at- committee, I helped lead that effort. today? torney general. He was elected to the The city is to be commended for its Earlier this month, I was privileged House of Representatives in 1975 and record of fiscal responsibility in the to attend the dedication of a monu- served there until he came to the Sen- years since, and I hope the super- ment in Virginia commemorating the ate in 1989. intendent, the new mayor, the council, sacrifice of more than 1,200 men of the In walking in here I grabbed a book and the school board will be able to Vermont Brigade during the battle of that has a lot of definitions. I flipped make similar progress in improving the wilderness. The tangled thickets of to courage. Whatever definition you the city’s school system. the 19th century have given way to ma- have of courage, you can pick one here While Vermont has always been ture forests. The individuals are large- going back to two centuries ago: home, I have lived in the District of ly forgotten, but our collective mem- I love the man who can smile on trouble, Columbia since coming to Washington. ory must endure. Today, we use blocks who can gather strength from distress and Luckily, I have never lost the ability of granite to remind us of the sacrifices grow brave by reflection. It is the business of to be moved by the sight of the Capitol of the Civil War. In its immediate little minds to shrink, but he whose heart is dome. Its majesty struck me when I aftermath you would think no such re- firm and whose conscience has approved his first came to Washington and it still minder would have been needed. But conduct will pursue his principles unto does today. Under that dome and in the 140 years ago, so the story goes, a death. buildings around it work thousands of northern Congressman literally waved That really is JIM JEFFORDS, and good people. We are all privileged to a bloody shirt before his colleagues to that, Mr. President, is a quote from work with a whole host of people who inflame them against the South for al- Thomas Payne. I have seen up close get too little recognition, from the per- leged misdeeds. True patriotism is the JIM JEFFORDS’ courage. Everyone son recording my words, to the people incredible bravery of those men whose knows, as it has been written about in who put them in the CONGRESSIONAL too-brief lives ended on that wilderness books, the conversations that Senator RECORD while we sleep—not always battlefield. Waving the bloody shirt JEFFORDS and I had prior to Senator easy tasks, in my case. then or today is anything but patriotic. JEFFORDS deciding that he wanted to

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.004 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10226 CONGRESSIONAL RECORD — SENATE September 27, 2006 change course and become an Inde- ator in our State. For the past three friend and colleague directly: For a pendent. That was not an easy deci- decades he has left his fingerprints on long career, JEFF, you can leave with sion. It involved years of friendship, nearly every environmental law en- your head held high. You have served and it involved years of his being a acted, from the Clean Air Act and the Vermont and your Nation proudly. member of two different legislative Clean Water Act to the Superfund pro- I yield the floor. bodies on Capitol Hill. gram to acid rain reduction. The PRESIDING OFFICER. The Sen- Most of our discussions took place on In fact, when others in his position ator from Iowa is recognized. the Senate floor as people were walk- would be thinking about where are the Mr. GRASSLEY. Mr. President, I rise ing around, but we had conversations papers going and how will we retire, for the purpose of telling my col- in private. I know firsthand, I repeat, just a matter of months ago he offered leagues that I am going to miss my col- of the courage of this man. I in my now the boldest solution to combat global league. long public career have been involved climate change this body has ever con- The PRESIDING OFFICER. I will in- in a number of things that I will al- sidered. terrupt the good Senator. Because the ways remember, but I will never, ever He has championed legislation to minority controls the next 7 minutes, remember anything more vividly than strengthen our Nation’s education sys- it is necessary to gain consent from the the Senator from Vermont, as a matter tem and increase the opportunities for minority. Mr. DURBIN. I ask consent the Sen- of principle and courage, changing not individuals with disabilities. In 1975, as a brandnew Member of the ator from Iowa be recognized. only his course but the course of this The PRESIDING OFFICER. Without House of Representatives, as he said, country. objection, it is so ordered. The Senator coming in with a neck brace—the walk- The PRESIDING OFFICER. The Sen- is recognized. ator from Vermont is recognized. ing wounded from an election where Mr. GRASSLEY. Mr. President, I rise Mr. LEAHY. Mr. President, I have both of us ran in Vermont—he coau- to tell the Senator from Vermont that listened to my friend, JIM JEFFORDS, thored what would later be known as I am going to miss him in the Senate the Senator from Vermont speak here the Individuals with Disabilities Edu- and still consider him a friend. I hope this morning. I couldn’t help but think cation Act, IDEA. It was strongly sup- to have a long relationship with him, as I heard Senator JEFFORDS speak ported by his colleagues here in the even in his retirement. I am that Sen- with wit and clarity, and you might Senate and before that in the House. It ator that JIM JEFFORDS, the Senator say even some emotion, that JIM JEF- has provided equal access to education from Vermont, referred to as the one FORDS, given the opportunity to make for millions of students with disabil- remaining Republican of the class of a speech—and many of us will do so on ities, students who otherwise would 1974. There were 17 of us. I think there this Senate floor as we leave—did it have been shunted aside and this coun- were about 70 Democrats. It was a bad being true to himself, with his own try would not have had the value of year for Republicans. You couldn’t good nature, his own sense of history, their achievements. even put the word Republican on your and his own justifiable pride in what he As chairman of the Health, Edu- literature. It was the year Nixon re- has accomplished. cation, Labor and Pension Committee, signed. I have known JIM JEFFORDS from his he worked tirelessly on education, job There were only 140 of us in the days as a State senator in Rutland. I training, and disability legislation. House of Representatives at that time. have known his wonderful wife, Liz Most recently, his leadership in the I don’t know whether Senator JEF- Daley Jeffords. They are both dear Senate Environment and Public Works FORDS felt this way, but I felt this way, friends of mine and my wife Marcel. Committee was essential to the pas- that it was probably the end of the Re- Mrs. Jeffords was referred to as a great sage of the highway bill. Of course, publican Party. Well, I was wrong. He lady the other night by the anchor of Vermont and the rest of the country and I have been reelected to serve to- our State’s largest TV station. Some of will benefit from that. gether, to serve our respective con- us who have known JIM for years would I might say there has been no greater stituents. say she gets that greatness for putting leader for Vermont’s dairy industry I remember Senator JEFFORDS as an up with him for all these years. But we than Senator JEFFORDS. In his work on outstanding member of the Agriculture Vermonters found no difficulties in the Northeast Dairy Compact and the Committee in the House of Representa- putting up with JIM JEFFORDS. He has milk programs, he has fought tough tives the 6 years I served on that com- been elected overwhelmingly to the of- battles for Vermont dairies—and won. mittee. Then there was a period of time fices he has held and he has done it He actually knows as much about our where I was a Member of the Senate with support from Republicans, Demo- dairy industry as most dairy farmers. and he still stayed in the House of Rep- crats, and Independents alike. He has It is what he has done for future gen- resentatives. Our friendship still held. gotten these votes the old-fashioned erations. All of us can talk about what But working together—you know how way—he earned them. we do here. It is what we leave for our it is in Congress, the House and Senate; We came here together 32 years ago. children and our grandchildren that there is a Grand Canyon between us I like to talk about the Leahys coming counts. Future generations of sometimes, and we don’t communicate to Vermont in the 1850s. JIM reminds Vermonters will honor JIM’s legacy as much as we ought to. Consequently, me his family came to Vermont a cen- when they see the work that he began it was like getting reacquainted with tury before. We both live in small as attorney general and continued Senator JEFFORDS again when he came towns in Vermont; we have had that throughout the Senate—helping to re- to the Senate. I was glad then and I am sense of Vermont. He has never lost it. store Lake Champlain to its brilliance, very glad now that he continued his He has been a good friend. its magnificence; or witness the bald service. His career highlights are legendary. eagles abounding in the wilderness I think he is an outstanding example Let me tell you why he is supported so. areas, thanks to JIM. of probably what is an unacknowledged First and foremost, Senator JEFFORDS I applaud him for this statement as principle of political science—at least is known as an environmental cham- he takes leave of the Senate—although it is a feeling I have about the people of pion. In Vermont, they say, If you it seems this year we will never know our country—that if you serve honor- scratch a Vermonter you scratch an when we leave. None of us are getting ably where you are at a certain time environmentalist, no matter the party. our final airplane reservations yet. But and do the best job possible, you are He has done it in the great tradition he has done it with his usual grace and going to have opportunities to enhance of Senator Bob Stafford. Senator Bob good humor. I applaud him for that and your position within public service. So Stafford is also from the same county I hope all of us when we come to leave, as a State senator, then as an attorney as JIM JEFFORDS—actually JIM grew up whenever that may be, will have the general, then as a Congressman, and near him. He mentioned Bob today. opportunity to show that same grace. then as a Senator for the people of He carved out a legend on education He served Vermont well and, just as Vermont, I believe he got to be a Sen- and the environment when he was here. importantly, he served the Senate well. ator because people in Vermont recog- But then JIM JEFFORDS had done that After a long career I might violate nized him, as a State senator, as a Con- as attorney general and as a State sen- the rules somewhat, addressing my gressman, and as an attorney general,

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.005 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10227 as a person who was not there because ure of an extraordinary Senator, Sen- were going to have an opportunity to of political ambition, wanting to rise ator JIM JEFFORDS. In these next sev- learn to read. It was just a simple illus- to the top, but a person, in each stage eral weeks, this Nation is going to be tration, once again, that JIM JEFFORDS of his public service life, who did what focused in many, many States on try- does not just talk the talk, he walks that job required and did it well. Peo- ing to select who is going to represent the walk. And on so many different ple recognized that and in the end of them in the Senate. And if the people times, he has been there doing just the process, he came to the Senate. of those States just took a few mo- that. In every relationship I have had with ments to listen to the eloquence of this So, JIM, we admire your service. You Senator JEFFORDS, whether he was Re- Senator, they would know what the have demonstrated here—and we do not publican or an Independent, it has al- standard should be in selecting some- understand perhaps well enough—that ways been one that has been friendly one to represent them in this body. It you can speak with a quiet and soft and honorable and honest, and, most is JIM JEFFORDS. He sets the standard. voice, but you speak with a great pas- importantly, to describe him as a hu- So we thank JIM JEFFORDS for his serv- sion and a compelling argument, and manitarian as he approached public ice—his service to the State of with a simplicity and effectiveness policy. Vermont and his service to all of our that has enriched and enhanced the It seemed to me that as a Member of States and to the country. We thank quality of life and opportunity, par- the Senate, whether as an Independent him for that service. ticularly for children but also for all or as a Republican, Senator JEFFORDS We also thank the people of Vermont Americans. It is a distinguished career, brought forth what it takes to get for their wisdom in selecting this ex- and it is one I know that you should things done in the Senate, and that is traordinary talent and giving him the be—and are—proud of. All of us have moderation. It doesn’t matter whether kind of support that they gave over a had our own lives enriched and inspired it is a bill that is representing the phi- long and distinguished career, espe- because of our friendship with you and losophy of the extreme left or a bill cially in those times when he was will- the type of Senator you have been. that represents the philosophy of the ing to take positions and stand up on The PRESIDING OFFICER. The Sen- extreme right, nothing such as that is issues as a matter of conscience. They ator from Connecticut is recognized. going to get through the Senate. Even- understood their native son. They re- Mr. DODD. Mr. President, I add my tually you have to have people come spected him, and they supported him. voice to my colleagues who have spo- together seeking a middle ground, a bi- So thank you to the voters of Vermont. ken and those who will speak in thank- partisan approach to get things done. Thank you to his family, Elizabeth ing our wonderful friend from Vermont It seems to me, in every respect, that that Senator JEFFORDS mentioned, for his remarkable service to our coun- is what Senator JEFFORDS did—he Laura, and Leonard—a family that try. sought moderation because that is how gave him great support. I think those I begin as well by thanking his fam- you get solutions and that is the only of us who have been fortunate enough ily, Elizabeth and the children, as well way the Senate produces. to know that family and meet that as the people of Vermont, as Senator I compliment him on his dedicated family understand what a strong influ- KENNEDY has said so eloquently. public service. I congratulate him on ence it has been in terms of his service. Let me also include in enumeration his long service to the people of the And thank you, Senator JEFFORDS, his wonderful staff people, over the United States and the people of for that simple eloquence that we years, who have been very much a part Vermont. I will miss working with heard from you today on the floor of of JIM’s family. In fact, I note from the him. I will miss him, but I hope we the Senate, going back into the history interns to senior staff people, everyone have opportunities to have great rela- of our country, providing inspiration as refers to him not as ‘‘Senator’’ or ‘‘Mr. tionships for the rest of our lives. we listen to you talk about the history Chairman’’—but just ‘‘JIM.’’ That is The PRESIDING OFFICER. The Sen- of the Nation, mentioning with great certainly a symbol of the kind of rela- ator from Massachusetts is recognized. pride the role of Vermonters in the tionship he has had with his constitu- Mr. KENNEDY. Mr. President, could time of the Civil War—and his under- ents and with his family over the I inquire of the Chair, do we have a standing of history, talking about the years. limited period of time? I see a number Greatest Generation, which were in- I have had the privilege of serving of our colleagues here. I am just inquir- spiring figures to him and many of us my entire time in the Senate—in the ing of the Chair. continuing to the present. Congress—with this remarkable person The PRESIDING OFFICER. There is He typically understated his own from Vermont. We arrived in the House 7 minutes 20 seconds remaining in this achievements and accomplishments. I of Representatives on the very same block of time for the minority. think many of us on this floor are well day, 32 years ago. As JIM pointed out, Mr. KENNEDY. Well, I see the floor familiar with them. I certainly am as he had that neck brace on, and I had a leader. I will take 2 or 3 minutes, then, someone who has had the good oppor- head of black hair. We have aged over because I see half a dozen of our friends tunity to serve with him on the Edu- those 3 decades. But my respect for JIM here. cation Committee. I know the dif- JEFFORDS has only grown. The PRESIDING OFFICER. The Sen- ference that he has made in the edu- He has taught us America will listen ator from Illinois is recognized. cation of children in this country, par- to you even if your voice is soft. His Mr. DURBIN. Mr. President, I believe ticularly those with special needs, ac- achievements in the Senate and the there are at least four or five Members complishments which are memorable House are the envy of all who wish to here who would like to speak about and historical. He mentioned just caus- improve a quality of life in this great Senator JEFFORDS’ retirement. I ask ally his interest in the education of the country of ours. JIM’s body of work is unanimous consent those Members cur- children here in the District of Colum- truly admirable. rently on the floor, Senators ROCKE- bia. A number of us who are here on But it looks even more admirable FELLER, BOXER, HARKIN, DODD and KEN- the floor now remember JIM JEFFORDS when you remind yourself that it was NEDY, be recognized for such time as speaking in our caucus not many years all the doing of a man unpretentious they consume, and I would like to add ago how that we, as members of the enough to be fond of mismatched myself to that list, and then extend Senate who happen to either live here socks, frugal enough to spend his ear- whatever time we use on the minority in the District or work here, even liest days in Washington sleeping in a side, if they would like to use it as though we are working in this body, parked van, and humble enough to be well. have a responsibility for the education universally known, as I’ve said, as just The PRESIDING OFFICER. Is there of the children here. He was the inspi- ‘‘JIM.’’ The people of Vermont returned objection? Without objection, it is so ration of a program, a literacy program him to office over and over again on ordered. called ‘‘Everybody Wins!’’ And JIM JEF- the strength of his plainspoken integ- Mr. KENNEDY. Mr. President, it is FORDS led a number of us to Brent rity and his indefatigable Yankeeness. entirely appropriate that we take these School here near the Capitol to read That’s what JIM brought to this body few moments on the floor of the Senate with the second and third graders each of discussion; and that was more than to listen carefully and take the meas- week to ensure that those children enough.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.007 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10228 CONGRESSIONAL RECORD — SENATE September 27, 2006 JIM came to Washington knowing privilege and education as a right. It is JIM JEFFORDS is an extraordinary what he wanted to accomplish, and his a right, and its worth is measured in public servant. Fewer than 2,000 men success is clear to us today. No one has our willingness to educate even—espe- and women in the history of the United worked with more dedication for a cially—where it is inconvenient. States of America have served in the clean environment. JIM was an envi- There weren’t many Senators shyer Senate. We all understand the great ronmentalist practically before we had than JIM JEFFORDS, but there wasn’t a privilege of being in this body rep- a word for it. In fact, he got his start single one fuller of quiet purpose and resenting our great States. But people in the Vermont State Senate in the courage. Politics was always a means are not noted in the history of the Sen- 1960s, fighting the efforts of the paper to JIM’s purpose—never the other way ate for longevity alone. People are mills to pour sludge right into Lake around. And the way JIM practiced pol- noted for singular acts of courage. And Champlain. He was a long-time nuclear itics, the way he spent his power, was when it comes to JIM JEFFORDS, his watchdog and among six Congressmen never calculated to bring him money, public career has been a singular act of to found the Congressional Solar Coali- or fame, or even particularly glamour. courage. tion years ago. It is telling that when It was only the quiet satisfaction of a I hail from the State of Abraham he had his pick of chairmanships, Sen- job very well done. Lincoln, where he lived most of his ator JIM JEFFORDS chose the Environ- That is what I think of when I recall adult life, and where we claimed him as ment and Public Works Committee. the more than three decades of our part of our national heritage. When I Perhaps most importantly, he helped service together. But, to tell the truth, think of JIM JEFFORDS and the political clean up the air we breathe. He men- through all those 30 years I had a privi- party he identifies with more than any tioned it briefly. But the work of John leged seat right here with him. Those other name, I will say he identifies Chafee, George Mitchell, and JIM JEF- without that vantage point are prob- with the party of that great leader FORDS truly created the great Clean ably going to remember, first of all, Abraham Lincoln who stood up for Air Act of 1990, a huge accomplish- something very different. We all know principles often against public and pop- ment. I want to thank JIM immensely how JIM crossed this aisle for good 5 ular will. for the tremendous effort he made years ago, and how he has served as an This last week, Time Magazine noted years ago in improving the quality of an Independent ever since. JIM entered they were going to designate Senator air in this country. If he had done the national spotlight full of honest re- JIM JEFFORDS of Vermont as ‘‘Person nothing else in 32 years, that alone gret, and fully aware of how difficult of the Week.’’ They said in his one would have been a significant achieve- his choice was for colleagues, his staff, principled decision to become an Inde- ment. Of course, his body of work is far and his supporters. pendent, ‘‘He demonstrated to the more than that. I saw JIM upclose as he struggled White House and the United States Like JIM’s dedication to the environ- with a decision as few men or women Senate that revolutionaries often come ment, his work for children who come ever have to. But whatever one thinks in surprising packages.’’ from special education needs is decades of it, there is a fact beyond dispute, We all know what happened after JIM long. In 1976, he was essential to the which all of us appreciate in this body: made his decision to become an Inde- passage of legislation guaranteeing JIM JEFFORDS has never followed any- pendent. He told me about walking local school districts that the Federal one but his conscience. home to his apartment at night down Goverment would pay 40 percent of the If we insist, 5 years later, on rea- Pennsylvania Avenue. And people who costs of educating the disabled. And if soning out the need in votes or dollars were outside restaurants and cafes that guarantee remains unfunded or any other measure of practicality, today, never let it be said that it was we only reveal our failure to under- would stop and stand and start to ap- plaud, and JIM would be startled by it for lack of JIM’s passionate work. stand what that man did on the day he I would be remiss if I didn’t mention made his choice. Sometimes what goes at first. But he received more recogni- of TOM HARKIN, another fellow class- on in this Chamber cannot be reasoned tion then he, I am sure, expected. A lot of it came in positive terms; some in mate of 1974, working with JIM and away. JIM taught us that, too. many others who cared about this issue So, I would like to close with a happy negative terms. People wanted to name over the years. No one contributed thought. Two years before the Amer- their babies after him. more to the Individuals with Disabil- ican Revolution, Edmund Burke gave a In Burlington, VT—I think this is ities Education Act than JIM JEF- speech on the relationship between a probably the greatest tribute a politi- FORDS. Few Senators are as tied to spe- representative and those whom he tries cian could ever expect—they named a cial education, and that is a title to be to represent. beer after him—‘‘Jeezum Jim’’ they very proud of. It has been my honor to ‘‘It is his duty,’’ said Burke, ‘‘to sac- called it. I hope it was a popular brew work along with him in the House and rifice his repose, his pleasures, his sat- because he has been a popular Senator. the Senate on the issues that meant isfactions, to theirs; and above all, When they asked him why he the most to him—on afterschool pro- ever, and in all cases, to prefer their in- changed his affiliation to become an grams, on higher education, and, most terests to his own. But his unbiased Independent, he replied very simply: especially, to secure funding for IDEA. opinion, his mature judgment, his en- ‘‘It is all about education.’’ I remember It Vermont, commitment to edu- lightened conscience, he ought not to it well, because I know that was the de- cation is a longstanding tradition. sacrifice to you, to any man, or to any ciding factor. Right in the middle of the Civil War, set of men living. These he does not de- Your commitment to particularly we building the dome on the Capitol to rive from your pleasure; no, nor from those students who struggled with dis- show our determination to keep this the law and the constitution. They are abilities, students who have these dif- Union together; but we showed it in an- a trust from Providence.’’ ficulties, your commitment to those other way, too. A Senator from JIM, you have kept your trust over kids led you to this decision. Many of Vermont by the name of Justin Smith these many years, in both the Senate us make these decisions on votes on Morrill created the land grant col- and public life, in your State and in the the floor. But as has been said, for JIM leges—the University of Connecticut is Congress. We send you back to JEFFORDS education went way beyond a one; there are many all across the Vermont with your work in the Senate vote or a speech. Several years ago, he country—and his work was one more accomplished, with your conscience established this tutoring program in demonstration of the remarkable peo- still clean, and with our best wishes to Washington, DC, encouraging us, as ple who come from that State of you and your lovely family. God bless Members of Congress, the House and Vermont to help build this country, de- you. the Senate, to walk just a few blocks fend this country, and secure this I yield the floor. from here, as he did so many times, to country for our children. Senator Staf- Mr. DURBIN. Mr. President, it took tutor the inner-city youth of Wash- ford and Morrill passed on that proud an act of courage for JIM JEFFORDS to ington, DC. tradition, and Senator JEFFORDS declare himself an Independent. It took He is a true Vermonter and a true stands in its forefront today. an act of courage for a lifelong Red Sox Independent. When we look at his JIM has taught at every opportunity fan to quote a New York Yankee in his record, he was the only House Repub- the difference between education as a farewell address to the Senate. lican who voted against the Reagan tax

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.008 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10229 cut because he was afraid it would lead end. He was on one side and I was on It was Senator JEFFORDS who made to dangerous deficits. How right he the other side because we were just sure that in the bill we passed, the Fed- was. In 1993, he was the only Repub- freshmen. eral Government committed itself to lican Senator to cosponsor President We had a farm bill coming up. After providing at least 40 percent of the ad- Clinton’s health care plan. He worked a few weeks on the Agriculture Com- ditional costs to States and local com- for years for regulation of tobacco by mittee, we dubbed Senator JEFFORDS munities in educating kids with dis- the Food and Drug Administration, a ‘‘the Senator from Dairy.’’ He was te- abilities. Forty percent was the goal goal which I share with the Senator. nacious in fighting for his dairy farm- we set in the bill Senator JEFFORDS co- And he sponsored the Employment ers of Vermont and, of course, New authored in 1975. Nondiscrimination Act, banning em- England. Those from Iowa and Min- That moves me up to the year 2001. In ployment discrimination on the basis nesota and Wisconsin—we had dairy the year 2001, the budget came from of sexual orientation. farmers, too, and there was, shall I say, the White House, President Bush’s Some politicians in their career find a little bit of a conflict in how we budget, which severely underfunded ways to divide us. JIM JEFFORDS always viewed the world of milk and dairy. our commitment to increasing funding. looked for ways to bring us together. A That was my first experience with Sen- We have never reached 40 percent. I strong supporter of Federal funding for ator JEFFORDS because we had to work think the highest we have been is 18 AIDS research and the arts, justifiably things out. And we did. That was the percent. We have never gotten the 40 proud of the role he played in passing first time I got to see the kind of per- percent. Senator JEFFORDS wanted to the Work Incentives Improvement Act, son JIM JEFFORDS is and always has move that up. Yet the budget came and, of course, his record on the envi- been. He was tenacious in fighting for down and had a severe cut in the fund- ronment is without parallel. his dairy farmers but willing to under- ing for the Individuals with Disabilities I know historians will also record all stand that we all have to live together; Education Act. That is when Senator these accomplishments and courageous somehow we have to seek our com- JEFFORDS said no, he wanted to make battles when they write about JIM JEF- promises. And we did. We reached a sure that money was in there. That FORDS. On July 4, 2001, several weeks compromise and we moved the legisla- happened, mostly, on the Republican after he made his decision to become tion forward. That was the first time I side of the aisle. I was not privy to all an Independent, he sat down at his came to really know and respect JIM of that. That is when Senator JEF- home in Vermont and wrote these JEFFORDS. FORDS made his declaration of inde- words: As we moved ahead in agriculture, I pendence. A matter of conscience—he I hope my decision will move the two par- found another area in which I respected could not turn his back on all these ties to the center, where the American peo- and admired Senator JEFFORDS. That years of moving our society forward to ple are. The American people want an active, was the area of environment and con- educating kids with disabilities in our responsible, Federal Government. servation. In those days, people were schools and then all of a sudden say: He went on to say: thinking mostly about all the com- No, we are going to turn the clock There seems to be a hunger in country for modity programs, how much money we back; we are not going to do it. He heroes, especially for the political variety. could get in the commodity programs. wanted to keep moving forward. The Not only with this one historic act of We were all protecting our interests. I budget would not allow it; he fought conscience but throughout his career was protecting my Iowa interests and hard for it. Based upon the fact that in the House and the Senate, in public Senator JEFFORDS was protecting his the administration would not move on life JIM JEFFORDS has been a living ex- Vermont interests. that, he declared his independence and ample of these hopes and beliefs. I am However, conservation transcended became an Independent and left his proud to have been able to serve with everything. That began back in the party. We can all imagine how wrench- him. I am proud to count him as one of late 1970s, in the House Agriculture ing that must be, to leave the party my colleagues, even prouder to count Committee. We began the move toward that nurtured us, that we grew up with, him as a friend. more conservation in our farm bills, that supported us all our adult life. It I thank his family for giving him this which led to more of a ‘‘greening’’ of is a matter of conscience. You can read opportunity to serve and giving this America. He did that work also on En- about it in his book, ‘‘My Declaration wonderful man to public life. vironment and Public Works. When I of Independence.’’ I thank you, JIM JEFFORDS, for all think about the environment, cleaning After that, I invited Senator JEF- you have meant. up the environment—clean water, FORDS to come out to speak at the The PRESIDING OFFICER. The Sen- clean lakes, clean streams—I have to steak fry I have in Iowa every year. It ator from Iowa is recognized. think of JIM JEFFORDS. He was there at was after the book came out. I will Mr. HARKIN. Mr. President, it is, in- the beginning. never forget the scene. We had thou- deed, a privilege to be here this morn- Then in 1975, on the Committee on sands of people. It was a beautiful ing to personally hear the words of our Education, JIM JEFFORDS coauthored sunny Sunday afternoon. Thousands of good friend, Senator JEFFORDS, and to what later became the Individuals with people came to meet this person, to hear other Senators get up and talk Disabilities Education Act. I was not hear him and to hear his message. about JIM in such glowing terms. on the Committee on Education, but They had all these little books they However, I must say that all the because of my family and because of were waiving, ‘‘My Declaration of Inde- years I have known JIM JEFFORDS, he is my intense interest in disability pendence.’’ an old-fashioned New Englander, which rights, especially as it pertained to the He had a wonderful message. His means he is very modest. That means hard-of-hearing and the deaf, I learned message was: don’t ever turn our back he is embarrassed to receive this kind about this bill with JIM JEFFORDS and on making sure every child in America of praise and adulation. Senator JEF- with Paul Simon—at that time, Sen- has a decent education. It was a sim- FORDS will just have to endure it be- ator Simon—and sort of stuck my nose ple, straightforward message. But you cause we love you, we respect you, we in their business, if you don’t mind my should read his book. admire you, and you are one of the saying that, because I was not on the Senator KENNEDY mentioned another most beloved Members of the Senate. committee. I talked about how we had thing about Senator JEFFORDS that not Thirty-two years ago, we came to- to help do some of these things. My too many people know about; that is, gether in the House. You talked about focus was narrow at that time, just in his support for a program called ‘‘Ev- that. Our colleague, CHRIS DODD, was in hard-of-hearing and deafness at that erybody Wins.’’ He brought it here to that class, and also my colleague from time. My great respect for Senator Washington in the late 1990s and then Iowa, Senator GRASSLEY. I didn’t know JEFFORDS, or JIM, at that time grew be- began badgering us to participate in it Senator JEFFORDS at that time, obvi- cause he was focused on how we make in his usual tenacious manner. So he ously. We had just come in as freshmen sure every kid in America gets an edu- got a lot of us hooked on it. Members. I found myself on the Com- cation, make sure kids with disabil- It is every Tuesday. I see Senator mittee on Agriculture with Senator ities were mainstream, make sure they KENNEDY goes about every Tuesday; JEFFORDS. We both sat down at the got the support in our schools. JIM, of course, goes all the time; I go

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.010 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10230 CONGRESSIONAL RECORD — SENATE September 27, 2006 every Tuesday we are here, and a lot of I yield the floor. townhall type of quality. They get it. staff members. We go to Brent Elemen- The PRESIDING OFFICER. The Sen- They are involved. They love you, JIM. tary School. We read to a child for 1 ator from California is recognized. They love you. When I mentioned your hour every Tuesday. It has been a won- Mrs. BOXER. Mr. President, this is a name, oh, my goodness, the roars came derful experience for me and I know for very poignant morning for so many. I up. You could hear it blocks away. everyone who participates in it. In am so glad I have been able to arrange People love you here and they love fact, we now talk about JIM as being my schedule to be here to listen to my you in Vermont. And your family loves sort of the Johnny Appleseed of this colleagues and friends, whom I deeply you. As you said, you are blessed, as we movement because now it is starting in respect, and to listen to the great Sen- are blessed in your presence. other States. We took the idea to Iowa, ator from Vermont, JIM JEFFORDS. The second point is your family and and now it is sprouting in Iowa. Other If I might say how blessed I have how much they care about you. They States and businesses are involved. been, I got here in 1993 and went right are so proud of you. I know how hard it ‘‘Everybody Wins’’ is now moving to the Environment and Public Works was for them when you declared your around the country. Senator KENNEDY Committee. I met JIM there, and now I independence. It rocked their world, said: Senator JEFFORDS doesn’t just get to sit next to him in the Senate. I just as it rocked your world, and just talk the talk, he walks the walk. When got to know his staff. as it rocked the country. But when you he brought it here, he was there every We are going to miss you. But, JIM, I do something for the right reasons, it week reading to kids and getting us to must say, you made a beautiful speech all works out. And you did something go down and read to them, also. today. And in listening to TOM HARKIN for the right reasons, for the people of I have in my office a big picture that talk about you and explain that you this country. is my favorite picture. It is a big pic- have always been motivated by what is The last thing I want to say to you ture taken at Tiananmen Square, a pic- right for the people, if ever you could is, we do not know how things will ture we all will remember of the young take an opportunity to tout your ac- work out this November, but either man holding a little briefcase, a young complishments, it is when you say way, I will be taking a larger role on student holding a briefcase. There is a goodbye. People would say that is fair. the committee you love, the Environ- line of tanks. He is standing in front of But you did not do that. You did not ment and Public Works Committee, the tanks, and the tanks have all say: This year I passed this legislation where you have been an extraordinary stopped. To those of us who have seen and this bill. The rest of us have been leader. You have given us a roadmap on the video of this, the tanks were com- lauding your accomplishments, but it how to fight global warming—a huge ing down the street, the student went is just like you, instead, to talk about challenge we face. We cannot turn out in the street, he stopped, the tanks this country you love so much. And away from it because if we do, we are turned to go one direction and he you cite to us what our challenges are. neglecting our responsibility. You, moved over a few steps, then the tanks And, of course, they continue to be the thank goodness, have written a bill moved another direction to get around, challenges you have taken up: edu- that will show us the way. and he moved over and stood there. Fi- cation, the environment, fiscal respon- So I am here today not only to wish nally, the tanks stopped right in front sibility, war and peace. You have left a you well in your retirement, and joy of him. A hatch popped open, and a roadmap for us, and for that we are with your family, but to tell you that military guy got out and looked at him very grateful. I am going to follow your leadership on and stood there for a few minutes. The I mentioned that I was sworn in in global warming. I am excited about the tanks all stopped, and then the young 1993. That was the so-called year of the challenge. And because of the love your man turned and walked off the street. women, where we tripled the number of colleagues feel for you, I hope you will A lot of people I talk to about that women in the Senate. That sounds come back here, as TOM HARKIN said, to picture—did they ever know who he great, but it was from two to six. We help me with that because we are going was? No, they never did find out his were still a very strong minority. Our to have to move and get going on it. name. But I gave them the name. I call leader, BARBARA MIKULSKI, the dean of Mr. President, thank you very much. him JIM JEFFORDS. To me, that young the women here, always taught us, And thanks to our colleagues for giving man who did that represents the JIM from day one—she said: You are going us this time we need to pay tribute to JEFFORDS of the world, willing to stand to have to work with the men because an extraordinary Senator, one who will on principle no matter what the odds they control things here, and you are be missed but never forgotten. are. No matter what is coming at going to find that among these many Thank you very much. I yield the them, they are willing to stand on men there are many Sir Galahads. floor. principle. JIM, you are Sir Galahad. You have The PRESIDING OFFICER. The Sen- So after 32 years, we will miss this been a wonderful friend to us, treating ator from West Virginia is recognized. soft-spoken and self-effacing New us, from the minute we walked in, as Mr. ROCKEFELLER. Mr. President, I Englander who has a spine of steel. equals and colleagues. We are very have to start off anything I say—and I After 32 years, Senator JEFFORDS, you grateful to you for that. will be short—about JIM JEFFORDS with have left your mark: education, job I am not going to talk a long time at the word ‘‘friendship,’’ based upon his training, disability rights, the environ- all. But I want to talk about three unbelievable qualities of kindness, of ment and, lest we forget, the dairy things quickly. One is, I went to your goodness, of steadfastness, being the farmers of New England, who will State of Vermont this last weekend. I same person every day under any cir- never forget JIM JEFFORDS. had been there before and always mar- cumstance. JIM, we are going to miss you, your veled at how beautiful it is, but I was We sit together. We have sat together kindness, your leadership, your cour- taken with it again. for quite a long time on the floor of the age, your generosity of spirit, and your Now, coming from California, we Senate. And we talk a lot. I have the example. Know that our love, our ad- have our beautiful places, believe me. honor of talking with his staff, too, a miration, our respect, and our best So I have come to appreciate beautiful superb staff, who adores him. wishes go with you and with Elizabeth places. We overlooked Lake Champlain The business of friendship in the Sen- and your family. Know that you have when we were there. Knowing that you ate is underpracticed. If you know JIM left on our Nation and the world a worked so hard to make that lake JEFFORDS, then you know why you mark for all of us to follow in how to clean and beautiful, thank you for should take more time to know your make our Nation and our world a bet- that. There is so much history there, colleagues better. Because the fact is— ter place. JIM, that you have also helped to pre- although it has been more so re- Senator JEFFORDS, JIM, Godspeed. serve—you and Patrick Leahy, and so cently—it is not your politics or your Come back now and then. Come back many others who came before. party that determines how you vote, on the floor. Retired Senators have the But what struck me about Vermont but your conscience and your sense of privilege of coming to the floor. Come as much as the beauty is the incredible a moral compass that guides you. In back on the floor and remind us why people in your State, how involved that practice, you have to think of JIM we are here. they are. It is that old New England JEFFORDS.

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.011 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10231 He is an extraordinarily wonderful fortable to him and what he feels is knew what ANWR was, he was fighting human being. He has got a ferocious just for the people he serves, not only to preserve the environment for our sense of humor, which is always deliv- in Vermont but across the United grandchildren and their grandchildren. ered very quietly. And yet he is deep, States of America. He has been at the forefront of fighting he is profound, he sort of looks like The work he has done with post-trau- to make sure our air and ground water Vermont: chiseled; his nose is just the matic stress disorder is awesome in are safe for our citizens, and he has right shape. And, of course, he talks terms of those of us on the Veterans fought for the use of alternative fuels. that way. But he is humble, not be- Committee. He is justifiably proud of His efforts have truly cut a trailblazing cause he wants to be, just because he the research and work done by path for many generations to come. is. Nothing about his record is humble. Vermont’s White River Junction Vet- Over the years, JIM and I have But his nature is humble. He is gentle; erans’ Administration Hospital to help worked on many issues together, and I and he really is. He listens, does not in- veterans who are struggling, as they am particularly proud of what we have terrupt, does not insist on his point of truly are, not just with the postwar done for our students and for our vet- view—except when it counts, and then physical problems of being wounded, erans. He understands how important he is unmovable. but the psychological problems of that, it is to make sure that our citizens get All of the subjects he has con- as well. started on the right foot. He believes centrated on—children, the environ- He has never sought the limelight, that the first years of a child’s life are ment, many other things that have and he does not care about the lime- absolutely critical in the life and fu- been mentioned—there is also the mat- light. He has been elected time after ture of that person, and that is why he ter of post-traumatic stress disorder. time probably partly because of that. has worked so hard to push for greater On the Veterans Committee, which is Because he is not like so many other funding for Head Start and other early the one committee where I do get to— people who run for public office who education programs. And that is why not the only committee, but I get to sit want to tick off everything they have he has worked on Title I—to help low- with him on that committee—he has done. He is JIM JEFFORDS. And with JIM performing students, who dispropor- been a champion of something which JEFFORDS comes a certain set of prin- tionately live in the rural areas that Americans still do not really under- ciples, a certain set of commitments to make up much of West Virginia and stand; and that is, the ferocious nature people. The people of Vermont have un- Vermont, achieve the standards they of being wounded in war these days—an derstood that over the years. So he has must meet. Iraqi improvised explosive device that not had to promote himself in ways That sort of Good Samaritan prin- implants shards of metal into people that others have to do. ciple has always guided JIM’s life and that will remain there for the rest of He has always done his work, in the career. He has been extraordinary in their lives; the whole question of How words of Shakespeare, with the ‘‘mod- advocating for those whose needs are does somebody rehabilitate a life? and est stillness and humility’’ that be- often forgotten. In fact, perhaps no What is the VA doing about that? JIM comes any human being. When you American living today and certainly no is all over that subject. look back at his record, you can see American legislator—I want to echo When he switched parties to be an this man from Shrewsbury, VT, has here what Senator HARKIN has said— Independent, woe be the person who left his mark on virtually every single has done more to advance the edu- said: Switch parties from Republican piece of legislation on education, job cational success of those with disabil- to Democrat—no—Republican to Inde- training, disability legislation, and on ities. Almost from his arrival in Con- pendent. And, yes, he got an enormous and on and on. gress. JIM took extraordinary steps be- amount of cheering and praise based JIM has always had extraordinarily cause he believed that the needs of oth- upon his moral compass. He also got a deep passions and convictions, but, at ers simply could not wait. In 1975, as a lot of death threats. Life was very hard the same time, he has been a paragon House freshman, JIM co-authored what for him for a period of time. So he un- of civility and humbleness. JIM has a would later be known as the Individual derstood that was going to happen. But gentle voice, but his resolve and com- with Disabilities Education Act, IDEA. with JIM JEFFORDS, the moral compass mitment to stand up for vulnerable IDEA serves as a Federal commitment always prevails. I think it is one of the children, veterans in need, and our en- to give students with disabilities a bet- reasons all of us here respect him so, vironment is assertive and strong. ter education. admire him so, look to him as to what Throughout his career, JIM has made It was an extraordinary legislative the Senate ought to be. some very tough personal decisions. achievement, one that had even greater I had never heard the word ‘‘ANWR’’ Take his decision to switch parties to implications in terms of setting a until it was explained to me by Senator be an independent in the summer of moral baseline imperative that we JEFFORDS. He was there early because 2001. Regardless which party you are a must meet the needs of those who live he was thinking, as always, of our chil- member of, I think all of us would difficult lives. JIM has worked, not for dren and grandchildren, and, as they agree that given the fact that his move the well-heeled or the heavy-hitting say, their children too. We always take fundamentally changed the governing lobbysist—he has tirelessly worked for it one generation too far, but it is true. structure of the Senate, it truly was a the people who truly need help. Alternative fuels. Will the history profile in courage. Time and time I have also been proud to serve with books write about JIM JEFFORDS on al- again, JIM has been willing to take JIM on the Senate Veterans’ Affairs ternative fuels? Yes, they will. Do peo- risks for his beliefs, and he deserves Committee. He has been an important ple generally in the Senate or else- our respect and admiration for such voice in calling for compassionate care where know that he has spent a career independence. for our veterans, especially those vet- working on that? Probably not. In terms of public service, JIM JEF- erans returning from Afghanistan and Our air; they know about that. The FORDS has lived a life that many aspire Iraq. groundwater; they probably know to. He has spent nearly every day of his We both have States with a very high about that. But his work on alternative life working to make the lives of peo- number of soldiers and veterans, and fuels is one of the most important ple better. In the 1950s, he served in the we both know how important it is for things he’s done. U.S. Navy, and until 1990 he was in the our soldiers and veterans to have the The Title I, Head Start, improving Naval Reserve, where he retired as a health care they have earned and de- the lives of children, all of that that captain. In the 1960s, he began his po- serve. The two of us have been allies in has been talked about—Senator HARKIN litical service, first as a Vermont State pushing for greater funding and re- talked about, in 1975, the Individuals Senator, then as Vermont’s Attorney sources to help our soldiers with PTSD, with Disabilities Education Act—he General, and then, in the wake of the and I know that JIM is justifiably has always been looking ahead. Does Watergate scandal, he became one of proud of the research and work by that make him a Good Samaritan? the very few Republicans elected to Vermont’s White River Junction to Does that mean he is a do-gooder or Congress in 1974. help veterans struggling with PTSD. does it mean that he does good? It is JIM has been a true steward of the en- JIM JEFFORDS has never sought the the second. He does what is com- vironment. Long before many of us limelight—he has sought results. He

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.014 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10232 CONGRESSIONAL RECORD — SENATE September 27, 2006 has always done his work in the words measures, investigated the effects of generous and kind comments. Their re- of Shakespeare, with the modest still- greenhouse gas emissions, and pro- marks remind me—all of us—the Sen- ness and humility that becomes any moted increased fuel efficiency. During ate is a family. I also thank my col- human. But when one looks back at his his time in the U.S. Senate he intro- leagues for their friendship. I am hon- record, you can see that the modest duced the Global Warming Pollution ored to be able to serve with you, espe- man from Shrewsbury, VT, has left his Reduction Act, the High-Performance cially you, I say to Senator ROCKE- mark on virtually every piece of edu- Green Buildings Act, and the Renew- FELLER. cation, job training, and disability leg- able Energy and Energy Efficiency In- You have been very kind to me over islation over the past quarter century. vestment Act. the years. I have followed your guid- It is difficult to determine how many JIM JEFFORDS has never lost sight of ance, and it has been good. I thank all people JIM’s efforts have helped, but if his constituents and their needs. He of my colleagues for their friendship it were possible to quantify his efforts, loyally stood by farmers in Vermont and am honored to serve with you. And I know we would find that hundreds of and all over the Nation when he fought as I go forward—I don’t know—I am thousands of lives have been improved President Bush’s dairy tax, extended going to wonder why I am going for- because of his actions in Vermont and the Milk Income Loss Contracts— ward and not just staying with you. across the country. MILC—program, and supported the Mr. President, now I guess we should The Senate this year is losing a Farm Security and Rural Investment proceed with the process that is nor- treasure, a man who in the best tradi- Act. mal. I thank the leader. tion of the Senate has never been JIM JEFFORDS has also committed his The PRESIDING OFFICER. The Sen- afraid of taking heroic, principled career to improving education, which ator from Mississippi is recognized. stand without having to make a lot of he has treated as one of the great callings of our time. Speaking at a noise. Sharon and I are personally los- f ing good friends in JIM and his wife Liz. Rally for Education in 2002, JIM JEF- FORDS said of education funding that And Americans all over the country NATIONAL SECURITY are losing one of the most dedicated ‘‘it is not an option, it is a necessity, fighters for the basic rights that too for our children, for our schools and for Mr. COCHRAN. Mr. President, I am many disadvantaged people are short- the future of our great Nation.’’ JIM pleased to be able to advise the Senate changed on. I wish my friend well in JEFFORDS championed the Head Start that the Appropriations Committee has his retirement. Program, increased funding for elemen- completed our work on the bill pro- I close with the sadness of losing in tary, secondary, and higher education, viding funds for the Department of our body somebody such as Senator and sponsored the Better Education for Homeland Security and the Depart- JEFFORDS. People go to him. People are Students and Teachers Act. He has also ment of Defense for the next fiscal year comforted by his presence. People are provided unwavering support to Amer- which begins on October 1. emboldened by his nature. They see ican children with disabilities that face Yesterday, the other body approved what it is he does not say to promote a unique set of challenges in navi- the Defense appropriations conference himself or his ideas, and somehow they gating our education system. Even as a report, which provides new spending are attracted to those ideas because freshman Congressman some 30 years authority for the Department of De- ago, JIM JEFFORDS managed to marshal they understand if it comes out of JIM fense. Included in this bill is $70 billion his colleagues in order to pass the Indi- JEFFORDS, it is good for the public. in additional appropriations to fund op- So I think of his family too, I say to viduals with Disabilities Education erations related to the global war on Act. Senator BOXER, and I think of how terror. I expect the majority leader As a member of the Environment and proud they must be. I also think of just will call up this conference report later Public Works Committee, I have had myself, to be honest, how sad I am today for approval by the Senate. the opportunity to work closely with going to be not being able to sit next to I commend the excellent leadership Senator JEFFORDS and his capable JIM JEFFORDS and share his humor and and hard work of the distinguished staff. His office and his standards of to look upon his greatness—not just Senators from Alaska and Hawaii, the professionalism inspire great respect. his nose, but his greatness: the classic chairman of the Defense Appropria- On a personal level, I continue to ad- tions Subcommittee and the ranking Vermonter, the classic New Englander. mire a public servant that has so con- He has been so incredibly good for the Democrat on that subcommittee, for sistently followed his conscience. Time putting together a bill that carefully Senate. magazine recognized JIM JEFFORDS as Mr. President, I yield the floor. considers the requests made by the ad- the ‘‘Person of the Week’’ for his ‘‘rev- ministration for this massive under- Mr. OBAMA. Mr. President, I rise olutionary’’ party switch in 2001. I do today to acknowledge the extraor- taking of defending our country, iden- not believe that JIM necessarily set out tifying the challenges that we face, dinary career of Senator JIM JEFFORDS. to start a revolution; rather he invoked For the past 32 years, JIM JEFFORDS which threaten our security at home what might be considered a revolu- has served the citizens of Vermont and and abroad. It is a daunting task, but tionary idea to some in Washington: they have brought to this challenge a the American people with integrity, in- government ought to serve the con- lot of experience, a lot of keen insight tellectual honesty, and diligence. When cerns and interests of ordinary Ameri- into the needs of our country, and the faced with the choice between political cans instead of catering to fringe way the Department has to receive convenience or protecting the interests groups or election year antics. In hind- of his constituents, JIM JEFFORDS al- funding on a predictable and regular sight, most will hail JIM JEFFORDS’ ways stood for Vermont and the con- principled decision to switch parties, basis to achieve its goals and carry out cerns of hard-working Americans. though I know the decision was a dif- its important mission. When others decided to do what was ficult one for him and strained his rela- It is also my hope that the Homeland popular in Washington or among the tionship with many in this body. But Security conference report will soon be filed in the House. It includes $34.8 bil- chattering classes, JIM remained true JIM JEFFORDS did what he thought was to his values. He has been a model of right, and I applaud his courage and his lion in discretionary spending. It also principled leadership, often ahead of example of leadership. reflects hard work by the conferees on his time. So I thank Senator JEFFORDS not that subcommittee, the distinguished Long before protecting our environ- only for his lifetime of service and ac- Senator from New Hampshire, Mr. ment and precious natural resources complishments but for having raised GREGG, and the distinguished Senator occupied America’s consciousness, JIM the bar for all of us. from West Virginia, Mr. BYRD, who was leading on these issues. Working I wish JIM JEFFORDS and his family were the chairman and ranking minor- across party lines throughout his ca- many happy years ahead. ity member of that subcommittee. Our reer, including as chairman of the Sen- The PRESIDING OFFICER. The Sen- conferees completed work on this bill, ate Environment and Public Works ator from Vermont is recognized. and we expect that it will be filed in Committee, JIM JEFFORDS urged the Mr. JEFFORDS. Mr. President, I the House, as I have suggested, I hope, President to strengthen antipollution thank my colleagues for their very very soon.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.002 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10233 The Homeland Security appropria- The PRESIDING OFFICER. The Sen- subhuman, that treat their own people tions bill for fiscal year 2007 appro- ator from Texas is recognized. who might be of a different sect as if priates $1.8 billion, designated as emer- Mrs. HUTCHISON. Mr. President, they are lesser people, or because I am gency funding for border security, to how much time is remaining on our a Sunni and you are a Shiite, or I am help make our borders more secure. I side for morning business? a Kurd and you are a Sunni—any of commend the President and the Sec- The PRESIDING OFFICER. Fifteen those combinations. They are treating retary of the Department of Homeland and a half minutes. each other with the same violence, and Security for their leadership and their Mrs. HUTCHISON. Mr. President, I inhumane treatment as they do with efforts to help strengthen the capa- will take such time as I may consume, Americans. bility of protecting our homeland. Four but I will be perfectly willing to vitiate Mr. President, I think if you look at thousand new border agents have been our time if we are going to a cloture the entire report, you will see that the added. Detention facilities have been vote that was scheduled for 11:30 a.m. I strategy of cut and run is not the way constructed. Cargo inspection has been will go with the flow. to wipe out the terrorists. The Presi- improved. Coast Guard equipment and The PRESIDING OFFICER. The Sen- dent’s strategy is not to treat terror- capabilities have been upgraded and ator from Texas is recognized. ists with kid gloves. The President’s modernized. New vehicles for agents f strategy is to go on the offensive to have been acquired. New technologies NATIONAL INTELLIGENCE bring terrorists to justice. The Presi- have been acquired, as well, to help ESTIMATE dent’s strategy is to also work with the control illegal immigration. The capac- innocent people in the Middle East so ity to detect weapons of mass destruc- Mrs. HUTCHISON. Mr. President, they can have freedom, they can have tion have been improved. there has been so much in the news democracy, they can have a quality of The timely consideration of both of since last Sunday regarding parts of a life that would make their children these appropriations conference reports National Intelligence Estimate that want to live, rather than blow them- is very important to our Nation’s secu- was put out in a major American news- selves up in order to kill innocent peo- rity. The bills provide the funding to paper. The leaked report has been the ple. And it is to confront the terrorists protect our Nation from those who subject of much discussion, supposedly with the same determination that they would threaten us. saying that the war in Iraq is hurting bring to their assault on freedom. We I commend the conferees and the the chances of our stopping the ter- must treat them with absolute clar- staff members who worked very hard to rorist attacks on ourselves and other ity—that we will not give up the de- complete our work on these bills. I ap- freedom-loving nations. fense of freedom and be dictated to by preciate President Bush’s leadership in Yesterday, the President said he be- people who do not even treat their own sending the requests to Congress that lieved it was very important, rather people with humanity, and who treat were comprehensive, very carefully than just having the leaked portions of women as if they are not human considered. I applaud the leadership of the National Intelligence Estimate beings. the administration for successfully available to the public, to have the Mr. President, I want to talk about protecting our homeland. whole document be out in the public some specific parts of the report. I Protecting our homeland is a huge forum. Within a matter of hours, the want to put in the RECORD some of the challenge. Every year there are over President declassified the Key Judg- significant Key Judgments that I have 500 million people who cross our bor- ments of the National Intelligence Es- not seen reported in the press. Here are ders. There are 118 million vehicles and timate so that everyone in America— some of the key parts of the report 16 million cargo containers that enter and indeed in the world—would be able under the ‘‘Key Judgments’’ section of the United States annually. We have to see the full text of the Key Judg- the National Intelligence Estimate: 95,000 miles of coastlines, 2,000 miles of ments, which was an internal, classi- United States-led counterterrorism efforts common border with Mexico, and 5,000 fied document that was meant to as- have seriously damaged the leadership of al- miles of common border with Canada. sess the threats, the global threats Qaida and disrupted its operations; however, These are under the jurisdiction of U.S. from terrorists to ourselves and other we judge that al-Qaida will continue to pose Customs and Border Protection, the western nations, or other democracies the greatest threat to the Homeland and U.S. Transportation Security Administra- around the world. interests abroad by a single terrorist organi- tion, and the Coast Guard. I think it is so important that we get zation. We also assess that the global the full report out there. The Key jihadist movement . . . is spreading and While efforts are being made at home adapting to counterterrorism efforts. to protect ourselves and our borders, Judgments are on the Web for everyone Greater pluralism and more responsive po- demanding work is being done abroad to see. Anyone with a computer or a litical systems in Muslim majority nations by our military forces to defeat the FAX machine can get these Key Judg- would alleviate some of the grievances terrorists. They have expressed their ments. I think what it does is show, jihadists exploit. Over time, such progress, intention to kill Americans and anyone clearly, that what the President is try- together with sustained, multifaceted pro- who stands in their way. ing to do, and what our strategy in grams targeting the vulnerabilities of the The Defense appropriations bill fully America is, is the right one; that is, jihadist movement and continued pressure funds military pay for our troops and that we must continue to pursue the on al-Qa’ida could erode support for the jihadists. includes an across-the-board pay raise terrorists without equivocation, with- that was requested by the President, as out a lessening in commitment, with- That is saying in the internal docu- well as procurement of necessary air- out any hesitancy. We must go after ment that pursuing democracies, free- craft, ships, and ground equipment to these terrorists, who are inhuman, who dom, and self-governance is one of the ensure that our military forces are the have no standards of any moral frame- ways that we will be able to eventually best in the world. work, and we must not be diffident in erode the al-Qaida terrorist network The Defense appropriations bill con- our efforts to wipe them out before and other terrorist networks with tains $70 billion of supplemental fund- they attack Americans and other free- which we are not even yet familiar. So ing to ensure that our troops have the dom-loving people in the world—in- it is verifying that education and the resources needed to succeed in the deed, innocent women, children, and attempt to bring self-governance to the global war on terrorism. men who are being slaughtered daily Middle Eastern countries that do not Mr. President, I commend the good with suicide bombs and kidnappings have it is the right approach. work of our conferees, and I am hopeful and beheadings. It goes on to say: that both conference reports will be Secondly, the major point that the We assess that the global jihadist move- passed by the Senate this week. It will President is trying to make—and most ment is decentralized, lacks a coherent glob- permit the timely transition to the of us in Congress agree with—is that al strategy, and is becoming more diffused. New jihadist networks and cells, with anti- new fiscal year and prevent potential we need to have a very long term com- American agendas, are . . . likely to emerge. funding delays that could result in a mitment to help bring freedom to the ... disruption of programs that are very people who are living under the re- We assess that the operational threat from important to our national security. gimes that treat women as if they are self-radicalized cells will grow in importance

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.035 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10234 CONGRESSIONAL RECORD — SENATE September 27, 2006 to U.S. counterterrorism efforts, particu- Terrorism. When in fact, with regard to if we are worth anything as leaders in larly abroad but also in the Homeland. the situation in Iraq, it is actually es- this country. The President of the The jihadists regard Europe as an impor- sential for us to win in order to keep United States is resolute on this issue. tant venue for attacking Western interests. Extremist networks inside the extensive our commitment, in order to show that Congress must stand with him. We Muslim diasporas in Europe facilitate re- America will stand strong when the must not allow selective leaks of inter- cruitment and staging for urban attacks, as times are tough, and they are tough. nal intelligence advisories to be mis- illustrated in the 2004 Madrid bombings and To show that we will stand against construed to say that vigilance against the 2005 London bombings. these terrorists is the most important terrorism is a losing proposition. The report goes on to say: thing we can do, and that is our strat- I hope we can bring America together We assess that the Iraq jihad is shaping a egy. to speak with one voice. I hope we can new generation of terrorist leaders and We should not be undercut by leaks bring America together to stay the operatives; perceived jihadist success there— that will undermine that strategy. We very long term course that we must In Iraq— must be united as a Congress, as the pursue in order to have the opportuni- would inspire more fighters to continue President is trying to do, in saying ties for our children that we have had, the struggle elsewhere. that we must do the right thing, we to grow up in the greatest country on The Iraq conflict has become the ‘‘cause must keep our commitments, we can- Earth. That is our responsibility. We celebre’’ for jihadists, breeding a deep re- not cut and run because times are are the leaders of this country, and if sentment of U.S. involvement in the Muslim tough. We must admit that times are we cannot protect freedom for our chil- world. . . . Should jihadists leaving Iraq per- tough. We must admit that this has dren, if we cannot protect the opportu- ceive themselves, and be perceived, to have been one of the most difficult times in nities for them that we have had, we failed, we judge fewer fighters will be in- spired to carry on the fight. our history. But we must continue to are not worthy. I think we are worthy, be vigilant because, according to the I think the President is worthy, and I Let me reemphasize what they are report, if we are perceived as weak, if think it is our responsibility to stand saying in their estimate. Should the we are perceived as leaving because we strong and to point out the facts where terrorists be perceived as failing, they are defeated rather than leaving after the facts have not been pointed out. would have fewer recruits for their con- we have kept our word and are the vic- That is exactly what I intend to do. tinued terrorist activities. tors in freeing the Iraqi people to have That is what the President intends to The report goes on to say: self-governance, then the jihadists, the do. It is my hope that we do not have Concomitant vulnerabilities in the jihadist terrorists, the networks, about which a divided Congress behind him but in- movement have emerged that, if fully ex- posed and exploited, could begin to slow the we don’t even know yet, will be stead a united Congress with a united spread of the movement. They include de- emboldened to come forward and hurt people to say to the terrorists who pendence on the continuation of Muslim-re- Americans in our homeland, as well as would break down the freedom we have lated conflicts, the limited appeal of the wherever they see a perceived weak- built for over 200 years and the beacon jihadists’ radical ideology, the emergence of ness in the defenses of the people. of freedom that we are to the world: We respected voices of moderation, and criti- I think the President of the United will stand, we will not run, we will not cism of the violent tactics employed against States did the right thing yesterday by be lackluster in our commitment. We mostly Muslim citizens. immediately declassifying this docu- do not have a 30-minute attention span The jihadists’ greatest vulnerability is ment because if people will take the that their ultimate political solution—an in this country. We have a memory, ultra-conservative interpretation of shari’a- time to read it in its totality, people and that memory will never let terror- based governance spanning the Muslim will see that it verifies the strategy in ists take away our freedom, nor will it world—is unpopular with the vast majority the short term of standing firm against allow us to walk away from our respon- of Muslims. Exposing the religious and polit- these terrorists to show that we will sibility to the future generations of ical straitjacket that is implied by the not buckle, we will not cut and run, we America. jihadists’ propaganda would help to divide will not be divided as a nation in our We stand on the shoulders of giants them from the audiences they seek to per- commitment to freedom and preserva- who have protected freedom in this suade. tion of our society, and the long-term Recent condemnations of violence and ex- country. We cannot let the American tremist religious interpretations by a few strategy of taking the time and the pa- people down, and we will not. notable Muslim clerics signal a trend that tience and the effort to work with the Mr. President, I yield the floor and could facilitate the growth of a constructive Muslim clerics and the Muslim leaders suggest the absence of a quorum. alternative to jihadist ideology: peaceful po- who are willing to stand up, who are The PRESIDING OFFICER (Mr. litical activism. willing to risk their lives for the future GRAHAM). The clerk will call the roll. That is exactly what the strategy of of their civilization and say violence The legislative clerk proceeded to the United States has been. It is not a against Muslims or other people who call the roll. strategy that can be pursued on a have not harmed us is wrong. Mr. DURBIN. Mr. President, I ask short-term basis. Education and en- That is what we are doing, and it is unanimous consent that the order for lightenment is a very long-term strat- the right strategy. the quorum call be rescinded. egy and the Muslim clerics now step- The President has had the current The PRESIDING OFFICER. Without ping up to denounce violence against strategy against terrorism verified by objection, it is so ordered. other Muslims is exactly what we are the National Intelligence Estimate. Mr. DURBIN. Mr. President, I ask seeing emerge. As this National Intel- Unfortunately, the National Intel- unanimous consent to speak as in ligence Estimate has revealed these de- ligence Estimate was partially leaked morning business. velopments are the beginning of how last week but not in its full context. In The PRESIDING OFFICER. Without we can make a difference. the full context, we see the verification objection, it is so ordered. The report goes on to say: of the strategy, and we cannot relent. f If democratic reform efforts in Muslim ma- We know these terrorists want to spread terrorism and harsh, violent, in- MILITARY COMMISSIONS ACT OF jority nations progress over the next five 2006 years, political participation probably would human regimes wherever they can get drive a wedge between intransigent extrem- a foothold. It is the hope of peace and Mr. DURBIN. Mr. President, I rise to ists and groups willing to use the political freedom and humanity that America speak about the Military Commissions process to achieve their local objectives. and our allies carry to the battle. It is Act of 2006 which the Senate is likely I did not read all of the Key Judg- a battle, it is a war. It is every bit as to consider, possibly today, certainly ments into the RECORD. I did read ex- much a fight for freedom as any war in this week. cerpts because I think the strategy of which America has been involved. For those who have been following it, America today is a strategy that is This is a war we cannot lose. We have the debate in Washington the last few being borne out by the report, which is stopped communism from taking over weeks has been very interesting. It has the opposite of what the leaks pur- the world. We have stopped socialism now been 5 years since the attacks of 9/ ported to say; that our efforts in Iraq from taking over the world. We cannot 11. The present administration has fi- are undermining the Global War on allow terrorists to take over the world nally come forward and asked Congress

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.037 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10235 to pass a bill authorizing military Sears Tower in Chicago—a fence of 700 many other things. When it came to trials to try suspected terrorists. At miles. the creation of the PATRIOT Act, it this late date, the President is demand- We can argue the merits or demerits was a bipartisan effort after 9/11. When ing the Congress act immediately after of this issue, but it is clear what it is it came to reforming our intelligence the administration waited 5 years to all about. It is an effort to have a polit- agency, it was bipartisan. But, unfortu- come to Congress. ical vote as close to the election as pos- nately, this effort has not been bipar- It is welcome news that the Presi- sible. It is an effort to tap into voter tisan. Instead, the Administration ini- dent is now working with the Congress sentiment on the issue of immigration. tially demanded that Congress pass a to bring the planners of 9/11 to justice. It is an effort to avoid our real respon- law simply ratifying the approach that Why do we have to do it today? Why do sibility, and that is to demand smart the Supreme Court has already re- we have to do it this week? enforcement—tough enforcement at jected. The Republican leadership of For some of us who have served in the border, and enforcement in the Congress rushed to rubberstamp the the Senate for a while, this reminds us workplace so that those who are drawn President’s proposal. of a debate that took place 4 years ago. to America to find a job will be dis- We need to create military commis- Four years ago this Congress was told couraged because now there will be a sions so those who are guilty of ter- that before we could return home to tamper-proof ID to establish who a per- rorism and war crimes can be held ac- face the November elections, we abso- son really is before they have a chance countable. But we need to do it in a lutely without fail had to vote on the to work in this country. way that will meet the test of the body question of authorizing the use of mili- It is also ignoring the obvious, too. right across the street, the U.S. Su- tary force and giving the President the We need agricultural workers imme- preme Court. They will ultimately authority to invade Iraq. We were told diately. The crops, the fruit and look at our product and decide whether there was a timetable that had to be produce, are rotting right now in many it meets constitutional muster. If the met; that there was no time to spare. States such as California because the Court rejects these new military com- Despite the fact that we had limited workers are not permitted to come missions, justice for the victims of 9/11 information about the situation in here. That is not good for the growers, will be delayed yet again. Iraq, despite the fact that we had only of course. It is certainly not good for It is fortunate that under the leader- vague assurances from the President America. But it is a fact. ship of Chairman JOHN WARNER and that he would use diplomacy before he We also face another reality. There ranking member CARL LEVIN, the Sen- ever considered military action, de- are 10 to 12 million people here today ate Armed Services Committee took a spite the fact that we didn’t have a co- who are undocumented. I know many hard look at this issue and produced bi- alition of allies or forces, we were told of them in my city of Chicago, which I partisan legislation that is vastly supe- the decision had to be made. It had to am honored to represent. Many come rior to the bill proposed by the admin- istration. It is disappointing, but not be made in October, before an election. forward to talk about the challenges I recall it very well because I was up they face with current immigration surprising, that the White House and for reelection. Many of us were told: If laws, which are almost impossible to Republican leadership of the Senate you vote wrong on this one, you may understand. Instead of looking at the did not accept the Armed Services Committee bill. I am afraid that was not be reelected. It wasn’t an easy whole picture and having an honest an- our last best hope for a bipartisan ef- vote. The toughest vote any Member of swer, even if it isn’t that popular, the fort. But perhaps many of them do not Congress can face is a vote for going to Republican leadership has decided that want a bipartisan bill. Many of those war. On that vote there were 23 Mem- before we get out of town we are going strategists want a partisan issue. bers of Congress who voted no—1 Re- to vote on a 700-mile fence, on the It is more important that the protec- publican, 22 Democrats—and I was one Mexican border and a study of a fence tion of America be done on a bipartisan of that number. I look back on it now along the Canadian border. It tells you basis and a sensible basis than that we as the right vote. I have heard many where we are politically. posture in these last few moments be- The second part of this bill is not Senators who voted to go to war that fore an election to try to win some ad- much different. It is an effort, I am day who have said: We made a mistake. vantage in the polls. I salute their courage for standing up afraid, by many political strategists, to I want to salute a number of Repub- and admitting that. I have yet to find create a political wedge issue, a replay lican Senators, one of whom is pre- a single Senator who voted against of what we faced 4 years ago with the siding at this moment, for their leader- that war who has said the same. vote on authorizing the President to ship on this issue: Senator JOHN WAR- Now we are being told, less than 2 invade Iraq. The reality is that the NER of Virginia, Senator JOHN MCCAIN months before another election, we ab- Congress has stood ready to create of Arizona, and Senator LINDSEY solutely have to have a vote this week commissions to try terrorists for a GRAHAM of South Carolina, who is pre- on a—secure fence, they call it. See if long time. It was 2002, when Senator siding. Senator WARNER is a World War you can catch the flaw in the logic. ARLEN SPECTER, Republican of Penn- II vet and former Secretary of the The proposal is to build a 700-mile sylvania, now chairman of the Judici- Navy; JOHN MCCAIN, Vietnam, a Viet- fence on the Mexican border, which is ary Committee, came to me and asked nam vet, former prisoner of war; 2,000 miles long. Do you catch the flaw me to cosponsor bipartisan legislation LINDSEY GRAHAM, who was a judge ad- in this logic? Is it possible that those to authorize military commissions, and vocate in the Air Force Reserves and is determined to come into the United I did. The understanding was we should the only Senator currently serving in States might go around the fence? Over have commissions that are consistent the National Guard or Reserves. it? Under it? This 700-mile fence is a with the rule of law and our constitu- They spoke out, and I am sure they 19th or early 20th century answer to a tional values. That was 4 years ago. took some heat for saying the adminis- 21st century challenge. It has now be- Nothing has happened, from the admin- tration’s proposal was not good come a question of political bragging istration or in Congress. Now we are enough. The chorus behind them was a rights. Which party has the longest told we can’t wait another day. strong one. General Colin Powell fence to take to the American voters? Instead of working with Congress, stepped forward and said the adminis- Is that the best we can do on Capitol the President unilaterally created tration’s proposal did not meet the Hill? military commissions that are incon- moral test of a country that wants to I might add, this underlying bill says sistent with American values and the fight terrorism on a global basis. He it is about time we get serious about law. It was no surprise when the Su- was joined by General Vessey and Gen- building a fence between Canada and preme Court ruled in the Hamdan deci- eral Shalikashvili and other military the United States—thousands of miles. sion this administration’s military leaders who were equally critical. I try to envision this, what we are commissions were illegal. Thanks to their efforts, the bill we talking about. The 700-mile fence on After the Hamdan decision, I had will consider is better than it other- the southern border is the equivalent hoped that we could work with the ad- wise would have been. For example, the of a fence from the Washington Monu- ministration by charting a new course, bill would make it a crime to use abu- ment in the Nation’s Capitol to the a bipartisan course, as we did with so sive interrogation techniques like

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.017 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10236 CONGRESSIONAL RECORD — SENATE September 27, 2006 waterboarding, induced hypothermia, nique. The person who wrote the memo Powell was right. Unfortunately, the painful stress positions, and prolonged suggesting the use of dogs as an inter- President rejected his wise counsel. In sleep deprivation. rogation technique is not only facing February 2002 the President issued a What it comes down to is this: How no questioning, but the administration memo directing that the Geneva Con- will we treat detainees and prisoners? is proposing he be given a lifetime ap- ventions would not apply to the war on Is there a limit to what we can or pointment to the second highest court terrorism. should do? Will the Geneva Conven- in the land. Just this summer, in the Hamdan tions work? This administration, the Where is the justice, when soldiers case, the Supreme Court ruled that the Bush administration, said a few years who use these techniques, as wrong as President’s position on the Geneva ago they were quaint and obsolete in a they are, end up in prison, and those Conventions is illegal. The Supreme war against terrorism. Thank goodness who write the memos suggesting these Court reminded the President and all that point of view is no longer accept- techniques not only are not held ac- of us that we are a nation of laws, even able. countable, they are rewarded? And now in a time of war. President Bush says he has one test we are presented with this bill, which Now, 4 years after Gonzales warned for this legislation: Will it allow the says we will give amnesty to those who President Bush about possible prosecu- administration’s secret prisons and co- conceived of these interrogation tech- tions under the War Crimes Act, the ercive interrogation techniques to con- niques. administration wants an amnesty, ret- tinue? Over 4 years ago, then-White House roactive immunity for their actions. Of course we must detain and aggres- Counsel Alberto Gonzales rec- According to a recent Washington Post sively interrogate suspected terrorists. ommended to the President that the story, Alberto Gonzales told Repub- We live in a dangerous world. There are Geneva Convention should not apply to lican Members of Congress: people in this world who wish us ill. We the war on terrorism. In a January 2002 . . . a shield is needed for actions taken by learned it on 9/11. We learned it in memo to the President, Mr. Gonzales U.S. personnel under a 2002 Presidential countries around the world, that these concluded the war on terrorism ‘‘ren- order which the Supreme Court declared ille- are people who cannot be trifled with. ders obsolete’’ the Geneva Conventions. gal. They must be taken seriously, and I Think of that. The Geneva Conven- One reason the White House may be would not support any legislation that tions, international agreements that pushing for amnesty is because high- prevented our military or intelligence have guided America for more than a ranking administration officials have investigators from asking the hard century, were obsolete, we were told by authorized the use of several con- questions of those they have detained. the White House Counsel at that time, troversial interrogation techniques But there are other tests we have to Mr. Gonzales. that appear to violate the law. In late apply as well. First, is the legislation In his memo to President Bush, Mr. 2002, relying on the President’s deci- we are about to pass consistent with Gonzales specifically warned that ad- sion to set aside the Geneva Conven- American values and law? What makes ministration officials could be pros- tions, Defense Secretary Rumsfeld ap- us better than the terrorists is that ecuted under the War Crimes Act if the proved numerous interrogation tactics there are some lines we won’t cross, President did not set aside the Geneva for use at Guantanamo. The com- even in war. I believe we can fight ter- Conventions. He argued that a presi- mander of Guantanamo Bay’s deten- rorism effectively and stay true to our dential determination that the Geneva tion operations gave the Guantanamo Constitution. Conventions do not apply would ‘‘sub- policies to senior officers in Iraq, and Just as important: Will this legisla- stantially reduce the threat of domes- they became the bedrock for interroga- tion put our own troops at risk or tic criminal prosecution under the War tion tactics in Iraq, according to the make it more difficult to fight the war Crimes Act’’ and ‘‘would provide a solid Department of Defense’s own investiga- on terror. As dozens of military leaders defense to any future prosecution.’’ tion. The horrible images that emerged have argued in recent weeks, this is It was during that period of rede- from Abu Ghraib have seared into our not the last war we will fight, and the fining conduct that some terrible mind the nature of some of these tech- standards we set today for the treat- memos and terrible standards were niques, including threatening detainees ment of detainees and prisoners will generated by this administration, with dogs and forcing detainees into determine how our brave soldiers will standards which led to some of our sol- painful stress positions for long periods be treated in this and future wars. diers being imprisoned. Now this bill of time. Despite the great efforts of Senators would say that the authors of those When other countries have used these WARNER, MCCAIN, and GRAHAM, I am terrible standards cannot be held ac- techniques throughout modern history, concerned that provisions in the bill countable. the United States, through our State that will come before us do not meet General Colin Powell, who was Sec- Department, has condemned them as these tests. retary of State at the time, strongly torture. In a memo that has been pub- Let’s take one example. The bill disagreed with the recommendation to licly released, the Federal Bureau of would revise a law known as the War set aside the Geneva Conventions. He Investigation concluded that the tech- Crimes Act to give Bush administra- had decades of military experience in- niques authorized by the Defense Sec- tion officials and those who preceded forming his judgment. He argued that retary but ‘‘are not permitted by the them, back to 1997, amnesty, amnesty complying with the Geneva Conven- U.S. Constitution.’’ for authorizing illegal interrogation tions and effectively fighting the war Senior military lawyers, known as techniques. on terrorism were not only possible, it Judge Advocates General, have also Think about this for a second. This was the course America should follow. raised serious concerns. To take just administration wrote a memo. The au- In a memo to Mr. Gonzales, Secretary one example, in a recent hearing of the thor of that memo is a gentleman who Colin Powell concluded that setting Senate Armed Services Committee, MG is now before us as a potential nominee aside the Geneva Conventions: Jack Rives, the Air Force JAG, said for the Federal court. In that memo it . . . will reverse over a century of U.S. pol- ‘‘some of the techniques that have been was recommended that we might use, icy and practice in supporting the Geneva authorized and used in the past have as part of interrogation techniques, conventions and undermine the protections violated Common Article 3’’ of the Ge- using dogs to threaten and intimidate of the law of war for our own troops. neva Conventions. prisoners. That was in the memo. General Powell said: These are not human rights groups, Now, fast forward to Abu Ghraib and It will undermine public support among partisans, or journalists. This is our to those awful, horrific photographs we critical allies, making military cooperation own State Department, our FBI, and saw of the treatment of prisoners in more difficult to sustain. military lawyers saying the adminis- that jail. You will recall, as I do, one of Now look at what happened in the 4 tration has authorized interrogation our soldiers holding on a leash a dog years that followed. From Washington techniques that violate the law. that was growling at one of the pris- DC, to Guantanamo, to Abu Ghraib, And who will accept responsibility oners. That soldier is in jail today for damage has been done to America’s for these mistakes? The soldiers. The using that dog and using that tech- image. It is clear that Secretary Colin soldiers will go to jail. But if this bill

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.019 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10237 passes, those who sent out the memos applies to many hundreds who have In 2004, in the landmark decision of will be off the hook. So while the ad- been held in detention, some for years. Rasul v. Bush, the Supreme Court re- ministration claims they want to do The administration claimed the right jected the administration’s detention right by the victims of 9/11 and our to seize anyone, including an American policy. The Court held that detainees brave men and women in uniform, it citizen in the United States, and to can file habeas corpus claims in court appears that they are not doing what hold him until the end of the war on to ask why they are being detained. justice requires. terrorism, whenever that may be. Rather than changing their policies This amnesty will protect someone They claimed than even an American to comply with the Court’s decision, else. Sadly, it will also protect those citizen who is detained has no rights. the administration has asked the Re- who commit war crimes against Ameri- That means no right to challenge his publican-controlled Congress to change cans. Let’s not forget the original in- detention, no right to see the evidence the law to eliminate habeas corpus for tent of the War Crimes Act, enacted in against him, and no right even to know detainees. This would overturn the 1996 by a Republican-controlled Con- why he is being held. In fact, an admin- Court’s decision in Rasul v. Bush and gress, adopted by a voice vote in the istration lawyer claimed in court that immunize the administration’s deten- House and a unanimous vote in the detainees would have no right to chal- tion policies from judicial review. Senate. Conservative Republican Con- lenge their detentions even if they Tom Sullivan is a prominent attor- gressman WALTER JONES proposed it were being tortured or summarily exe- ney in Chicago and a friend of mine. after he met with a retired Navy pilot cuted. Tom served in the Army during the Ko- who spent 6 years in the Hanoi Hilton, Using their new detention policy, the rean war. He is a former U.S. Attorney. the same Vietnamese prison where administration has detained thousands On a pro bono basis, he and his law Senator JOHN MCCAIN was detained. of individuals in secret detention cen- partner Jeff Colman have taken on the Congressman JONES wanted to give ters around the world. While it is the cases of several Guantanamo detainees. the Justice Department the authority most well-known, Guantanamo Bay is Tom says that his clients were not to prosecute war criminals like the only one of these detention centers. detained on the battlefield and that Vietcong who abused American POWs. Many have been captured in Afghani- they are not even accused of engaging Here is what Senator Jesse Helms, a stan and Iraq, but people who never in hostilities against the United leading conservative on the Republican raised arms against us have been taken States. He believes they are innocent side of the aisle, said of the War Crimes prisoner far from the battlefield, in and are in Guantanamo because of mis- Act: places like Bosnia and Thailand. takes that were made in the fog of war. This bill will help to close major gaps in Who are the detainees in Guanta- Tom has been a lawyer for more than our Federal criminal law by permitting namo Bay? Back in 2002, Defense Sec- 50 years. He believes habeas corpus is American servicemen and nationals, who retary Rumsfeld described them as the bedrock of the American legal sys- were victims of war crimes, to see the crimi- ‘‘the hardest of the hard core’’ and tem because it is the only recourse nals brought to justice in the United States. ‘‘among the most dangerous, best available when the government has So keep in mind that if we water trained, vicious killers on the face of mistakenly detained an innocent per- down the War Crimes Act to immunize the Earth.’’ However, the administra- son. American government officials, we also tion has since released hundreds of the ADM John Hutson was a Navy judge make it harder to prosecute war crimi- detainees and it now appears that Sec- advocate for 28 years. Admiral Hutson nals who abuse Americans. retary Rumsfeld’s assertion was false. testified yesterday at a Senate Judici- According to media reports, military There is another very troubling pro- ary Committee hearing. Here is what sources indicate that many detainees vision in this legislation. It would he said about eliminating habeas for have no connection to al-Qaida or the eliminate the writ of habeas corpus for detainees: detainees. Habeas corpus is a Latin Taliban and were sent to Guantanamo It is inconsistent with our own his- phrase that means ‘‘you have the over the objections of intelligence per- tory and tradition to take this action. sonnel who recommended they be re- body.’’ It is the name for the procedure If we diminish or tarnish our values, leased. that allows a prisoner to challenge his those values that the Founders fought There have been all sorts of studies. detention. for and memorialized in the Constitu- Over 700 lawyers from Chicago sent I recall visiting Guantanamo re- cently where Admiral Harry Harris tion and have been carefully preserved me a letter strongly opposing the by the blood and honor or succeeding elimination of habeas corpus for de- said to me—I asked him about the pris- oners there. He said, ‘‘They are not generations, then we will have lost a tainees. Here is how they explained the being punished—they are only being major battle in the war on terror . . . importance of habeas corpus: detained.’’ We don’t need to do this. America is The right of habeas corpus was enshrined They haven’t been charged with any- too strong. Our system of justice is too in the Constitution by our Founding Fathers sacred to tinker with in this way. as the means by which anyone who is de- thing—and that is the point. Habeas corpus allows these people being held Admiral Hutson also testified that tained by the Executive may challenge the eliminating habeas will put our own lawfulness of his detention. It is a vital part for years to ask why they are being of our system of ‘‘checks and balances’’ and held. They are not automatically re- troops at risk: an important safeguard against mistakes leased, but under habeas corpus they If we fail to provide a reasonable judicial which can be made even by the best inten- can ask: On what basis are you keeping avenue to consider detention, other coun- tional government officials. me as a prisoner? tries will fell justified in doing the same To a nonlawyer, habeas corpus may I hope my colleagues will stop and thing. . . . It is U.S. troops who are forward deployed in greater numbers and on more oc- sound like an abstract legal principle, think about this for a moment. If there casions than all other nations combined. It but eliminating it would have practical is a dangerous person in Guantanamo is our troops who are in harm’s way and de- and very damaging consequences: it who threatens an American soldier or serve judicial protections. In future wars, we would prevent courts from reviewing any American citizens with an act of will want to ensure that our troops and those the lawfulness of the administration’s terrorism, if they have been complicit of our allies are treated in a manner similar detention and interrogation practices. in any act of terrorism involving al- to how we treat our enemies. We are now set- This is yet another form of amnesty for Qaida or Taliban, from my point of ting the standard for that treatment. the administration. view they should be incarcerated and When I visited the detention facility Why is the administration so inter- held until there is no danger to the at Guantanamo, I saw American sol- ested in protecting itself from judicial United States. But if we are simply diers doing their duty in a very bleak review? holding 455 people with no charges, in- and desolate spot. I salute them for Perhaps it is because the courts have definitely, and no right to challenge serving their country. Every day they repeatedly ruled that the administra- the basis for their detention, until this wake up, put on the uniform of the tion’s policies violate the law. war on terrorism, which has no defin- United States and serve us with honor After the September 11 terrorist at- able end to it, comes to an end, that is and distinction. Congress should not do tacks, the administration unilaterally not consistent with the principle of anything to make their job more dif- created a new detention policy which justice. ficult.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.021 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10238 CONGRESSIONAL RECORD — SENATE September 27, 2006 We should not have a double standard and democracy and opportunity and se- have it. We can go forward on the law where our brave men and women in curity in the world, in Afghanistan and as it is. In this case, we have to clarify uniform go to jail and high-ranking po- Iraq and the Middle East and, yes, here the situation, or these people who are litical appointees are not held account- at home. being held in Guantanamo Bay are able. What kind of message does that We are working through this as we go going to be hanging in limbo. If you are send to our soldiers? forward. These are unique times. In worried about them, which I am not If we eliminate habeas corpus for de- this process, we have been able to cap- particularly, there needs to be a proc- tainees at Guantanamo, we will put ture and deter some of the worst of the ess of how we will deal with them. our troops in the impossible position of worst jihadists in the world, intent on That is how we got where we are. serving as jailers for men who are in- killing our soldiers and innocent men That is now pending as an amendment definitely detained with no ability to and women. We have had to deal with to the border security bill that pro- challenge their detention. them. These are not people who ordi- vides for a fence along our southern Think about that for a moment. If narily have been captured who would border with Mexico. That is not the there were an American employee or be covered by the Geneva Conventions. way it should be done. It should be con- an American citizen or an American They are not serving in a country’s sidered clean. But it is typical of what soldier being held in a foreign place military; they are murderers of the has happened all year long in the Sen- with no charges against them, indefi- worst sort. ate. The whole operation from the nitely, with no recourse under the law, We have had to deal with this issue. other side of the aisle is delay it, drag we would be protesting in the strongest This administration has dealt with it. it out, don’t cooperate. Why can’t we terms. They have done it responsibly. Have at least debate? Why have we gone The American people want us to they made some mistakes? Why, of through a day and a half of nothingness bring the planners of 9/11 to justice. course; we are human beings. instead of considering and debating the That should be the focus of our legisla- All of this led to a very unfortunate substance of the amendment which tion, not giving amnesty to adminis- Supreme Court decision, referred to— should be a bill and also the substance tration officials and not immunizing again, unfortunately—as the Hamdan of border security? Does anyone here the administration’s policies from judi- decision. The Supreme Court clearly want to leave to go home for an elec- cial review. made a mistake. I must admit I was tion period—and that is what this is These provisions fail two crucial disappointed in some of the rulings of really all about—without having ad- tests. They are inconsistent with the judges, but it has forced our hand dressed how we do the military trials American values, and they would put to try to make it clear in the law and and without having done something our troops at risk. They must be with the administration how we are more significant about border security? changed. going to deal with this question of in- Not me, although I suspect there are I look forward to the consideration of terrogating these terrorists, how we some who say: Yes, let’s don’t let any- this bill on the Senate floor with are going to deal with some of the evi- thing happen; then we can blame Sen- amendments to be offered to make dence that is acquired through that ators, certain people, leaders, what- these changes so that we can come for- process. The administration has been ever, the administration, because noth- ward with a bipartisan bill, a bill that working with the lawyers, with the ing happened. Nice deal if you can pull will make America safer but not at the Congress, and with the Senate to try to it off. I don’t believe the American peo- expense of our basic values. work through this issue. ple will buy that deal. I yield the floor. Some people were very distraught Also, in listening to some of the com- (The remarks of Mr. DOMENICI per- last week that we seemed to be having ments in the Senate, it stuns me. First taining to the introduction of S. 3962 disagreement within our own ranks on of all, I am an attorney. I have not are printed in today’s RECORD under the Republican side of the aisle where practiced for a long time. I find myself ‘‘Statements on Introduced Bills and three or four Senators or some Sen- now involved in a lawsuit. Whenever Joint Resolutions.’’) ators had some concerns. I felt very they say, ‘‘Bring on the lawyers,’’ look The PRESIDING OFFICER. The Sen- differently. Finally, we were dealing out, because now we are going to get ator from Mississippi. with issues that really matter. Ques- into a huge, big discussion of the nice- f tions of law, how we deal with the ter- ties of trials and evidence and all of rorists, how we deal with the evi- that, and we are guaranteed to have a MILITARY COMMISSIONS ACT OF dence—these are very serious discus- 2006 lot of confusion moving forward. sions, the kinds of things the Senate I wish to again emphasize what we Mr. LOTT. If I could speak on this should be doing a lot more of. are dealing with. We are dealing with, very important issue addressed pre- While one can disagree with who was I believe Colin Powell was quoted as viously by the Senator from Illinois, doing what, we went through a process, saying, the most vicious killers in the the Military Commissions Act of 2006, I took up legitimate questions of the world. These are bad people. These are have been restrained in making com- law—how to deal with the Geneva Con- the people who admit they are ments on this process, although I vention; how is it perceived—and came jihadists. And if they get out, they admit I have had to bite my lip a few to an agreement. I still had my doubts. would do everything to kill Americans, times because I believed the process There are parts I still do not particu- Europeans, Asians—anyone they think that was underway was responsible. larly like. I thought it was a very good does not agree with their religious po- Let me go back and talk a little bit process, with a lot of different people, a sitions. These are not citizens, these about the beginnings of why this act is lot of lawyers, a lot of military people, are not employees of the government, necessary and where we are now. We a lot of leadership in the Congress, and and these are not soldiers. These are have been in some very difficult times they came up with a conclusion. I have extremist jihadists of the worst sort. and some uncharted waters when it had occasion now to take a look at Now we have people worrying about comes to the war on terror since Sep- what they came up with, had questions how they are going to be incarcerated tember 11. It has challenged us in many about, and it is pretty good. However, or interrogated or what evidence would ways to deal with problems we have it is an area where we must act because be admissible. Lawyers can work that not had to deal with before, with an if we do not act, we are not—the ad- out. I know enough about the law to amorphous enemy which does not line ministration, the Government—going know that judges and juries can deci- up in uniform, in rank, but takes the to know how to deal with interrogation pher the legitimacy of evidence and vehicle of suicide bombers or roadside or with the terrorists or how to deal how it was obtained. The parsing we bombs—the worst of all possible at- with the evidence. This is a case where have been through is a disgrace, in my tacks on innocent men and women and we do not have the luxury of not deal- opinion. children—with no uniform, with no ing with this issue. We have to do it. In terms of the interrogation, yes, we concern for what it does to these inno- In some other areas, we should act. have to be concerned about our treaty cent people, not to mention those who The electronic wiretaps matter—we obligations. Our President and our are trying to bring about greater peace should deal with that, but we don’t Government have to be concerned

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.024 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10239 about that. Senators, too. We have al- Ladies and gentlemen, this is the po- of that evidence should be admissable ready voted, and I voted, to clarify our litical season, I am sorry to say. I with less restraints. I think more of position that we are opposed to tor- would have thought the Senate could the techniques that have been used in ture. I voted for the McCain position. rise above all this partisan political the interrogation of terrorists should But now, what we are arguing over, I stuff. Everybody is trying to rewrite be used than are in this provision. Once am concerned. What are we going to do history or rewrite the law or prove a again, it is not perfect, but it is good in terms of interrogation to get infor- mistake was made or this intelligence enough. It is the right thing to do. mation that can save one marine’s life was available which was different from Madam President, observing no Sen- or thousands of innocent people? Are that intelligence. Who is taking the ator wishing to speak at this time, I we going to ask them: Please, pretty time and looking at where we are now? suggest the absence of a quorum. please? When they let on like some of Where do we want to be? How are we The PRESIDING OFFICER (Ms. MUR- the techniques that have been used are going to handle interrogations? How KOWSKI). The clerk will call the roll. such horrible things—being threatened are we going to handle evidence? How The assistant legislative clerk pro- by a dog? Come on. Have they never de- are we going to do a better job for our ceeded to call the roll. livered laundry to someone’s house and men and women in the decisions we Mrs. MURRAY. Madam President, I had a dog come after them? Have they make in Iraq and Afghanistan? Who is ask unanimous consent that the order never lived? Now being threatened by a looking for the future around here? No, for the quorum call be rescinded. dog is considered what—torture? Oh, we are all throwing political spears at The PRESIDING OFFICER. Without by the way, we can’t have them in each other. I don’t think the American objection, it is so ordered. stressful positions. What is that? You people appreciate that. It is embar- Mrs. MURRAY. Madam President, I mean like standing up? Some of these rassing, quite frankly, to me. ask unanimous consent to be allowed complaints are absolutely ludicrous. I have been on the Intelligence Com- to speak as in morning business. Are we going to be careful not to insult mittee for 4 years, and for 4 years we The PRESIDING OFFICER. Without them in some way? How are we going have been going back trying to refigure objection, it is so ordered. to get this information? the intelligence. We have found out the f And by the way, now our men and intelligence we were receiving in that DEMANDING ACCOUNTABILITY women who have to find a way to get committee—the Senators, Congress- information from these worst of the men, and the President—was not as Mrs. MURRAY. Madam President, worst vicious killers in the world could good as it should have been. Okay, the hardest decisions we make in the be liable, and even worse than that, good. Admit that. Now what are we Senate involve asking our fellow Amer- when they thought they were com- going to do about it? How many hear- icans to risk their health and their plying with the law as they understood ings do we have where the CIA and the lives in defense of our country. The it and as their superiors told them, Director of National Intelligence were cost to our country, to our commu- they could be liable to be tried—after asked: What are you doing to imple- nities, and to our families is so great the fact. ment the law we put in place to address that in any war we have an obligation This legislation at least says that the problems we found? Where are we to make sure we are doing right by our prospectively, here is going to be what going to be in the future? What have service members, by our veterans, and is expected. If you exceed this, if you we done to actually go to meet with by our country. get over into the torture area, yes, you our CIA agents around the world and That is why we in this Congress need will be liable. But to go back and say, hear what the real country situation is to ask questions. We need to ask ques- now, wait a minute, what you did could in critical parts of the world? Not one tions such as: Do our troops have a make you liable, when we have people time have we done that. clear mission? Is there a plan to trying to do their job for the American No, even the Intelligence Committee, achieve that mission? Do our troops people—our soldiers in Iraq and Af- which for years the Senate worked to have the support and equipment they ghanistan now could be sued, and there make sure it stayed nonpartisan, bipar- need to succeed? Do we have the right are complaints that we are not going tisan, and worked together for the good people in place? And are we taking care to make sure these people are not of the country, in close quarters, now of our veterans when they return home going to be, after the fact, ex post is just another partisan committee. from military service? facto, tried? These same people are Staff fight each other; intelligence in- For too long, this Congress has not talking about amnesty for people ille- formation is leaked; classified intel- done its job of asking those questions gally in America. Yet when they talk ligence information is leaked to the and demanding answers. Here in Con- about amnesty for people doing their New York Times and the Washington gress, we have a responsibility. We job as best they could, as they under- Post. No one is identified. No one is have a responsibility to make sure the stood the law, no, we do not want to punished for that. Bush administration, or any adminis- give them amnesty. That would be a What worries me, this is not just tration, is fulfilling those critical re- horrible mistake, if we do not provide about politics; this is about people’s quirements. So today I rise to offer an some clarity and some protection for lives. People get killed based on the in- update on where we stand on some of those who may have exceeded that telligence we get or don’t get or the these questions and to share some dis- clarity in the past even though they oversight we have. turbing news from recent reports. The understood what they were doing was I hope we can complete our work. evidence I am going to share with my wrong. Hopefully, it will be good work by the colleagues today points to five dis- Now we have this huge discussion end of the week. appointing conclusions, and they all about habeas corpus. Bring on the law- Let’s go home and get this political demand hearings and they demand ac- yers. What a wonderful thing we can do period over with, but when we come countability. to come up with words like this. Our back next year, I think it is time we First of all, the Bush administration forefathers were thinking about citi- assess where we are. How are we going misled Congress about its failures in zens, Americans. They were not con- to do a better job? What is America’s planning for the care of America’s vet- ceiving of these terrorists who are kill- agenda? What can we do together in a erans. ing these innocent men, women, and bipartisan way? Is there anything left? Secondly, the Bush administration children. These are not citizens. These And if we do not, I think there will be still does not have a plan to care for are not people in America. We want a pox on all of our houses. our veterans. them turned loose arbitrarily and then So on this particular subject of the Third, we do not have a clear mission on the other hand turn around and, Military Commissions Act of 2006, let’s in the war in Iraq. And that fight has say, criticize the administration be- get it up, let’s debate it, and let’s have greatly impacted our ability to pros- cause some people who were caught in a vote. We have to do it. I think they ecute the broader war on terror and, this process were subsequently released have done pretty good work. If I could according to the latest intelligence es- when you find out maybe they get in a room with my lawyers, yes, I timate, has helped to fuel new terrorist shouldn’t have been? would write it differently. I think more recruits.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.028 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10240 CONGRESSIONAL RECORD — SENATE September 27, 2006 Fourth, the Bush administration has us things were fine—it was very clear I can assure you that the VA does not need put politics over progress in Iraq and that the shortfalls were growing. The emergency supplemental funds in FY 2005. at home. In Iraq, it sent political cro- VA, in fact, became aware it would A week later, on April 12, I offered nies to staff the provisional govern- have a problem. In October of 2004, in- two amendments on the Senate floor to ment instead of experienced profes- side the VA, they knew they had prob- boost veterans funding. First, I asked sionals who could get the job done. lems, but they did not admit those the Senate to agree that the lack of From ‘‘Brownie’’ at FEMA to new re- problems until June of 2005. Veterans veterans funding was an emergency ports about the HUD Secretary, the were telling me of long lines and delays and we had to fix it. The Republican Bush administration put politics over in care. For months, I tried to give the majority said no. So I asked the Senate competence. VA more money, but the administra- to agree that supporting our veterans Finally, Congress—us—we are not tion fought me every step of the way. ought to be a priority. Again, the Re- doing our job of oversight. Unless we And who paid the price for those decep- publican majority said no. As a result, hold hearings, until we demand an- tions? America’s veterans, and that veterans did not get the funding they swers, and until we require account- was just wrong. needed and the deception continued. ability, we will just keep muddling Let me walk through some of the de- On June 9, I asked Secretary Nichol- through with the same poor results. ceptions found in this GAO report. It son at a hearing if he had enough fund- We can do a lot better. We can be shows a very troubling gap between ing to deal with the mental health safer. And we can be more successful. what the VA knew and what the VA challenges of veterans returning from But it has to start with an honest as- told us. Iraq and Afghanistan. He assured me sessment of what is working, what is According to the GAO report, start- the VA was fine. not, and what we need to change. ing back in October 2004, the VA knew So for 6 months, we had happy talk In that spirit, I want to discuss those that money was tight. It anticipated that everything was fine within the five conclusions I mentioned, starting serious budget challenges, and it cre- VA. Then, in June, just 2 weeks after with the fact that the Bush adminis- ated, inside the VA, a ‘‘Budget Chal- the Secretary’s latest assurance, the tration misled Congress about its inad- lenges’’ working group. truth finally came out. On June 23, the VA revealed a mas- equate efforts to care for our veterans. Two months later, in December of Over the past 2 budget years, the 2004, that budget group made internal sive shortfall of $3 billion. Well, I went Bush administration was dramatically recommendations inside the VA to deal to work with my colleagues and we came up with the funding. But we wrong in its planning for veterans with the shortfall they knew they had. could have solved that problem much health care. The result was a $3 billion They suggested delaying new initia- earlier and saved our veterans the shortfall last summer. And this was tives and shifting around funding. Two months later, in February of delays they were experiencing. not just a failure in planning. It meant By misleading us the entire time, the 2005, the Bush administration released failing to get our veterans the services Bush administration hurt our Amer- its budget proposal for 2006. The GAO they required in a timely fashion. It ican veterans. We could have provided found that budget was based on ‘‘unre- meant veterans had to face long waits the money when it was needed. We to see a doctor. And it meant they did alistic assumptions, errors in esti- could have been hiring the doctors and not get the care they deserved. mation, and insufficient data.’’ nurses we needed. We could have been A week later, at a hearing on Feb- That horrible planning is no way to buying the medical equipment that was ruary 15, here, I asked the VA Sec- care for the veterans who have sac- needed. And we could have been help- retary if the President’s budget was rificed so much for us. We can do bet- ing thousands of veterans who were sit- ter. That is why after that failure I sufficient. He told me: ting on waiting lists waiting for care. joined with Senators AKAKA, DURBIN, I have many of the same concerns, and I Here is the bottom line. The Bush ad- and SALAZAR. Together we asked the end up being satisfied that we can get the job ministration knew about this problem done with this budget. Government Accountability Office to in October of 2004. They saw it getting investigate what happened at the VA. Let’s remember what was happening worse month by month, but here in the Well, this is the report we got back. back at that time. I was hearing from Senate, in the House, they assured us Frankly, the answers are pretty damn- veterans that they were facing delays everything was fine. They worked ada- ing, and they cast doubt on whether we in care and that the VA system was mantly to defeat my amendments to can rely on this VA for accurate num- stretched to capacity. But the VA kept provide funding, and they did not come bers and straight answers. saying: Everything is fine. clean until June of 2005. I wish to focus on the four findings in On March 8, Secretary Nicholson told That is unacceptable. I think our vet- this report. a House committee that the Presi- erans deserve real answers. First of all, the GAO found that the dent’s fiscal year 2006 budget ‘‘gives VA This GAO report shows that the VA VA knew it had serious problems with what it needs.’’ Well, I was hearing a was not telling us in Congress the its budget, but they failed to notify much different story as I spoke with truth and was fighting those of us who Congress, all of us here. Even worse, veterans in my home State and around were trying to help. I think we need to they misled us. The report suggests the country. So that is why on March bring Secretary Nicholson before the that the VA could still, today, be send- 10 I offered an amendment in the Sen- Veterans Affairs’ Committee so we can ing us inaccurate information in its ate Budget Committee to increase vet- get real answers. We need to ensure quarterly reports. erans funding by 3 percent so we could that the VA doesn’t repeat the same Secondly, the GAO found that the VA hire more doctors and provide faster mistake of the past 2 years. We owe was basing its budgets on ‘‘unrealistic care for our veterans. Unfortunately, that to our current and future veterans assumptions, errors in estimation, and the Republican majority said no. who sacrifice so much for us. insufficient data.’’ Now, that same month, while that We need an explanation of why the Third, the Pentagon failed to give was happening, the VA’s internal VA lied to us about the so-called ‘‘man- the VA up-to-date information about monthly reports showed that demand agement efficiency.’’ The GAO found how many service members would be for health care was exceeding projec- those alleged savings were nothing but coming down the pipeline and into the tions. That was another warning sign ‘‘hot air.’’ This report clearly shows VA. that the VA should have shared with the Bush administration misrepre- Finally, the GAO found that the VA us, but it did not. sented the truth to us in Congress for 4 did not adequately plan for the impact On March 16, Senator AKAKA and I of- fiscal years, through 4 budgets, and 4 of service members coming home from fered an amendment here on the Sen- appropriations cycles about those Iraq and Afghanistan. ate floor to increase veterans funding bogus savings. When they could not For me, I think one of the most dis- by $2.85 billion. Once again, the Repub- make these efficiencies a reality, they turbing findings is that the VA kept lican majority said no. took the funds from veterans’ health assuring us here in Congress that ev- The next month, on April 5, Sec- care. That, too, is unacceptable. erything was fine, while inside the retary Nicholson wrote to Senator This report also suggests that even in VA—at the same time it was assuring HUTCHISON: its latest quarterly reports to us, the

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.030 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10241 VA is slow to report and doesn’t pro- The AP article I mentioned talks complishing there today? Overthrowing vide key information we required, such about a soldier from Virginia Beach, Saddam Hussein? They already accom- as the time required for veterans to get VA, who was having a hard time sleep- plished that. Looking for weapons of their first appointment. ing when he came home from Iraq. Do mass destruction? They looked; no The GAO report also says that the you know what he was told? He was weapons were found. Are they supposed Department of Defense failed to pro- told he would have to wait 21⁄2 months to be setting up an Iraqi government? vide the VA up-to-date information on for an appointment at the VA facility. We have done that. The Iraqi people how many service members would be Here is a service member who has have created a constitution, elected separating from service and seeking gone to war in Iraq, done what his leaders, and filled their Cabinet. care at the VA. country asked, and he comes home and Our troops have done everything we That is frustrating to me because I asks for help, and all he is told by the have asked them to do. What is left? have been asking every general who VA is to get in line and wait 75 days. I Will the President’s policies get us comes up here if they are doing enough find that pretty disgraceful. there? That is the discussion we ought to ensure a smooth transition from the I have held a number of discussions to be having in the Congress. But every Pentagon to the VA. In fact, on Feb- in my home State of Washington with time we ask these questions, we get the ruary 16 of last year, I questioned Sec- our veterans and with mental health same empty response from the Presi- retary Rumsfeld directly. I got him to experts. I was recently in Everett, WA, dent, his Cabinet, and the Congress: agree that caring for our veterans is on August 17. I heard about the chal- Stay the course. part of the cost of a war. But he had no lenges they are facing on the ground. Stay the course is not a good plan, if real answer when I asked why his re- Whether it is dealing with a large the course you are on is not working. quest for the war did not include fund- number of veterans with severe phys- We also have to get to the truth about ing to care for our veterans. ical injuries, or traumatic brain inju- the relationship between Iraq and the Finally, the GAO report verifies that ries, the VA has no plan to deal with broader war on terror. the VA failed to plan for the impact of this. On September 6, on the floor of the the veterans who are coming back from Whether it is dealing with the 16 per- Senate, I warned that the President’s Iraq and Afghanistan. I am very con- cent of wounded service members com- focus on Iraq has distracted us from cerned that the Bush administration ing back from Iraq with eye injuries, the larger war on terror. I said the still, today, right now, does not have a which Walter Reed reported in August, President took a detour from the war plan to meet the needs of our returning the VA has no plan to deal with this. on terror and invested the majority of service members. Whether it is dealing with one-third our resources into Iraq—seemingly for- Look at the gap between what the of all service members to return home ever. VA told us it needs and what we are ac- and separate from the military, who That weakens our ability to fight the tually spending on veterans’ health broader war on terror and it leaves us are seeking mental health services, the care. In July, a few months ago, the VA vulnerable. We have not made the in- VA has no plan. And we in Congress are sent an estimate to the Congressional vestments here at home to protect our- still not getting straight answers. Budget Office. The VA said it would In that AP article, a VA official said selves, and we have not finished our work against al-Qaida. Bin Laden is need $1 billion a year for 10 years to he is not aware of problems with vet- still on the loose. Afghanistan is a care for veterans from Iraq. erans getting mental health services. But here is the problem. We are al- mess, and United States troops are im- Dr. Michael Kussman is quoted as say- ready spending more than $1 billion periled. ing: this year, and we still have not seen Today, 3 weeks after I gave that the lion’s share of veterans return We’re not aware that people are having speech on the Senate floor, we learned trouble getting services from us in any con- home. There will be more veterans sistent way or pattern around the country. that the National Intelligence Esti- needing help, and $1 billion a year is mate concluded that the war in Iraq A lot of our veterans advocates dis- not going to cut it. helped to fuel the recruitment of new I have heard some of my colleagues agree with that. In fact, another VA of- terrorists. The administration’s failure speak about the generous increases to ficial pointed to serious problems in to plan and face the truth in Iraq de- VA programs, and I agree they have meeting the mental health need of our mands congressional hearings so we been helpful. But unless the dollars we veterans. can chart a better course. provide meet the needs of our veterans, In the May edition of the Psychiatric We also need to examine how the we will not have fulfilled our responsi- News, Dr. Frances Murphy, the Under Bush administration bungled Iraqi re- bility to those we have asked to go to Secretary of Health Policy Coordina- construction. On September 17, the war for us. tion at the VA, said the agency is ill- Washington Post ran a story titled Let’s focus on one area of veterans prepared to serve the mental health ‘‘Ties to GOP Trumped Know-How health care—support for mental health needs of our Nation’s veterans. Among Staff Sent to Rebuild Iraq.’’ challenges, such as post-traumatic In that article, Dr. Murphy notes That article describes how Americans stress disorder. Here is what the Asso- that some VA clinics don’t provide were selected to work in Iraq for the ciated Press said recently: mental health or substance abuse care, Coalition Provisional Authority. That or if they do, ‘‘waiting lists render that More than one-third of Iraq and Afghani- article said: care virtually inaccessible.’’ stan veterans seeking medical treatment Applicants didn’t need to be experts in the from the Veterans Health Administration re- The Bush administration has failed Middle East or in post-conflict reconstruc- port symptoms of stress or other mental dis- to deliver our veterans the care they tion. What seemed most important was loy- orders—a tenfold increase in the last 18 need, denying them the respect they alty to the Bush administration. months, according to an agency study. deserve. Given the VA’s bad track It goes on to say: That is from the Associated Press. It record and misleading statements, we The decision to send the loyal and the will- is a good thing that veterans are com- need to demand in Congress a real plan ing, instead of the best and the brightest, is ing home and seeking help. I hope it from the VA to ensure that our vet- now regarded by many people involved in the means we have made it easier to get erans get the care they have earned. 3 and a half year effort to stabilize and re- care and we have reduced the stigma Another question we need to be ask- build Iraq as one of the Bush administra- associated with the invisible impacts ing in the Senate is about our mission tion’s gravest errors. of war. During the Vietnam war, I saw in Iraq today. Unless we have clarity Many of those selected because of their po- litical fidelity spent their time trying to im- those challenges firsthand when I vol- and purpose of mission, we are not pose a conservative agenda on the postwar unteered in the psychiatric ward of the going to know when we have achieved occupation, which sidetracked more impor- Seattle VA hospital. it and when our troops can come home. tant reconstruction efforts and squandered I think it is good that our veterans We all want the same thing in Iraq— good will among the Iraqi people, according are coming home and asking for care, for our troops to complete their mis- to many people who participated in the re- but we have to make sure it is our re- sion successfully and come home safe- construction effort. sponsibility in this Congress that we ly. But today our troops’ mission in They had a political loyalty test in- have the funding to meet that need. Iraq lacks clarity. What are they ac- stead of a competence test, and that

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.032 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10242 CONGRESSIONAL RECORD — SENATE September 27, 2006 may be responsible for how long we Norman Ornstein is an expert on I ask unanimous consent that the have had to stay in Iraq and the prob- Congress at the conservative American cloture motion with respect to amend- lems we now face. Congress—us—we Enterprise Institute, and he said this ment No. 5036 be withdrawn, and that need to look at that and we need to Congress is the worst he has seen in further, the cloture vote scheduled in hold people accountable. terms of oversight. relation to H.R. 6061 be delayed to Unfortunately, this pattern and prac- He told the Philadelphia Inquirer: occur following the disposition of S. tice of political favoritism within the These people have long thought of them- 3930, and that the Senate now proceed administration extends beyond Iraq to selves as foot soldiers in the President’s to the consideration of Calendar No. how the Bush administration handles army, and their view is that oversight is 634, S. 3930, relating to military tribu- Government contracts here at home. something to avoid, lest they find something nals; provided further, that the sub- Just last week, we got new evidence that might embarrass the administration. I stitute amendment, the text of which that a member of the President’s Cabi- don’t see a single sign that this attitude will is at the desk, be considered and agreed substantially change. net has made a series of statements to as original text for the purpose of that highlighted the importance of pol- That was congressional expert Nor- further amendment; provided further, itics in awarding Government con- man Ornstein on the Republican failure that the only other amendments in tracts in his agency. to oversee the Bush administration. order, other than any managers’ Democrats are trying to provide the In May, I asked the Inspector Gen- amendments which are to be cleared by oversight that Republicans so far have eral at HUD to look into Secretary both managers and the two leaders, be Alphonso Jackson’s public statements been unwilling to provide. On Monday, the following: that he deliberately denied a contract in fact, the Democratic Policy Com- Levin, substitute; Rockefeller, con- to a firm that had been critical of mittee held a hearing on preparations gressional oversight; Kennedy, interro- President Bush. Now, last week, the IG for the war in Iraq. Retired military gation; Byrd, sunset; Specter, habeas. sent me the results of that investiga- leaders at that hearing told us that the I further ask unanimous consent that tion. This report is 340 pages long, with Bush administration failed to plan for the listed amendments be limited to 60 hundreds of pages of sworn testimony the war and that the administration minutes equally divided between the from dozens of HUD officials. This re- misled the American people. two leaders or their designees, other port includes sworn statements from We had to hold those hearings under than the Specter amendment and the HUD personnel, stating that Secretary a policy committee banner because Re- Levin amendment which will be lim- Jackson told his staff to monitor the publicans would not hold real com- ited to 2 hours equally divided, as stat- political affiliation of contract com- mittee oversight hearings. We have to ed above, and that there be 3 hours for petitors and consider those affiliations have oversight here, no matter what general debate equally divided, again, in the awarding of contracts. the administration is, Republican or between the two leaders or their des- Secretary Jackson said that a HUD Democratic, so that we as Members of ignees. I further ask unanimous con- contractor had strong political affili- this body who represent people across sent that following the disposition of ations that were not supportive of the the country can learn the facts and we the above amendments and the use or President, and the Secretary said he can fix things that are not going well. yielding back of time, the bill be read did not want the contractor to receive That is our job. If we never have real a third time and the Senate proceed to any additional HUD contracts. As a re- hearings, if we never demand real ac- a vote on passage, with no intervening sult, the contractor’s award was sub- countability, well, we will never get action or debate. jected to an unusual extent of delay good results. The PRESIDING OFFICER. Is there and review. I believe America can do a lot better. objection? So we have a Cabinet Secretary tell- I believe we can be more secure. I be- Mr. REID. Reserving the right to ob- ing his staff to issue contracts based on lieve our troops can be safer. But it has ject, Mr. President, this is in keeping politics, not based on who can do the to start with the truth, not rosy pre- with our agreement. I wanted the best job for us, the American tax- dictions of how things will be, not dec- record to reflect—in case Senator payers. It is true that, in looking at larations of will that gloss over the LEAHY is watching us because he want- the record, the Justice Department facts on the ground, not corruption in ed to make sure he would have 45 min- concluded: politics holding back progress. Simply utes on his amendments and 15 minutes that no apparent criminal violation could the truth. And, so far, this Congress on the bill—it is my understanding be discerned based on evidence to date. has been unwilling to let our citizens Senator SPECTER will be giving him 15 But the Justice Department came to learn the truth. minutes of his time, but if he doesn’t, that conclusion only because HUD staff I think the American people deserve I will take it from the bill. So Senator actually ignored the Secretary’s inap- better, and I hope each one of us goes LEAHY will have his 45 minutes, 15 min- propriate instructions. home and thinks about what our re- utes on this bill. When you combine what has been sponsibility is to the people we rep- So I think this is an opportunity to going on at HUD with what happened resent and to the future of this coun- improve this bill. We would all like to at the CPA in Iraq and reports about try. have had more time for hearings and similar issues at the Department of the Madam President, I yield the floor debate on the floor, but we are where Interior, it is clear that this Congress— and suggest the absence of a quorum. we are. I am thankful and grateful that all of us—needs to demand account- The PRESIDING OFFICER. The we have an opportunity to improve this ability. clerk will call the roll. bill. That is why, last week, I wrote to The assistant legislative clerk pro- The PRESIDING OFFICER. Is there White House Chief of Staff Josh Bolten ceeded to call the roll. objection? and urged him to take immediate steps Mr. FRIST. Mr. President, I ask Without objection, it is so ordered. to ensure that political favoritism and unanimous consent that the order for Mr. FRIST. Mr. President, I will have discrimination do not play a role in the quorum call be rescinded. an opening statement on the bill. But Federal contracts. The PRESIDING OFFICER (Mr. what we have done is set out, with a I recognize we cannot rely on the THUNE) Without objection, it is so or- time agreement, a way to address a White House Chief of Staff to clean up dered. very important piece of legislation. I the Bush administration, which brings f appreciate the Democratic leader and me to my final point this morning. his caucus, our leadership and our cau- We need real oversight. In this Con- ORDER OF PROCEDURE cus all agreeing upon this outline of gress, there has been very little over- Mr. FRIST. Mr. President, for the in- how we will address an issue that will sight of this administration. The Presi- formation of our colleagues, we will en- make us safer and more secure. dent has basically had free reign be- gage in a unanimous consent request We will turn to the bill, and then I cause of this Republican-controlled which will set out the activity for the will make an opening statement, and Congress, and we have failed to do the afternoon and possibly early evening then we will start right in with the job in asking tough questions and de- on the Supreme Court Hamdan deci- amendment process following my open- manding answers. sion. ing remarks.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.033 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10243 MILITARY COMMISSIONS ACT OF jacked planes, buildings that house way as our uniformed military or com- 2006 businesses and organizations abso- mon civilian criminals. We must re- The PRESIDING OFFICER. The lutely critical to our economic and our member that we are fighting a dif- clerk will report the bill by title. financial stability, including the Li- ferent kind of enemy in a different The assistant legislative clerk read brary Tower in Los Angeles, CA. But kind of war. We are fighting an enemy as follows: this time, we were ready. We thwarted who seeks to destroy our values, our A bill (S. 3930) to authorize trial by mili- that plot, and Khalid Shaikh Moham- freedoms, and our very way of life. tary commission for violations of the law of med now resides at Guantanamo. But To win this war, we must provide our war, and for other purposes. he wouldn’t reside there and we military, intelligence, and law enforce- The amendment (No. 5085) was agreed wouldn’t have stymied his evil designs ment communities the tools they need to. at that Library Tower if not for the to keep us safe. By formally estab- (The amendment is printed in today’s ability to question detainees. lishing terrorist tribunals, the bill pro- RECORD under ‘‘Text of Amendments.’’) Soon after 9/11, we detained an al- vides another critical tool in fighting The PRESIDING OFFICER. The ma- Qaida operative known as Abu the war on terror, and it provides a jority leader is recognized. Zubaydah. Under questioning, he yield- measure of justice to the victims of 9/ Mr. FRIST. Mr. President, for 5 years ed several operational leads. He re- 11. we have been a nation at war. It is a vealed Shaikh Mohammed’s role in the Until Congress passes this legisla- war unlike any we have ever before 9/11 attacks. Coupled with other tion, terrorists such as Khalid Shaikh fought. It is an ideological war against sources, the information he gave up led Mohammed cannot be tried for war radicals and zealots. We are fighting a to Shaikh Mohammed’s capture and de- crimes, and the United States risks different kind of enemy—an enemy who tainment. Khalid Shaikh Mohammed fighting a blind war without adequate seeks to destroy our values, to destroy currently awaits prosecution. That intelligence to keep us safe. That is our freedom, and to destroy our way of prosecution cannot happen until we simply unacceptable, and that is why life, people who will kill and who will act. Our great Nation will know no jus- this bill must be passed. actually stop at nothing to bring tice—and his victims’ families will I look forward over the next few America to its knees. It is a war know no justice—until Congress acts hours to an open and civilized debate in the best traditions of the Senate. I against an enemy who won’t back by passing legislation to establish urge my colleagues—Republican, Dem- down, ever, telling interrogators: I will these military commissions. never forget your face. I will kill you. Before we recess this week, we will ocrat, and Independent alike—to work I will kill your brothers, your mother, complete this bill. We could complete together to pass this bill. The Amer- your sisters. It is a war against an it possibly today but if not, in the ican people can’t afford to wait. Even enemy who undertakes years of psy- morning. The bill itself provides a leg- though we are in the midst of an elec- chological training to consciously re- islative framework to detain, question, tion year, this issue—the safety and se- curity of the American people—should sist interrogation and to withhold in- and prosecute terrorists. It reflects the transcend partisan politics. The time formation that could be critical to agreement reached last week: Repub- to act is now. thwarting future threats, future at- licans united around the common goal Mr. President, I yield the floor. tacks. But it is also a physical war. On of bringing terrorists to justice. It pre- Mr. LEVIN. Mr. President, I yield the field of battle, it is a war that de- serves our intelligence programs—in- myself 15 minutes off the bill itself. mands quick thinking and creativity. telligence programs that have dis- The PRESIDING OFFICER. The Sen- It demands tactics that entice the rupted terrorist plots and saved count- ator from Michigan is recognized. enemy to reveal his weaknesses. less American lives. Mr. LEVIN. Mr. President, first let As we learned 5 years ago, safety and When we capture terrorists on the me begin by commending our col- security aren’t static states; they are battlefield, we have a right to pros- leagues on the Armed Services Com- dynamic, constantly shifting, con- ecute them for war crimes. This bill es- mittee, Senator WARNER, Senator stantly moving. We consistently and tablishes a system that protects our MCCAIN, and Senator GRAHAM, for their repeatedly have to be able to adjust national security while ensuring a full effort earlier this month to produce a and take stock and reassess and, when and fair trial for detainees. The bill military commissions bill that will necessary, implement changes in re- formally establishes terrorist tribunals protect our troops, withstand judicial sponse. to prosecute terrorists engaged in hos- review, and be consistent with Amer- In the past 5 years alone, in this body tilities against the United States for ican values. The administration of we have passed more than 70 laws and war crimes. Terrorist detainees will be their own party had prepared a bill other bills related to the war on terror, tried by a 5- or 12-member military that would authorize violations of our but they haven’t been enough. They commission overseen by a military obligations under international law, haven’t kept pace with the ever-chang- judge. They will have the right to be permit the abusive treatment of pris- ing field of battle. There is more we presumed innocent until proven guilty, oners, and allow criminal convictions can do and, indeed, we must do. That is the right to military and civilian coun- based on secret evidence. The three why over the last month we have fo- sel, the right to present exculpatory Senators drafted a different bill, in cused the Senate agenda on security, evidence, the right to exclude evidence consultation with our senior military and that is why today we address our obtained through torture, and the right lawyers. When the administration ob- Nation’s security by debating one of to appeal. jected to this bill, Senator WARNER the most serious and most urgent secu- The bill also protects classified infor- scheduled a markup in the Senate rity issues currently facing the Nation: mation—our critical sources and meth- Armed Services Committee anyway, the detainment, questioning, and pros- ods—from terrorists who could exploit and we reported that bill out with a bi- ecution of enemy combatants—terror- it to plan another terrorist attack. It partisan vote of 15 to 9. ists captured on the battlefield. provides a national security privilege Unlike the administration bill, the A few weeks ago, I traveled with sev- that can be asserted at trial to prevent committee bill would not have allowed eral of my colleagues to Guantanamo the introduction of classified evidence. convictions based on secret testimony Bay. That is where the mastermind of But the accused can be provided a de- that is never revealed to the accused. 9/11 currently resides—Khalid Shaikh classified summary of that evidence. The committee bill would not have al- Mohammed. This man, the man the 9/11 Moreover, the bill provides legal clar- lowed testimony obtained through Commission calls the principal archi- ity for our treaty obligations under the cruel or inhuman treatment. The com- tect behind the 9/11 attacks, didn’t stop Geneva Conventions. It establishes a mittee bill would not have allowed the with 9/11. Not 1 month after 9/11, he was specific list of crimes that are consid- use of hearsay where a better source of busy again plotting and planning, or- ered grave breaches of the Geneva Con- evidence is readily available. The com- chestrating, scheming, and conspiring ventions. mittee bill would not have attempted to strike us again while we were still Ultimately, these procedures recog- to reinterpret our obligations under down. His next plot targeted the tallest nize that because we are at war, we international law to permit the abuse buildings on the west coast with hi- should not try terrorists in the same of detainees in U.S. custody.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.045 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10244 CONGRESSIONAL RECORD — SENATE September 27, 2006 While the committee bill was not food, water, or medical care. Nothing dence is reliable unless the accused can perfect—in particular, it included a in this bill would change any of the demonstrate otherwise. very problematic provision on the writ standards of the Geneva Conventions, On the question of search warrants, of habeas corpus—the military com- the Detainee Treatment Act, or the the committee bill, the bill which I missions it established would have met Army Field Manual. Nothing in this will be offering as a substitute later on the test of the Supreme Court’s deci- bill would authorize the President to today—the committee bill provided sion in the Hamdan case and provided do so. that evidence seized outside the United for the trial of detainees for war crimes Second, the bill does not permit the States shall not be excluded from trial in a manner that is consistent with use of secret evidence that is not re- by military commission on the grounds American values and the American sys- vealed to the defendant. Instead, the that the evidence was not seized pursu- tem of justice. It provided standards we bill clarifies that information about ant to a search warrant. The bill before would be able to live with if other sources, methods, or activities by us deletes the limitation so that it no countries were to apply similar stand- which the United States obtained evi- longer applies to evidence seized out- ards to our troops if our troops were dence may be redacted before the evi- side the United States. As a result, the captured. And, of course, the com- dence is provided to the defendant and bill authorizes the use of evidence that mittee bill provided for the interroga- introduced at trial. Any material re- is seized inside the United States with- tion, for the detention, and for crimi- dacted from the evidence provided to out a search warrant. This provision is nal trials of detainees. the defendant cannot be introduced at not limited to evidence seized from Unfortunately, the committee bill trial. The defendant would have the enemy combatants; it does not even was not brought to the Senate. Instead, right to be present for all proceedings preclude the seizure of evidence with- the three Republican Senators entered and to examine and respond to all evi- out a warrant from U.S. citizens. As a result, this provision appears to au- into negotiations with an administra- dence considered by the military com- thorize the use of evidence that is ob- tion that has been relentless in its de- mission. termination to legitimize the abuse of This approach is consistent with the tained without a warrant, in violation detainees and to distort military com- approach taken to classified informa- of the U.S. Constitution. On the definition of unlawful combat- mission procedures to ensure criminal tion in the Manual for Courts Martial, ant, the committee bill defined the convictions. The bill before us now is and it ensures that a defendant could term ‘‘unlawful combatant’’ in accord- the product of these negotiations. I not be convicted on the basis of secret ance with the traditional law of war. will be offering the committee-ap- evidence, evidence that is not known to The bill before us, however, changes proved bill as a substitute a little later him. the definition to add a presumption Those are two positive changes from today. The bipartisan committee bill, that any person who is ‘‘part of’’ the the approach which the administration which came from our committee just ‘‘associated forces’’ of a terrorist orga- has argued for and demanded, in these about a week ago on a vote of 15 to 9, nization is an unlawful combatant, re- will be offered by me as a substitute to two cases without success. gardless of whether that person actu- Unfortunately, at the insistence of the bill which is now before us. ally meets the test of engaging in hos- the administration, the bill before us The bill before us does make a few tilities against the United States or contains a great many ill-advised significant improvements over the ad- purposefully and materially is sup- changes from the approved bill of the ministration bill. I want to begin by porting such hostilities. outlining what those improvements Armed Services Committee. For exam- The bill also adds a new provision are. ple, on coerced testimony, the com- which makes the determination of a First, while the bill before us is not mittee-approved bill prohibited the ad- Combatant Status Review Tribunal, or as clear as the committee bill in com- mission of statements obtained CSRT, that a person is an unlawful mitting us to a standard that will pro- through cruel, inhuman, or degrading enemy combatant—it makes that de- tect our troops by conforming to our treatment. The bill before us prohibits termination dispositive for the purpose obligations under the Geneva Conven- the admission of statements obtained of the jurisdiction of a military com- tions, it is far preferable to the admin- after December 30, 2005, through mission, even though the CSRT deter- istration bill in this regard. In par- ‘‘cruel, inhuman or degrading treat- minations may be based on evidence ticular, the bill before us does not rein- ment,’’ but, inexplicably, contains no that would be excluded as unreliable by terpret U.S. obligations for the treat- such prohibition for statements that a military commission. ment of detainees under Common Arti- were obtained before September 30, On the issue of procedures and rules cle 3 of the Geneva Conventions. It 2005. As a result, military tribunals of evidence, the committee bill pro- does not place a congressional stamp of would be free to admit, for the first vided that the procedures and rules of approval on an executive branch rein- time in U.S. legal history, statements evidence applicable in trials by general terpretation of those obligations. All it that were extracted through abusive courts martial would apply in trials by does in this regard is to state the obvi- practices. military commission, subject to such ous: that the President is responsible On the question of hearsay, the com- exceptions as the Secretary of Defense for administering the laws and that mittee bill permitted the admission of determines to be ‘‘required by the this gives him the authority to adopt hearsay evidence not admissible at unique circumstances of the conduct of regulations interpreting the meaning trials by court-martial, if direct evi- military and intelligence operations and application of the Geneva Conven- dence, which is inherently more pro- during hostilities or by other practical tions in the same manner and to the bative, could be procured ‘‘through rea- need.’’ That approach, in our com- same extent as he can issue such regu- sonable efforts, taking into consider- mittee bill, was consistent with the lations interpreting other laws. ation the unique circumstances of the ruling of the Supreme Court in the Common Article 3 of the Geneva Con- conduct of military and intelligence Hamdan case, but built in flexibility to ventions, the Detainee Treatment Act, operations during hostilities.’’ address unique circumstances arising and the new Army Field Manual all The bill before us makes hearsay evi- out of military and intelligence oper- prohibit such interrogation abuses as dence admissible unless the defendant ations. The bill before us reverses the forcing a detainee to be naked, to per- can demonstrate that it is unreliable presumption. Instead of starting with form sexual acts or pose in a sexual or lacking in probative value. Hearsay the rules applicable in trials by courts manner; prevent such abuses as sen- evidence is not only inherently less re- martial and establishing exceptions, sory deprivation, placing hoods or liable, its use also deprives the accused the Secretary of Defense is required to sacks over the head of a detainee, ap- of the ability to confront witnesses make trials by commission consistent plying beatings, electric shock, burns, against him. The approach taken by with those rules only when he con- or other forms of physical pain; this bill not only relieves the Govern- siders it practicable to do so. As one waterboarding, using military working ment of any obligation to seek direct observer has pointed out, this provision dogs, inducing hypothermia or heat in- testimony from its witnesses, it also is now so vaguely worded that it could jury, conducting mock executions, or appears to shift the burden to the ac- even be read to authorize the adminis- depriving the detainee of necessary cused by presuming that hearsay evi- tration to abandon the presumption of

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.047 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10245 innocence in trials by military com- seems to be abandoned in the bill be- served in the Senate the last 28 years mission. fore us. stand at a moment of critical impor- On the issue of habeas corpus, the ha- I close by applauding, again, Sen- tance in the history of our Nation. beas corpus provision in the committee ators WARNER, MCCAIN, and GRAHAM What we do today will impact how we bill stripped alien detainees of habeas for their willingness to stand up to the conduct the war on terror for as long as corpus rights, even if they had no other administration and at least at the it lasts. In the estimate of this humble legal recourse to demonstrate that Armed Services Committee produce a Senator, that could be for decades. It they were improperly detained. It also bill that we were able to approve in the will fundamentally impact our rela- stripped those detainees of any other Armed Services Committee on a strong tionships with our allies. It will fun- recourse to the U.S. courts for legal ac- bipartisan vote. damentally impact the image of the tions regarding their detention or However, the administration has United States of America in the eyes of treatment in U.S. custody. If the com- been even more relentless in their ef- the world. It is crucial to our ability to mittee bill had been brought to the fort to legitimize the mistreatment of keep America safe. It will speak most floor, I would have joined in offering an detainees and to undermine some of loudly about the core values, the prin- amendment to address the obvious the cornerstone principles of our legal ciples of this great Republic known as problems with this provision. But at system. While the bill before us is a the United States of America. least the court-stripping provision in modest improvement over the language From the outset, I make it clear I re- the committee bill was limited to originally proposed by the administra- spect the views of all participants in aliens who were detained outside of the tion, it has adopted far too many provi- this dialog, from the President and his United States. The bill before us ex- sions from the administration’s bill. team, to those particularly in the Con- pands that provision to eliminate ha- The substitute which we will be offer- gress, but elsewhere in the Congress, beas corpus rights and all other legal ing later on today is the committee-ap- on both sides of the aisle. I have cer- rights for aliens, including lawful per- proved bill. That will do a much better tain core principles I share with sev- manent residents detained inside or job, if we adopt it, of protecting our eral of my colleagues. I have endeav- outside the United States who have troops who might become detainees in ored to see this particular bill reflects been determined by the United States the future and does a much better job those principles to the best of my abil- to be the enemy. The only requirement of upholding our values as a nation. ity, as have they. Nevertheless, I re- is that the United States determine I yield the floor. spect the views of others who may dif- that the alien detainee is an enemy The PRESIDING OFFICER. Who fer. The goal of this legislation, from my combatant—but the bill provides no yields time? If no one yields time, time point of view, and I think it is shared standard for this determination and of- will be charged to both sides. by others, is first and foremost to meet The Senator from Michigan. fers the detainee no ability to chal- the challenge for withstanding review Mr. LEVIN. I suggest the absence of lenge it in those cases which I have by the Supreme Court. Out of respect a quorum. identified. for that Court, the Hamdi decision, Consequently, even aliens who have The PRESIDING OFFICER. The which was quite an interesting decision been released from U.S. custody, such clerk will call the roll. in many of its findings, divided by dif- as the detainee that the Canadian Gov- The legislative clerk proceeded to ferent panels within that Court, it is call the roll. ernment recently found was detained quite likely in one or more instances, if Mr. LEVIN. Mr. President, I ask without any basis and was subjected to this becomes law, the bill now pres- unanimous consent the order for the torture, would be denied any legal re- ently before the Senate, that will like- quorum call be rescinded. course as long as the United States wise be taken to the Supreme Court. The PRESIDING OFFICER. Without continues to claim that they were That is the way we do things in the objection, it is so ordered. properly held. United States of America. I yield myself an additional 3 min- Mr. LEVIN. Mr. President, I ask We hope we who have labored to craft utes. unanimous consent that of the time this, and the 100 Senators who will fi- The PRESIDING OFFICER. Without under the control of the Democratic nally cast their votes, together with objection, it is so ordered. leader, Senator REID, that 45 minutes the other body, will give to the Presi- Mr. LEVIN. In other words, a deter- be allocated to Senator LEAHY. dent a bill that will effectively enable mination by the United States could The PRESIDING OFFICER. Without him to do those things to keep America not be contested, even if there is over- objection, it is so ordered. free, to fight the war on terrorism and, whelming evidence that the claim was Mr. LEVIN. I suggest the absence of at the same time, pass the Federal incorrect. a quorum and ask that the time be court review—whether it is the dis- These changes in the committee bill, charged equally to both sides. trict, appellate, or the Supreme a bill which was approved on a bipar- The PRESIDING OFFICER. Is there Court—such as likely will take place. tisan basis in our committee, the objection? Without objection, it is so In late June, the Supreme Court changes that appear in the bill which is ordered. struck down the President’s initial now before us, taken together, will put The clerk will call the roll. plan to try detainees by military com- our own troops at risk if other coun- The legislative clerk proceeded to missions. In its opinion, Hamdi v. tries decide to apply similar standards call the roll. Rumsfeld, the Court held by a frac- to our troops if they are captured and Mr. WARNER. Mr. President, I ask tured five-Justice panel that the detained. These changes in the bill be- unanimous consent that the order for present system for trials by military fore us from the committee bill are the quorum call be rescinded. commission violated both the Uniform likely to result in the reversal of con- The PRESIDING OFFICER. Without Code of Military Justice and particu- victions on appeal, and that means objection, it is so ordered. larly Common Article 3 of the 1949 Ge- that efforts to convict these people of Mr. WARNER. Parliamentary in- neva Conventions. There were some crimes can be readily reversed on ap- quiry: At this time the Senate is now four conventions put together in 1949. peal because of the changes that were proceeding on the Hamdi bill; is that In particular, the Common Article 3 made in the committee bill and the correct? was common to all four of those con- fact, which seems to me to be quite The PRESIDING OFFICER. The Sen- ventions. clear, that they do not comply in many ator is correct. That historic moment in world his- instances with the requirements set Mr. WARNER. Mr. President, I rise tory was a culmination from the learn- forth in Hamdan, and the changes in to speak in support of the Military ing experience of what took place all the bill before us from the committee Commissions Act of 2006 which would across our globe during World War II in bill are inconsistent with American authorize military commissions for the an effort to see that certain injustices, values. trial of an alien enemy unlawful com- in terms of the basic core values of the I particularly again highlight the batant. free world, would never occur again. search and seizure requirements of our I take a moment to say my col- It is my fervent hope and conviction fourth amendment and the way that leagues and others with whom I have that whatever the Congress does, the

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.048 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10246 CONGRESSIONAL RECORD — SENATE September 27, 2006 legislation we produce must be able to mitted in evidence if the military have made our Nation the greatest de- withstand further security review and judge finds that the first two tests are mocracy in the world. scrutiny of the Federal court system, met and finds that the interrogation This bill will also provide the clarity particularly the Supreme Court. methods used to obtain the statement needed to allow our essential intel- From my own personal perspective, do not amount to cruel, inhuman, or ligence activities to go forward—I re- it would be a very serious blow to the degrading treatment prohibited by the peat: go forward—under the law. And credibility of the United States—and I Detainee Treatment Act of 2005. this bill is consistent with the Geneva have said this a number of times in The bill would generally follow the Conventions, which have helped pro- connection with the debate—not only rules of evidence that apply to courts- tect our own forces in conflicts over in the international community but martial. However, the Secretary of De- the past 57 years. also at home, if the legislation as pre- fense, in consultation with the Attor- I thank my colleagues for their sup- pared by the Congress now and enacted ney General, would be authorized to port. I wish at this time to thank the by the President failed to meet another make substantial exceptions due to the many staff members who have worked series of Federal court reviews. unique circumstances presented by the on this thing tirelessly. And I might To meet the mandate of the Court in conduct of military and intelligence add, in my 28 years here I have never its decision, Hamdi v. Rumsfeld, this activities so long as those exceptions known the legislative counsel’s office legislation provides for a military com- are not inconsistent with the statutory to literally work 24 hours around the mission that, in the words of Common provisions provided by this new law. clock. Perhaps they have, but certainly Article 3, affords ‘‘all the judicial guar- Most importantly, this bill achieves they did in this instance. I want to give antees which are recognized as indis- the President’s benchmark objective by a special recognition and thanks to pensable by civilized peoples.’’ clearly defining those grave breaches that office for assisting the Senate in That is what we are striving to ob- of Common Article 3 of the Geneva preparing this bill. tain. The Military Commissions Act of Conventions that would be a criminal Now, Mr. President, my under- 2006 provides these essential guaran- offense under the U.S. domestic law in standing is the Senator from Michigan tees in the following ways. The bill the War Crimes Act. may well have an amendment he would generally follows the current military That term, ‘‘grave breaches,’’ is set like to bring forward. rule on the use of classified informa- forth in that Convention of 1949. And in The PRESIDING OFFICER. The Sen- tion at trial. That has been an area of conjunction with working on this, we ator from Michigan. concern probably to each and every extensively examined the legislative AMENDMENT NO. 5086 Senator but most particularly to this history. Doing so allows our military (Purpose: In the nature of a substitute) Senator and others who worked closely and intelligence interrogators to know Mr. LEVIN. Mr. President, I now call in our group. We have, to the satisfac- what conduct is prohibited under U.S. up amendment No. 5086, which is an tion of all interested parties, resolved law. Moreover, this bill provides that amendment in the nature of a sub- that. no foreign sources of law may be used stitute. That is a very fundamental thing we to define or interpret U.S. domestic The PRESIDING OFFICER. The must maintain; that is, the ability of criminal law implementing Common clerk will report. our continued gathering of evidence, Article 3. The assistant legislative clerk read the protection of source and methods— This bill does not provide as a matter as follows: nevertheless, to provide, on a real-time of law that this legislation fully satis- The Senator from Michigan [Mr. LEVIN] basis intelligence for our fighting men fies Common Article 3 of the Geneva proposes an amendment numbered 5086. and women and, indeed, intelligence to Conventions. My colleagues and I feel Mr. LEVIN. Mr. President, I ask protect us here at home. that to make such a statement a mat- unanimous consent that reading of the However, our bill goes further by cre- ter of statute would amount to a rein- amendment be dispensed with. ating a privilege that protects classi- terpretation of our obligations under The PRESIDING OFFICER. Without fied information at all stages of a trial the Geneva Conventions some 57 years objection, it is so ordered. and prohibits disclosure of classified after the United States signed those (The amendment is printed in today’s information, including sensitive intel- treaties. Such an action could open the RECORD under ‘‘Text of Amendments.’’) ligence sources and methods, to an al- door to statutory reinterpretation by a Mr. LEVIN. Mr. President, the leged terrorist accused. host of other nations with less regard amendment which I have just called up As a fundamental matter—and one for human rights than the United would substitute a bill which was we feel is crucial for this bill to survive States, and would result in possibly adopted by the Senate Armed Services judicial review—the bill would not our U.S. troops being put at greater Committee on a bipartisan vote of 15 to allow an accused, however, to be tried risk should they become captives in a 9 for the pending language. and sentenced—perhaps even being future conflict. Before I outline the differences be- given the death penalty—on evidence However, in addition to clearly defin- tween the bill which the committee that the accused has never been al- ing grave breaches of Common Article adopted and the bill before us, I want lowed to see. That, in my judgment, 3 that are war crimes under the War to thank my good friend from Virginia and I think in the judgment of many, Crimes Act, this bill acknowledges the for the work he and a number of other would be establishing a precedent that President’s authority under the Con- colleagues on the Republican side put is without foundation in American ju- stitution to interpret the meaning and into the committee bill to make it pos- risprudence or, indeed, the jurispru- application of the Geneva Conventions, sible for that bill to be adopted. dence of the vast majority of nations in and to promulgate administrative reg- In my earlier statement, when the the world. ulations for violations of our broader Senator was not on the floor, I com- Further, the bill would prohibit the treaty obligations which are not grave mended him and Senator MCCAIN and use of evidence that was allegedly ob- breaches of the Geneva Conventions. Senator GRAHAM for their effort earlier tained through the use of torture. A To ensure transparency, such interpre- this month to produce a military com- statement obtained before the date of tations are required to be published in missions bill that would protect our enactment of the Detainee Treatment the Federal Register and are subject to troops in the event they were captured Act of 2005—December 30, 2005—in congressional and judicial oversight. at some point down the road that which the degree of coercion is in dis- We have had a robust discussion of would withstand judicial review and be pute could be used only—and I repeat— these issues among Members and with consistent with our values. only at trial if the military judge finds administration officials for some sev- They produced this bill in the com- that it is reliable and tends to prove eral months, most particularly the last mittee, despite huge administration the point for which it was offered. few weeks. I strongly believe this bill opposition. The chairman of the com- A statement obtained after the date achieves the best balance for our coun- mittee actually scheduled a markup, as of enactment of the Detainee Treat- try. It will allow terrorists to be I indicated in my prior statement, de- ment Act of 2005, in which the degree of brought to justice in accordance with spite the opposition of the administra- coercion is in dispute, may only be ad- the founding principles and values that tion. The administration did then and

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.052 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10247 continues to want to permit the treat- amendment, be recognized for the pur- The PRESIDING OFFICER. Under ment of prisoners which is abusive. pose of giving his statement which, in- the previous order, there is to be 2 They did then and they still want to deed, addresses the current bill in the hours equally divided for the Levin allow criminal convictions to be based context of the bill that was drafted by amendment, 2 hours equally divided for on secret evidence. the committee, as I understand it from the Specter amendment on habeas, 1 But what the chairman and a number the Senator from South Carolina. And hour equally divided on the Rocke- of other Republican Senators were able then we will proceed further with dis- feller, Kennedy, Byrd amendments to do was to make some accomplish- cussion on your bill. each; general debate is 3 hours equally ments in those two areas: in the area of We have 3 hours to consider matters divided, 90 minutes on each side, of secret evidence, and in the area, to an here. But I point out, we have your which 45 minutes on the minority side extent, of coercive statements, state- substitute bill, which is basically a 60- had been allocated to the Senator from ments that were obtained by coercion, minute proposition; the Rockefeller Vermont. depending on when the statement was congressional oversight, which is 60 Mr. WARNER. At this time, I advise obtained. I will get into that in greater minutes; the Kennedy interrogation, my colleagues that I would oppose any detail because there is a distinction in which is 60 minutes; the Byrd sunset change to that unanimous consent and the bill that is on the floor now as to which is 60 minutes; and the Specter- ask any Members who so desire to ad- whether the statement was obtained Leahy habeas corpus—and I expect you dress the UC to do so to their respec- before or after December 30, 2005, as to might be a part of that habeas corpus tive leadership. whether certain types of coercive amendment—which is 120 minutes. Mr. LEAHY. Will the Senator yield treatment would be allowed and that Mr. LEVIN. If the Senator will yield? for a question? statement, nonetheless, be admitted Mr. WARNER. Yes. Mr. WARNER. Yes. into evidence. I think that distinction Mr. LEVIN. Without losing his right Mr. LEAHY. The senior Senator from between a statement obtained by coer- to— Virginia has an absolute right to object cion before or after December 30, 2005, The PRESIDING OFFICER. Without to anything further. This is not what I is a distinction which is totally objection. understood had been agreed to. It is the unsustainable. But I will get into that Mr. LEVIN. The time limit on the unanimous consent that the Chair has again in a moment. substitute amendment is also 120 min- so stated. I will not seek to change it. But before I begin, because my utes. I don’t suggest that it is the fault of friend, Senator GRAHAM, who is also on The PRESIDING OFFICER. Correct. the Senator from Virginia. This is not the floor now, and my friend from Vir- Mr. WARNER. Yes, correct. I don’t what I understood the agreement to be. ginia were not on the floor before—be- know if I stated that, but it should be I ask unanimous consent that the fore I list a number of major dif- here as a part of it. senior Senator from Connecticut, Mr. ferences with the pending bill that I Mr. LEAHY. Will the Senator yield, DODD, be added as an original cospon- and a number of others have with the without losing his right to the floor? sor to the Specter-Leahy habeas pending bill—I want to again com- Mr. WARNER. Yes. amendment. pliment my good friend from Virginia, The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. Is there Senator MCCAIN, and Senator GRAHAM ator from Vermont. objection? because they had to withstand a huge Mr. LEAHY. My understanding is the Without objection, it is so ordered. amount of administration pressure to Senator from Vermont has an hour re- The Senator from Virginia controls get the bill out of committee. It is a far served on the bill, with up to 45 min- the floor. better bill than the one which is now utes of that on the Specter-Leahy ha- Mr. WARNER. Do I see another Sen- before us. That is why I am going to at- beas amendment. ator wishing to speak? tempt to substitute it for the bill that Mr. WARNER. Mr. President, I would Mr. DORGAN. Mr. President, I ask is now before us. But, nonetheless, have to inquire of the Chair if the unanimous consent to be added as an their effort has produced some signifi- Chair has knowledge of that. original cosponsor to the Specter- cant gains over the administration lan- The PRESIDING OFFICER. That is Leahy-Dodd amendment. guage. I acknowledge that and I thank not part of the agreement. The PRESIDING OFFICER. Without them for that effort before I proceed to Mr. WARNER. Does the Senator from objection, it is so ordered. offer the committee bill that is a sub- Michigan wish to address that request? Mr. WARNER. Mr. President, I will stitute. Mr. LEVIN. I know that I did ask yield the floor, and the Senator from Mr. WARNER. Mr. President, will the unanimous consent to protect the Sen- Michigan will regain his right to the Senator kindly yield for me to address ator from Vermont for 45 minutes on floor. his comments? the habeas amendment. The PRESIDING OFFICER. The Sen- Mr. LEVIN. I am happy to. The PRESIDING OFFICER. The Sen- ator from Michigan is recognized. The PRESIDING OFFICER. Without ator from Michigan is correct. Under Mr. LEVIN. Mr. President, on Sep- objection. the consent agreement, 45 minutes has tember 14, the Senate Armed Services Mr. WARNER. Mr. President, the been reserved to the Senator from Committee favorably reported S. 3901, Senator has recited that our com- Vermont out of the leadership time. the Military Commissions Act of 2006, mittee had a markup on a bill. That Mr. LEVIN. That is on the bill itself. to the Senate floor with a bipartisan was after receiving from the adminis- And on the habeas amendment, that vote of 15 to 9. Supporters of the com- tration its own bill. So in a sense, the would be up to you and Senator SPEC- mittee bill on both sides of the aisle Senate had before it two bills. Perhaps TER—right?—to control. emphasized that the bill met two crit- the formalities I will not go into. But Mr. LEAHY. No. Mr. President, I am ical tests: the Senate had the administration’s confused by this. It was my under- First, that we would be able to live bill and the draft of the committee bill standing the Senator from Vermont with the procedures we established if at the time we went into the markup. had up to 45 minutes specifically re- the tables are turned and our own The Senator referred to the adminis- served, not from anybody else’s time, troops were subject to similar proce- tration’s huge pressure, but those are but from his own time, on the Specter- dures. matters we can go into at another Leahy, et al., amendment, and a Second, that the bill was consistent time. But I want you to know the total—out of which the 45 minutes with our American system of justice group I was working with, and other would have to come—of 1 hour on the and would stand up to scrutiny on judi- Senators, were working with the ad- bill. Is that incorrect? cial review. ministration right up until the hours Mr. WARNER. Mr. President, I would On the first point, the committee bill before the markup started. suggest the following to work our way did not authorize departure from the As the Senator proceeds with his through this: I call on the Chair to in- requirements of the Geneva Conven- amendment, I am going to ask that the form the Senate as to the time agree- tions, did not authorize the abuse of Senator from South Carolina, at the ment which I understand has been prisoners in U.S. custody, did not au- conclusion of your remarks on the agreed upon by our leaders. thorize the use of testimony obtained

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As live with if they were applied to our 2005, the date of the enactment of the a result, the bill authorizes the use of own troops who might be captured at Detainee Treatment Act of 2005, which evidence that is seized inside the some future time. says: United States without a search war- On the second point, the committee The degree of coercion in dispute may be rant. I note that the chairman of the bill established legal procedures con- admitted if the military judge finds the fol- Judiciary Committee is on the floor. I sistent with basic principles of the lowing: Totality of the circumstances ren- particularly point out this provision to American system of justice, such as ders the statement reliable in possessing suf- him—that because the words ‘‘outside the right to examine and respond to all ficient probative value; and, 2, the interest of of the United States’’ were deleted, the evidence presented, and the exclusion justice would best be served by the admis- bill before us would allow into evi- of unreliable categories of evidence, sion of the statement into evidence. dence, for the first time in history, I such as coerced statements. Because But subsection (d) reads: believe—it authorizes the use of evi- the bill took the approach outlined by If the statement is obtained after Decem- dence seized inside the United States the Supreme Court in the Hamdan ber 30, 2005, the date of the enactment of the without a search warrant. It is not lim- case, a trial process based on rules and Detainee Treatment Act of 2005, the degree ited to evidence seized from enemy procedures applicable in trials by of coercion may be disputed and may be ad- combatants. It does not even preclude mitted under those same two circumstances. courts martial, subject to such excep- the seizure of evidence without a war- tions as might be required by the It then adds a third finding that is rant from U.S. citizens. That is a major unique circumstances of military and required: departure from the committee-adopted intelligence operations in an ongoing That the interrogation methods used to ob- bill. It would appear to authorize the conflict, committee members could tain the statement do not amount to cruel, use of evidence obtained without a war- have confidence that these provisions inhuman, or degrading treatment, prohibited rant, in violation of the United States by section 1003. would be upheld by the courts on ap- Constitution. peal. So if the statement is obtained after The next problem I want to address is The committee bill was not brought December 30, 2005, then if it is obtained the definition of ‘‘unlawful combat- to the Senate floor. Indeed, the major- through cruel and inhuman treatment, ant.’’ The committee bill defines the ity leader reacted to the action of the it is not allowable into evidence. But term ‘‘unlawful combatant’’ in accord- Armed Services Committee by telling because that requirement is missing ance with the traditional law of war. the press he would filibuster the bill if relative to statements obtained prior The bill before us changes the defini- the Senate Armed Services Committee to December 30, 2005, presumably, even tion to add a presumption that any bill was brought to the Senate floor. though a statement is obtained person who is ‘‘part of’’ the associated Consequently, the three Republican through cruel and inhuman treatment, forces of a terrorist organization is an Senators who had drafted the com- it is nonetheless admissible into evi- unlawful combatant, regardless of whether that person actually meets the mittee bill, Senators WARNER, MCCAIN, dence if it meets the other two tests test of engaging in hostilities against and GRAHAM, entered into negotiations provided. That is an unsustainable pro- the United States or purposefully and with an administration that has been vision. It would be the first time in materially supporting such hostility. unrelenting in its determination to le- American legal history that we would, in effect, be authorizing statements In addition, the bill also adds a new gitimize the abuse of detainees and to provision which makes the determina- distort military commission proce- that were obtained through that type of coercion—cruel treatment, inhuman tion of a Combatant Status Review dures to ensure convictions. Tribunal, CSRT, that a person is an un- The bill before us, which is the prod- treatment—to be admitted into evi- lawful enemy combatant, dispositive uct of those negotiations, has been dence. That is something we should not accept. for the purpose of the jurisdiction of a changed from the committee bill in so military commission, even though many ways that the bill is a very dif- On the issue of hearsay, the com- mittee bill permitted the admission of CSRT determinations may be based on ferent bill from the one that was adopt- evidence that would be excluded as un- ed by the Armed Services Committee. hearsay not admissible at trials by court-martial if direct evidence, which reliable by a military commission. It is the Armed Services Committee bi- We should not make those findings is inherently more probative, could be partisan bill that I have now offered as dispositive, particularly where the procured ‘‘through reasonable efforts,’’ a substitute to this new version that is CSRT findings can be based on such taking into consideration the unique being offered today. very unreliable evidence. Let me give you some examples of circumstances of the conduct of mili- Next is procedures and rules of evi- the differences between the committee- tary and intelligence operations during dence. The committee bill provided adopted bill and the bill that is before hostilities. that the procedures and rules of evi- us. On coerced testimony, the com- The bill before us, unlike the com- dence applicable in trials by general mittee bill prohibited the admission of mittee bill, makes hearsay evidence courts-martial would apply in trials by statements obtained through cruel, in- admissible, unless the defendant can military commissions, subject to such human, or degrading treatment. The demonstrate that it is unreliable or exceptions as the Secretary of Defense bill before us prohibits the admission lacking in probative value. Well, hear- determines to be ‘‘required by the of statements obtained after December say evidence is not only inherently un- unique circumstances of the conduct of 30, 2005, through ‘‘cruel, inhuman, or reliable, it is used to deprive the ac- military and intelligence operations degrading treatment’’ but inexplicably cused of the ability to confront the during hostilities or by other practical contained no such prohibition for such witnesses against him. need.’’ statements that were obtained before The approach taken by this bill not So the committee bill starts with the December 30, 2005. only relieves the Government of any courts-martial, the manual, and then As a result, military tribunals would obligation to seek direct testimony says that the Secretary of Defense may presumably be free to admit, for the from its witnesses, it also appears to make such exceptions as he determines first time in U.S. legal history, state- shift the burden to the accused by pre- are ‘‘required by the unique cir- ments that were extracted through suming that hearsay evidence is reli- cumstances of the conduct of military cruel or inhuman practices. able, unless the accused can dem- and intelligence operations or by prac- By the way, on that issue, if anybody onstrate otherwise. tical need.’’ wants to read the actual difference in Relative to search warrants, the This approach is consistent with the the way in which the December 30, 2005, committee bill provided that evidence ruling in Hamdan. It builds in some date was provided in this bill as a di- seized outside of the United States flexibility to address unique cir- viding line between statements that shall not be excluded from trial by cumstances arising out of military and

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The bill before own troops at risk if others apply simi- inherently unreliable and of question- us reverses the presumption, and in- lar standards, and it is likely to result able credibility. stead of starting with the rules appli- in convictions by military commis- However, our military judges cannot cable in trials by court-martial and es- sions that are overturned on appeal. protect our troops in future conflicts. tablishing exceptions, the Secretary of For example, the provision in the bill If an American soldier, sailor, airman, Defense is required to make trials by addressing coerced testimony would or marine is put on trial by a hostile commission consistent with those rules prohibit the use of statements that are power, he or she will not have an only when he considers it practicable obtained through cruel and inhuman American military judge to stand up to do so. As one observer has pointed treatment if those statements were ob- for his or her rights. Our troops will out, this provision is now so vaguely tained after December 30, 2005, but face foreign judges, and if the standard worded that it could even be read to again, it inexplicably contains no such applied by those judges is similar to authorize the administration to aban- prohibition on statements obtained the one proposed in this bill for state- don the presumption of innocence in through those same methods prior to ments obtained prior to December 30, trials by military commission. this date. This provision, in other 2005, they are a lot less likely to get ei- On the issue of habeas corpus, the ha- words, expressly authorizes military ther fair treatment or fair trials. beas corpus provision in the committee commissions to consider evidence that If statements obtained through cruel bill stripped alien detainees of habeas was obtained through cruel and inhu- and inhuman treatment of detainees corpus rights, even if they have no man treatment of defendants and other are allowed into evidence, as this pro- other legal recourse to demonstrate witnesses. vision provides, any resulting convic- that they were improperly detained. It By expressly omitting the principle tions are unlikely to withstand scru- also stripped those detainees of any that statements obtained through tiny on judicial review in our own other recourse to U.S. courts for legal cruel and inhuman treatment of de- courts. actions regarding their detention or tainees should be precluded from evi- The Supreme Court specifically ad- treatment in U.S. custody. dence—even if they were obtained be- dressed this issue in the Hamdan case If the substitute amendment we are fore December 30, 2005—this provision earlier this year. In that case, the offering is approved, a further amend- would set an absolutely unacceptable Court pointed out that Common Arti- ment will be necessary to address the and frightening standard if the rest of cle 3 of the Geneva Conventions pro- obvious problems with the committee the world adopts this same standard. hibits the passing of sentences ‘‘with- habeas corpus amendment. That ha- This is a standard under which our own out previous judgment pronounced by a beas corpus amendment is going to be troops could be subjected to abuse and regularly constituted court affording offered in either event, whether or not mistreatment of all kinds in order to all the judicial guarantees which are the bill before us remains or whether force them to sign statements that recognized as indispensable by civilized or not the committee bill is sub- would then be used to convict them of peoples.’’ stituted for it. But at least in the com- war crimes. The Supreme Court concluded that mittee bill, the court-stripping provi- The provision also sets a standard ‘‘[t]he regular military courts in our sion was limited to aliens who were de- which will be used by our terrorist en- system are the courts-martial estab- tained outside the United States. The emies as evidence of U.S. hypocrisy lished by congressional statutes’’ and bill before us expands that provision to when it comes to proclamations of ‘‘can be ‘regularly constituted’ by the eliminate habeas corpus rights and all human rights. Our failure to conclu- standards of our military justice sys- other legal rights of redress for wrongs sively exclude statements obtained tem only if some practical need ex- committed by aliens, including lawful through cruel and inhuman methods plains deviations from court-martial permanent residents detained inside or are all too likely to be seen through practice’’; and the language requiring outside the United States who have much of the world as a confirmation of ‘‘judicial guarantees which are recog- been determined by the United States negative views of Americans and what nized as indispensable by civilized peo- to be enemies. we stand for and that have been shaped ples’’ must require, at a minimum, The only requirement under the bill by their views of what happened at Abu that any deviation from procedures before us is that the Government deter- Ghraib and Guantanamo. governing courts-martial be justified mines that the alien detainee is an The administration and its sup- by ‘‘evident practical need.’’ enemy combatant, but the bill provides porters have argued that our military The rules of evidence reviewed by the no standard for this determination and judges can be counted on to exclude Supreme Court in the Hamdan case, offers the detainee no ability to chal- statements that are based on extreme such as the rules we are considering lenge it. Consequently, even aliens who forms of abuse. That may be; that may today, would have permitted the ad- have been released from U.S. custody, be. We have many fine military judges, mission of statements obtained such as the detainee that the Canadian and I share the hope that these judges through coercion—other than torture— Government recently found was de- will be willing to stand up for the hu- into evidence if a military commission tained without any basis and subjected mane treatment of detainees, even determines the statements to be pro- to torture, even those kinds of aliens, where Congress has failed to do so and bative and reliable. The plurality opin- such as that Canadian citizen, would be even when the administration is un- ion of the Court notes that under these denied any legal recourse as long as the willing to do so. procedures, ‘‘evidence obtained United States continues to claim in a Indeed, our top military lawyers have through coercion [is] fully admissible.’’ way which cannot be contested that told us that evidence obtained through Similarly, Justice Kennedy’s concur- they were properly held. coercive techniques is inherently unre- ring opinion observes that the proce- No matter how overwhelming the liable. The Army Deputy Chief of Staff dures in place ‘‘make no provision for evidence, there is no way to contest it, for Intelligence, LTG John Kimmons, exclusion of coerced declarations save and there is no legal recourse under the said the same thing when he released those ‘established to have been made as bill before us. That was not true of the the new Army Field Manual on interro- a result of torture.’’’ committee bill. gation procedures. He stated: The Supreme Court expressly re- The committee bill had lots of prob- jected those procedures. The proce- No good intelligence is going to come from lems, in my judgment, on habeas cor- abusive practice. I think history tells us dures established by the President, ac- pus, but the bill before us, for the rea- that. I think the empirical evidence of the cording to the Supreme Court, ‘‘deviate sons I just outlined, goes way beyond last five years, hard years, tell us that. And from those governing courts-martial in what the committee bill provided. moreover, any piece of intelligence which is ways not justified by any ‘evident prac- As a result of these changes, the bill obtained under duress . . . through the use of tical need,’ and for that reason, at that is before us does not meet either abusive techniques would be of questionable least, fail to afford the requisite guar- of the two tests used by the majority of credibility. antees’’ that are recognized as indis- members at the Armed Services Com- I am hopeful that our military judges pensable by civilized peoples. mittee markup. The two tests that are will likewise reject testimony that is Like the procedures previously re- not met: The bill before us places our obtained through abusive techniques as jected by the Supreme Court, this bill

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The question is They are driven, in my judgment, by ready struck down procedures that whether we do it in a way which is in convictions, much of it religious con- similarly failed to preclude coerced keeping with our values, which is in victions which are totally antithetical testimony once, it is surely likely that keeping with rules we have established to their own religion, and willing to the Court will strike them down again. in the Army manual, for instance, for sacrifice their own lives to foster their Whatever minimal due process may be the treatment of people who are cap- ambitions and goals. required in the case of an alien enemy tured by our Army. It is whether we do We expanded this definition of ‘‘un- combatant, it certainly cannot be met it in a way that is in keeping with lawful enemy combatant’’ when we by procedures that, as a majority of what we would insist others follow if went from the committee bill to a bill the Supreme Court has already deter- they capture our people, what we insist that was worked on by, again, Senator mined, fail to provide the ‘‘judicial upon in the committee substitute— MCCAIN, Senator GRAHAM, and myself, guarantees which are recognized as in- that committee bill which we adopted and in conjunction with the White dispensable by civilized people.’’ on a bipartisan basis—our standards House and our leadership and other col- We should also reject this provision and rules for which we will argue if our leagues. because it is inconsistent with Amer- people are captured or detained by oth- It was pointed out to us that perhaps ican values and what we stand for as a ers. our bill is drawn so narrowly that we nation. During the Revolutionary War, We cannot make the distinction this would not be able to get evidence and the British mistreated many American bill before us makes—that cruel and in- support convictions from those who are prisoners. But as described by David human treatment which leads to a involved in hiding in the safe houses, Hackett Fischer in his book ‘‘Washing- statement or confession is not going to wherever they are in the world, includ- ton’s Crossing,’’ General Washington be the basis for excluding a statement ing here in the United States. It is wrong to say that this provision ‘‘ordered that . . . the captives would if that statement is made before De- captures any U.S. citizens. It does not. be treated as human beings with the cember 30, 2005. Only after December It is only directed at aliens—aliens, not same rights of humanity for which 30, 2005, are statements excluded where U.S. citizens—bomb-makers, wherever Americans were striving,’’ and those they are the product of cruel and inhu- they are in the world; those who pro- ‘‘moral choices in the War of Independ- man treatment. But before December vide the money to carry out the ter- ence enlarged the meaning of the 30, 2005, according to the bill in front of rorism, wherever they are—again, only American Revolution.’’ us now, those statements are not ex- aliens and those who are preparing and We have always believed that we hold cluded unless they meet two other using so many false documents. ourselves to a higher standard than tests. We have to be very clear on this There were a lot of categories which many other nations. Others may abuse issue. After December 30, 2005, any of we, with the best of intentions, perhaps prisoners; we do not. Others may en- three tests, if met, will result in the did not fully comprehend when we were gage in cruel and inhuman practices; exclusion of those statements but not working through that markup session. we do not. Others may believe that the before December 30, 2005, when we So at this time, I yield the floor be- ends justify the means; we do not. It is know as a fact that so much of the cause I see my distinguished colleague contrary to what we stand for as a na- abuse took place. from South Carolina. I thank the Sen- tion. So I urge our colleagues to support ator. He is recognized for his knowl- Former Navy general counsel Alberto the substitute amendment. Again, I edge as an officer in the U.S. Air Force, Mora bravely fought against efforts by wish to make clear that this substitute a colonel who has practiced and studied others in this administration to ap- amendment is the Senate Armed Serv- military law for many years, and we prove cruel and inhuman interrogation ices Committee bill which the chair- are fortunate to have had his services techniques. Mr. Mora explained his man and others labored so hard to and continue to have them in address- stand when he was awarded the 2006 produce. It is a bill which avoids many ing this legislation. John F. Kennedy Profile in Courage of the pitfalls of the bill that is before I would also point out to my col- Award on May 22. He said: us. I hope our colleagues will vote to leagues that Senator MCCAIN, who We need to be clear. Cruelty disfigures our substitute that bill for the pending lan- worked with us throughout this proc- national character. It is incompatible with guage. ess, is away attending a funeral of a our constitutional order, with our laws, and Mr. President, how much time do I very dear and valued colleague, and he with our most prized values. Cruelty can be have remaining? will be returning later this afternoon as effective as torture in destroying human The PRESIDING OFFICER (Mr. MAR- dignity, and there is no moral distinction be- and will be fully engaged from that TINEZ). Twenty-four minutes 10 sec- tween one and the other. To adopt and apply point on. a policy of cruelty anywhere within this onds. I yield the floor. world is to say that our forefathers were Mr. LEVIN. I thank the Chair, and I The PRESIDING OFFICER. Who wrong about their belief in the rights of man yield the floor. yields time? because there is no more fundamental right Mr. WARNER. Mr. President, I was Mr. WARNER. Mr. President, I yield than to be safe from cruel and inhuman particularly taken by Senator LEVIN’s such time as he may consume to the treatment. Where cruelty exists, law does reference to General Washington and Senator from South Carolina. not. what General Washington said with re- Mr. GRAHAM. Mr. President, I would If we enact this provision into law, gard to prisoners. But we must be like to return the compliment that giving a congressional stamp of ap- mindful that General Washington was Senator LEVIN gave to myself, Senator proval to the use of cruel and inhuman facing the King’s Army. Those were MCCAIN, and Senator WARNER. I have methods to extract testimony from de- uniformed individuals. Those were in- found Senator LEVIN and his staff to be tainees, we will diminish ourselves as a dividuals acting on behalf of the very good to work with. Sometimes we people and, as Colin Powell stated in a Crown. That is totally different—to- reach agreement and sometimes we recent letter to Senator MCCAIN, add to tally different—from what we as a na- don’t, but all the time we try. As to my the world’s doubts about the moral tion and many other nations today are staff, I appreciate the tons of time they basis of our fight against terrorism. facing with these terrorists. have spent trying to give us the best The bill, as reported by the Armed Consequently, as a part of the evo- product we can get in the legislative Services Committee, will protect our lution of this extraordinary prolifera- process that will adhere to our values troops, will be more likely to result in tion of terrorism across the world has and allow the war effort to move for- convictions that are upheld on appeal, come the definitions and terms relat- ward in an effective way. and will be more in keeping with our ing to the unlawful enemy combatant— As to the difference between the com- values as a nation. That bill allows for I repeat, unlawful—because those indi- mittee bill, which we wrote and sup- interrogation, it allows for detention, viduals are not wearing uniforms, they ported, and the compromise we reached

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.058 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10251 with the White House, which we wrote amounts to torture, in violation of the tions, a felony under our own law, is and support, there are some dif- torture statute, it does not come into cruel or inhumane treatment: The act ferences. I think some of them we have evidence. of a person who commits or conspires addressed with Senator LEVIN’s staff. The committee bill had a per se ex- or attempts to commit an act intended They were very helpful. He found some clusion for a violation of the Detainee to inflict severe or serious physical or language which was dropped inadvert- Treatment Act, and it has been mental pain or suffering, other than ently which made the bill stronger. changed, and here is why: The Detainee pain or suffering incidental to lawful I would just like to suggest that Treatment Act is a policy statement, sanctions, including serious physical whatever military experience I have not an evidentiary standard. The De- abuse upon another within his custody had pales in comparison to the men tainee Treatment Act says that the or control. And we defined those terms. and women who are in charge of to- Government and its agents and agen- It is a felony in U.S. law to engage in day’s military legal system. I am a re- cies will not engage in cruel, inhu- cruel or inhumane treatment, not just servist. I come in and out of military mane, and degrading treatment. I torture. It is a felony in U.S. law to law. I spent 61⁄2 years on active duty, would argue that to exclude evidence mutilate or maim. and I really enjoyed my time. I dealt a in a military commission that may run What we did—intentionally causing lot in the court-martial process as a afoul of degrading treatment would serious bodily harm, rape, sexual as- prosecutor and a defense attorney. But create a higher standard for a terrorist sault or abuse, taking hostages—what as a reservist and Guard member, it than our own military members have we did is we took what the Geneva has been a part-time job. But those in their own courts-martial. So I think Conventions have defined as being a who do this full time supported the ad- the policy statement ‘‘cruel and inhu- grave breach of the conventions, we ministration’s proposal when it came mane and degrading’’ should not be an put it in title 18 of the War Crimes Act, to the admission of evidence by the evidentiary standard, and it is not. and made it a felony. So if you are a military judge. I will, at an appropriate But what we did do to bolster that military member or CIA agent and you time, introduce that into the RECORD. policy statement is we took the 5th, run afoul of the title 18 War Crimes I believe the JAGs are a good source 8th, and 14th amendment ‘‘shock the Act, you can be prosecuted. When it of advice. That doesn’t mean they are conscience test’’ and said: From the comes time for the military judge to the only source of advice. That doesn’t date of the Detainee Treatment Act rule upon the admissibility of evidence mean that because the Judge Advocate forward, that will be an area that the in a military commission, the standard Generals of all four branches say so, we judge has to make an inquiry into re- that we will be using has been blessed need to do what they say. It would be garding the admission of evidence. The by every Judge Advocate General that wise to just listen, and I have tried to reason we didn’t want to go backward we have, those in charge of our mili- listen. Sometimes I agree; sometimes I is because before the Detainee Treat- tary legal system. don’t. But they have said unanimously, ment Act passed in 2005, no one had So I think it is a good standard. I it is my understanding, that the evi- recognized the 5th, 8th, and 14th think the fact that we put the DTA dentiary standards in terms of admis- amendment concepts applying to 5th, 8th and 14th amendment standard sion of evidence, where the judge will enemy combatants. So what we are into the statute in a perfective way en- determine whether the evidence is reli- trying to do is start over after Hamdan hances and emboldens what we are try- able and probative using the totality of and incorporate into the military com- ing to do with the DTA and will make circumstances to create justice, was a mission model as many protections as us a better nation. sufficient legal standard, and they were we can that also protect America. So The other areas of concerns: enemy supportive of that standard. So this going forward, from the Detainee combatant definition. The enemy com- idea that we are going to allow coerced Treatment Act forward, any evidence batant definition that is changed from evidence into a trial purposely, that we gathered after the Detainee Treatment the compromise and committee bill al- made a conscious decision from the Act will have to comply with the 5th, lows us to, subject to military commis- committee bill to the compromise to 8th, and 14th amendments require- sion, try those people who inten- change course and take everything we ments that make up the heart and soul tionally and knowingly aid terrorism; had said before and just throw it over of the Detainee Treatment Act. To materially support terrorism. To me, in a ditch, quite honestly, makes no make it retroactive and exclude state- that makes sense. I want to prosecute sense. ments where that concept was not the person who sells the guns to al- Whatever motives you would like to known, was not part of our legal sys- Qaida as much as the people who use attribute to the effort here, I can as- tem regarding enemy combatants, in the weapons. I want to go after the sup- sure my colleagues I want to create a my opinion, was unwise. port network that supports terrorism. process that would be acceptable if our So we are going forward, reinforcing To me, that makes perfect sense. I am troops found themselves subject to it. the Detainee Treatment Act, and the glad we expanded the definition be- And every military Judge Advocate, standard of admission of evidence of re- cause those who are assisting terrorists every admiral, and every general, be- liable and probative meets the stand- in a knowingly purposeful way should lieves the evidentiary standard in this ards of justice and totality of the cir- be held accountable for their actions. committee bill is legally acceptable cumstances test, stays in place, covers Under no circumstance can an Amer- and appropriate. all statements before and after. Our ican citizen be tried in a military com- Why the difference between Decem- Judge Advocate Generals, to a person, mission. The jurisdiction of military ber 30, 2005, and before? The reason we have said that if you take the Detainee commissions does not allow for the have a two-tiered system is because in Treatment Act out of the equation, trial of American citizens or lawful 2005, due to the hard work of Senator what is left still is acceptable. And the combatants, and those who say other- MCCAIN and Senator LEVIN—who was a courts will make that decision. wise, quite frankly, have not read the champion in trying to bring this about I am confident that the standard that legislation because there is a prohibi- on the Democratic side—we were able we had, the administration had when it tion to that happening. to make a policy statement of the came to the admission of evidence, was The hearsay rules that are in the United States that says: Cruel and in- acceptable, and the judge advocates compromise very much mirror the humane and degrading treatment as a who have objected to many things did committee bill, but that we are allow- policy will be forbidden. And we ref- not object to that. ing a burden shift, to me, makes sense erenced the 5th, 8th, and 14th amend- So the idea that we made a conscious given the global nature of the war. I ments standard called ‘‘shock the con- decision to allow cruel and inhumane can spend a lot of time explaining the science’’ that existed in the convention treatment to become a player defies differences between the two bills, but I on torture. All bills have excluded evi- what we did in totality. will basically summarize by saying dence that violates the torture statute. The title 18, War Crimes Act, was re- that the purpose of the committee bill It is a per se exclusion. If the military written. One of the crimes that we put has been met by the compromise. If it judge, in their discretion, believes that in title 18 that would constitute a were not so, I would not vote for it. We the conduct in front of the court grave breach of the Geneva Conven- are not allowing into evidence coerced

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.060 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10252 CONGRESSIONAL RECORD — SENATE September 27, 2006 statements unless the judge makes the Title 18 is the War Crimes Act. Under about the President’s proposal are flat decision they are reliable, probative, title 18 we have listed nine crimes that wrong. That took a lot of guts, and I and in the totality of circumstances would be considered grave breaches of am here to tell you the final product they meet the ends of justice. the Geneva Conventions. To the CIA: took their input and what their con- At the end of the day you are going Your program, whatever it may be in cerns were and has been changed. to have a judge applying a legal stand- classified form, must comply with the But if you want a CIA program that ard to a request to admit evidence. The War Crimes Act. And the War Crimes is not classified, you lost. I want the administration, in my opinion, in their Act runs the gamut from torture to program to be classified. But I want it first product, was trying to legislate a cruel, inhumane treatment, intentional to run within the obligations of the Ge- conviction. In many ways they were infliction of serious bodily injury, or neva Conventions, and we have accom- trying to set up the rules when it came mental pain. plished that. to the military commission format We have taken nine well-defined felo- that would allow evidence to go to the nies and told the CIA and every other Finally, what did we do in the com- jury never seen by the accused. That agency in the country: Whatever you promise that we didn’t do in the com- would make it very hard to defend do, if you violate these statutes you mittee bill? We said that every obliga- yourself. will be subject to being prosecuted. tion under the Geneva Conventions We have changed that. Anything the I want a CIA program to be classified that our country has, outside of the jury gets to convict, the accused can when it comes to interrogating high- War Crimes Act, will be fulfilled by our examine and rebut. To me, that was a value terrorist targets. I think it would President. Under our constitutional de- huge accomplishment that put the be foolhardy to tell the terrorist com- mocracy, it is the obligation of the ex- trials back on sound footing within our munity everything that comes your ecutive branch to implement and inter- value system, and legally I think they way when you join al-Qaida or some pret treaties. This whole debate, what I will pass muster now. other terrorist organization. But it is have been working on for 2 weeks and So at the end of the day, in my opin- important to tell every American, getting beat up on in every talk radio ion we do not need to try to legislate every CIA agent, their family, and the show in the country, was about how how the judge should rule. Everybody international community what we do can you comply with the Geneva Con- has their pet peeve about where the ad- will not only be within the Geneva ventions in a way that will be seen by ministration has failed or succeeded, Conventions, it is going to be beyond the world as not getting out of the about how the CIA has conducted its what the Conventions require, and I Conventions. business. I have found an effort to tie think we have accomplished that. The proposal for the Congress to re- the judges’ hands to the point that we There are six specified events in arti- define the treaty terms, in my opinion, have no flexibility when it comes to ad- cle 129 and article 130 of the Geneva would have created a precedent for mitting evidence. The judge is in the Conventions that constitute grave every other country, in a war that they best place—better than anybody here— breaches. We have adopted all six, and are in the middle of, to change the to make a decision as to what should we have added to that list. Whatever treaty in the middle of a war. The con- come into that trial. What are we ask- the CIA is doing and wherever they do ventions have been closed for years. It ing the judges to do? To use their expe- it, whatever the Department of Defense would have been wrong, ill-advised for rience, their knowledge of the law, is doing and wherever they do it, they the Congress to sit down with the their sense of right or wrong to deter- now have the notice and the clarity President and rewrite the treaty obli- mine: Is that statement reliable? Is it that they did not have before to do gations for domestic purposes because probative? Given everything around it, their job within the law. clearly then we would have been chang- would the interests of justice be met if This idea that we have rewritten the ing the treaty terms without notifying it came into the trial? statute and given immunity to people That is an acceptable legal standard, the other parties. who have violated the statute is ab- not only to every Judge Advocate Gen- What we did to avoid that is we, Con- surd. There is nothing in the com- eral who serves today in our military, gress, defined nine crimes that would promise or the committee bill that it should be a standard that every constitute grave breaches, honoring American is proud of because I am would give immunity or amnesty to our commitment under the Geneva proud of it. someone who violated the felony provi- Conventions, to outlaw grave breaches, I bet you dollars to doughnuts when sions. But what we did do, that I am felonies. We have done our job, and we the Supreme Court gets hold of our proud of, is that we took a 1997 War turned to the Executive and said in work product they are going to approve Crimes Act that was so ill-defined that this legislation: It is your job, Mr. it. no one understood it and gave clarity President, consistent with our con- Finally, Hamdan is about applying and purpose to it so those whom we are stitutional democracy, to implement the Geneva Conventions to the war on asking to defend us from the most vi- and fulfill the obligations of the treaty terror. Everybody I know of in the ad- cious people in the world will have a outside of title 18. And when you make ministration believed that the Geneva chance to know the law. a decision, publish what you have de- Conventions did not apply to these un- Abu Ghraib was about policies that cided. And any decision you make can- lawful enemy combatants. I shared cut legal corners, that migrated from not take power away from the courts that belief. We were wrong. The Su- one side of the Government to the or the Congress that we have in the preme Court—whether I agree or not— other, that got everybody involved con- same arena. ruled. After their ruling, we had two fused as to what you could and could Those people who want to overturn things that we had to accomplish to not do. It was a mixture of individual the election, who do not like President get this country back on track within deviance and bad policy, poorly trained Bush, are upset that we recognized he the rule of law. We had a challenge: to people, not enough folks to do the job, has a role to play. Let me tell you, he take the CIA interrogation program and not trained well enough to under- does have a role to play. Any President that existed and will exist and make stand what the job was. It was a mess. has the same role that we are going to sure that it was Geneva Conventions For 2 years we have been trying—and I compliant. have been as helpful as I know how to give President Bush—to implement a What do the Geneva Conventions re- be—to create some sense of balance to treaty, not change a treaty. quire of every country that signs the bring order out of chaos, and we are on So I think we have done a very good document? It requires that, domesti- the verge of doing it. job of putting into law our obligations cally, that country will outlaw, within This is a product, not only that I sup- under the Geneva Conventions defin- its own domestic law, grave breaches of port, that I had but one that I am ing, constitutionally, who has what re- the treaty. Every country has an af- proud of. Every military lawyer who sponsibility so that no reasonable per- firmative duty to set out within their sits on the top of our military legal son could say the United States has laws and prosecute their own people for system has had input on every issue. abandoned its longstanding obligations grave breaches of the Geneva Conven- They have had the guts to go to the to the Geneva Conventions because we tions. House and Senate and say some things have not. And that is what we have

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.061 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10253 been sweating over for weeks. No rea- 5th, 8th, and 14th Amendments to the United entered into by leadership. I ask that I sonable person can say that this com- States Constitution. take 10 minutes from the Democratic promise condones torture, cruel, or in- Under the same provision, a statement ob- leader’s time and the remaining time tained before December 30, 2005 would be sub- humane treatment because we make it ject to the first two requirements, but not from my own 45 minutes of time. a felony. What we have done is given the third. Consequently, a statement ob- I see the concern by the Senator from the military judge the tools he or she tained before December 30, 2005 through Michigan. I will take it from my 45 will need to render justice. And I have cruel, unusual or inhumane treatment pro- minutes. I also note that I will not con- tried to embolden and strengthen the hibited by the U.S. Constitution would be ad- sent to any other time agreements on Detainee Treatment Act in a way that missible into evidence, as long as the other this bill insofar as the time agreement I think makes sense. conditions in the provision are met. I understood I had was not entered The military court-martial system I would appreciate if you would provide into. I will take the 45 minutes. your personal views and advice as a military Mr. President, this administration will be the model. The military com- officer on the merits of this provision and mission will deviate. And the authority the impact that it would have on our own has yet to come clean to the Congress given to the Secretary is the same au- troops, should they be captured by hostile or the American people in connection thority given to the President: to make forces in the future. Because this issue will with the secret legal justifications it differences between the district courts be debated on the Senate floor this week, I has generated and secret practices it and the military justice system as a request that you provide your views by no has employed in detaining and interro- whole. It is compliant with article 36 of later than the close of business on Tuesday, gating hundreds if not thousands of the Uniform Code of Military Justice. September 26, 2006. people in the war on terror. Even they Thank you for your assistance in this mat- cannot dismiss the practices at Guan- This compromise is compliant with ter. Hamdan. It is compliant with the val- Sincerely, tanamo as the actions of a few ‘‘bad ap- ues we are fighting for. And it has the CARL LEVIN, ples.’’ With Senate adoption of the flexibility we need to fight an enemy Ranking Member. anti-torture amendment last year and that knows no bounds. the recent adoption of the Army Field The work product is the result of DEPARTMENT OF THE NAVY, OFFICE Manual, I had hoped that 5 years of ad- give and take, is the result of being OF THE JUDGE ADVOCATE GENERAL ministration resistance to the rule of more than one branch of Government, Washington, DC, September 26, 2006. law and to the U.S. military abiding by Hon. CARL LEVIN, its Geneva obligations might be draw- is the result of having to deal with a U.S. Senate, Russell Senate Office Building, court decision that was new and novel. Washington, DC. ing to a close. Despite the resistance of I can say from my point of view that DEAR SENATOR LEVIN: Thank you for your the Vice President and the administra- not only will I vote for the com- letter of September 25, 2006, requesting my tion, the new Army Field Manual ap- promise, I am very proud of it. personal views on the admissibility of co- pears to outlaw several of what the ad- I yield the floor. erced statements at military commissions. ministration euphemistically calls Mr. WARNER. Mr. President, my dis- My consistent position before the Congress ‘‘aggressive’’ tactics and that much of tinguished colleague from South Caro- is and has been that the presiding military the world regards as torture and cruel judge should have the discretion and author- lina will be placing in today’s RECORD ity to inquire into the underlying factual and degrading treatment. Of course, the correspondence from the judge ad- circumstances and exclude any statement the President in his signing statement vocate generals. I think that is very derived from unlawful coercion, in order to undermined enactment of the anti-tor- important. I think for those following protect the integrity of the proceeding. ture law, and now the administration this debate, it would be of great inter- This approach is consistent with the prac- is seeking still greater license to en- est to give an example of how in re- tice of international war crimes tribunals gage in harsh techniques in connection sponse to the letter sent by the distin- sanctioned by the United States and United with the military tribunal legislation guished Senator from Michigan to a Nations and addresses the concern regarding reciprocal treatment of U.S. armed forces before us now. judge advocate they respond. I ask personnel in present or future conflicts. What is being lost in this debate is unanimous consent to have printed in Sincerely, any notion of accountability. Where the RECORD first at this juncture a let- BRUCE MACDONALD, are the facts of what has been done in ter from Senator LEVIN to Bruce Mac- Rear Admiral, JAGC, U.S. Navy. the name of the United States? Where Donald, Judge Advocate General of the Mr. WARNER. Mr. President, it is a are the legal justifications and tech- Navy, on this point of what we call the clear indication by those who are cur- nicalities the administration’s lawyers two categories of evidence. rently given the responsibility of de- have been seeking to exploit? Senator There being no objection, the mate- fending the men and women of the LEVIN’s amendment, which restores the rial was ordered to be printed in the United States military how this provi- bipartisan legislation passed by the RECORD, as follows: sion in the bill now before the Senate Senate Armed Services Committee, U.S. SENATE, is consistent with their understanding would maintain some accountability COMMITTEE ON ARMED SERVICES, of international and domestic law. for this administration’s actions and Washington, DC, September 25, 2006. I yield the floor. some standards of justice and decency. Rear Admiral BRUCE MACDONALD, The Republican leadership’s legislation The Judge Advocate General, Department of the The PRESIDING OFFICER. The Sen- Navy, Washington, DC. ator from Vermont is recognized. which is before us now strips away all DEAR ADMIRAL MACDONALD: The Senate Mr. WARNER. Mr. President, I in- accountability and erodes our most will soon begin consideration of a bill enti- quire of our distinguished colleague, is basic national values. tled the Military Commissions Act of 2006, he now drawing time on the Levin If the administration had answered which would add a new Chapter 47A to title amendment? me when I asked over and over about 10, United States Code, addressing trials by The PRESIDING OFFICER. The Sen- the Convention Against Torture and military commission. Section 948r of the pro- ator’s time is from the Democratic about rendition, we could have come to posed new chapter would address the issue of leader’s time on the measure itself. grips with those matters before they compulsory self-incrimination and state- ments obtained by torture or other methods Mr. LEAHY. Mr. President, how degenerated, as they have, into inter- of coercion. much time is there to the Democratic national embarrassment for the United Under this provision, a copy of which is at- leader on this? States. As Secretary Colin Powell tached, a statement obtained on or after De- The PRESIDING OFFICER. The Sen- wrote recently, ‘‘The world is begin- cember 30, 2005 through coercion that is less ator from Vermont has 47 minutes; 45 ning to doubt the moral basis of our than torture would be admissible if the mili- minutes of the 57 minutes remaining to fight against terrorism.’’ It did not tary judge finds that: (1) the totality of the the Democratic leader. need to come to that. circumstances renders it reliable and pos- Mr. LEAHY. Mr. President, as I said If FBI Director Mueller had been sessing sufficient probative value; (2) the in- earlier, I understood that the consent more forthcoming with me at or after terests of justice would best be served by ad- mission of the statement into evidence; and agreement was to give me 45 minutes the May 2004 hearing in which I asked (3) the interrogation methods used do not on the Specter-Leahy-Dodd amend- him about what the FBI had observed violate the cruel, unusual, or inhumane ment and 15 minutes on the bill. That at Guantanamo, we could have gotten treatment of punishment prohibited by the seems to not have been the agreement to a detention and interrogation policy

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.062 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10254 CONGRESSIONAL RECORD — SENATE September 27, 2006 befitting the U.S. years sooner than we ues. The President says he wants clar- past and future abuses by the Execu- have. ity as to the meaning of the Geneva tive. If the administration would have re- Conventions and the War Crimes Act. I worked hard, along with many oth- sponded to my many inquiries over the Of course, he did not want clarity when ers of both parties, to pass the current years regarding the rendition of Maher his administration was using its twist- version of the War Crimes Act. I think Arar, I would not have had to send yet ed interpretation of the law to author- the current law is a good law, and the another demand for information to the ize torture, cruel and inhumane treat- concerns that have been raised about it Attorney General this week, and we ment of detainees and spying on Amer- could best be addressed with minor ad- would not have been embarrassed by icans without warrants and keeping justments, rather than with sweeping the Canadian commission report about those rationales and programs secret changes. his being sent by U.S. authorities to from Congress. The administration In 1996, working with the Department Syria where he was tortured. Mr. Arar does not seem to want clarity when it of Defense, Congress passed the War is the Canadian citizen who was return- refuses even to tell Congress what its Crimes Act to provide criminal pen- ing to Canada through New York when understanding of the law is following alties for certain war crimes com- he was arrested by American authori- the withdrawal of a memo that said the mitted by and against Americans. The ties at JFK airport and held for 12 days President could authorize and immu- next year, again with the Pentagon’s without access to a Canadian consular nize torture. That memo was with- support, Congress extended the War official or lawyer. He was then ren- drawn because it could not stand up in Crimes Act to violations of the base- dered, not to Canada, but to Syria, the light of day. line humanitarian protections afforded without the knowledge or approval of It seems that the only clarity this by Common Article 3 of the Geneva Canadian officials, where he was tor- administration wants is a clear green Conventions. Both measures were sup- tured. Last week, a Canadian commis- light from Congress to do whatever it ported by a broad bipartisan consensus, sion inquiry determined that Mr. Arar wants. That is not clarity; it is immu- and I was proud to sponsor the 1997 had no ties to terrorists, he was ar- nity. That is what the current legisla- amendments. rested on bad intelligence, and his tion would give to the President on in- The legislation was uncontroversial forced confessions in Syria reflected terrogation techniques and on military for a good reason. As I explained at the torture, not the truth. Sadly, the ad- commissions. Justice O’Connor re- time, the purpose and effect of the War ministration is still seeking to avoid minded the nation before her retire- Crimes Act as amended was to provide accountability by hiding behind legal ment that even war is not a ‘‘blank for the implementation of America’s doctrines. The administration con- check’’ when it comes to the rights of commitment to the basic international tinues to thwart every effort to get to Americans. The Senate should not be a standards we subscribed to when we the facts, to get to the truth and to be rubberstamp for policies that undercut ratified the Geneva Conventions in accountable. I am worried that the leg- American values and make Americans 1955. Those standards are truly uni- islation before us is one more example around the world less safe. versal: They condemn war criminals of that trend. In reality, we already have clarity. whoever and wherever they are. Unfortunately, Senator LEVIN’s Senior military officers tell us they That is a critically important aspect amendment, like the Armed Services know what the Geneva Conventions re- of the Geneva Conventions and our own Committee’s bill, retains the ex- quire, and the military trains its per- War Crimes Act. When we are dealing tremely troubling habeas provision. I sonnel according to these standards. with fundamental norms that define will be submitting an amendment to We have never had trouble urging other the commitments of the civilized strip that provision. countries around the world to accept world, we cannot have one rule for us We are rushing through legislation and enforce the provisions of the Gene- and one for them, however we define that would have a devastating effect on va Conventions. There was enough ‘‘us’’ and ‘‘them.’’ As Justice Jackson our security and on our values, and we clarity for that. What the administra- said at the Nuremberg tribunals, ‘‘We need to step back and think about tion appears to want, instead, is to use are not prepared to lay down a rule of what we are doing. The President re- new legislative language to create criminal conduct against others which cently said that ‘‘time is of the es- loopholes and to narrow our obliga- we would not be willing to have in- sence’’ to pass legislation authorizing tions not to engage in cruel, degrading, voked against us.’’ military commissions. Time was of the and inhuman treatment. In that regard, I am disturbed that essence when this administration took In fact, the new legislation muddies the legislation before us narrows the control and did not act on the dire the waters. It saddles the War Crimes scope of the War Crimes Act to exclude warnings of terrorist action. Time was Act with a definition of cruel or inhu- certain violations of the Geneva Con- of the essence in August and early Sep- man treatment so oblique that it ap- ventions and, perhaps more disturb- tember 2001 when the 9/11 attacks could pears to permit all manner of cruel and ingly, to retroactively immunize past still have been prevented. This admin- extreme interrogation techniques. Sen- violations. Neither the Congress nor istration ignored warnings of a coming ator MCCAIN said this weekend that the Department of Defense had any attack and even proposed cutting the some techniques like waterboarding problem with the War Crimes Act as it anti-terror budget. It focused on Star and induced hypothermia would be now stands when we were focused on Wars, not terrorism. Time was of the banned by the proposed law. But Sen- using it to prosecute foreign perpetra- essence when Osama bin Laden was ator FRIST and the White House dis- tors of war crimes. I am concerned that trapped in Tora Bora. avowed his statements, saying that this is yet another example of this ad- After 5 years of unilateral actions by they preferred not to say what tech- ministration overreaching, this administration that have left us niques would or would not be allowed. disregarding the law and our inter- less safe, time is now of the essence to That is hardly clarity; it is deliberate national obligations, and seeking to take real steps to keep us safe from confusion. immunize others to break the law. It terrorism like those in the Real Secu- Into that breach, this legislation also could well prevent us from pros- rity Act, S. 3875. Instead, the President throws the administration’s solution to ecuting rogues who we all agree were and the Republican Senate leadership all problems: more Presidential power. out of line, like the soldiers who mis- call for rubberstamping more flawed It allows the administration to promul- treated prisoners at Abu Ghraib. White House proposals in the run up to gate regulations about what conduct The President said on May 5, 2004 another election. I hope that this time would and would not comport with the about prisoner mistreatment at Abu the U.S. Senate will act as an inde- Geneva Conventions, though it does Ghraib: ‘‘I view those practices as ab- pendent branch of the government and not require the President to specify horrent.’’ He continued: ‘‘But in a de- finally serve as a check on this admin- which particular techniques can and mocracy, as well, those mistakes will istration. cannot be used. This is a formula for be investigated, and people will be We need to pursue the war on terror still fewer checks and balances and for brought to justice.’’ The Republican with strength and intelligence, but also more abuse, secrecy, and power-grab- leader of the Senate said on the same to do so consistent with American val- bing. It is a formula for immunity for day: ‘‘I rise to express my shock and

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.082 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10255 condemnation of these despicable acts. Allowing in this evidence would vio- ter-Leahy-Dodd amendment will elimi- The persons who carried them must late our basic standards of fairness nate those provisions from the bill face justice.’’ without increasing our security. Maher pending before the Senate. Many of the despicable tactics used Arar, the Canadian citizen sent by our It will be interesting to see whether in Abu Ghraib the use of dogs, forced government to Syria to be tortured, the Bush-Cheney administration will nudity, humiliation of various kinds do confessed to attending terrorist train- allow Republican Senators to vote for not appear to be covered by the narrow ing camps. A Canadian commission in- it. Lord knows there have not been definitions this legislation would graft vestigating the case found that his con- many votes made here that have been into the War Crimes Act; of course, de- fessions had no basis in fact. They by independent Senators. spite the President’s calls for clarity, merely reflected that he was being tor- As currently drafted, section 7 of the the new provisions are so purposefully tured, and he told his torturers what military commissions bill would ambiguous that we cannot know for they wanted to hear. It is only one of wrongfully, and in my view, unconsti- sure. If the Abu Ghraib abuses had many such documented cases of bad in- tutionally eliminate the writ of habeas come to light after the perpetrators formation resulting from torture. We corpus for anyone detained by this ad- left the military, they might not have gain nothing from allowing such infor- ministration on suspicion of being been able to be brought to justice mation. The Armed Services Com- what they call an ‘‘enemy combatant,’’ under the administration’s formula- mittee bill, which the Levin amend- which is a dangerous concept that is tion. ment restores, would not allow the use being expanded by a vague and ever-ex- The President and the Congress of this tainted evidence. panding definition. should not be in the business of immu- The military commissions legislation The President could basically say I nizing people who have broken the law, departs in other unfortunate ways from think you are an enemy combatant, making us less safe, turning world the Warner-Levin bill. Early this week, and lock you up, and you can’t even opinion against us, and undercutting apparently at the White House’s re- contest it. our treaty obligations in ways that en- quest, Republican drafters added a I think of the hundreds of pages of courage others to ignore the protec- breathtakingly broad definition of ‘‘un- statements made by Senators on both tions those treaties provide to Ameri- lawful enemy combatant’’ which in- sides of the aisle when other countries cans. We should be very careful about cludes people—citizens and non-citi- have done something this arbitrary, or any changes we make. zens—alike—who have ‘‘purposefully this vague, and locked up people inside If we lower our standards of domestic and materially supported hostilities’’ their borders, and we said how un- law to allow outrageous conduct, we against the United States or its allies. American it is. If we pass this, we can can do nothing to stop other countries It also includes people determined to no longer call it un-American. We can from doing the same. This change in be ‘‘unlawful enemy combatant’’ by call it codified American law. our law does not prevent other coun- any ‘‘competent tribunal’’ established Important as the rules for military tries from prosecuting our troops and by the President or the Secretary of commissions are, they will apply to personnel for violations of the Geneva Defense. So the government can select only a few cases. In this war on terror, Convention if they choose; it only any person, including a U.S. citizen, you may wonder how many people have changes our domestic law. But it could whom it suspects of supporting hos- been brought to justice. We are holding give other countries a green light to tilities—whatever that means—and about 500 people in Guantanamo. We change their own law to allow them to begin denying that person the rights are so committed to this war that we treat our personnel in cruel and inhu- and processes guaranteed in our coun- have charged a total of 10 people in the man ways. try. The implications are chilling. We nearly 5 years that the President de- Let me be clear. There is no problem should go back to the reasonable defi- clared his intention to use military facing us about overzealous use of the nition the Senate Armed Services Com- commissions. That is two a year. They War Crimes Act by prosecutors. In fact, mittee came up with. That is what the just announced plans to charge an ad- as far as I can tell, the Ashcroft Jus- Levin amendment does. ditional 14 men. At this rate, I will be tice Department and the Gonzales Jus- I hope that we will take the oppor- about 382 years old when they get tice Department have yet to file a sin- tunity before us to consider and pass around to charging all the people they gle charge against anyone for violation bipartisan legislation that will make are detaining. But for the vast major- of the War Crimes Act. Not only have us safer and help our fight on ter- ity of the almost 500 prisoners at Guan- they never charged American personnel rorism, both by giving us the tools we tanamo, and the thousands it has de- under the act, they have never used it need and by showing the world the val- tained over the last 5 years, the admin- to charge terrorists either. ues we cherish and defend, the same istration’s position remains as stated We can address any concerns about values that make us a target. We by Secretary of Defense Donald Rums- the War Crimes Act with reasonable should amend the legislation before us feld 3 years ago: There is no interest in amendments, as the Warner-Levin bill to keep the War Crimes Act strong and trying them. did, without gutting the Act in a way to require some accountability from It is not just a question of we have no that undermines our moral authority the administration. The Levin amend- interest in trying those we have deter- and makes us less safe. Senator LEVIN’s ment does just that, and I urge all sen- mined to be enemy combatants. If we amendment goes back to the Warner- ators to vote for it. Let us join to- have dozens and dozens or even hun- Levin bill’s formulation, and I urge gether on behalf of real security for dreds of people who are picked up by Senators of both parties to support it. Americans. mistake or turned over by bounty The proposed legislation would also Mr. President, before we stand here hunters to get the bounty and not be- allow the admission into military com- congratulating ourselves too much cause they might have done something, mission proceedings of evidence ob- about all the wonderful things we did we are not going to try them either. tained through cruel and inhuman in these closed-door meetings and these Sorry, we are just going to lock them treatment. This provision would once back-room meetings and the Bush-Che- up. again allow this administration to ney statements about what we are al- Perhaps the single most consequen- avoid all accountability for its mis- lowed to do or not allowed to do in tial provision of the so-called military guided policies which have contributed what has become an increasingly commissions bill can now be found bur- to the rise of a new generation of ter- rubberstamp Congress—the most ied nearly 100 pages in to curtail judi- rorists who threaten us. Not only rubberstamp Congress I have ever seen cial review and any meaningful ac- would the military commission legisla- in 32 years here—I want to talk about countability. This provision would per- tion before us immunize those who vio- the habeas stripping provisions, what I petuate the indefinite detention of lated international law and stomped on call un-American provisions, which are hundreds of individuals against whom basic American values, but it would regrettably in the bill before us and un- the Government has brought no allow them then to use the evidence fortunately contained in the com- charges and presented no evidence, gotten in violation of basic principles mittee bill, and even included in the without any recourse to justice what- of fairness and justice. amendment before us now. The Spec- soever. Maybe some of them are guilty.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.084 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10256 CONGRESSIONAL RECORD — SENATE September 27, 2006 If they are, try them. But we have to bill now defines the term enemy com- Talk to anyone who travels around understand that there may be people in batants in a tortured and unprece- the world anywhere, even among some there who have no reason to be there dented broad manner. of our closest allies, our best friends. and there are no charges and no evi- Detained indefinitely, and unac- We are asked, What are you doing? dence. This is un-American, it is un- countably, until they are proven inno- Have you lost your moral compass? constitutional, and it is contrary to cent; even though they have no right to And these are countries that faced ter- American interests. This is not what a stand up and offer proof. It is like the rorist attacks long before we did. great and wonderful nation should be Canadian citizen Maher Arar, shipped General Powell, former head of the doing. off to a torture cell in Syria by the Joint Chiefs of Staff, was right. Going forward, the bill departs even Bush-Cheney administration, despite We have heard from current and more radically from our most funda- what the Canadian Government re- former diplomats, military lawyers, mental values. I am proud to be an cently concluded, that there is no evi- Federal judges, law professors, law American, and I am proud to be a Sen- dence that he ever committed a crime school deans, and even a former Solic- ator. But mostly I am proud of what or posed a threat to either the United itor General under the first President has been in the past our American val- States or Canadian security. Pick him Bush, Kenneth Starr, that they have ues. Provisions that were profoundly up. He looks bad. Ship him to Syria. grave concerns with the habeas corpus troubling a week ago when the Armed Torture him. Maybe he will confess to stripping provisions of this bill. I have Services Committee marked up the bill something and prove we were right. letters that come from across the polit- have gotten much worse in the course Now it has been documented the ical and legal spectrum saying this is of the closed-door revisions over the Bush-Cheney administration did the wrong. past 5 days, including the last round of wrong thing to the wrong man. When I ask unanimous consent that some revisions, which were put in behind asked about it, what do they do? As of these letters be printed in the usual, they evade all accountability. closed doors and sent around late yes- RECORD. terday, and that the majority now de- This is an administration that makes There being no objection, the mate- no mistakes. A rubberstamp Congress mands we pass immediately. Five years rial was ordered to be printed in the will never ask them what they did, they sit, doing nothing, and then all of RECORD, as follows: they make no mistakes, and they hide sudden, whoops, the polls look bad this SEPTEMBER 25, 2006. behind a purported State secrets privi- fall for the election: Quick, pass any- To United States Senators and Members of lege. Congress. thing, no matter how unconstitutional The administration’s defenders would DEAR MADAMS/SIRS: This letter is written it might be. like to believe Mr. Arar’s case is an iso- For example, the bill has been in the name of the former members of the lated blunder, but it is not. We have amended to eliminate habeas corpus diplomatic service of the United States list- numerous press accounts that have review even for people inside the ed below. quoted administration officials them- We urge that the Congress, as it considers United States, and even for people who selves who believe a significant per- the pending detainee legislation, not elimi- have not been determined to be enemy centage of those detained at Guanta- nate the jurisdiction of the courts to enter- combatants. Quick, pass it; quick, do it namo Bay have no connection to ter- tain habeas corpus petitions filed on behalf now; quick, pass it out of here so we of those detainees. rorism. They have been held by the There is no more central principle of de- can rubberstamp it in a signing cere- Bush-Cheney administration for sev- mony before anybody reads the fine mocracy than that an officer of the execu- eral years and the administration in- tive branch of government may restrain no print. tends to hold them indefinitely with- We have done this in the past. As a one except at sufferance of the judiciary. The out trial or any recourse to justice, one branch is vital to insure the legitimacy witness said before our committee this even though a substantial number of of the actions of the other. Habeas corpus is week, we did this in the past. We did it them are innocent people who were the ‘‘Great Writ.’’ It is by habeas corpus that with the Tonkin Gulf Resolution. We turned in by anonymous bounty hunt- a person—any person—can insure that the le- did it with the internment of Japanese ers or picked up by mistake in the fog gality of his or her restraint is confirmed by a court independent of the branch respon- Americans. Now we are about to do it of war. again. sible for the restraint. Elimination of judi- The most important purpose of ha- cial review by this route would undermine As the bill now stands, it would per- beas corpus is not to give people extra mit the President to detain indefi- the foundations of our democratic system. rights. No one is asking to give people Weare told that the central purpose of our nitely—even for life—any alien, wheth- special rights. Habeas corpus does not engagement in that ‘‘vast external realm’’ er in the United States or abroad, do that. Habeas corpus is intended to today is the promotion of democracy for oth- whether a foreign resident or a lawful correct errors such as this to protect ers. All nations, we urge, should embrace the permanent resident, without any the innocent. It is precisely to prevent principles and practices of freedom and gov- meaningful opportunity for that person such abuses that the Constitution pro- ernance that we have embraced. But to to challenge his detention. The admin- hibits the suspension of the writ of ha- eliminate habeas corpus in the United States as an avenue of relief for the citizens of istration would not even need to as- beas corpus ‘‘unless when in cases of sert, much less prove, that the alien other countries who have fallen into our rebellion or invasion public safety may hands cannot but make a mockery of this was an enemy combatant; it would suf- require it.’’ pretension in the eyes of the rest of the fice to say that the alien was awaiting I would assume the Bush-Cheney ad- world. The perception of hypocrisy on our a determination on that issue, even ministration is not saying we are han- part—a sense that we demand of others a be- though they may wait 20, 30, 40 years dling this question of terrorists so havioral ethic we ourselves may advocate and wait until the grave gives them poorly that we are under invasion now. but fail to observe—is an acid which can their escape. And I have no doubt this bill, which overwhelm our diplomacy, no matter how In other words, the bill would send a will permanently eliminate the writ of well intended and generous. Pretensions are one thing; behavior another, and quite the message to the millions of legal immi- habeas corpus for all aliens within and grants living in America, participating more powerful message. To proclaim demo- outside the United States whenever the cratic government to the rest of the world as in American families, working for Government says they might be enemy the supreme form of government at the very American businesses, and paying combatants, violates that prohibition. moment we eliminate the most important American taxes. Its message would be I believe even the present Supreme avenue of relief from arbitrary governmental that our Government may at any Court, seven of the nine members now detention will not serve our interests in the minute pick them up and detain them Republican, would hold it unconstitu- larger world. indefinitely without charge and with- tional. This is the first and primary reason for re- out any access to the courts or even to When former Secretary of State jecting the proposal. But the second is al- military tribunals unless and until the most as important, and that is its potential Colin Powell wrote of his concerns with for a reciprocal effect. Pragmatic consider- Government determines that they are the administration’s bill, he wrote: ations, in short, are in this instance at one not enemy combatants—even though ‘‘The world is beginning to doubt the with considerations of principle. Judicial re- they have no ability to help in that de- moral basis of our fight against ter- lief from arbitrary detention should be pre- termination themselves. In turn, the rorism.’’ served here else our personnel serving abroad

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.085 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10257 will suffer the consequences. To deny habeas their detention in federal court by habeas prives the federal courts of habeas jurisdic- corpus to our detainees can be seen as pre- corpus. Last December, Congress passed the tion over pending Guantanamo detainee scription for how the captured members of Detainee Treatment Act, eliminating juris- cases. our own military, diplomatic and NGO per- diction over future habeas petitions filed by Respectfully, sonnel stationed abroad may be treated. prisoners at Guantanamo, but expressly pre- Judge John J. Gibbons, U.S. Court of Ap- As former officials in the diplomatic serv- serving existing jurisdiction over pending peals for the Third Circuit (1969–1987), Chief ice of our nation, this consideration weighs cases. In June, the Supreme Court affirmed Judge of the U.S. Court of Appeals for the particularly heavily for us. The United in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), Third Circuit (1987–1990). States now has a vast army of young Foreign that the federal courts have the power to Judge Shirley M. Hufstedler, U.S. Court of Service officers abroad. Many are in acute hear those pending cases. These cases should Appeals for the Ninth Circuit (1968–1979). and immediate danger. Over a hundred, for be heard by the federal courts for the reasons Judge Nathaniel R. Jones, U.S. Court of example, are serving in Afghanistan. Foreign that follow. Appeals for the Sixth Circuit (1979–2002). service in a high-risk post is voluntary. The habeas petitions ask whether there is Judge Timothy K. Lewis, U.S. District These officers are there willingly. The Con- a sufficient factual and legal basis for a pris- Court, Western District of Pennsylvania gress has every duty to insure their protec- oner’s detention. This inquiry is at once sim- (1991–1992), U.S. Court of Appeals for the tion, and to avoid anything which will be ple and momentous. Simple because it is an Third Circuit (1992–1999). taken as justification, even by the most dis- easy matter for judges to make this deter- Judge William A. Norris, U.S. Court of Ap- turbed minds, that arbitrary arrest is the ac- mination—federal judges have been doing peals for the Ninth Circuit (1980–1997). ceptable norm of the day in the relations be- this every day, in every courtroom in the Judge George C. Pratt, U.S. District Court, tween nations, and that judicial inquiry is country, since this Nation’s founding. Mo- Eastern District of New York (1976–1982), an antique, trivial and dispensable luxury. mentous because it safeguards the most hal- U.S. Court of Appeals for the Second Circuit We urge that the proposal to curtail the lowed judicial role in our constitutional de- (1982–1995). reach of the Great Writ be rejected. mocracy—ensuring that no man is impris- Judge H. Lee Sarokin, U.S. District Court Respectfully submitted, oned unlawfully. Without habeas, federal for the District of New Jersey (1979–1994), William D. Rogers, former Under Sec- courts will lose the power to conduct this in- U.S. Court of Appeals for the Third Circuit retary of State; Ambassador J. Brian quiry. (1994–1996). Atwood; Ambassador Harry Barnes; We are told this legislation is important to William S. Sessions, U.S. District Court, Ambassador Richard E. Benedick; Am- the ineffable demands of national security, Western District of Texas (1974– 1980), Chief bassador A Peter Burleigh; Ambassador and that permitting the courts to play their Judge of the U.S. District Court, Western Herman J. Cohen; Ambassador Edwin traditional role will somehow undermine the District of Texas (1980–1987). G. Corr; Ambassador John Gunther military’s effort in fighting terrorism. But Judge Patricia M. Wald, U.S. Court of Ap- Dean; Ambassador Theodore L. Eliot, this concern is simply misplaced. For dec- peals for District of Columbia Circuit (1979– Jr.; Ambassador Chas W. Freeman, Jr.; ades, federal courts have successfully man- 1999), Chief Judge of the U.S. Court of Ap- Ambassador Robert S. Gelbard. aged both civil and criminal cases involving peals for District of Columbia Circuit (1986– Ambassador Lincoln Gordon; Ambas- classified and top secret information. Invari- 1991). sador William C. Harrop; Ambassador ably, those cases were resolved fairly and ex- Ulric Haynes, Jr.; Ambassador Robert peditiously, without compromising the in- MALIBU, CA, E. Hunter; Ambassador L. Craig terests of this country. The habeas statute September 24, 2006. Johnstone; Ambassador Robert V. and rules provide federal judges ample tools Hon. ARLEN SPECTER, Keeley; Ambassador Bruce P. Laingen; for controlling and safeguarding the flow of Chairman, Senate Committee on the Judiciary, Anthony Lake, former National Secu- information in court, and we are confident Washington, DC. rity Advisor; Ambassador Princeton N. that Guantanamo detainee cases can be han- DEAR CHAIRMAN SPECTER: I write to express Lyman; Ambassador Donald McHenry; dled under existing procedures. my concerns about the limitations on the Ambassador George Moore. Furthermore, depriving the courts of ha- writ of habeas corpus contained in the com- Ambassador George Moose; Ambassador beas jurisdiction will jeopardize the Judi- promise military commissions bill, The Mili- Thomas M. T. Niles; Ambassador Rob- ciary’s ability to ensure that Executive de- tary Commissions Act of 2006 (S. 3930). Al- ert Oakley; Ambassador Robert H. tentions are not grounded on torture or though S. 3930 contains many laudable im- Pelletreau; Ambassador Pete Peterson; other abuse. Senator John McCain and oth- provements to military commission proce- Ambassador Thomas R. Pickering; Am- ers have rightly insisted that the proposed dure, section 6 of the bill effectively bars de- bassador Anthony Quainton; Helmut military commissions established to try ter- tainees at the U.S. Naval Base at Guanta- Sonnenfeldt, former Counselor of the ror suspects of war crimes must not be per- namo Bay, Cuba from applying for habeas Department of State; Ambassador Ros- mitted to rely on evidence secured by unlaw- corpus review of their executive detention. I coe S. Suddarth; Ambassador Phillips ful coercion. But stripping district courts of am concerned that limitation may go too far Talbot; Ambassador William Vanden habeas jurisdiction would undermine this in limiting habeas corpus relief, especially in Heuvel; Ambassador Alexander F. Wat- goal by permitting the Executive to detain light of the apparent conflict between the son. without trial based on the same coerced evi- holdings of Rasul v. Bush, 124 S. Ct. 2684 dence. (2004), and Johnson v. Eisentrager, 339 U.S. 763 TO MEMBERS OF CONGRESS: The under- Finally, eliminating habeas jurisdiction (1950). signed retired federal judges write to express would raise serious concerns under the Sus- Although the Rasul Court limited its hold- our deep concern about the lawfulness of pension Clause of the Constitution. The writ ing to statutory habeas rights, which may be Section 6 of the proposed Military Commis- has been suspended only four times in our limited by the Congress, the Supreme Court sions Act of 2006 (‘‘MCA’’). The MCA threat- Nation’s history, and never under cir- nevertheless viewed Guantanamo Bay, Cuba ens to strip the federal courts of jurisdiction cumstances like the present. Congress can- as a territory within the control and juris- to test the lawfulness of Executive detention not suspend the writ at will, even during diction of the United States. Accordingly, at the Guantanamo Bay Naval Station and wartime, but only in ‘‘Cases of Rebellion or the Eisentrager case may no longer be relied elsewhere outside the United States. Section Invasion [when] the public Safety may re- upon with confidence to rule out constitu- 6 applies ‘‘to all cases, without exception, quire it.’’ U.S. Const. art. I, § 9, cl. 2. Con- tional habeas protections for Guantanamo pending on or after the date of the enact- gress would thus be skating on thin constitu- detainees. One of the Eisentrager factors that ment of [the MCA] which relate to any as- tional ice in depriving the federal courts of limited constitutional habeas rights for pect of the detention, treatment, or trial of their power to hear the cases of Guantanamo aliens in military custody was whether the an alien detained outside of the United detainees. At a minimum, Section 6 would detainee was held outside of the United States . . . since September 11, 2001.’’ guarantee that these cases would be mired in States. Based on the finding of the Rasul We applaud Congress for taking action es- protracted litigation for years to come. If case that Guantanamo Bay falls within U.S. tablishing procedures to try individuals for one goal of the provision is to bring these territorial jurisdiction, Guantanamo detain- war crimes and, in particular, Senator War- cases to a speedy conclusion, we can assure ees likely have a different constitutional ner, Senator Graham, and others for ensur- you from our considerable experience that status than the alien detainees in ing that those procedures prohibit the use of eliminating habeas would be counter- Eisentrager, who were held in Landsberg, Ger- secret evidence and evidence gained by coer- productive. many. cion. Revoking habeas corpus, however, cre- For two hundred years, the federal judici- Article 1, section 9, clause 2 of the United ates the perverse incentive of allowing indi- ary has maintained Chief Justice Marshall’s States Constitution provides that ‘‘[t]he viduals to be detained indefinitely on that solemn admonition that ours is a govern- Privilege of the Writ of Habeas Corpus shall very basis by stripping the federal courts of ment of laws, and not of men. The proposed not be suspended, unless when in Cases of their historic inquiry into the lawfulness of legislation imperils this proud history by Rebellion or Invasion the public Safety may a prisoner’s confinement. abandoning the Great Writ to the siren call require it.’’ The United States is neither in a More than two years ago, the United of military necessity. We urge you to remove state of rebellion nor invasion. Con- States Supreme Court ruled in Rasul v. the provision stripping habeas jurisdiction sequently, it would problematic for Congress Bush, 542 U.S. 466 (2004), that detainees at from the proposed Military Commissions Act to modify the constitutionally protected Guantanamo have the right to challenge of 2006 and to reject any legislation that de- writ of habeas corpus under current events.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.018 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10258 CONGRESSIONAL RECORD — SENATE September 27, 2006 I encourage the Senate Judiciary Com- tinuing terrorist threat, now is not the doms, our laws, our protections, are mittee to study the constitutional implica- time for the United States to abandon what attracted people from other coun- tions of S. 3930 on the habeas corpus rights of its principles. Admiral Hutson was tries, people from other countries who detainees in United States territory. Al- though no one wants the War on Terror to be right to point out that when we do, have fled oppression in their own coun- litigated in the courts, Congress should act there would be little to distinguish try and fled a lack of rule of law in cautiously to strike a balance between the America from a banana republic or the their own country, to come to Amer- need to detain enemy combatants during the repressive regimes against which we ica, where we have a rule of law. present conflict and the need to honor the are trying to rally the world and the I yield the floor. historic privilege of the writ of habeas cor- human spirit. The PRESIDING OFFICER. The Sen- pus. I thank you for holding a hearing on Now is not the time to abandon ator from Virginia. this topic and hope that it helps to strike that balance. American values and to shiver and Mr. WARNER. Mr. President, we are Sincerely, quake as though we are a weak country anxious to go on with the matters be- KENNETH W. STARR. and we have to rely on secrecy and tor- fore the Senate this afternoon in con- Mr. LEAHY. Monday we rushed to ture. We are too great a nation for nection with this pending bill. hold a hearing before the Judiciary that. Those are the ways of weakness. As I understand it, the amount of committee on this important issue, and Those are the ways of repression and time remaining on the Levin substitute what happens? The surrogate for the oppression. Those are not the ways of amendment is how much? administration, former White House America. Those are not the ways of The PRESIDING OFFICER. The Sen- associate counsel Brad Berenson, who this Nation I love. ator from Michigan has 24 minutes 10 testified before us, defends the habeas The habeas provisions of this bill are seconds; the Senator from Virginia has corpus stripping provisions of this bill wrongheaded. They are flagrantly un- 24 minutes. by arguing that the United States has constitutional. Tinkering with them Mr. WARNER. It had been my hope been and still is suffering from an inva- would not make them less wrong- we could set this amendment aside sion that requires the suspension of ha- headed but might make them less fla- pending instructions from the leader- beas corpus. grantly unconstitutional. I see no rea- ship as to a time of vote and proceed to What are we doing? What is going on? son to save the administration from another amendment. That is outrageous. That is running itself and from the inevitable defeat At this point in time, I see another scared. That is so wrong. Is he saying when the Supreme Court strikes them colleague who is seeking recognition. that for 5 years this administration has down. I yield the floor. been allowing an ongoing invasion in Why should those who take our oath Mr. REED. Mr. President, I ask for 12 the United States and we are not aware to uphold the Constitution seriously, minutes from the time. of it? Are we going to suspend the who understand the fundamental im- The PRESIDING OFFICER. Without great writ on this basis? portance of habeas to freedom, find objection, it is so ordered. To quote Kenneth Starr: ourselves compromising with such an Mr. REED. Mr. President, we are en- The United States is neither in a state of irresponsible provision? gaged in a very important debate about rebellion nor invasion. Consequently, it That is why at the appropriate point the way we will bring to justice very would [be] problematic for Congress to mod- the chairman of the Senate Judiciary heinous individuals who committed ify the constitutionally protected writ of ha- Committee and I will offer just one terrorism. I will put in context first beas corpus under current events. amendment, to remove the habeas pro- what I think the situation is. I suppose the administration would visions from the bill in their entirety. First, our most essential mission in say we are not modifying it. Heck, no, That is the right thing to do. I should the war on terror is to find these indi- we are eliminating it. We are not modi- also add, that is the American thing to viduals, to attempt to capture them, fying the writ of habeas corpus, we are do. We would still be left with the dis- and if they have refused to be captured, knocking it out for all aliens. to take extreme measures to eliminate I agree with those from the right to graceful but less extreme habeas strip- them as terrorist threats to the United the left, we should not modify, and we ping provisions that we enacted earlier States. certainly should not eliminate, the this year in the Detainee Treatment If they are in our hands as detainees great writ of habeas corpus. I agree Act. But we would at least not make or in any capacity, we have an obliga- with hundreds of law professors who one bad mistake even worse. By not to- described an earlier, less extreme tally eliminating habeas for all aliens, tion to interrogate them and we have version of the habeas provisions of this we can reduce the damage to America’s to be consistent with international bill as ‘‘unwise and contrary to the credibility as a champion of freedom norms while also recognizing that as most fundamental precepts of Amer- and show the American people and the we treat people in our custody we can ican constitutional tradition.’’ And I courts that Congress is not entirely expect if our military personnel fall in agree with the former ambassadors and cavalier when it comes to its constitu- the hands of a military power, they other senior diplomats who wrote to us tional obligations. We can show the will be similarly treated. We must be saying that eliminating habeas corpus world that this great Nation is not so very conscious of this. for aliens does not help America, it frightened and so shaky and so quaky But an important point that is often does not make America safer, but rath- that we are going to have to give up overlooked in the entire debate, all of er it harms our interests abroad and the principles that made us a great na- the individuals we are talking about makes us less safe. tion. today—the 14 detainees at Guantanamo Maybe some of those who want to Our amendment would reduce the Bay and others—are enemy combat- pretend how powerful they have been grave harm that will be done if the bill ants. Under international law, they can in military matters ought to talk to before the Senate passes. It was not too be held indefinitely. There is a big dif- those who have been in the military late last night for the Republicans to ference between an individual who is and actually understand a time when make yet more revisions to this uncon- an enemy combatant and someone who we are reaping the mistakes of our stitutional bill. It is not too late today is in a criminal justice situation some- folly in Iraq. Let us not expand it fur- for the Senate to make the bill a little place else. Even if these individuals are ther. The United States, especially less bad, a little less offensive to the acquitted of their crimes, they are still since World War II and the Marshall values and freedom for which America in the custody of the United States and Plan, has been a beacon of hope and stands. still will remain in the custody of the freedom for the world. How do we This is one American who is not United States. spread a message of freedom abroad if going to run and hide. This is one So as we debate this issue of military our message to those who come to American who is not willing to cut tribunals, we have to recognize what America is that they may be detained down the laws of our Nation. This is we are talking about is not allowing indefinitely without any recourse to one American who thinks these laws people to walk out the door because justice? and our protections have made us great our procedures are inadequate, because In the wake of the attack of Sep- not only here but abroad. This is one some clever attorney can take advan- tember 11, and in the fact of the con- American who thinks that our free- tage of the rules of evidence. They will

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.020 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10259 never walk out the door. What we are seized pursuant to a search warrant. Common Article 3. In Hamdan, the Su- talking about is whether we will have That was a very practical provision. preme Court held that Common Article legitimacy to impose the most difficult We are not going to require a soldier, a 3 applies to all members of al-Qaida, sanction on an individual, the most se- special forces operator who is running terrorists, anyone who comes into our vere sanction. To be consistent with through the woods of some foreign control, not only in the areas of fair our value as a nation, I believe we have land, to produce a search warrant when trials, but also in the areas of treat- to have procedures that are proce- he picks up valuable intelligence mate- ment. durally legitimate, that are fair and rial. But I want to clarify this because are perceived that way. But the bill before us deletes the lim- this is often, I think, distorted and per- There is another issue here, not just itation to evidence seized outside the haps deliberately so. Many opponents in terms of our moral standing. It is a United States. As a result, the bill au- of this legislation have stated that very practical one. I have suggested it thorizes the use of evidence that is ‘‘terrorists should not be given the before. How we treat these people will seized inside the United States without same rights as our military personnel.’’ be the standard with which our mili- a search warrant. This provision is not What they are, I think, imprecisely but tary personnel will be treated overseas. limited to evidence seized from enemy deliberately, perhaps, suggesting is We will surrender the right to condemn combatants. It does not even preclude that we are attempting to treat these those people who may in the future the seizure of evidence without a war- individual terrorists as prisoners of hold our soldiers if they choose to use rant when that evidence is seized from war. And that is not the case. There procedural gimmicks, if they want to United States citizens. are four Geneva Conventions. The first stage show trials rather than real If you want an invitation to irrespon- two protect sick and injured soldiers. trials, if they want to punish an Amer- sible conduct within the United States, The fourth protects civilians in areas ican fighting man or woman without disregarding our principles of justice of hostilities. any regard for the principles and prac- and the Constitution of the United The third convention—not the third tices of international law. That is, I States, it might be found here because, Common Article—the third Geneva think, the issue before us today. frankly, we have the obligation to es- Convention deals with prisoners of war, The substitute Senator LEVIN has of- tablish rules we can live with. No one our soldiers who fall into the hands of fered today is one we supported on a bi- is arguing with trying to create some hostile forces. These provisions are partisan basis in the committee. It was type of situation in which a soldier has very clear about how POWs must be a strong, good bill. It represented not to pull out his Black’s Law Dictionary treated. You only have to give your only our best principles, but it recog- and have his warrant and do all these name, rank, and serial number. That is nized that these principles could also things, but it is quite a bit different it. Beyond that, there is no question. and would also be applied in the fu- from police authorities here in the You cannot have any mental or phys- ture—we hope not—but certainly we United States. ical coercion. ‘‘[P]risoners of war who have to recognize the possibility that Additional problems with this bill: refuse to answer may not be threat- American military personnel will be in The committee bill, the one we sup- ened, insulted, or exposed to any un- the hands of hostile forces in the fu- ported in the Armed Services Com- pleasant or disadvantageous treatment ture. mittee, provided that the procedures of any kind.’’ The bill we had in the Armed Serv- and rules of evidence applicable in That is the way soldiers should be ices Committee did things this legisla- trials by general courts martial would treated—all of our soldiers. But the Su- tion before us undoes. For example, the apply in trials by military commis- preme Court never said that is the way committee bill prohibited the admis- sions, subject to such exceptions as the we have to treat these terrorists. What sion of statements obtained through Secretary of Defense determines to be they said is Common Article 3, which is cruel, inhuman, or degrading treat- ‘‘required by the unique circumstances in every Convention. It establishes a ment. The bill before us prohibits the of the conduct of military and intel- general baseline of the treatment of in- dividuals. POWs are treated at a much admission of statements obtained after ligence operations during hostilities or higher status because of their uni- December 30, 2005, through ‘‘cruel, in- by other practical need.’’ Establish a formed participation in armed conflict, human or degrading treatment,’’ but it rule saying: Listen, we are going to use because of their discipline, because of contains no prohibition against using the procedures for courts martial ex- the fact that we expect them to follow statements so obtained prior to Decem- cept if the Secretary says there is some rules, too. But people who fall into our ber 30, 2005. expedient circumstance. Because of hands who are enemy combatants do I do not think the Geneva Conven- hostilities, we have to make changes. not deserve that treatment. They are tions were in abeyance up until Decem- This approach is consistent with not going to get it here. But they have ber 30, 2005. I do not think the stand- Hamdan and the Supreme Court. to be afforded Common Article 3 pro- ards we should insist upon did not exist The bill before us reverses the pre- tection. It has been described as ‘‘a there. And very practically speaking, sumption. Instead of starting with the convention within a convention.’’ ask yourself, would we accept the re- rules applicable in trials by courts Common Article 3 of the Geneva Con- sponse from a foreign power who said: martial as the governing provision, and ventions mandates that all persons Oh, of course, we are going to follow then establishing exceptions, the Sec- taking no active part in hostilities, in- the Geneva Conventions. Of course we retary of Defense is required to make cluding those who have laid down their are not going to use abusive treatment trials by commission consistent with arms or been incapacitated by capture to obtain a confession, prior to Decem- those rules only when he considers it is or injury, are to be treated humanely ber 30, 2020 or 2015? I think this seri- practical. The exception has swallowed and protected from ‘‘violence to life ously weakens not only the legitimacy up the rule. and person,’’ and any ‘‘outrages upon of this approach but also our ability to As one observer has pointed out, this personal dignity, in particular, argue with compelling legal and moral provision is now so vaguely worded humiliating and degrading treatment.’’ force in the future that other nations that it could even be read to authorize Anyone in our custody has to be af- have to play by the rules. the administration to abandon the pre- forded the protections of Common Arti- There are other provisions here in sumption of innocence in trials by cle 3. this bill, and there are many of them military commissions, with the claim The PRESIDING OFFICER. The Sen- that I think alter dramatically what that military expedience requires a de- ator has used 12 minutes. we accomplished on a bipartisan basis, termination that the individual is Mr. REED. Mr. President, I know what was applauded by General Powell guilty, and then he or she may prove there are others who wish to speak. I and General Vessey and others. their innocence. That, I think, is a sig- ask unanimous consent for 2 additional For example, the committee bill pro- nificant retreat from the standards we minutes to simply summarize. vided that evidence seized outside of established. The PRESIDING OFFICER. Without the United States shall not be excluded There is another major issue here objection, it is so ordered. from trial by military commissions on that is so important, and it is often Mr. REED. We have to follow Com- the grounds the evidence was not confused; and that is with respect to mon Article 3. However, the bill we are

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.088 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10260 CONGRESSIONAL RECORD — SENATE September 27, 2006 considering today authorizes the Presi- With regard to interrogation tech- the statements are probative and were dent to interpret the Geneva Conven- niques, I have been deeply troubled by obtained prior to December 2005, which tions and provides that such interpre- the administration’s insistence on coincides with the enactment of the tations ‘‘shall be authoritative . . . as weakening the prohibition on the use Detainee Treatment Act. Statements a matter of U.S. law, in the same man- of torture and cruel and inhumane obtained after the enactment of the ner as other administrative regula- treatment. I strongly believe that we Detainee Treatment Act cannot be ad- tions.’’ I think we are verging on a sit- can give our military and intelligence mitted as evidence if they have been uation where the President, by defini- officers the tools they need to protect derived through interrogation tech- tion, by clarification, and by regula- the American public without aban- niques that amount to cruel, unusual, tion, could eviscerate these Common doning our basic decency. The use of or inhumane treatment as prohibited Article 3 protections. torture and other abusive techniques by the fifth, eighth, and fourteenth As I mentioned before, Secretary are not only morally repugnant, but amendments to the U.S. Constitution. Powell and others have stated this is they are ineffective and do great dam- Essentially we are saying that you the core ideal, principle, we have to use age to our Nation’s credibility with re- can’t admit statements derived from in dealing with all of these individuals. spect to our commitment to human coercive methods except for those Let me simply conclude, there is, I rights. They also put our soldiers at statements derived when we were using think, the presumption here that if we risk of being subjected to similar treat- coercive methods. Having these two do not establish procedures that basi- ment. different standards may be beneficial cally make it a slam dunk case, that Rather than redefining the Geneva from the prosecution’s perspective in we somehow are going to see these ter- Conventions to permit harsh interroga- terms of increasing the likelihood that rorists walk away, snub their noses at tion techniques by the CIA, as the ad- statements will be found admissible, us, and start actively conspiring ministration had proposed, the Repub- but it is not exactly the clarity we against us again. lican compromise legislation retro- should have with regard to standards of They will never see the light of day. actively revises the War Crimes Act so justice. No President will release these individ- that criminal liability does not result There are also a variety of problems uals. And no President will be forced from techniques that the United States regarding the rules on hearsay, the ap- under any international law to do so. may have employed, such as simulated peals process, the definition and retro- But we will be judged whether, when drowning, exposure to hypothermia, active application of crimes, and the we impose punishment—not detention, and prolonged sleep deprivation. admission of secret evidence, among punishment—on these individuals, we Under the Detainee Treatment Act, others. Overall, the rules and proce- have done it according to our prin- which we passed last year to reaffirm dures contained in the proposed legisla- ciples that we can argue before the the prohibition on torture, the mili- tion fall short of the basic fairness re- world and the American people rep- tary is clearly prohibited from engag- quired in any criminal trial. resent our values; and we can insist ing in torture or cruel, degrading or in- I wish to talk about the provisions that other nations that may hold our humane treatment, as specified in the that relate to habeas corpus. One of the forces or civilians abide by the same recently issued Army Field Manual. most disturbing provisions in the un- principles. That is the issue here today. However, under the bill we are debat- derlying legislation pertains to the dis- That is why I support Senator LEVIN’s ing today, the CIA would be allowed to position of those prisoners who will substitute amendment. continue to subject detainees to harsh never be charged before a military I yield the floor. The PRESIDING OFFICER (Mr. interrogation techniques without fear commission or any court but who, in- of criminal liability. As the President stead, will be held indefinitely—or at COBURN). Who yields time? Mr. LEVIN. Mr. President, how much has stated, the ‘‘program’’ can con- least that option exists for our execu- time do I have? tinue. tive and our military to hold those in- The PRESIDING OFFICER. Ten min- In essence, the legislation defines dividuals indefinitely in confinement. utes 16 seconds. prisoner abuse and criminal liability in The current bill endorses the admin- Mr. LEVIN. Mr. President, I yield 9 such a way that the administration is istration’s practice of designating peo- minutes to the Senator from New Mex- able to argue that it is complying with ple, including U.S. citizens, I would ico. international and domestic legal re- point out, as ‘‘enemy combatants.’’ It The PRESIDING OFFICER. The Sen- straints while at the same time con- eliminates the ability of aliens—non- ator from New Mexico is recognized for tinue to use techniques that amount to U.S. citizens—to bring habeas claims 9 minutes. abuse under international treaty obli- or other claims related to their deten- Mr. BINGAMAN. Mr. President, I gations. tion or their treatment or their condi- thank my colleague from Michigan for There is also a fundamental lack of tions of confinement. yielding me time and I also thank him clarity with respect to what conduct Whereas the previous attempt to for bringing forth this amendment. this legislation forbids. For example, strip the Federal courts of jurisdiction I strongly support his proposal, es- when asked if water-boarding is per- over these individuals under the De- sentially, to take the legislation, the mitted under this bill, Senator McCAIN tainee Treatment Act applied only to agreement that was worked out in the has said that it would not be allowed. individuals held by the Department of Armed Services Committee by our col- But if one asks the administration, it Defense at Guantanamo, this current leagues, and to substitute that for will only say CIA interrogation tech- legislation applies to any alien who is what is now before us. niques are classified and that the bill detained by the United States any- This overall military commissions allows the CIA to continue to use so- where in the world, including those bill has three general areas of focus: called alternative interrogation tech- who are held within the United States. first, the rules pertaining to the inter- niques—techniques which our military The current language also makes it rogation of prisoners; second, the pro- is prohibited from employing. clear that the elimination of judicial cedures we should have in place for the I think there is little doubt that review is retroactive. It applies to all trial of individuals who are brought be- these disturbing practices continue. cases involving the detention of indi- fore military commissions; and, third, This type of legal ambiguity has not viduals since September 11, 2001. the rights of those prisoners who under served us well with respect to the Various of my colleagues have al- this bill will continue to be held with- treatment of detainees, and we should ready talked about the right of habeas out being charged at Guantanamo or be taking this opportunity to provide corpus and its importance in our sys- elsewhere in the world, or even in this greater legal clarity, not further mud- tem of justice. Simply stated, the abil- country. dying the water. ity to file a writ of habeas corpus is the Let me take a moment to briefly I am also concerned about the rules right of a person to challenge the legal comment on these first two issues be- and procedures of the newly con- basis for their detention. fore I discuss the third issue, which I stituted military commissions. The bill Habeas, which is also known as the believe has not received the attention permits statements allegedly derived Great Writ, is one of the most funda- that it deserves. through coercive means to be used if mental protections against arbitrary

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.090 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10261 governmental power. This right dates Journal article earlier this year, an es- Senators should know that if the lan- back to the Magna Carta of 1215, and is timated 70 percent of the individuals guage in the existing bill is removed, enshrined in Article I, section 9, clause held at Guantanamo were wrongfully this Congress has already drastically 2 of the U.S. Constitution. Filing a ha- imprisoned. BG Jay Hood, the former limited judicial review. beas petition doesn’t entitle a person commander at Guantanamo, was It is important to look at the big pic- to a full-blown trial, but it does pro- quoted as saying, ‘‘Sometimes, we just ture. As general matter, this bill puts vide a means to ask whether the per- didn’t get the right folks.’’ in place procedures to try suspected son’s confinement is in compliance I don’t believe that all of those being terrorist by military commissions with the law. It doesn’t confer any ad- held at Guantanamo are innocent. whereby the only ones who will have ditional constitutional rights; it sim- Clearly, they are not. Those who are a an opportunity to prove their inno- ply allows a person to ask whether threat need to be held accountable for cence will be the high-level prisoners. their depravition of liberty is con- their actions, need to be tried before The suspected low-level prisoners will sistent with the Constitution. properly constituted military commis- continue to linger in indefinite impris- One of the principal arguments pro- sions or criminal courts. Those who are onment without charges. Before the ponents for removing this protection not a threat need to be released and re- previous military commissions were have put forward in the past was that turned to their country of origin. The found unconstitutional, the adminis- maintaining habeas rights leads to un- point is that judicial review allows us tration charged approximately 10 de- necessary and frivolous litigation. The to sort the good from the bad and focus tainees with crimes. None were ever fact is that these arguments mis- our efforts on those who in fact do pose tried. The President has indicated that construe the nature of habeas peti- a threat to our country. he now intends to charge the 14 CIA tions. The reality is, in my view, that It is during times like these that our prisoners, or at least some of them, court-stripping provisions will not, in Founding Fathers envisioned habeas under the newly constituted military fact, lead to less litigation. For exam- corpus rights needed to be preserved. If commissions. ple, if this measure is passed, the judicial review is not required as a Therefore, the reality is that of the courts will be forced to consider wheth- matter of law, it makes sense from a approximately 450 prisoners now at er this provision amounts to a suspen- policy standpoint to preserve these es- Guantanamo only about 25 will likely sion of the writ of habeas corpus. If it sential rights in the law. Having a receive trials. Under the compromise is determined that it does suspend the court determine whether a person’s de- legislation, the remaining prisoners, writ of habeas corpus, the courts will tention by the executive branch is con- many of whom have been imprisoned determine whether the suspension sistent with our Constitution and laws for more than 4 years, will not be held clause of the Constitution has been sat- does not inhibit this Nation’s ability to accountable nor will they be able to isfied. Our Constitution is very clear. fight terrorism. To the contrary, en- prove their innocence—instead, they It says Congress is afforded the author- suring that we are holding the right will be denied the right to challenge ity to suspend habeas in cases of rebel- people not only allows us to focus on the legality of their continued confine- lion and invasion. At a time when our those who truly pose a threat, it also ment. courts are open and functioning, I will help to reduce criticism in the As Rear Admiral John Hutson, Rear think a person would be hard-pressed world community that the United Admiral Guter, and Brigadier General to argue that public safety requires re- States is not complying with its own Brahms, pointed out in a letter to the moving judicial review. One would be laws and Constitution. Senate Armed Services Committee, the hard-pressed to argue that we are in a In a letter I received from over 30 effect of this legislation would be to period of rebellion, or that we have suf- former diplomats, they stated: give greater protections to the likes of fered an invasion, as that phrase was To proclaim democratic government to the Khalid Sheikh Mohammed than to the intended by our Founding Fathers. rest of the world as the supreme form of gov- vast majority of the Guantanamo de- The one other issue, of course, that I ernment at the very time that we eliminate tainees, who claim that they have think is important is that the Con- the most important avenue of relief from ar- nothing to do with al-Qaida or the stitution gives Congress the power to bitrary governmental detention will not Taliban. suspend the writ. Here we are not just serve our interest in the larger world. Mr. President I ask unanimous con- suspending the writ; this proposal is to I agree with that statement. sent that this letter be printed in the abolish the writ, to permanently elimi- It is also important to note that RECORD following my remarks. nate this right, this protection for this should the current habeas language be The PRESIDING OFFICER. Without group of individuals. In my view, it removed from the bill, Guantanamo objection, it is so ordered. (See exhibit makes more sense to simply allow the prisoners would still be prohibited from 1.) courts to hear the cases that are pend- bringing habeas claims in the future Mr. BINGAMAN. Most troubling of ing in the courts and determine the le- under current law. In the Rasul deci- all, with this legislation Congress is gality of the detention that is occur- sion, the Supreme Court held that U.S. giving its consent to the executive ring. It makes more sense to do that courts have jurisdiction to hear habeas branch to continue to unilaterally des- than it does to litigate over whether claims of Guantanamo prisoners. Con- ignate individuals as enemy combat- those individuals who are incarcerated, gress subsequently passed the Detainee ants and imprison them indefinitely. in fact, have a right to have their cases Treatment Act, which contained the We are saying that the President can heard. Graham-Levin compromise language pick up whoever he wants, designate If what the administration says is regarding the elimination of habeas. them an enemy combatant and hold true and the indefinite imprisonment Graham argued that the language was them without substantive judicial re- of individuals at Guantanamo or else- retroactive and barred all pending view. where is legal, then why does the ad- cases, and Levin argued that the lan- I know that many of my colleagues ministration continue to fight so hard guage only eliminated cases initiated have worked to ensure that the mili- to eliminate the ability of the courts after the enactment of the act. tary commission procedures comply to hear those cases? If these individ- In assessing whether the Supreme with our international legal obliga- uals are in fact ‘‘the worst of the Court had jurisdiction to hear the tions under the Geneva Conventions worst,’’ which we have been assured, Hamdan case, the Court found that be- and that our Nation’s soldiers are not then why is it so difficult to provide cause congressional intent was unclear put at risk by diminished standards. I some factual basis for continuing to de- it would be inappropriate to view the support these efforts, and believe that tain them? statute as retroactive. As such, if the the trial of these suspected terrorists is The likelihood is that some, and status quo is maintained, we would long overdue. However, passing this maybe many, of these prisoners have still have language on the books that flawed bill is not the solution. very little to do with terrorism. Ac- prohibits any future habeas claims Mr. President, this debate is about cording to a 2002 CIA report, most of from being filed on behalf of Guanta- who we are as a people and whether we the Guantanamo prisoners ‘‘did not be- namo prisoners. Although I disagree are going to continue to adhere to the long there.’’ According to a Wall Street with the law as it currently stands, rule of law and basic human rights. It

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.012 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10262 CONGRESSIONAL RECORD — SENATE September 27, 2006 is about our fundamental values as a be held as ‘‘enemy combatants.’’ It is critical standards that respect life and human people. The U.S. Constitution was to these detainees, who have not been beings. But at the same time, we are crafted by men who were keenly aware charged with any crime, that Congress not engaged in a war on terror. Let there of the potential abuse that could result strip the courts of jurisdiction to hear their be no mistake about that. pending habeas cases. The habeas cases are from providing the executive branch the only avenue open for them to challenge One of the challenges in this war on with unrestrained powers with respect the bases for their detention—potentially terror is with these individuals who are to individuals’ liberties. The Constitu- life imprisonment—as ‘‘enemy combatants.’’ willing to act as human bombs. It tion was crafted to be relevant in the We strongly agree with those who have ar- doesn’t have a lot of precedent. We good times, as well as in the times gued that we must arrive at a position wor- have been very careful to try to strike when our Nation faces domestic or for- thy of American values, i.e., that we will not a balance between the standards and eign threats. allow military commissions to rely on secret principles that guide this Nation, at It deeply concerns me that with this evidence, hearsay, and evidence obtained by torture. But it would be utterly inconsistent, the same time recognizing that we bill we are sanctioning the indefinite and unworthy of American values, to include need the tools to fight this war on ter- imprisonment of people without language in the draft bill that would, at the ror—fighting it in a way that not only charges. This is wrong. Should this leg- same time, strip the courts of habeas juris- enables our men and women in the islation pass as currently drafted, his- diction and allow detainees to be held, poten- Armed Forces in forward deployments tory will not look kindly on this mis- tially for life, based on CSRT determinations to carry out their missions but to pre- taken endeavor. that relied on just such evidence. The effect serve and protect us here at home from Frankly, the notion that Congress is would be to give greater protections to the tragic incidents like we experienced on willing to provide the President with likes of Khalid Sheikh Mohammed than to the vast majority of the Guantanamo detain- 9/11. the authority to indefinitely imprison ees, who claim that they had nothing to do As I have worked through each of people without ever having to charge with al Qaeda or the Taliban. these provisions and consulted with my them is quite astonishing. What is We are on a course that should have been colleagues, I always bring up the im- more amazing is that the Senate ap- plotted and navigated years ago, and we ages of 9/11. I think our President has pears prepared to do so after one brief might be close to consensus. We ask that, in done his best to try to prepare this Na- hearing in the Senate Judiciary Com- the closing moments of your consideration of tion, in many ways, to protect our- this vital bill, you restore the faith of those mittee on the issue and with little sub- selves from the repetition of that or stantive debate on the Senate floor. who long have been a voice for simple com- mitment to our longstanding basic prin- any incident like it—a lesser incident We must also remember that in es- ciples, to our integrity as a nation, and to or a greater incident. It is a constant tablishing these military commissions the rule of law. We urge you to oppose any challenge. we are not solving the Guantanamo further erosion of the proper authority of But the bill before this body rep- problem. This legislation will result in our courts and to reject any provision that resents our best product that we could a flurry of legal challenges. The admin- would strip the courts of habeas jurisdiction. achieve, working together and in con- istration’s handling of detainee issues As Alexander Hamilton and James Madi- son emphasized in the Federalist Papers, the sultation with a wide range of individ- has brought us Guantanamo, Abu uals who have an expertise in these Griab, and a series of Supreme Court writ of habeas corpus embodies principles fundamental to our nation. It is the essence complicated legal matters and can pro- decisions rejecting the administra- of the rule of law, ensuring that neither king vide to us their own corroboration of tion’s legal positions. Let us not com- nor executive may deprive a person of liberty our judgments as to how best to struc- plicate the problem by enacting the without some independent review to ensure ture this legal document and strike the provisions. that the detention has a reasonable basis in balance that we must between our Mr. President, I yield the floor. law and fact. That right must be preserved. standards of law and our recognition of EXHIBIT 1 Fair hearings do not jeopardize our security. They are what our country stands for. international law. I think that is the SEPTEMBER 12, 2006. Sincerely, hallmark of what Senators MCCAIN, Senator JOHN WARNER, JOHN D. HUTSON, GRAHAM, and myself set out to do—to Chairman, U.S. Senate Committee on Armed Rear Admiral, JAGC, make sure this Nation cannot be per- Services, U.S. Senate, Washington, DC. USN (Ret.). Senator CARL LEVIN, ceived as trying to rewrite in any way DONALD J. GUTER, Ranking Member, U.S. Senate Committee on Common Article 3, which is the law of Rear Admiral, JAGC, Armed Services, U.S. Senate, Washington, our land, I remind citizens who are fol- USN (Ret.). DC. lowing this debate. It is the inter- DAVID M. BRAHMS, We find it necessary yet again to commu- Brigadier General, national treaties to which we, with the nicate with you about issues arising out of USMC (Ret.). advice and consent of the Senate and our policies concerning detainees held at that of the President, acceded and Guantanamo Bay. It would appear that each The PRESIDING OFFICER. Who signed, and it has become part of the time the U.S. Supreme Court speaks, efforts yields time? are taken to reverse by legislation the deci- Mr. WARNER. Mr. President, we are law of the land. I am proud of the work sion of the Court. We refer, of course, to the prepared to yield back the time on this we have done, certainly, in that com- Supreme Court’s Rasul and Hamdan decisions side. First, I simply say to my col- plicated area, as well as others. and to the provision in the Administration’s leagues that this has been a good de- Mr. President, at this time, I am pre- proposed Military Commissions Act of 2006 bate. But I assure colleagues that the pared to yield back all the time on this that would strip the federal courts of juris- side and ask for the yeas and nays. diction over even the pending habeas cases bill now before them has been very that have been brought by the detainees at carefully reviewed by the Department The PRESIDING OFFICER. Is there a Guantanamo to challenge the basis for their of Justice, and I have even reached out sufficient second? There is a sufficient detention. We urge you to reject any such to scholars—lawyers who I know have second. habeas-stripping provision. a considerable depth of knowledge The yeas and nays were ordered. As we have argued and agreed since 9/11, it about international matters as well as Mr. LEVIN. Mr. President, there is is necessary for Congress to enact legislation our own fabric of law as it relates to no question that we have to fight the to create military commissions that recog- war on terrorism, and we can win that nize both the basic notions of due process criminal prosecution. I myself served and the need for specialized rules and proce- as assistant U.S. attorney for close to 5 war, but we can do so without compro- dures to deal with the new paradigm we call years. mising the very principles that govern the war on terror. This effort must cover We bring before this Chamber a work this Nation and have given us strength those already charged with violating the product which we believe is consistent and attract us to so many other na- laws of war and those newly transferred to with international as well as domestic tions. Those principles are com- Guantanamo Bay. law. It strikes a balance. We have no promised in the bill before us. They But the military commissions we are now intention to try to accord aliens en- were not compromised in the com- fashioning will have no application to the vast majority of the detainees who have gaged as unlawful combatants with all mittee bill that passed on a bipartisan never been charged, and most likely never the rights and privileges of American vote. will be charged. These detainees will not go citizens, but we recognize that they are Here are two quick examples of how before any commissions, but will continue to human beings, and this country has our basic principles are compromised

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.015 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10263 in this bill: Evidence shall not be ex- standard that judge cannot violate is The assistant legislative clerk called cluded from trial by military commis- the standard of torture. If that case the roll. sion on the grounds that the evidence can be made, then that judge has no Mr. MCCONNELL. The following Sen- was not seized pursuant to a search ability to admit any evidence which is ators were necessarily absent: the Sen- warrant. In other words, in the United tantamount to torture. I ask my col- ator from Arizona (Mr. MCCAIN) and States of America, evidence can be league, is that not correct? the Senator from Maine (Ms. SNOWE). seized from an American citizen, not Mr. LEVIN. The statement is correct. Mr. DURBIN. I announce that the an enemy combatant—it can be seized The issue, of course, which we are de- Senator from Hawaii (Mr. INOUYE) is from any one of us without a search bating is why, relative to statements necessarily absent. warrant and used in one of these trials. obtained prior to December 30, 2005, is The PRESIDING OFFICER. Are there This language in the bill which is be- another test omitted, which is present any other Senators in the Chamber de- fore us would authorize the use of that for statements obtained after Decem- siring to vote? evidence so seized. That is a funda- ber 30, 2005, which are statements that The result was announced—yeas 43, mental compromise with the principles are obtained through cruel and inhu- nays 54, as follows: that have governed this Nation. We man treatment. That is the issue which [Rollcall Vote No. 254 Leg.] have never allowed testimony and I raised. YEAS—43 statements that have been obtained Mr. WARNER. Lastly, Mr. President, Akaka Durbin Mikulski through cruel and inhuman treatment I ask my colleague, he makes reference Baucus Feingold Murray to be introduced into evidence. Yet to the illegal searches and seizures, Bayh Feinstein Nelson (FL) that is the way the bill is written. which is the fourth amendment to the Biden Harkin Obama Bingaman Jeffords Pryor The PRESIDING OFFICER. The Sen- U.S. Constitution. That Constitution Boxer Johnson Reed ator’s time has expired. does not give protection to aliens who Byrd Kennedy Reid Mr. LEVIN. Mr. President, I ask are the subject of these trials; am I not Cantwell Kerry Rockefeller Carper Kohl Salazar unanimous consent for 30 additional correct in that? Chafee Lautenberg Sarbanes seconds to finish that statement. Mr. LEVIN. I think that is true. It Clinton Leahy Schumer Conrad Levin Mr. WARNER. I have no objection. may or may not protect aliens, but it Stabenow The PRESIDING OFFICER. Without Dayton Lieberman does protect American citizens. And Dodd Lincoln Wyden objection, it is so ordered. the language on page 21 does not pro- Dorgan Menendez Mr. LEVIN. I thank the Chair. tect American citizens from seizures NAYS—54 A second example of how a funda- that are illegal. It says: mental principle is compromised in the Alexander DeWine Martinez Anything which is seized without a search Allard Dole McConnell bill before us is, if a statement is ob- warrant is allowable into these trials. Allen Domenici Murkowski tained through cruel and inhuman It is not limited to material that is Bennett Ensign Nelson (NE) Bond Enzi Roberts treatment of somebody, for the first seized from aliens or material which is time in American jurisprudence, this Brownback Frist Santorum seized from enemy combatants. It says Bunning Graham Sessions bill would apparently say that state- illegally obtained material can be ad- Burns Grassley Shelby ment is allowable in evidence if it was mitted into this trial, period. Burr Gregg Smith acquired before December 30, 2005. That Chambliss Hagel Specter We had such a restriction in the bill Coburn Hatch Stevens is unlike statements that are acquired which came out of committee so that it Cochran Hutchison Sununu after December 30, 2005, where there was limited to evidence which was Coleman Inhofe Talent Collins Isakson Thomas are no ifs, ands, or buts, there are no seized abroad, for instance. That would other tests that need to be applied—if Cornyn Kyl Thune be fine because they may not have the Craig Landrieu Vitter it was obtained through cruel and in- fourth amendment that we do. But in Crapo Lott Voinovich human treatment, it is not admissible the bill which is now before us, there is DeMint Lugar Warner into evidence. That is a fundamental no such limitation. NOT VOTING—3 principle which is not followed for I will read the one sentence: Inouye McCain Snowe statements obtained before December 30, 2005, in the bill before us. That is Evidence shall not be excluded— The amendment (No. 5086) was re- another example of why the substitute, Shall not be excluded— jected. I hope, will be adopted, which is the from trial by military commission on the Mr. WARNER. Mr. President, I move committee bill—a bipartisan bill—that grounds that the evidence was not seized to reconsider the vote, and I move to is now before us. pursuant to a search warrant or other au- lay that motion on the table. Mr. WARNER. Mr. President, I ask to thorization. The motion to lay on the table was reclaim about 6 minutes of my time so In the substitute bill, that allowance agreed to. that I can engage my colleague in a of illegally seized evidence is limited to Mr. WARNER. Mr. President, the colloquy. evidence which is not seized from managers, working with our leader- The PRESIDING OFFICER. The Sen- American citizens here. So that dis- ship, of course, have a designated num- ator has that right and may reclaim tinction has been obliterated in the bill ber of amendments. My understanding his time. which is before us. at this time is that the Senator from Mr. WARNER. Mr. President, I wish Mr. WARNER. Mr. President, we Pennsylvania will be recognized for the to make clear that category of evi- have clearly debated it, but I want to purpose of proposing an amendment. dence cannot reach those established make, in conclusion, the observation The PRESIDING OFFICER. The Sen- standards of torture. No evidence that that no evidence which is the con- ator from Pennsylvania is recognized. was gained by means that are tanta- sequence of torture can be admitted. AMENDMENT NO. 5087 mount to the torture can be admitted. The aliens are not entitled to the con- (Purpose: To strike the provision regarding Mr. President, I ask my colleague, stitutional provisions of the fourth habeas review) am I not correct in that statement? amendment and, therefore, I urge our Mr. SPECTER. Mr. President, I call Mr. LEVIN. That is correct. That is colleagues to think carefully through up amendment No. 5064. not in dispute. those arguments which we believe we The PRESIDING OFFICER. The Sen- Mr. WARNER. Does the Senator con- have fully answered and carefully writ- ator is advised we have No. 5087 at the cur in that statement? ten this bill to be in conformity with desk? Mr. LEVIN. I surely do. We are talk- our Constitution. Mr. SPECTER. The amendment ing here about cruel and inhuman Mr. President, I yield back the re- which I seek to call up, Mr. President, treatment. mainder of my time. is one which proposes to strike section Mr. WARNER. Correct, but the judge The PRESIDING OFFICER. The 7 of the Military Commission Act en- of the court is going to look at that question is on agreeing to amendment tirely. evidence. We have set forth certain No. 5086. The yeas and nays have been Mr. WARNER. Mr. President, if the standards that have to be met, but one ordered. The clerk will call the roll. Senator will yield for a moment, I ask

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.093 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10264 CONGRESSIONAL RECORD — SENATE September 27, 2006 the Chair to recite the unanimous con- habeas corpus was established in the act, left it to the Supreme Court of the sent agreement with regard to the Magna Carta in 1215 when, in England, United States. That took a long time, amendment of Senator SPECTER, the there was action taken against King to have these cases come through the time limitation being? John to establish a procedure to pre- judicial process. The PRESIDING OFFICER. The vent illegal detention. Finally, in June of 2005 the Supreme amendment has 2 hours equally divided What the bill seeks to do is to set Court ruled in three major cases: on it. back basic rights by some 900 years. Hamdi v. Rumsfeld, Rasul v. Bush, and The clerk will report. This amendment would strike that pro- Rumsfeld v. Padilla. The Supreme The assistant legislative clerk read vision and make certain that the con- Court of the United States rejected the as follows: stitutional right and the statutory argument of the Government that the The Senator from Pennsylvania [Mr. SPEC- right—but fundamentally the constitu- President had inherent power under ar- TER], for himself and Mr. LEAHY, Mr. DODD, tional right of habeas corpus—is main- ticle 2 and could act on that constitu- and Mr. FEINGOLD, proposes an amendment tained. The core provision is contained tional authority, and the Supreme numbered 5087: in article I, section 9, clause 2 of the Court said that habeas corpus was ef- On page 93 strike line 9 and all that follows U.S. Constitution, which states: fective. through page 94, line 13. The privilege of the Writ of Habeas Corpus In Rasul v. Bush, the Supreme Court Mr. LEAHY. Mr. President, will the shall not be suspended, unless when in Cases said that it applied even to aliens. It Senator yield for a couple of clarifica- of Rebellion or Invasion the public Safety didn’t have to be a citizen; that the tions? may require it. Constitution draws no distinction be- Mr. SPECTER. I do yield. We do not have either rebellion or in- tween Americans and aliens held in Mr. LEAHY. Mr. President, in stating vasion, so it is a little hard for me to custody and said the writ of habeas the time, isn’t there also the remainder see, as a basic principle of constitu- corpus applied. of the time? I did not use my full 45 tional law, how the Congress can sus- In the case of Hamdi v. Rumsfeld, minutes this afternoon. Doesn’t the pend the writ of habeas corpus in the Justice O’Connor had this to say: All Senator from Vermont have some re- face of that flat language. When you agree that absent suspension, the writ maining time on this amendment? have an issue of constitutionality, how of habeas corpus remains available to The PRESIDING OFFICER. The Sen- can constitutionality be determined every individual detained within the ator from Vermont has remaining time and interpreted except in the Court? United States. on the bill. We had a very extended discussion of That was held to apply to Guanta- Mr. LEAHY. How much time is that? this in the confirmation of Chief Jus- namo, since the United States con- The PRESIDING OFFICER. The Sen- tice Rehnquist, and the Chief Justice trolled Guantanamo. ator from Vermont has 23 minutes on said that the Congress of the United Justice O’Connor went on to say that the bill. States lacked the authority to remove under the U.S. Constitution, article I, Mr. LEAHY. Mr. President, am I cor- the jurisdiction of the Federal courts section 9, clause 2: rect that the amendment is offered on on issues involving the first amend- The privilege of the Writ of Habeas Corpus behalf of the distinguished senior Sen- ment. shall not be suspended, unless when in Cases ator from Pennsylvania and myself, The same thing would apply gen- of Rebellion or Invasion the public Safety the distinguished senior Senator from erally. It is a constitutional question. may require it. Connecticut, and the distinguished But here you have it buttressed in ad- Justice O’Connor then goes on to de- Senator from Wisconsin, Mr. FEIN- dition by an express provision by the lineate statute 2241, which sets the out- GOLD? Framers, focusing on the writ of ha- line of the procedures, and then says The PRESIDING OFFICER. Without beas corpus in and of itself, and saying habeas petitioners would have the objection, it is so ordered. you can’t suspend it, so that anyone same opportunity to present and rebut Mr. LEAHY. I ask and also the dis- who can make an argument about facts that court cases like this retain tinguished Senator from North Dakota, stripping jurisdiction—I don’t think it some ability to vary the ways in which Mr. DORGAN. lies on a constitutional issue generally they do so as mandated by due process. The PRESIDING OFFICER. Without because if it does, who is going to in- What has happened in Guantanamo objection, it is so ordered. terpret the Constitution if the Court with respect to the proceedings under Mr. REID. If the Senator from Penn- does not have jurisdiction? But the the Combat Status Review Tribunal, sylvania will yield just for a question? writ of habeas corpus is so important referred to as CSRT, demonstrates the Mr. SPECTER. I do. and so fundamental and so deeply in- importance of having some impartial Mr. REID. I have had conversations— grained in our tradition, going back to judicial review to find what, in fact, I have not spoken with the Senator 1215 against King John, that the Fram- has happened. These tribunals operate from Pennsylvania, but I have spoken ers made it expressed and explicit. with very little information. Somebody with his staff on a number of occasions. It appears to me that this is really is picked up on the battlefield. There is I had the understanding that the Sen- dispositive and you don’t really need no record preserved as to what that in- ator would be able to give Senator several hours to develop it. But I shall dividual did. If there was a weapon in- LEAHY a few minutes off of his time to proceed on the matter as to how we got volved, it has been placed with many speak on this amendment? where we are and what the Supreme other weapons, and it can’t be identi- Mr. SPECTER. I will consider that, Court has had to say in four major fied. The proceedings simply do not depending on how the argument goes. I cases in the course of the last 18 comport with basic fairness because appreciate very much the contribution months. the individuals do not have the right to of the distinguished ranking member. I The Congress of the United States know what evidence there is against do not know how many people on this has the express responsibility under ar- them. side are going to seek time, but I do be- ticle I, section 8 of the U.S. Constitu- Repeatedly, the Combat Status Re- lieve we can accommodate the request tion to establish rules governing people view Tribunal said the information is of Senator LEAHY. But I want to see captured on land and sea. But the Con- classified and the individual can’t have how the argument goes before making gress of the United States did not act it. a commitment. after 9/11, and we had people detained There was specific reference to the The PRESIDING OFFICER. The Sen- at Guantanamo. Legislation was intro- proceedings in the CSRT in the case ac- ator from Pennsylvania is recognized. duced by many Senators. Senator DUR- tion en re: Guantanamo Detainee Mr. SPECTER. Mr. President, sub- BIN and I introduced a bill. Senator Cases, 355 Fed. Sup. Section 443, 2005. stantively, my amendment would re- LEAHY introduced a bill. Many Sen- The U.S. District Court for the District tain the constitutional right of habeas ators introduced legislation, but the of Columbia criticized the way CSRTs corpus for people detained at Guanta- Congress did not act on it. Congress did required detainees to answer allega- namo. The bill before the Senate strips not act on it because it was too hot to tions based on information that cannot the Federal district court of jurisdic- handle. What resulted is what results be disclosed to the detainees. The tion to hear these cases. The right of many times—Congress punted. It didn’t Court described what might be referred

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.096 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10265 to as a comical scene, where the de- before the Combat Status Review Tri- being suspended only in the case of in- tainee said he couldn’t answer the alle- bunal were just totally insufficient, re- vasion or rebellion, and again notes the gations whether the detainee associ- flecting hearings where individuals obvious—that we do not face either an ated with a known al-Qaida operative were called in, they did not speak the invasion or rebellion. because the tribunal could not provide language, they did not have an attor- Mr. President, how much time of my the alleged operative’s name. ney, they did not have access to the in- hour remains? The detainee said: Give me his name. formation which was presented against The PRESIDING OFFICER. The Sen- The tribunal said: I do not know. them, and they were detained. ator has consumed 21 minutes. The detainee said: How can I answer Mr. President, documentation pre- Mr. SPECTER. Mr. President, that this? sented to the committee speaks elo- states the essence of the proposition. The detainee’s frustration reportedly quently and emphatically about the I reserve the remainder of my time led to laughter among all of the tribu- procedures which lack the most funda- and yield the floor. nal’s participants. And the District mental of due process. These individ- The PRESIDING OFFICER. Who Court then said: uals did not know what their charges yields time? The laughter reflected in the transcript is were; they were so vague and illusory, Mr. WARNER. Mr. President, if I understandable, and this exchange might have been humorous had the consequences of just like the detainee who was alleged could just use such time as I want, I the detainee’s enemy combatant status not to have an al-Qaida associate. They will not take much because I am anx- been so terribly serious and had the detain- wouldn’t even produce the man’s name. ious for my colleagues to address this ee’s criticism of the process not been so How do you know what the charge is? issue. piercingly accurate. Then they don’t have attorneys. Then The distinguished Senator from How can you sanction that kind of a they don’t know what the evidence is. Pennsylvania made the statement that proceeding? If it is not a sham, it cer- It is classified, and they are not told they have constitutional rights. I wish tainly is insufficient. As I reflect on it, what the evidence is. to respectfully sort of differ with the it is more than insufficient. It is, in This goes back, again, to Justice Senator. The Supreme Court, in the fact, a sham. O’Connor’s opinion where she says: Rasul case, ruled that rights of aliens When it was apparent that both the Habeas petitioners would have some oppor- held at Guantanamo Bay, Cuba, 28 committee bill and the administra- tunity to present and rebut facts. U.S.C, 2241—the Court did not reach tion’s position was going to strike ha- Well, how can you rebut facts when the question of the constitutional right beas corpus, the Judiciary Committee you do not know what the facts are? of habeas corpus that applies to a U.S. held on short notice a hearing on Mon- How can you rebut facts when the ma- citizen; of course, they being aliens. In day. We had a distinguished array of terial is classified and you are not told the Rasul case, the Court interpreted witnesses appear. LCDR Charles Swift what the alleged facts are? That is why the habeas corpus statute, section 2241, was present. The attorney who rep- it is so important that the courts be to apply to an alien held at Guanta- resented Hamdan before the Supreme open. namo Bay. That holding is based in Court gave very compelling evidence as I have had considerable experience large part due to the unique long-term to why habeas corpus was indispen- with habeas corpus when I was a pros- lease that the Court took judicial no- sable in order to have basic justice. ecuting attorney. When a habeas cor- tice of and other evidence brought be- Bruce Fein, ranking member of the pus petition is presented, it requires fore the Court, the long-term lease tan- Reagan administration in the Justice the government—the Commonwealth of tamount to U.S. territory. Department, was emphatic on his con- Pennsylvania when I was DA—to take For more than 50 years, the Court clusion about the need to retain habeas a close look at the case and to focus on held that aliens in military detention corpus. The very distinguished retired it. outside the United States had no right U.S. Navy rear admiral, John Hutson, One of the matters that was inserted to petition the Federal courts for re- who is now the dean of the Franklin into the RECORD from Mr. Sullivan, view of their military detention. So I Pierce Law Center, testified about his after he filed the petition for a writ of question whether you can elevate that experience and the importance of re- habeas corpus and was proceeding to to a constitutional status. taining habeas corpus. We called, as a gather evidence to present it, he says: Mr. SPECTER. If I may respond, Mr. matter of balance, other witnesses: Several months ago without notice to me President, I didn’t cite Rasul v. Bush David Rivkin and Bradford A. and without explanation, compensation, or for a constitutional proposition. I cited Berenson. apology, the United States Government re- Hamdi v. Rumsfeld, and I cited the I commend to my colleagues the tes- turned Mr. Abdul-Hadi al Siba to Saudi Ara- opinion of Justice O’Connor. But let timony of Thomas B. Sullivan, LCDR bia. me repeat it because it is the core con- Charles D. Swift, Bruce Fein, David B. So when the Government had to de- sideration. She said: Rivkin, Jr., Bradford A. Berenson, and fend, apparently they found out what All agree that absent suspicion the writ of John D. Hutson. the case was about. When they had to habeas corpus remains available to every in- Mr. President, the testimony that find out what the case was about, they dividual detained within the United States. was given by Thomas B. Sullivan was sent the detainee back to Saudi Arabia. Of course, that does include Guantanamo. especially poignant. Mr. Sullivan is a But here we have a very explicit Then Justice O’Connor goes on to man in his late seventies. He was U.S. statement by Justice O’Connor about say: Attorney for 4 years in the late 1970s. the right to rebut the facts. It simply United States Constitution, article I, sec- He has a distinguished law practice is not present in the proceedings which tion 9, clause 2, privilege of writ of habeas with Jenner & Block. He has been to happened before the Combat Status Re- corpus shall not be suspended unless when in Guantanamo on many occasions and view Tribunal. cases of rebellion or invasion the public safe- has represented many people who are Kenneth Starr, formerly Solicitor ty requires it. Then she says that all detained in Guantanamo. General, formerly judge on the Court of agree that suspension of the writ has His testimony was, as I say, espe- Appeals for the District of Columbia, not occurred here. Then she deals with cially poignant when he said that long could not be present at our hearing on the statute, 2241, and makes the com- after all of those in the hearing room Monday but submitted this letter dated ment that it sets the procedures, but are dead, there would be an apology September 24. I will not read it in its Justice O’Connor puts detention in the made if habeas corpus is denied, just as entirety but only the first sentence Hamdi case squarely on constitutional the apology was made after the deten- where he says: grounds. tion of the Japanese in World War II I write to express my concerns about the Mr. WARNER. There are a variety of being a denial of basic and funda- limitation on writ of habeas corpus con- divided opinions on that point. mental fairness, where we in the tained in the comprehensive military com- At this time, I will regain the floor United States pride ourselves on the missions bill. and discuss this issue. I am anxious to rule of law. Then, in the third paragraph, he cites hear from my two colleagues, one from He made reference to a number of in- article I, section 9, clause 2, which I South Carolina and one from Texas, dividual cases where the proceedings have referred to, about the privilege who seek recognition.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.098 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10266 CONGRESSIONAL RECORD — SENATE September 27, 2006 Mr. SPECTER. If I might be recog- ponderance of the evidence that the tanamo Bay. He is a great American. nized. person before them indeed fits within He gave me four or five stories about Mr. WARNER. I yield the floor on my the definition ‘‘enemy combatant.’’ how his client appeared before the time. There is a rebuttal of presumption in Combat Status Review Tribunal, and The PRESIDING OFFICER. The Sen- favor of the Government’s evidence. he had nothing but bad things to say ator from Pennsylvania. Our Federal courts will have the op- about the way his client was treated Mr. SPECTER. Mr. President, what portunity shortly to determine wheth- and the procedures in place. the distinguished chairman says is ac- er the combat status review tribunal is Once a week, I get a call from some- curate about Rasul, but you have constitutional due process. The reason body from South Carolina who says Hamdi, which puts it on constitutional I say that is because under the De- their family member was screwed in grounds. It is that simple. tainee Treatment Act we passed last court. And then what I try to do is to I yield the floor. year, every detainee at Guantanamo make sure we listen to them respect- Mr. WARNER. I yield such time as Bay will have their day in Federal fully but understand that there are a the distinguished Senator from South court. lot of complaints about any system. Carolina desires. After the military renders their deci- Mr. Sullivan’s complaints got me Mr. GRAHAM. Mr. President, this de- sion that they are an enemy combat- thinking, and I think there is a way to bate is a strength, not a weakness, in ant, as a matter of right each person provide some remedies that do not our country. can go to the DC Circuit Court of Ap- exist now without substituting judges In my opinion, the fundamental ques- peals, and the Federal DC Circuit Court for military officers when it comes to tion for the Senate to answer when it of Appeals will look at that case with wartime decisions. I will privately talk comes to determining enemy combat- two issues before them: Does this to him about that. ant status is, Who should make that CSRT process, the annual review I urge this Senate to think in broad determination? Should that be a mili- board, does it constitutionally pass terms. Do we really want to allow the tary decision or should it be a judicial muster as being adequate due process Federal judiciary to have trials over decision? not only under the Geneva Conventions every decision about who an enemy I am firmly in the camp that when it but under our Constitution to the ex- combatant is or is not, taking that comes to determining who an enemy of tent it applies? Second, was the deci- away from the military? Do we really the United States is, one who has sion rendered by that board finding the want the people who have been housed taken up arms and who presents a person enemy combatant by the pre- by our military to bring every known threat to our Nation, that is not some- ponderance of the evidence—the stand- lawsuit to man against the people thing judges are trained to do, nor ards and procedures involved, do they fighting the war and protecting us? should they be doing. That is some- pass muster? And in the individual I compliment Senator SPECTER be- thing our military should do. case, did they get it right? That is the cause in this new version they take the For as long as I have been a military structure for them to decide the issue conditions of confinement lawsuits off lawyer, Geneva Conventions article 4, set up in a constitutionally sound man- the table. There are 400-something where it talks about a competent tri- ner. cases that have been filed arising from bunal to decide whether a person is a The reason I oppose my chairman, for Guantanamo Bay detention. There is a civilian—lawful, unlawful, combat- whom I have great respect, is because $300 million lawsuit against Secretary ant—that competent tribunal has been the habeas process is a doctrine that is Rumsfeld. There are allegations that seen in terms of military people mak- normally associated with criminal law, people do not get enough exercise. It ing those decisions. and we are in a war. The Japanese and goes on and on and on. Never in the I have a tremendous respect for our German prisoners we interred in World history of warfare has the host country courts. We will follow whatever they War II never had access to our Federal allowed an enemy prisoner to bring a tell Congress to do because we are a courts to bring lawsuits against the court case against those people who are rule-of-law nation, but this Congress people who confined them—our own fighting the enemy on behalf of the has a role to play. troops—for a reason: it was a right not host country. That needs to stop. Unlike my chairman, Senator SPEC- given in international law to an enemy I am urging this Senate to dismiss TER, I believe the question before the prisoner, and it was not a right we gave under 2241 the right of habeas actions Congress is not whether an enemy com- to any prisoner we have held in the his- by enemy prisoners so that judges will batant noncitizen alien has a constitu- tory of our country consciously as Con- not take the role of the military. tional right to habeas corpus because I gress. Adopt anew what we did last year, al- don’t believe that is what the court has The problem in this case is the Gov- lowing the military to use a process said. The issue for the Congress is ernment argued that Guantanamo Bay that I believe is Geneva Conventions whether habeas corpus rights should be was outside the jurisdiction of the compliant, and then some, and have as given to an enemy combatant noncit- United States. Why is it important? It a backstop judicial review, where the izen under section 2241 and whether the is clear that our habeas statutes do not DC Circuit Court of Appeals can review military should make the determina- apply overseas. The Government lost the military’s decision. That way, we tion of who an enemy combatant is that argument. Chairman SPECTER is will have due process unknown to any versus judiciary. absolutely right. The court said that other war. That will keep the roles of What happens now is that when for legal purposes, Guantanamo Bay the responsible parties intact. The role someone is brought to Guantanamo falls within the confines of the United of the military in a time of war, I ear- Bay, very shortly after they arrive, the States. Section 2241, the habeas stat- nestly believe, is to control the battle- military will create a combat status ute, unless Congress says otherwise, field and to designate who is in bounds review tribunal that is supposed to be will apply to this environment. and out of bounds when it comes to the compliant with article 4 of the Geneva Now it is time for Congress to decide, battlefield. The role of the courts in a Conventions, a competent tribunal. in its wisdom, whether the Federal time of war is to pass muster and judg- When we look at the history of com- courts should be determining who an ment over the processes we create—not petent tribunals, normally they are enemy combatant is through a habeas substituting their judgment for the one person. We will have three people. action. Do we want that to reside in military but passing judgment over the Of the three people will be a military the military, where it has been for our infrastructure the military uses to intelligence officer—and it could be whole history, and allow Federal make these decisions. other officers within our military who courts to review the military decision, The problem with this war—there is have expertise in determining what the not substitute their judgment for the no capital to conquer, no navy to sink, battlefield situation is and who is in- military? no army to defeat. The people we are volved with the enemy forces and who It is not about who loves America fighting owe an allegiance to an idea, is not. That tribunal has an evi- and who is un-American. Mr. Sullivan not to a piece of property. They have dentiary standard to meet. The tri- came to my office yesterday. He is a no home to defend. They have an idea bunal must make a finding by a pre- lawyer representing detainees at Guan- they would like to sell, and they are

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.100 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10267 selling that idea, whether you want to Senator MCCAIN have done exemplary decision, I know the military looked at buy it or not. They are selling it in a work in maintaining the Geneva Con- the Army regulation that she cited and very brutal way. They are trying to get ventions and appropriate rules and to built the CSRT process off that con- good and decent people accepting their classify evidence. cept. I am of the opinion that the Com- view of the world because they are ter- When you talk about constitutional bat Status Review Tribunal does afford rified of the way the enemy behaves. issues and you talk about section 2241, the rights Justice O’Connor indicated This is a war unlike other wars in this I agree with the Senator, but how do and is more than the Army regulation regard. People do not wear uniforms, you deal with the flat terms of the would allow that she cited, and it is but the ideas the terrorists represent Constitution, ‘‘the privilege of the writ fully compliant with article 5 of the are not unknown to mankind. Hitler of habeas corpus shall not be suspended Geneva Conventions—competent tri- wore a uniform. He had the same view unless when in cases of rebellion or in- bunal—but if you look in that decision, of mankind as these people do: there vasion public safety may require it’’? she mentions an Army regulation as a are some people not worth living be- How do you deal with that if you do guide as to how to do this. I think the cause they are different. not have rebellion? military, the Department of Defense, We have to adjust, but we do not Mr. GRAHAM. Mr. Chairman, I guess has gone beyond that. need to change who we are. I am not one could make that argument. I have Mr. SPECTER. Well, Mr. President, asking this Senate to change who been assuming something from the be- there is flexibility, I agree, but the de- America is because we are fighting bar- ginning—that the Court’s decision in termination as to whether that flexi- barians. Quite honestly, we will never Rasul and Hamdi is a statement by the bility is adequate is up to the Court. win this war if we move in their direc- Court that because Guantanamo Bay That is what the Supreme Court has tion. Our goal is to get the world to falls within the jurisdiction of the said. move in our direction by practicing United States, it is section 2241 that we I yield the floor. what we preach. are dealing with. It is a statutory right The PRESIDING OFFICER. The Sen- I believe the way to balance the in- of habeas that has been granted to ator from Virginia. terests of our need to protect ourselves enemy combatants. And if there is a Mr. WARNER. I thank the Chair. and to adhere to the rule of law is to constitutional right of habeas corpus I would say to my colleague, there is apply the law of armed conflict, not given to enemy combatants, that is a an interesting thing we best watch criminal law. totally different endeavor, and it would here as we are trying to determine the The act of 9/11, in my opinion, was an change in many ways what I have said. rights of these people because it seems act of war, not a crime. And the prob- I do not know what the Court will de- to me if there is such a fundamental lem with this country is the people we cide, but if the Court does say in the right of constitutionality attached to are fighting were at war with us a long next round of legal appeals there is a this thing, then someone might argue: time before we knew we were at war constitutional right to habeas corpus Well, if it is actionable in Guanta- with them. Now we are at war. by those detained at Guantanamo Bay, namo—this lease thing is to me a fairly This administration, on occasion, in then the Senator is absolutely right. weak basis on which to do it—what my opinion, has tried to cut the cor- We would have to make a different about 18,000 in our custody in Iraq now? ners of the law of armed conflict. I em- legal determination. We would have to So we just better exercise a little cau- brace the law of conflict. I want to make a different legal analysis. And if tion as we begin to use that because if fully apply the actions of the United the Court does that, I will sit down we begin to extend habeas corpus to States. I embrace the Geneva Conven- with the Senator and we will figure out 18,000 in Iraq, we have a problem. tions. I want to apply it fully to the how to work through that. Mr. President, I yield the floor. war we are fighting even though our I am just being as honest with the Mr. SPECTER. Mr. President, I stip- enemy will not. But I am insistent, Senator as I know how to be. I think ulate that Senator WARNER is right with my vote and with my time in this this is a statutory problem, not a con- about Iraq on this point. Senate, that we fight the war and not stitutional problem. The PRESIDING OFFICER. The Sen- criminalize the war. Mr. SPECTER. Well, Mr. President, ator from Arizona. No enemy prisoner should have ac- the distinguished chairman of the Mr. KYL. Mr. President, I have a cess to Federal courts—a noncitizen, Armed Services Committee says he longer presentation, but what I would enemy combatant terrorist—to bring a does not want to come back and legis- like to do is respond specifically to the lawsuit against those fighting on our late again. If this bill is passed, we will argument Senator SPECTER is now behalf. No judge should have the abil- be right back here at a later date. making, and then Senator CORNYN has ity to make a decision that has been When the Senator from South Caro- longer remarks to make. historically reserved to the military. lina says it is not on constitutional Let me begin by saying that I have That does not make us safer. grounds, the plain English of the deci- the utmost respect for the chairman of There is due process in place for the sion says it is. But let me ask the Sen- the committee, my friend, the Senator enemy combatants at Guantanamo ator one further question; that is, you from Pennsylvania. And he is entitled Bay, Afghanistan, and Iraq that I be- fought hard to have classified evidence to be wrong once in a while. In this lieve is Geneva Conventions compliant. available in the trials, albeit a war matter, he is wrong. It was testimony There is judicial review consistent with crimes trial. And you have Justice before the committee on Monday that the military being the lead agency. I O’Connor saying they have to have the verifies that this is not a constitu- urge this Senate to adopt that and to opportunity to rebut facts. When these tional issue with respect to aliens. It is reject this amendment. proceedings are handled so much on only a constitutional issue with re- I yield the floor. classified information the detainees spect to citizens. Mr. SPECTER. Will the Senator from cannot see, would it not be consistent This legislation has nothing to do South Carolina respond to a question? with your approach on classified infor- with citizens. The decision cited by the Mr. GRAHAM. I will try. mation generally to at least have them Senator from Pennsylvania is the Mr. SPECTER. I direct an inquiry to know something about the charge so Hamdi decision, which dealt with a my colleague from South Carolina. they can rebut the facts? U.S. citizen. And, of course, the writ of Would the Senator respond to the ques- Mr. GRAHAM. If I may, I would in- habeas corpus applies to U.S. citizens. tion? vite the chairman—I cannot remember Our legislation does not. Mr. GRAHAM. Yes. I will try my what paragraph the language is in, but Here is what David Rivkin, a partner best. Justice O’Connor gave some guidance at Baker & Hostetler law firm, testified Mr. SPECTER. I didn’t want you to to the military—I think it is Army to on Monday. He said in this legisla- yield for a question because I didn’t Regulation 190-dash-something—that tion: want to interrupt your presentation. she indicated would be a proper mecha- We are giving [alien enemy combatants] a I begin by complimenting the Sen- nism or at least a guide of how to set lot more . . . than they are legally entitled ator from South Carolina for his excel- up due process rights for this adminis- to under either international [law] or the lent work. He and Senator WARNER and trative determination. So after that law in the U.S. constitution.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.101 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10268 CONGRESSIONAL RECORD — SENATE September 27, 2006 Now, let me just proceed from that. tion—only the case with respect to procedures were followed in the CSRT Our Supreme Court has held that U.S. U.S. citizens. hearing, and to judge whether the constitutional protections do not apply So I do not fear the Supreme Court CSRT process is consistent with the to aliens held outside of our borders. overturning what we are trying to do Constitution and with federal stat- The Johnson v. Eisentrager case, for here. One never knows what the Court utes—though no treaty lawsuits are au- example, rejected the view that the might do. And Senator SPECTER cer- thorized, pursuant to long-standing U.S. Constitution applies to enemy war tainly is correct that if it did, we precedent. prisoners held abroad, saying: would have to revisit this issue. I am Now I would grant, the DTA does not No decision of this Court supports such a totally confident, however, that this allow re-examination of the facts un- view. None of the learned commentators on legislation would be upheld and cer- derlying a prisoner’s detention, and it our Constitution has ever hinted at it. The tainly not be declared unconstitutional limits the review to the administrative practice of every modern government is op- based upon a view that the habeas pro- record. I commented on these provi- posed to it. visions apply to alien enemy combat- sions more extensively in remarks sub- In 1990, the Supreme Court re- ants. mitted for the RECORD on December 21. affirmed this view in the Verdugo case, Mr. President, the Specter amend- But as committee witness Brad saying: ment strikes at the heart of the litiga- Berenson noted at Monday’s Judiciary [W]e have rejected the claim that aliens tion reforms in this bill—it undercuts Committee hearing, quoting the Su- are entitled to Fifth Amendment rights out- the entire bill. The amendment would preme Court’s 2001 decision in St. Cyr, side the sovereign territory of the United undercut and override the carefully ‘‘the traditional rule on habeas corpus States. calibrated accountability and super- review of non-criminal executive de- That case also makes it clear that vision mechanisms negotiated by the tentions was that ‘the courts generally constitutional protections do not ex- Armed Services committee. And it did not review the factual determina- tend to aliens detained in this country would give enemy soldiers challenging tions made by the executive.’’’ And who have no substantial connection to their detention unprecedented access under the original common-law writ of this country. The Supreme Court there to our courts. It should be strongly op- habeas corpus, the facts in the said that aliens ‘‘receive constitutional posed. custodian’s return could not be con- protections when they have come with- Under the MCA, detainees already re- tested. Thus, although the DTA does in the territory of the United States ceive extremely generous process with- not allow sufficiency-of-the-evidence and developed substantial connections out habeas corpus lawsuits. challenges, neither did the common with this country.’’ Every detainee held at Guantanamo law writ of habeas corpus—especially The Verdugo Court further clarified currently receives a Combatant Status for noncriminal executive detentions. that ‘‘lawful but involuntary’’ presence Review Tribunal (CSRT) review of his DTA review is limited—it has to be, or in the United States ‘‘is not of the sort detention. The CSRT process is mod- we would face the same litigation bur- to indicate any substantial connection eled on and closely tracks the Article 5 dens as under the Rasul-inspired litiga- with our country.’’ hearings conducted under the Geneva tion. But common-law habeas itself is a Now, the Rasul case took great pains Conventions. In the 2004 Hamdi deci- limited remedy. Under the DTA, pris- to emphasize that its extension of ha- sion, the Supreme Court cited Article 5 oners are not denied anything that beas to Guantanamo Bay was only hearings as an example of the type of they would have been entitled to under statutory. Some Justices may have hearing that would be adequate to jus- the original common-law writ of ha- wanted to make Rasul a constitutional tify detention of even an American cit- beas corpus. holding, but there was no majority for izen who has engaged in war against Moreover, the fact that we are let- such a ruling. the United States. Moreover, under the ting detainees go to court to challenge So both Eisentrager and Verdugo are Geneva Conventions, Article 5 hearings their conviction is totally unprece- still the governing law in this area. are given to detainees only when there dented. At a hearing held on Monday These precedents hold that aliens who is substantial doubt as to their status. before the Judiciary Committee, one of are either held abroad or held here but In all American wars, only a small per- the witnesses who opposes the MCA, have no other substantial connection centage of detainees have ever been Rear Admiral John Hutson, neverthe- to this country are not entitled to in- given Article 5 hearings. Yet at Guan- less conceded in his testimony that voke the U.S. Constitution. tanamo, we have given a CSRT hearing ‘‘[i]n World War II, when thousands and As committee witness Brad Berenson to every detainee who has been brought thousands of German and Italian POWs noted at Monday’s hearing: there. And finally, it bears emphasis were imprisoned in various camps [N]othing in the Constitution, including that the CSRT gives unlawful enemy throughout the United States . . . the Suspension Clause, confers rights of ac- there is only one recorded case of a cess to our courts for alien enemy combat- combatants even more procedural pro- ants being held in the ordinary course of tections than the Geneva Conventions’ POW using habeas to test his imprison- armed conflict. Article 5 hearing give to lawful enemy ment. He was an Italian American and He also refuted the argument that combatants. For example: his petition was denied.’’ Just to be clear: there were 425,000 constitutional rights of habeas for A CSRT provides a detainee with a per- enemy combatants held in the United enemy combatants is embedded in the sonal representative to help him prepare his States during World War II. Yet ac- Rasul decision. As he explained before, case. An Article 5 tribunal does not. Under the CSRT procedure, the hearing of- cording to Senator SPECTER’s own wit- going through the logic of that opinion ficer is required to search government files ness at his Judiciary Committee hear- and its dependence on the 1973 Braden for ‘‘evidence to suggest that the detainee ing, only one habeas petition chal- case, and I am quoting: should not be designated as an enemy com- lenging detention was filed—and that batant.’’ An Article 5 tribunal provides no If there were a constitutional right to ha- was filed by an American citizen. The beas corpus relief for alien enemies held such right. abroad, the implication would thus be that it CSRTs give the detainee a summary of the MCA only applies to aliens—not Amer- sprang into existence some time after 1973, if evidence supporting his detention in advance ican citizens, so even that case would not just two years ago in 2004, and received of the hearing. Article 5 tribunals do not. not have been affected by this bill. no mention in Rasul. No matter how robust CSRTs are subject to review by supervising World War II did see several petitions a concept of the ‘‘living Constitution’’ one authorities and may be remanded for further challenging military trials, but the embraces, this sort of Miracle-Gro Constitu- review. Article 5 provides no such rights. MCA and the DTA also allow judicial tion cannot fit within it. Finally, after a CSRT is completed, review of military commissions. He was trying to be clever there to the Detainee Treatment Act, DTA, and At Senator SPECTER’s September 25, point out the fact that never has the the Military Commissions Act, MCA, 2006, hearing on the MCA before the Ju- Court come close to holding that for give an al-Qaida detainee the right to diciary Committee, committee witness alien enemy combatants there is a con- appeal the result to the DC Circuit. Brad Berenson, a partner at the Sidley stitutional right of habeas. And no de- That circuit—staffed by some of the & Austin law firm, testified that ‘‘[n]o cision of the Supreme Court has ever best judges in this country—is then au- nation on the face of the earth in any grounded its decision on the Constitu- thorized to make sure that all proper previous conflict has given people they

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.102 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10269 have captured anything like [the proce- alien enemy combatants being held in prisoner may be dispensed with where it ap- dures provided by CSRTs and the the ordinary course of an armed con- pears on the face of the application that no DTA], and none does so today.’’ Mr. flict.’’ Berenson also refuted the argu- cause for granting the writ exists, Walker v. Johnston, we have consistently adhered to Berenson reiterated: The MCA’s proce- ment that a constitutional right of ha- and recognized the general rule. Ahrens v. dures ‘‘are in fact more generous than beas for enemy combatants is embed- Clark. To grant the writ to these prisoners anything we or any other nation in the ded in the Rasul decision. As he ex- might mean that our army must transport history of the world has previously af- plained, going through the logic of that them across the seas for hearing. This would forded to our military adversaries.’’ opinion and its dependence on the 1973 require allocation of shipping space, guard- At the same hearing—Senator SPEC- Braden case: ing personnel, billeting and rations. It might TER’s hearing on the MCA on Monday— If there were a constitutional right to ha- also require transportation for whatever wit- we also heard from David Rivkin, a beas corpus relief for alien enemies held nesses the prisoners desired to call as well as abroad, the implication would thus be that it transportation for those necessary to defend partner at the Baker & Hostetler law legality of the sentence. The writ, since it is sprang into existence some time after 1973, if firm. This is what he had to say: ‘‘[t]he held to be a matter of right, would be equal- not just two years ago in 2004, and received level of due process that these detain- ly available to enemies during active hos- no mention in Rasul. No matter how robust ees are getting [under CSRTs and the tilities as in the present twilight between a concept of the ‘‘living Constitution’’ one war and peace. Such trials would hamper the DTA] far exceeds the level of due proc- embraces, this sort of Miracle-Gro Constitu- war effort and bring aid and comfort to the ess accorded to any combatants, cap- tion cannot fit within it. enemy. They would diminish the prestige of tured combatants, lawful or unlawful, The Specter amendment would have in any war in human history.’’ Mr. our commanders, not only with enemies but led to a nightmare of litigation in with wavering neutrals. It would be difficult Rivkin added: ‘‘We are giving [alien other wars. to devise more effective fettering of a field enemy combatants] a lot more . . . During World War II, the United commander than to allow the very enemies than they are legally entitled to under States held millions of axis enemy he is ordered to reduce to submission to call either international [law] or the law in combatants. During some periods, him to account in his own civil courts and the U.S. Constitution.’’ divert his efforts and attention from the enemy war prisoners were shipped into military offensive abroad to the legal defen- The Supreme Court has held that this country at the rate of 60,000 a U.S. constitutional protections do not sive at home. Nor is it unlikely that the re- month. By the end of the war, over sult of such enemy litigiousness would be a apply to aliens held outside of our bor- 425,000 enemy war prisoners were de- conflict between judicial and military opin- ders. For example, in Johnson v. tained in prison camps inside the ion highly comforting to enemies of the Eisentrager (1950), the Supreme Court United States. Overall, the United United States. rejected the view that the U.S. Con- States detained over two million The Specter Amendment would dis- stitution applies to enemy war pris- enemy combatants during World War rupt the operation of Guantanamo and oners held abroad, noting that ‘‘[n]o II. Prisoner camps for these combat- undermine the war on terror. We al- decision of this Court supports such a ants existed in all but three of the ready know that habeas litigation at view. None of the learned commenta- then-48 states. Guantanamo has consumed enormous tors on our Constitution has ever hint- If the Specter amendment had been resources and disrupted day-to-day op- ed at it. The practice of every modern law during World War II, all of these 2 eration of the base. The United States government is opposed to it.’’ In 1990, million enemy combatants would have February 17, 2006 Supplemental Brief in the Supreme Court reaffirmed this been allowed to file habeas corpus law- the Al Odah case in the DC circuit de- view in the Verdugo case, holding that suits in Federal district court against scribes the burdens imposed on the ‘‘we have rejected the claim that aliens our Armed Forces. Just try to imagine military by the Guantanamo litigation are entitled to Fifth Amendment rights what that would have meant. The vast and the frivolous nature of some of the outside the sovereign territory of the majority of these 2 million enemy pris- claims being pursued. At pages 12–14, United States.’’ oners were not familiar with the Amer- the brief describes the following: The Verdugo case also makes clear ican legal system and did not speak According to the Justice Depart- that constitutional protections do not English. If they had habeas corpus ment: ‘‘The detainees have urged ha- extend to aliens detained in this coun- rights, they surely would have had to beas courts to dictate conditions on try who have no substantial connection be provided with a lawyer in order to [Guantanamo Naval] Base ranging to this country. The Supreme Court effectuate those rights. Also, should from the speed of Internet access af- noted that aliens ‘‘receive constitu- each of these 2 million prisoners also forded their lawyers to the extent of tional protections when they have have been given access to the classified mail delivered to the detainees;’’ More come within the territory of the United evidence that might be used against than 200 cases have been filed on behalf States and developed substantial con- them to justify their detention? Should of 600 purported detainees. This num- nections with this country.’’ The all 2 million of these prisoners have ber exceeds the number of detainees ac- Verdugo Court further clarified that been entitled to call witnesses on their tually held at Guantanamo, which is ‘‘lawful but involuntary’’ presence in behalf? Should they have been allowed near 500; Also according to the Justice the United States ‘‘is not of the sort to to recall the U.S. soldiers at the front Department: ‘‘The Department of De- indicate any substantial connection who captured them, and to cross exam- fense has been forced to reconfigure its with our country.’’ That is United ine them? operations at Guantanamo Naval Base States v. Verdugo-Urquidez, 494 U.S. 259 The consequences of the Specter to accommodate hundreds of visits by (1990). amendment are unimaginable. We can- private habeas counsel. . . . This ha- Rasul v. Bush took great pains to not allow enemy war prisoners to sue beas litigation has consumed enormous emphasize that its extension of habeas us in our own courts. Such a system resources and disrupted the day-to-day to Guantanamo Bay was only statu- would make it simply impossible for operation of Guantanamo Naval Base;’’ tory. Some Justices may have wanted the United States to fight a war. But The United States also notes that this to make Rasul a constitutional hold- don’t take my word for it. The United litigation has had a serious negative ing, but there clearly was no majority States Supreme Court came to the impact on the war with Al Qaeda. Ac- for such a ruling. same conclusion in its landmark deci- cording to the U.S. brief: Eisentrager and Verdugo are still the sion in Johnson v. Eisentrager. The Su- Perhaps most disturbing, the habeas litiga- governing law in this area. These preme Court in that case clearly and tion has imperiled crucial military oper- precedents hold that aliens who are ei- ations during a time of war. In some in- eloquently explained why we cannot ther held abroad, or held here but have stances, habeas counsel have violated protec- allow alien enemy combatants to sue no other substantial connection to this tive orders and jeopardized the security of our military in our courts: country, are not entitled to invoke the the base by giving detainees information U.S. Constitution. As committee wit- A basic consideration in habeas corpus likely to cause unrest. Moreover, habeas practice is that the prisoner will be produced counsel have frustrated interrogation crit- ness Brad Berenson noted at Monday’s before the court. This is the crux of the stat- ical to preventing further terrorist attacks hearing, ‘‘nothing in the Constitution, utory scheme established by the Congress; on the United States. One of the coordi- including the Suspension Clause, con- indeed, it is inherent in the very term ‘‘ha- nating counsel for the detainees boasted fers rights of access to our courts for beas corpus.’’ And though production of the about this in public:

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.068 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10270 CONGRESSIONAL RECORD — SENATE September 27, 2006 The litigation is brutal for [the United with the Taliban, but recently the young the military conduct CSRTs for enemy States.] It’s huge. We have over one hundred man, now 18, was recaptured with other combatants that it captures. In a Sep- lawyers now from big and small firms work- Taliban fighters near Kandahar, Afghani- tember 25 letter to Senators, for exam- ing to represent the detainees. Every time an stan, according to the sources, who asked for ple, the ACLU urges opposition to the attorney goes down there, it makes it that anonymity because they were discussing sen- much harder [for the U.S. military] to do sitive military information. MCA on the ground, among other things, that ‘‘[w]hile the bill does allow what they’re doing. You can’t run an interro- * * * * * gation . . . with attorneys. What are they limited appeals for those who do go be- The latest case emerged two weeks ago going to do now that we’re getting court or- fore a military commission or a Com- when two Chinese engineers working on a ders to get more lawyers down there? dam project in Pakistan’s lawless Waziristan batant Status Review Tribunal, CSRT, Brad Berenson, who testified at the region were kidnapped. The commander of a there is no guarantee that any person September 25 Judiciary Committee tribal militant group, Abdullah Mehsud, 29, detained by our government be pro- hearing on this bill, offers what I think told reporters by satellite phone that his fol- vided with either a trial or a CSRT.’’ is a fitting comment on the habeas cor- lowers were responsible for the abductions. Similarly, at the September 25 hearing pus litigation at Guantanamo Bay thus Mehsud said he spent two years at Guanta- before the Judiciary Committee, com- far. He concluded his testimony by not- namo Bay after being captured in 2002 in Af- mittee witness Bruce Fein argued ghanistan fighting alongside the Taliban. At ing, ‘‘All freedom-loving people cherish against the MCA on the ground ‘‘the the time he was carrying a false Afghan fact is that the statute would enable the Great Writ. But we debase the writ, identity card, and while in custody he main- rather than honor it, if we extend it tained the fiction that he was an innocent the executive branch to simply decline into realms where neither history nor Afghan tribesman, he said. U.S. officials to hold CSRT proceedings . . . [I]t tradition support its use.’’ never realized he was a Pakistani with deep gives the executive branch, if it wishes, At Monday’s Judiciary Committee ties to militants in both countries, he added. [the right] to hold detainees indefi- hearing, some witness suggested that I managed to keep my Pakistani identity nitely without any access to the Fed- the bulk of the detainees held at Guan- hidden all these years,’’ he told Gulf News in eral courts. [Military commanders a recent interview. Since his return to Paki- tanamo are innocent. One witness at could] say, we do not want to hold a stan in March, Pakistani newspapers have Combatant Status Review Tribunal, it Monday’s Judiciary Committee hear- written lengthy accounts of Mehsud’s hair ing, a lawyer who represents 10 Saudis and looks, and the powerful appeal to mili- is so clear that they [the detainees] are held at Guantanamo, went so far as to tants of his fiery denunciations of the United enemy combatants. If they do not hold assert that ‘‘none of the ten . . . are States. ‘‘We would fight America and its al- the tribunal hearing, there is no access enemies of the United States.’’ This lies,’’ he said in one interview, ‘‘until the to Federal courts under the statute.’’ lawyer even told us that the men at very end.’’ My response to these critics is that Guantanamo ‘‘do not appear any more Last week Pakistani commandos freed one what they have described does accu- of the abducted Chinese engineers in a raid rately describes the DTA and MCA— dangerous . . . than my younger grand- on a mud-walled compound in which five child, who is 12.’’ Another witness at and also the Geneva Conventions. As I militants and the other hostage were killed. noted earlier, the Geneva Conventions the Judiciary Committee’s September The 10 or more returning militants are but 25 hearing asserted that ‘‘[n]ot a crumb a fraction of the 202 Guantanamo Bay de- require an Article 5 hearing on the sta- of evidence has been adduced sug- tainees who have been returned to their tus of a detainee, but only if there is gesting that the writ would risk free- homelands. Of that group, 146 were freed out- doubt as to his status. Under the Gene- ing terrorists to return to fight against right, and 56 were transferred to the custody va Conventions, I would submit, there the United States.’’ of their home governments. Many of those is no need for any Article 5 hearing for men have since been freed. any of the al-Qaida and Taliban detain- This characterization, and similar as- Mark Jacobson, a former special assistant sertions that the bulk of the detainees ees, because there is simply no ques- for detainee policy in the Defense Depart- tion that these detainees are not enti- at Guantanamo are innocent, simply ment who now teaches at Ohio State Univer- do not comport with reality. The sity, estimated that as many as 25 former de- tled to privileged status under the Ge- United States has already released a tainees have taken up arms again. ‘‘You neva Conventions. The Conventions number of detainees. These are detain- can’t trust them when they say they’re not allow the military to make blanket de- ees who our own Armed Forces decided terrorists,’’ he said. terminations, and our nation would were not enemy combatants or were no * * * * * certainly be within its rights to do so longer dangerous. Our Armed Forces Another former Guantanamo Bay prisoner here. What the military currently is are obviously very cautious about was killed in southern Afghanistan last doing for Guantanamo detainees goes whom they release—they have great month after a shootout with Afghan forces. well beyond the process to which they reason to be cautious, since they bear Maulvi Ghafar was a senior Taliban com- are entitled. What these critics want mander when he was captured in late 2001. Congress to apply to our Armed Forces the consequences of releasing anyone No information has emerged about what he who is a threat. Yet we already know is a rule of no good deed goes told interrogators in Guantanamo Bay, but unpunished. Because the military, in that even among those detainees whom in several cases U.S. officials have released our Armed Forces thought were not detainees they knew to have served with the response to criticism of Guantanamo, dangerous, a significant number in- Taliban if they swore off violence in written started giving everyone at Guanta- stead turned out to remain committed agreements. namo a CSRT hearing, these critics to war against the United States and Returned to Afghanistan in February, contend, it should be compelled to do its allies. According to a October 22, Ghafar resumed his post as a top Taliban so for all future detainees, and for all commander, and his forces ambushed and future wars. What is now given as a 2004 story in the Washington Post, at killed a U.N. engineer and three Afghan sol- least 10 detainees released from Guan- matter of executive grace, they con- diers, Afghan officials said, according to tend, should be transformed into a leg- tanamo have been recaptured or killed news accounts. fighting U.S. or coalition forces in Af- A third released Taliban commander died islative mandate. ghanistan or Pakistan. This is what in an ambush this summer. Mullah This the Armed Services committees the Washington Post described: Shahzada, who apparently convinced U.S. of- and this congress declined to do. Aside from the fact that these detainees, One of the repatriated prisoners is still at ficials that he had sworn off violence, re- large after taking leadership of a militant joined the Taliban as soon as he was freed in aliens all, are not entitled to CSRTs or faction in Pakistan and aligning himself mid-2003, sources with knowledge of his situ- any Article 5 type hearing under the with al Qaeda, Pakistani officials said. In ation said. Geneva Conventions, it would be ab- telephone calls to Pakistani reporters, he I urge that anyone consider these surdly impractical to require the mili- has bragged that he tricked his U.S. interro- facts before contending that the bulk tary to provide such hearings in all fu- gators into believing he was someone else. of the detainees at Guantanamo are ture conflicts. Consider, for example, Another returned captive is an Afghan ‘‘innocent.’’ the case of World War II. As I men- teenager who had spent two years at a spe- I would also like to respond to some tioned earlier, the United States de- cial compound for young detainees at the military prison in Cuba, where he learned of the attacks that have been made on tained over 2,000,000 enemy combatants English, played sports and watched videos, the underlying DTA. One of the com- during that conflict. How on earth informed sources said. U.S. officials believed plaints made is that there is no man- could we possibly expect the military they had persuaded him to abandon his life date in the DTA, or in the MCA, that to conduct CSRTs for 2 million people?

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.070 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10271 And how could the DC Circuit be ex- tion for the courts to substitute their ously undermine vital U.S. intel- pected to handle 2 million appeals from judgment for that of the military. It is ligence-gathering activities. Under the CSRTs, even under the de minimis fa- not for the courts to decide if someone new Rasul-imposed system, shortly cial challenge authorized by the DTA? is an enemy combatant, regardless of after al-Qaida and Taliban detainees It is simply inconceivable. the standard of review. It is simply not arrive at Guantanamo Bay, they are The CSRTs and DTA review, I con- the role of the courts to make that de- informed that they have the right to cede, would be insufficient to justify cision. It is not the courts, after all, challenge their detention in Federal detention of a United States citizen ac- who bear the burden of capturing an court and the right to see a lawyer. De- cused of a crime. This is not civilian enemy combatant again if he is re- tainees overwhelmingly have exercised criminal justice due process. But these leased and rejoins the battle. The only both rights. The lawyers inevitably tell detainees are not entitled to civilian thing the DTA asks the courts to do is detainees not to talk to interrogators. criminal justice due process. Nor are check that the record of the CSRT Also, mere notice of the availability of they entitled to such hearings under hearings reflect that the military has these proceedings gives detainees hope the Geneva Conventions. used its own rules. It is up to the mili- that they can win release through ad- What the DTA review standards do tary to decide what the result should versary litigation, rather than by co- offer is judicial review that is con- be under those rules, or even how those operating with their captors. sistent with military needs and with rules should be modified in the future. Navy Vice-Admiral Lowell Jacoby the executive branch’s primacy among I would also reiterate a few words addressed this matter in a declaration the branches of government in the con- about the legality review that the DTA attached to the United States’s brief in duct of war. It is judicial review in provides. This provision authorizes, in the Padilla litigation in the Southern keeping with the traditional limited effect, a facial challenge to the CSRTs. District of New York. Vice-Admiral I anticipate that once the District of role of the courts in reviewing the con- Jacoby at the time was the Director of Columbia circuit decides these ques- duct of war. As others have noted, DTA the Defense Intelligence Agency. He tions with regard to a particular set of judicial review is limited to two nar- noted in the Declaration that: row inquiries: did the CSRTs and com- CSRT procedures in use, that decision will operate as circuit precedent unless DIA’s approach to interrogation is largely missions use the standards and proce- dependent upon creating an atmosphere of dures identified by the Secretary of De- and until the CSRT procedures are dependency and trust between the subject fense, and is the use of these systems changed. Based on the long body of Su- and the interrogator. Developing the kind of to either continue the detention of preme Court precedent governing judi- relationship of trust and dependency nec- enemy combatants or try them for war cial review of military affairs, I do not essary for effective interrogations is a proc- crimes consistent with the Constitu- anticipate that any type of hearing is ess that can take a significant amount of tion and federal statutes? The first in- required by the Constitution or by Fed- time. There are numerous examples of situa- quiry I think is straightforward: did eral statute in order for the military to tions where interrogators have been unable be allowed to detain alien enemy com- to obtain valuable intelligence from a sub- the military follow its own rules? This ject until months, or, even years, after the inquiry does not ask whether the mili- batants. The Geneva Conventions do require hearings when there is doubt as interrogation process began. tary reached the correct result by ap- Anything that threatens the perceived de- plying its rules or whether a judge to a detainee’s privileged status, but pendency and trust between the subject and agrees that the evidence meets some those Conventions are not enforced interrogator directly threatens the value of particular standard of evidence. The in- through the courts, and the DTA does interrogation as an intelligence gathering quiry is simply whether the correct not disturb that limit on judicial en- tool. Even seemingly minor interruptions rule was employed. forceability. Allow me to quote the can have profound psychological impacts on Former United States Attorney Gen- previous understanding of the scope of the delicate subject-interrogator relation- ship. Any insertion of counsel into the sub- eral Bill Barr, in his testimony before judicial review of military-commission trials that the DTA is designed to em- ject-interrogator relationship, for example— the Senate Judiciary Committee on even if only for a limited duration or for a June 15 of last year, described the un- body, as expressed in the Supreme Court’s landmark decision in Johnson specific purpose—can undo months of work derstanding of judicial review of mili- and may permanently shut down the interro- tary decisions that the DTA’s review v. Eisentrager: gation process. standards are designed to reflect: It is not for us to say whether these pris- oners were or were not guilty of a war crime, Specifically with regard to Jose It seems to me that the kinds of military or whether if we were to retry the case we Padilla, Vice Admiral Jacoby also decisions at issue here—namely, what and would agree to the findings of fact or the ap- noted in his Declaration that: who poses a threat to our military oper- plication of the laws of war made by the Providing [Padilla] access to counsel now ations—are quintessentially Executive in na- Military Commission. The petition shows would create expectations by Padilla that ture. They are not amenable to the type of that these prisoners were formally accused his ultimate release may be obtained process we employ in the domestic law en- of violating the laws of war and fully in- through an adversarial civil litigation proc- forcement arena. They cannot be reduced to formed of particulars of these charges. As we ess. This would break—probably irrep- neat legal formulas, purely objective tests observed in the Yamashita case, ‘‘If the mili- arably—the sense of dependency and trust and evidentiary standards. They necessarily tary tribunals have lawful authority to hear, require the exercise of prudential judgment that the interrogators are attempting to cre- decide and condemn, their action is not sub- ate. and the weighing of risks. This is one of the ject to judicial review merely because they reasons why the Constitution vests ultimate In remarks that I submitted for the have made a wrong decision on disputed military decision-making in the President as facts. Correction of their errors of decision is RECORD when the original DTA was en- Commander-in-Chief. If the concept of Com- not for the courts but for the military au- acted, I described some of the valuable mander-in-Chief means anything, it must thorities which are alone authorized to re- intelligence that the United States has mean that the office holds the final author- view their decisions. We consider here only gained as a result of the interrogation ity to direct how, and against whom, mili- the lawful power of the commission to try tary power is to be applied to achieve the of al-Qaida detainees. The President the petitioner for the offense charged.’’ military and political objectives of the cam- made a similar case in a speech that he paign. Finally, I would like to reiterate the delivered on September 6, but much I am not speaking here of ‘‘deference’’ to most important reason why I believe better than I had done. I would like to Presidential decisions. In some contexts, that Congress needs to bring an end to simply quote at length, so that it is courts are fond of saying that they ‘‘owe def- the habeas litigation involving war-on- available in the RECORD, what the erence’’ to some Executive decisions. But terror detainees. Keeping captured ter- President described—why it is impor- this suggests that the court has the ultimate rorists out of the court system is a pre- decision-making authority and is only giving tant that our intelligence agents be weight to the judgment of the Executive. requisite for conducting effective and able to conduct effective interroga- This is not a question of deference—the point productive interrogation. And it is in- tions of al-Qaida members. On the here is that the ultimate substantive deci- terrogation of terrorist detainees that sixth of this month, the President stat- sion rests with the President and that courts has proved to be an important source ed: have no authority to substitute their judg- of critical intelligence that has saved Within months of September the 11th, 2001, ments for that of the President. American lives. we captured a man known as Abu Zubaydah. I think that last point is worth em- Giving detainees access to federal ju- We believe that Zubaydah was a senior ter- phasizing. The DTA is not an invita- dicial proceedings threatens to seri- rorist leader and a trusted associate of

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.072 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10272 CONGRESSIONAL RECORD — SENATE September 27, 2006 Osama bin Laden. Our intelligence commu- questioned again. He identified Hambali’s and computer records that we have seized in nity believes he had run a terrorist camp in brother as the leader of a ‘‘J-I’’ cell, and terrorist raids. They’ve identified voices in Afghanistan where some of the 9/11 hijackers Hambali’s conduit for communications with recordings of intercepted calls, and helped us trained, and that he helped smuggle al Qaeda al Qaeda. Hambali’s brother was soon cap- understand the meaning of potentially crit- leaders out of Afghanistan after coalition tured in Pakistan, and, in turn, led us to a ical terrorist communications. forces arrived to liberate that country. cell of 17 Southeast Asian ‘‘J-I’’ operatives. The information we get from these detain- Zubaydah was severely wounded during the When confronted with the news that his ter- ees is corroborated by intelligence, and firefight that brought him into custody—and ror cell had been broken up, Hambali admit- we’ve received—that we’ve received from he survived only because of the medical care ted that the operatives were being groomed other sources—and together this intelligence arranged by the CIA. at KSM’s request for attacks inside the has helped us connect the dots and stop at- After he recovered, Zubaydah was defiant United States—probably [sic] using air- tacks before they occur. Information from and evasive. He declared his hatred of Amer- planes. the terrorists questioned in this program ica. During questioning, he at first disclosed During questioning, KSM also provided helped unravel plots and terrorist cells in what he thought was nominal information— many details of other plots to kill innocent Europe and in other places. It’s helped our and then stopped all cooperation. Well, in Americans. For example, he described the allies protect their people from deadly en- fact, the ‘‘nominal’’ information he gave us design of planned attacks on buildings inside emies. This program has been, and remains, turned out to be quite important. For exam- the United States, and how operatives were one of the most vital tools in our war against ple, Zubaydah disclosed Khalid Sheikh Mo- directed to carry them out. He told us the the terrorists. It is invaluable to America hammed—or KSM—was the mastermind be- operatives had been instructed to ensure and to our allies. Were it not for this pro- hind the 9/11 attacks, and used the alias that the explosives went off at a point that gram, our intelligence community believes ‘‘Muktar.’’ This was a vital piece of the puz- was high enough to prevent the people that al Qaeda and its allies would have suc- zle that helped our intelligence community trapped above from escaping out the win- ceeded in launching another attack against pursue KSM. Abu Zubaydah also provided in- dows. the American homeland. By giving us infor- formation that helped stop a terrorist attack KSM also provided vital information on al mation about terrorist plans we could not being planned for inside the United States— Qaeda’s efforts to obtain biological weapons. get anywhere else, this program has saved an attack about which we had no previous During questioning, KSM admitted that he innocent lives. information. Zubaydah told us that al Qaeda had met three individuals involved in al operatives were planning to launch an at- Qaeda’s efforts to produce anthrax, a deadly I don’t think that it can be seriously tack in the U.S., and provided physical de- biological agent—and he identified one of the doubted that this intelligence would scriptions of the operatives and information individuals as a terrorist named Yazid. KSM not have been obtained if these men— on their general location. Based on the infor- apparently believed we already had this in- Khalid Shaisk Muhammed and Abu mation he provided, the operatives were de- formation, because Yazid had been captured Zubaydah—had been given the right to tained—one while traveling to the United and taken into foreign custody before KSM’s file a habeas petition and access to a States. arrest. In fact, we did not know about lawyer immediately after they were We knew that Zubaydah had more informa- Yazid’s role in al Qaeda’s anthrax program. tion that could save innocent lives, but he Information from Yazid then helped lead to captured. And had we not obtained this stopped talking. As his questioning pro- the capture of his two principal assistants in information, lives of Americans and ceeded, it became clear that he had received the anthrax program. Without the informa- other innocent people would have been training on how to resist interrogation. And tion provided by KSM and Yazid, we might lost. so the CIA used an alternative set of proce- not have uncovered this al Qaeda biological The DTA and the MCA create a bal- dures. These procedures were designed to be weapons program, or stopped this al Qaeda anced and appropriate mechanism for safe, to comply with our laws, our Constitu- cell from developing anthrax for attacks managing the detention of alien enemy tion, and our treaty obligations. The Depart- against the United States. combatants. They are consistent with ment of Justice reviewed the authorized These are some of the plots that have been methods extensively and determined them to stopped because of the information of this military tradition and our Nation’s se- be lawful. I cannot describe the specific vital program. Terrorists held in CIA cus- curity needs. The Specter amendment methods used—I think you understand why— tody have also provided information that would upend that system. I urge the if I did, it would help the terrorists learn helped stop a planned strike on U.S. Marines Specter amendment’s defeat. how to resist questioning, and to keep infor- at Camp Lemonier in Djibouti—they were The PRESIDING OFFICER. The Sen- mation from us that we need to prevent new going to use an explosive laden water tanker. ator from Pennsylvania. attacks on our country. But I can say the They helped stop a planned attack on the Mr. SPECTER. Mr. President, I only procedures were tough, and they were safe, U.S. consulate in Karachi using car bombs need one sentence to refute the argu- and lawful, and necessary. and motorcycle bombs, and they helped stop Zubaydah was questioned using these pro- a plot to hijack passenger planes and fly ments of the Senator from Arizona, cedures, and soon he began to provide infor- them into Heathrow or the Canary Wharf in and it comes back to Justice O’Con- mation on key al Qaeda operatives, including London. nor’s opinion again. She says: information that helped us find and capture We’re getting vital information necessary All agree that, absent suspension, the writ more of those responsible for the attacks on to do our jobs, and that’s to protect the of habeas corpus remains available to every September the 11th. For example, Zubaydah American people and our allies. individual— Information from the terrorists in this pro- identified one of KSM’s accomplices in the Every individual— 9/11 attacks—a terrorist named Ramzi bin al gram has helped us to identify individuals Shibh. The information Zubaydah provided that al Qaeda deemed suitable for Western detained within the United States. helped lead to the capture of bin al Shibh. operations, many of whom we had never Guantanamo is held to be within that And together these two terrorists provided heard about before. They include terrorists concept. But she talks about ‘‘every in- information that helped in the planning and who were set to case targets inside the dividual.’’ That includes citizens and United States, including financial buildings execution of the operation that captured noncitizens. Khalid Sheikh Mohammed. in major cities on the East Coast. Informa- Once in our custody, KSM was questioned tion from terrorists in CIA custody has I yield the floor. by the CIA using these procedures, and he played a role in the capture or questioning of The PRESIDING OFFICER. The Sen- soon provided information that helped us nearly every senior al Qaeda member or as- ator from Texas. stop another planned attack on the United sociate detained by the U.S. and its allies Mr. CORNYN. Mr. President, I con- States. During questioning, KSM told us since this program began. By providing ev- gratulate the distinguished chairman about another al Qaeda operative he knew erything from initial leads to photo identi- of the Senate Judiciary Committee and was in CIA custody—a terrorist named Majid fications, to precise locations of where ter- my other colleagues who serve on the Khan. KSM revealed that Khan had been told rorists were hiding, this program has helped Judiciary Committee—Senator to deliver $50,000 to individuals working for a us to take potential mass murderers off the suspected terrorist leader named Hambali, streets before they were able to kill. GRAHAM and Senator KYL—for the the leader of al Qaeda’s Southeast Asian af- This program has also played a critical quality of the discussion and debate. filiate known as ‘‘J-I’’. CIA officers con- role in helping us understand the enemy we This is the kind of debate I came to the fronted Khan with this information. Khan face in this war. Terrorists in this program Senate and hoped to participate in. confirmed that the money had been delivered have painted a picture of al Qaeda’s struc- I want to try to address the concerns to an operative named Zubair, and provided ture and financing, and communications and raised by the distinguished chairman of both a physical description and contact num- logistics. They identified al Qaeda’s travel the Judiciary Committee about this ber for this operative. routes and safe havens, and explained how al Based on that information, Zubair was cap- Qaeda’s senior leadership communicates constitutional issue. I happen to agree tured in June of 2003, and he soon provided with its operatives in places like Iraq. They with what the Senator from Arizona information that helped lead to the capture provided information that allows us—that said about the way the U.S. Supreme of Hambali. After Hambali’s arrest, KSM was has allowed us to make sense of documents Court has interpreted the rights of an

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.073 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10273 alien with regard to their constitu- When you turn to the next page, she mental religious material, such as a tional rights. says: ‘‘tafsir,’’ or 4-volume Koran with com- The difference is, the Hamdi case the There remains the possibility that the mentary, in their cells. chairman was citing really had to do standards we have articulated could be met To say there is ‘‘no meaningful judi- with whether Guantanamo Bay—leased by an appropriately authorized and properly cial review’’ or adequate substitute property in Cuba—was within the juris- constituted military tribunal. Indeed, it is remedy afforded unlawful combatants diction of the Court. It held because it notable that military regulations already flies in the face of the facts. provide for such process in related instances, was under a lease and under the con- The Senator from South Carolina de- dictating that tribunals be made available to scribed the fact that these detainees trol of the United States that it was determine the status of enemy detainees who subject to the laws pertaining to ha- assert prisoner-of-war status under the Gene- are, under current law, entitled to a beas corpus. But the way I read the va Convention. combat status review tribunal, whose case—and I believe this is correct and She is referring to Army regulation decision could then be appealed to the DC Circuit Court of Appeals to make consistent with the way the Senator 190–8. And my question to Senator sure the officials have actually pro- from Arizona interpreted it—it does CORNYN is, do you agree that Justice vided the process to which these de- not apply, they did not hold that it ap- O’Connor was telling the Department tainees are due, to make sure they plied to an alien. But I want to say, of Defense that if you will model a tri- have not been swept up in the fog of even if he is right—and I disagree that bunal on Army regulation 190–8, you war and were innocent bystanders. he is—that aliens, particularly unlaw- will have met your obligation to have a This provides a fair process for them ful combatants captured on the battle- competent tribunal under the Geneva and adequate judicial review. field, have all the rights an American Conventions to make an enemy com- citizen does under the Constitution, I We also have an annual administra- batant status determination? tive review board that determines, on believe his concerns are answered by Mr. CORNYN. Mr. President, I say to an annual basis, whether this remains the Swain case, decided by the U.S. Su- the Senator from South Carolina, I a necessity to keep these individuals in preme Court, which held that if, in think that is certainly a reasonable detention. I will point out that some- fact, there is an adequate substitute construction of what the opinion says. times we are too lenient in terms of remedy, that in fact that satisfies any Let me describe for our colleagues who we let go. I will cite to you a story constitutional concerns with regard to the kind of petitions for writ of habeas of October 22, 2004, in the Washington the writ of habeas corpus. corpus we are talking about that are Post, entitled ‘‘Released Detainees Re- I believe the Detainee Treatment being filed at Guantanamo Bay. joining the Fight.’’ There are at least Act, which we passed just last year, A Canadian detainee who threw a 10 detainees who were released from provides an adequate substitute rem- grenade that killed an Army medic in a Guantanamo Bay that have been recap- edy sufficient to meet Supreme Court firefight and who comes from a family tured or killed while fighting U.S. or with longstanding al-Qaida ties moved scrutiny. Even if the Supreme Court coalition forces after they were re- for a preliminary injunction forbidding woke up and decided that all of a sud- leased. den it would overrule all of its old interrogation of him. That is one ex- The Supreme Court of the United cases and hold that an unlawful com- ample. States has talked about the imprac- Another one is a Kuwaiti detainee batant, an alien—not a citizen of this ticality of providing enemy combat- who seeks a court order that they must country—was somehow entitled to the ants of the U.S. the full privilege of be provided dictionaries in contraven- whole panoply of constitutional rights, litigation. The Eisentrager court ex- that would satisfy the Supreme Court’s tion of the force protection policy at plained clearly and eloquently why we concerns about the process to which Guantanamo Bay, and that their law- don’t let enemy combatants sue the that alien was due. yer be given high-speed Internet access U.S. military and our soldiers in our But I also want to question sort of at their lodging on the base and be al- own Federal courts. This is what the the logic of applying the Constitution lowed to use classified Department of court said: Defense telecommunications facilities, to unlawful combatants captured on Such trials would hamper the war effort the battlefield. Are we saying they are all under the theory that otherwise and bring aid and comfort to the enemy. . . . entitled to a fourth amendment right their ‘‘right to counsel’’ is unduly bur- It would be difficult to devise a more effec- against unreasonable searches and sei- dened. tive fettering of a field commander than to zures? Are we saying they have a fifth Then there is the motion by a high- allow the very enemies he is ordered to re- amendment right not to incriminate level al-Qaida detainee complaining duce to submission to call him into account themselves? Well, surely not. We have about base security procedures, speed in his own civil courts and divert his efforts and attention from the military offensive all acknowledged the importance of of mail delivery, and medical treat- ment—even though they have abun- abroad to the legal defensive at home. Nor is being able to capture actionable intel- it unlikely that the result of such enemy li- ligence through the interrogation proc- dant medical treatment and medical tigiousness would be a conflict between judi- ess. And much of the debate we have facilities at Guantanamo Bay. They cial and military opinion highly comforting been having in these last few weeks has further seek an order that he be trans- to enemies of the United States. been: How do we preserve this impor- ferred to the ‘‘least onerous condi- Those burdens placed on our military tant intelligence-gathering tool which tions’’ at Guantanamo Bay and is ask- by enemy combatant litigation against has allowed us to detect and disrupt ing the court to order that Guanta- our military effort persist today, and terrorist attacks? How do we preserve namo Bay authorities allow him to we have it within our power to elimi- that and at the same time meet our keep any books and reading materials nate that burden, to allow our men and other legal obligations, constitutional sent to him and to ‘‘report to the women in uniform to fight the fight and statutory? court’’ on his opportunities for exer- they volunteered to do on our behalf, I believe the Senator from South cise, communication, recreation, and to keep us safe and, at the same time, Carolina had a question. I would be worship, among other things. provide an adequate substitute remedy happy to yield to him for a question. Then there is the ‘‘emergency’’ mo- through the Detainee Treatment Act, Mr. GRAHAM. Mr. President, I ap- tion seeking a court order requiring as I have described a moment ago. preciate that, and I am sorry to inter- the authorities at Guantanamo Bay to More than 200 cases have been filed rupt. But I went back to the Hamdi de- set aside its normal security practices on behalf of a purported 600 detainees. cision that referenced the exchange we and show detainees DVDs that are pur- Strangely, that exceeds the number of had with the chairman in reference to ported to be family videos. detainees who are actually at Guanta- the point the Senator just made. Finally, I will mention, by way of ab- namo Bay. So we have lawsuits for peo- Justice O’Connor said: surd examples, the motion by Kuwaiti ple who don’t even exist, apparently. detainees who are unsatisfied with the Hamdi has received no process. An interro- According to the Department of Jus- gation by one’s captor, however effective an Koran they are provided as standard tice: intelligence-gathering tool, hardly con- issue by the Guantanamo authorities, This habeas litigation has consumed enor- stitutes a constitutionally adequate fact- and they seek a court order that they mous resources and disrupted the day-to-day finding before a neutral decisionmaker. be able to keep various other supple- operation at Guantanamo Naval Base.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.104 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10274 CONGRESSIONAL RECORD — SENATE September 27, 2006 The United States of America, in a With that, I yield the floor. mestic habeas corpus rights is unneces- brief filed in the Al Odah case, said: Mr. SPECTER. Mr. President, that is sary and inappropriate. Perhaps most disturbing, the habeas litiga- satisfactory to me. How much time do I urge my colleagues to oppose this tion has imperiled crucial military oper- I have remaining? amendment. ations during a time of war. In some cases, The PRESIDING OFFICER. The Sen- I yield the floor. habeas counsel have violated protective or- ator has 33 minutes remaining. The PRESIDING OFFICER. Who ders and jeopardized the security of the base Mr. SPECTER. I thank the Chair. yields time? The Senator from Virginia by giving detainees information likely to The PRESIDING OFFICER. The Sen- cause unrest. Moreover, habeas counsel have is recognized. frustrated interrogation critical to pre- ator from Missouri is recognized. Mr. WARNER. Mr. President, at this venting further terrorist attacks on the Mr. BOND. Mr. President, the amend- time, I observe no other Senators desir- United States. ment to give unlawful combatant ha- ing to address the subject with regard This seems to have been validated— beas corpus rights to mirror U.S. do- to the pending bill. Having said that, I these criticisms—by the U.S. in briefs mestic procedures is unnecessary and suggest the absence of a quorum. filed in Federal court by a lawyer who inappropriate. The PRESIDING OFFICER. The has filed those lawsuits on behalf of The amendment is unnecessary be- clerk will call the roll. enemy combatants held at Guanta- cause the U.S. is already giving enemy The legislative clerk proceeded to namo Bay. He boasted about disrupting unlawful combatants more rights to call the roll. U.S. war efforts in a magazine, where question their continued incarceration Mr. WARNER. Mr. President, I ask he said: than they are entitled to under inter- unanimous consent that the order for The litigation is brutal for [the United national law. the quorum call be dispensed with. States.] It’s huge. We have over 100 lawyers Under Geneva Conventions Article 5, The PRESIDING OFFICER (Mr. now from big and small firms working to combatants captured during wartime VITTER). Without objection, it is so or- represent detainees. Every time an attorney are due a hearing to determine their dered. goes down there, it makes it that much hard- lawful status only if such status is in f er [for the United States military] to do doubt. what they’re doing. You can’t run an interro- The United States goes beyond this VOTE EXPLANATION gation . . . with attorneys. What are they going to do now that we’re getting court or- requirement to give every combatant a Mr. MCCAIN. Mr. President, due to ders to get more lawyers down there? status hearing, even when there is no the passing of a close friend, I was not I know time is precious and I want to doubt as to their status. present for the vote on amendment No. yield back to the chairman of the The U.S. gives combatants Combat 5086, offered by Mr. LEVIN. With whis Armed Services Committee, but I be- Status Review Tribunal hearings, statement, I would like to inform the lieve those who argue for an extension known as CSRTs, to determine their Senate that, had I been present, I of full habeas corpus rights, such as status and review the need for their would have voted against this amend- would be provided to an American cit- continued incarceration. ment, which sought to strike the pend- izen in civilian courts, are making a If this were not enough, there is a re- ing legislation on military commis- fundamental mistake by confusing two view process under the Detainee Treat- sions and insert the text of the bill re- different realms of constitutional law. ment Act, passed last year, to which ported out of the Armed Services Com- One would apply to an American cit- detainees are also subjected. mittee. izen accused of a crime, where cer- There is no need for further review Senators WARNER, GRAHAM and I tainly the desire and the order of busi- processes for these enemy combatant wrote and supported the bill that was ness is to protect that individual detainees. An enemy combatant de- reported out of the Senate Armed Serv- against unjust charges, and to make tainee sounds a little sterile, but take ices Committee. Over the past 2 weeks, sure that the full panoply of the Bill of a look at the name that is often re- however, we have been involved in ne- Rights applies to that individual. Dif- ferred to dealing with this. The Su- gotiations with the White House and ferent considerations apply when you preme Court case which brought about the House of Representatives and are talking about a declared enemy of the need for this legislation deals with reached a compromise. the U.S., and particularly an unlawful Hamdan. Let’s be clear, Hamdan was The compromise legislation, which I combatant, someone who doesn’t wear Osama bin Laden’s body guard and support, does not redefine the Geneva the uniform, someone who doesn’t re- driver. This is the kind of person about Conventions in any way. It amends the spect the law of wars, and who targets whom we are talking. Giving unlawful War Crimes Act—which currently says innocent civilians in the pursuit of enemy combatants such as these U.S. only that a violation of Common Arti- their ideology. domestic habeas rights is inappro- cle 3 is a war crime—by enumerating I don’t think we should make that priate. These people are not U.S. citi- nine categories of offenses that con- mistake. So I reluctantly oppose the zens, arrested in the U.S. on some civil stitute ‘‘grave breaches of Common Ar- amendment. offense; they are, by definition, aliens ticle 3’’ and thus are war crimes, pun- I yield the floor. engaged in or supporting terrorist hos- ishable by imprisonment or death. The PRESIDING OFFICER. The Sen- tilities against the U.S., and doing so The bill authorizes the President to ator from Virginia is recognized. in violation of the laws of the war. interpret the Geneva Conventions—a Mr. WARNER. Mr. President, I ad- Some may not have been around long power he has already under the Con- dress the Senate on this issue and pose enough to remember that the U.S. de- stitution—as to what constitute a question to my distinguished col- tained hundreds of thousands of Ger- nongrave breaches. These interpreta- league, the senior Senator from Penn- man and Japanese soldiers, captured on tions must be published in the Federal sylvania. I will put into the RECORD, World War II battlefields. We didn’t Register, and they will have same force following the conclusion of my re- give these enemy combatants access to as other administrative regulations, marks and my colloquy with the Sen- U.S. domestic courts or habeas corpus and thus may be trumped by law ator from Pennsylvania, additional ma- rights. Not only would that have been passed by Congress. terial. absurd, it would have totally bogged I am pleased with the agreement that Before I yield the floor, it is my de- down the legal system. we have reached with the administra- sire to conclude the time on our side There has never been a legal question tion and I support this legislation in with the Senator from Missouri, and over the appropriateness of a separate the form pending on the floor. For this then reserve the remainder of my time military process for enemy combat- reason, if I had been present, I would for tomorrow. It would be my hope ants. We should not now start admit- have cast my vote against amendment that the Senator from Pennsylvania, ting them to the U.S. domestic legal No. 5086. likewise, would save such remarks he process. Mr. ROBERTS. Mr. President, I rise may wish to make for tomorrow. As he Current military review processes are today in support of the timely passage knows, there is a function going on more than adequate. Indeed, they ex- of this legislation. In my view it is es- now, which I think most of us are try- ceed international standards. Granting sential to the successful prosecution of ing to attend. enemy combatants additional U.S. do- our war against the terrorists.

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.105 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10275 Ever since the Supreme Court an- has been a supremely valuable source ceed, I presume, to a prompt vote on nounced its decision in the case of of information. This program has pro- the Specter amendment, and then pro- Hamdan v. Rumsfeld, I have made clear duced intelligence that has helped dis- ceed with the other two amendments. that my three primary goals for legis- rupt terrorist networks and prevent f lation authorizing military tribunals terrorist attacks. Furthermore, it has MORNING BUSINESS were: (1) Adjudicating the cases of de- been carefully monitored to ensure tained terrorists in proceedings that that it complies with all our laws. Mr. WARNER. Mr. President, I ask are consistent with our values of jus- But, the Supreme Court’s decision in unanimous consent that the Senate tice, (2) protecting classified informa- Hamdan applied the Geneva Conven- now proceed to a period for the trans- tion, and (3) ensuring that our military tion’s Common Article 3 to unlawful action of morning business, with Sen- and intelligence officers have clear enemy combatants. This threatened to ators permitted to speak for up to 10 standards for what is, and is not, per- shut down the CIA’s detention and in- minutes each. missible during detention and interro- terrogation operations. The PRESIDING OFFICER. Without gation operations. The standard articulated in Common objection, it is so ordered. After discussing these issues with Article 3 is extremely vague. This f National Security Adviser Hadley and standard leaves military and intel- ULTRASOUND IMAGING officials at the Department of Justice, ligence officers in the dark as to what I am comfortable in saying that this is, and what is not, permitted in de- Mr. FRIST. Mr. President, I rise to legislation accomplishes each of those taining and interrogating unlawful speak about the use of ultrasound im- goals. enemy combatants. Moreover, because aging by emergency physicians. Octo- First, the legislation authorizes the under current law any violation of ber 2006 marks the 10-year anniversary President to establish military com- Common Article 3 is a criminal viola- of the establishment of the American missions for the trial of unlawful tion, our interrogators potentially College of Emergency Physicians, enemy combatants. Enemy combatants could be subjected to criminal prosecu- ACEP, Section of Emergency tried under this legal system will have tion for otherwise lawful actions. Ultrasound, which actively encourages the benefit of a comprehensive process Consequently, Congress must act to research and training of emergency that assures them of legal representa- ensure that our military personnel and physicians in the use of emergency tion, access to witnesses and evidence, intelligence officers are not forced to ultrasound. October 15, 2006, celebrates the ability to present a defense, and operate, or be subjected to prosecution, Emergency Ultrasound Day. the ability to appeal any judgment to under such a vague standard. It is our As a trauma surgeon, I spent many the Court of Military Commission Re- responsibility to provide clear guid- days and nights serving the emergency view, the DC Circuit Court of Appeals, ance to military personnel and intel- department. Emergency ultrasound, and, ultimately, to the Supreme Court. ligence officers as to what is, and is defined as the use of ultrasound imag- I dare say that some who may be not, permitted in interrogations. The ing at the patient’s bedside, is a crit- tried by these military commissions standard must be clear enough so that ical component of quality emergency will receive more due process and legal our intelligence officers, who are mak- medical care. Ultrasound imaging en- protection than they were ever willing ing judgment calls in the field, can hances the physician’s ability to evalu- to grant to others. ate, diagnose, and treat patients in the Second, while ensuring a full and fair continue to operate. The legislation currently before the emergency department. It provides im- process, the legislation also recognizes Senate provides that clarity. It ex- mediate information and can answer the important role that classified in- pressly provides for what acts con- specific questions about the patient’s formation is likely to play in these physical condition, such as deter- trials. The legislation expressly pro- stitute grave breaches of Common Ar- ticle 3 and what acts would be subject mining whether a presenting patient vides the government with a privilege has thoracic and abdominal traumas, to protect classified information. At to prosecution. It further allows the ectopic pregnancy, pericardial effusion, the same time, the bill provides a num- President to promulgate regulations and many other conditions. ber of ways for the trial court to en- for lesser violations of treaty obliga- High-quality emergency care is de- sure that the defendant is sufficiently tions. pendent on rapid diagnostic tools, en- apprised of the evidence to be used As a result, in passing this legisla- hanced safety of emergency proce- against him. I think this bill strikes tion, we will give the dedicated and dures, and reduced treatment time. Im- the right balance between providing a honorable Americans on the front lines aging technology has greatly improved full and fair process, and protecting in the war on terror the clarity they quality of care and made invasive med- classified information. need to fulfill their mission. Third, and most important to me as To win this war and keep Americans ical procedures safer. chairman of the Intelligence Com- safe, our troops in the field and our law Emergency physicians are trained in mittee, the bill provides military and enforcement personnel here at home the use of imaging equipment during intelligence officers conducting deten- need timely and actionable intel- their residency as well as continuing tion and interrogation operations with ligence. We get that intelligence in medical education courses. Hospital clear standards. many forms such as satellite imagery, privileges further validate this train- Why is this so important? Because, intercepted communications, financial ing. there is a consensus in the intelligence tracking and human intelligence, in- Emergency ultrasound has moved community that terrorist interroga- cluding interrogations. In the past outside the hospital due to its compact tions are the single best source of ac- months, many of these intelligence col- nature. In fact, emergency ultrasound tionable intelligence against the plots lection tools have been damaged by de- technology is helpful onsite during of a determined enemy. liberate leaks of classified information. military and disaster medical care. It Interrogation is a tool used by our We can ill afford to lose any of these has served in the care of America’s brave men and women in the military intelligence collection tools if we are brave military troops during both the and intelligence community to combat to succeed. I am grateful that this bill gulf and Iraq wars. Also, emergency a continuing terrorist threat from will allow our Nation to continue its ultrasound was used to care for pa- those who are bent on attacking and highly valuable interrogation pro- tients last year after Hurricane killing Americans. grams. Katrina and will be helpful in respond- The majority of useable and action- I support the bill, and I urge my col- ing to other disasters and mass cas- able intelligence against al-Qaida leagues to do the same. ualty events. comes from terrorist interrogations Mr. WARNER. Mr. President, we Mr. President, I congratulate the and debriefings. This tool is vital to have had a very good debate. We have work of the ACEP Section of Emer- keeping Americans safe—it is irre- voted on one amendment. We have gency Ultrasound. It has increased placeable and it must be preserved. time remaining on the Specter amend- awareness of the contribution and Of particular note is the CIA’s deten- ment. We should be able to conclude value of emergency ultrasound by tion and interrogation program, which that debate in the morning and pro- emergency physicians in the medical

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.024 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10276 CONGRESSIONAL RECORD — SENATE September 27, 2006 care of emergency patients, survivors three African nations currently sitting means working out terms for an agreement of disasters, and our military forces on the U.N. Security Council, our Afri- on a return to democracy. That resolution serving at home and abroad. Research can affairs specialists need to more ac- should also require the junta to end its at- tacks on ethnic minorities and to permit in this field should continue to be en- tively engage in building support for international aid organizations to have couraged to allow the adaptation of such a resolution. Ghana has already unimpeded access to all those in need within critical technologies to continually im- demonstrated its solidarity with the Burma. Nearly all the people of Burma need prove the quality of emergency care. cause of freedom. The Republic of the world’s help. f Congo and Tanzania need to follow f suit. BURMA Finally, on this, the 18th anniversary RECOGNIZING SERGEANT LEIGH Mr. MCCONNELL. Mr. President, I of the founding of NLD, I call upon the ANN HESTER wish to mark an important milestone: Burmese military regime to release Mr. MCCONNELL. Mr. President, I the 18th anniversary of the founding of Suu Kyi and all political prisoners. ask the entire Senate to join me today the Burmese National League for De- Only then can discussions on a mean- in congratulating one of Kentucky’s mocracy, NLD. As the world knows ingful reconciliation process—one that amazing young heroes. SGT Leigh Ann well, the NLD is the legitimate leader- includes the full and unfettered par- Hester of Bowling Green, KY, is trav- ship of the country of Burma, as the ticipation of the NLD and ethnic mi- eling to the Nation’s Capital to receive party was elected overwhelmingly by norities—proceed. the USO’s Service Member of the Year the Burmese people in 1990. I ask unanimous consent that a Bos- Award at the organization’s 2006 USO Sadly, the 18th anniversary for the ton Globe Editorial on Burma be print- World Gala this September 28. NLD is not a time for rejoicing. The ed in the RECORD. Sergeant Hester is being honored for NLD remains firmly under the boot of There being no objection, the mate- her valorous service in combat in Iraq, the Burmese ruling junta, the State rial was ordered to be printed in the which earned her the Silver Star Peace and Development Council, RECORD, as follows: medal. The Silver Star is the Army’s third-highest award for gallantry, and SPDC. Many of its leaders are impris- [From the Boston Globe, Sept. 26, 2006] oned, including Nobel Laureate and de- Sergeant Hester is the first female sol- AN AGENDA FOR BURMA mocracy advocate Daw Aung San Suu dier to win the medal for valor in com- Having placed the case of Burma’s military bat since World War II. Kyi, and NLD vice chairman, U Tin Oo. junta on the formal agenda of the Security Thirteen elected NLD members of Par- A retail store manager in Bowling Council earlier this month, the United Na- Green, Sergeant Hester joined the U.S. liament and over 400 party members tions now has an opportunity to show that it currently serve in prison. Other NLD can be something more than an impatient Army in 2001 and was assigned to the members have endured torture and debating club. If in the waning days of his Kentucky National Guard’s 617th Mili- have been killed as the SPDC continues tenure UN Secretary General Kofi Annan ex- tary Police Company, based in Rich- to wage a campaign of harassment, in- ercises the right combination of firmness mond, KY. In March 2005, she was on timidation—and worse—against party and finesse with Burma’s military dictators, the southeastern outskirts of Baghdad, he can help protect human rights, democ- members and supporters. shadowing a convoy of tractor-trailers racy, and regional security in Asia. carrying supplies for American forces. In a testament to the courage and de- Unlike the coercive measures con- termination of its leadership, and de- The convoy was ambushed by about templated to cope with Iran’s pursuit of nu- 50 heavily armed terrorists. They at- spite these great hardships, the NLD clear weapons or genocide in Darfur, the UN tacked from a trench alongside the remains unbowed. It continues to pur- is not being asked to dispatch armed peace- road and rained down machine-gun fire sue nonviolent political change in keepers to Burma to impose risky economic and rocket-propelled grenades on the Burma. I am proud to say that the Sen- sanctions on the narco-dictatorship there. Rather, moral suasian and diplomatic pres- convoy for a sustained 3 minutes. Sev- ate stands squarely alongside the NLD sure are the means for dealing with the jun- eral truck drivers were killed, more in its efforts. I am hopeful that the ta’s violations of human rights and its were wounded. Thinking they had the United Nations, U.N., Security Council threats to regional peace and security— upper hand, the terrorists moved to- will as well. Due to the determined ef- threats manifest in the export of heroin, wards the convoy, preparing to take forts of many countries, including the methamphetamine, HIV/AIDS, and the hun- hostages. United States, Burma is slated to be on dreds of thousands of refugees who have fled the military’s brutal assaults on ethnic mi- Suddenly three armored humvees the Council’s agenda for the first time roared up to the carnage. Sergeant ever. It will then be time for member norities. Annan must be careful, however, in the Hester, as team leader of the second states to stand up and be counted in way he exerts the UN’s soft power. Last May, humvee, maneuvered her team into a support of a nonpunitive resolution on he sent UN undersecretary-general for polit- position to draw the enemy’s fire and Burma. ical affairs, Ibrahim Gambari, to Burma, begin fighting back with grenades and It should be noted that U.N. Under where he met with Nobel Peace Prize winner M203 rounds. Secretary General Ibrahim Gambari’s Aung San Suu Kyi as well as junta leaders. Sergeant Hester and her squad leader trip to Rangoon earlier this year was a At the time, Gambari said he thought the got out of their humvees and rushed complete failure. Mr. Gambari should junta bosses were ‘‘ready to turn a new page.’’ But Gambari and Annan looked gul- the trench about 20 meters away from not make a second trip to Burma un- them to clear out the enemy. They less and until the U.N. Security Coun- lible soon after, when the junta extended Suu Kyi’s house arrest for another year and worked their way through the insur- cil has considered and passed a resolu- intensified its campaign of ethnic cleansing, gents, throwing grenades and firing tion that, among other things, details rape, and murder in the region inhabited by M4s. When she ran low on ammunition, the threats the SPDC poses to the peo- 2 million people of the Karen ethnic group. she ran back to a humvee to reload, ex- ple of Burma and the entire region. Annan shouldn’t allow Gambari to under- posing herself to enemy fire from mul- Such action would be a clear message take a return trip to Burma without a Secu- tiple directions. Because this squad had rity Council resolution that spells out clear to the SPDC that when it comes to been so well disciplined, Sergeant Hes- Burma, the world is not satisfied with and reasonable demands for the true turning of a new page. That should include the re- ter was able to reach blindly into any the status quo. lease of all 1,100 political prisoners in Burma, of the humvees and know exactly Similarly, I would encourage all rel- including Suu Kyi and fellow leaders of the where to grab more ammunition. evant bureaus at the State Department National League for Democracy, the party Finally, the soldiers of the 617th had and the National Security Council— that won 82 percent of Parliamentary seats put down enough fire that the enemy particularly those relating to African in a 1990 election that the junta has refused fell silent. It turns out that Sergeant affairs—to remain engaged and focused to honor ever since. Hester and her team, just 10 in all, had on this issue. The task of promoting The NLD, which commemorates the anni- not only put themselves in the middle democracy and reconciliation in versary of its 1988 founding on Sept. 27, must be invited along with other parties and rep- of a firefight against greater numbers Burma should not be left only to the resentatives of Burma’s ethnic nationalities and all survived, they had scored the East Asian and Pacific Affairs and the to participate in a genuine political dia- highest death toll of insurgents in Iraq Democracy, Human Rights, and Labor logue. The resolution Gambari takes to in many months. They killed 27, cap- bureaus at the State Department. With Burma should specify that such a dialogue tured several wounded, seized a sizable

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.021 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10277 weapons cache, and secured valuable lived to make a difference in the world. ing transactions to many Members of intelligence. My thoughts and prayers are with his Congress and State Governors. Such Sergeant Hester’s actions were cited daughter Isabel, his parents, Chris and notifications would only politicize as having ‘‘saved the lives of numerous Jim Stanton of Ashdown, AR, and transactions, do little to resolve na- convoy members.’’ For her bravery, she Richard and Karen Henkes of tional security concerns and under- was awarded the Silver Star medal on Woodburn, OR, and to all those who mine the CFIUS process. June 16, 2006. knew and loved him. This bill makes a strong attempt to Sergeant Hester’s courage, dedica- Mr. SUNUNU. Mr. President, I rise strike the appropriate balance between tion, and sacrifice on behalf of her today in support of S. 3549, the Foreign national security, sound economic pol- country and her fellow soldiers make Investment and National Security Act. icy, and appropriate oversight. The two her a hero and a role model that every S. 3549 reforms the Committee on For- provisions I have highlighted upset this young Kentuckian can emulate. I am eign Investment in the United States, balance, but because I support this proud that a woman of such character which is more commonly known as overall effort, I look forward to contin- and determination hails from the Blue- CFIUS. CFIUS is the entity of our Fed- ued collaboration with Senators SHEL- grass State, and I know the entire Sen- eral Government charged with review- BY and SARBANES and the other mem- ate joins me in thanking her for her ing any type of foreign investment in bers of the Banking Committee as we service in defense of America and the United States, and reviews all cor- address these issues in conference with America’s ideals. porate transactions involving foreign- the House. f owned companies. Its top priority has f always been to protect America’s na- HONORING OUR ARMED FORCES NOMINATION OF FRANCISCO tional security interests, and that AUGUSTO BESOSA SERGEANT FIRST CLASS RICHARD J. HENKES must remain its main focus. However, Mrs. LINCOLN. Mr. President, it is this foremost concern can and must be Mr. BAUCUS. Mr. President, I would my honor to pay tribute to the life of addressed without jeopardizing foreign have voted in support of the nomina- SFC Richard J. Henkes, a brave soldier investment in our country—a critical tion of Francisco Augusto Besosa to who gave his life in support of Oper- economic engine. the U.S. District Court for the District ation Iraqi Freedom. Sergeant Henkes This CFIUS reform bill represents an of Puerto Rico. However, I was on my will be remembered as a courageous effort by the Senate to ensure that the way back from Montana and was un- soul, a proud father, and an inspiration national security interests of the able to make it to the Senate floor be- to those who knew him best. The 200 United States are protected in the con- fore the vote ended. people who gathered at his memorial text of foreign investment in U.S. in- Mr. Besosa is well qualified for the service are a testament to the number dustries. As a member of the Banking position and will be a good addition to of lives he touched. They are lives that Committee, I supported this effort as a the court. Francisco Augusto ‘‘Frank’’ Besosa he continues to touch through the leg- necessary way to restore the con- is partner and head of the litigation de- acy he leaves behind. fidence of the American people in the partment of Adsuar Muniz Goyco Sergeant Henkes wrestled and ran CFIUS process, and I commend Chair- Besosa, P.S.C. in San Juan, Puerto track in high school, but his true pas- man SHELBY and Ranking Member Rico. After graduating from Brown sion was snowboarding. He shared this SARBANES and my colleagues on the University in 1971, he served 5 years in passion with his 6-year-old daughter, committee for their work to date on active military service in military in- Isabel, as well as with his 17-year-old this legislation. Though I supported telligence. He was honorably dis- niece, Cassidy, who fondly remembers Senate passage of the bill in an effort charged from Inactive Reserve from the caring uncle who was always there to keep this important legislation the U.S. Army with the rank of captain to pick her up when she would fall. moving through the legislative process, in 1977. He earned a J.D. from George- Above all, Sregeant Henkes was a com- I want to highlight two provisions in town University Law Center in 1979. passionate, outgoing, and fun-loving the bill with which I have significant After law school, Mr. Besosa returned guy with a great sense of humor. It was concerns because they will have a to Puerto Rico and joined the law firm this compassion for others and desire chilling effect on foreign investment. of O’Neill & Borges. to make a difference that drove him to First, the provision that potentially With the exception of 3 years in the carry on his family’s rich history of extends the initial 30-day review period 1980s as an assistant U.S. attorney, Mr. military service, dating back to World to a 60-day period would place all for- Besosa has spent his entire legal career War I. eign investors, including those of our in private practice in several firms Stationed out of Fort Lewis, WA, closest allies, at a competitive dis- conducting civil and commercial litiga- Sergeant Henkes served with C Com- advantage. Under current law, most tion in Puerto Rico. His work has fo- pany, 2nd Battalion, 3rd Infantry Regi- transactions, foreign and domestic, re- cused on banking and bankruptcy; se- ment, 2nd Infantry Division. In Iraq, he quire an antitrust review under the curities regulation; admiralty; insur- was recently placed in command of his Hart-Scott-Rodino Act which takes a ance; torts including personal injury, platoon—a challenge that he embraced. minimum of thirty days. However, the medical malpractice, and product li- Tragically, Sergeant Henkes died on foreign investor is also, appropriately, ability; telecommunications and intel- September 3 from injuries sustained required to undergo a 30-day CFIUS re- lectual property both at the trial and from a roadside bomb in Mosul, Iraq. view, which may occur concurrently appellate level. People say he knew of the dangers of with the HSR review. This process al- Mr. Besosa is a member of numerous war, but he believed his mission would lows a thorough review without put- bars including the Puerto Rico Bar As- make a difference in the lives of count- ting one type of investor at a disadvan- sociation, the Federal Bar Association, less people and that it was worth the tage to another. S. 3549, however, American Bar Association, District of sacrifice. Mourners paid tribute to Ser- would potentially expand the 30-day Columbia Bar Association, U.S. Court geant Henkes in the Woodburn, OR, CFIUS review to 60 days, creating a of Appeals for the First Circuit and the National Guard Armory on September much longer delay and one that is dis- Federal Circuit, and the Hispanic Na- 11. At the ceremony, he was post- connected from the HSR-mandated tional Bar Association. He has held a humously awarded the Bronze Star and time table. This would create a sub- variety of leadership positions in the Purple Heart service medals by his bat- stantial competitive disadvantage. Our Federal Bar Association Puerto Rico talion. government ought to be able to quickly Chapter including director, president- We grieve the loss of another soldier identify and clarify the national secu- elect, vice president, secretary and who made the ultimate sacrifice to de- rity implications of a given transaction treasurer. fend the freedoms we all cherish. Ser- certainly within the 30 days prescribed The ABA has recommended Mr. geant Henkes leaves behind a legacy under current law. Besosa for the position with a unani- that will live on through the people he The second provision with which I mous ‘‘well qualified’’ rating. inspired and the young daughter who have concern would require repeated Given his qualifications and experi- will grow up knowing that her father and detailed notifications about ongo- ence, Mr. Besosa is a good fit for the

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.025 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10278 CONGRESSIONAL RECORD — SENATE September 27, 2006 U.S. District Court for the District of curity will continue as it is one of the other supporters, including the Na- Puerto Rico. I would have supported cornerstones to securing our northern tional Council on Aging, the National his nomination. border. Older Worker Career Center, Watson Mr. COLEMAN. Mr. President, I rise f Wyatt Worldwide, the Committee for today to discuss the Secure Fence Act Economic Development, the Associa- NATIONAL EMPLOY OLDER of 2006 and the issue of securing our tion of Jewish Family and Children’s WORKERS WEEK northern border. Without question, se- Agencies, and United Jewish Commu- curing the border is our most vital Mr. KOHL. Mr. President, I rise nities. With their backing, this bill will need in dealing with illegal immigrants today to recognize National Employ continue to gain steam. and as it stands, our borders lay vul- Older Workers Week, a time to cele- During National Employ Older Work- nerable to not only an influx of illegal brate the many older workers who are ers Week, we also celebrate the Senior immigrants but also transportation of redefining retirement and the employ- Community Service Employment Pro- dangerous materials. The facts are ers that welcome their talents. gram—SCSEP—which has provided clear—each year over 1 million unau- Many older Americans do not see re- community service and job training to thorized aliens are interdicted entering tirement as just a period of leisure; low-income seniors for 40 years. As our the country mostly on the southwest they continue to contribute to our na- baby boomers age and seniors become a border. Testimony by the Border Pa- tion’s businesses, communities, and growing share of the population, we trol union chief places the estimate of economy. And some employers, facing must strengthen SCSEP so that all eli- illegal entrants not interdicted by Bor- a shortage of skilled and experienced gible seniors get the help they need. der Patrol to be two times those actu- workers, have recognized the value of Many of us were concerned when the ally caught. Simply put, the Border older workers by changing their poli- Administration proposed a major over- Patrol is overwhelmed by the sheer cies to attract and retain them. haul of this program, which would have volume of the traffic and it is time to One of those employers is Mercy been disruptive to both grantees and take action. Health System, which is based in Wis- participants. I am hopeful that the The Secure Fence Act of 2006 requires consin and has 63 health care facilities Older Americans Act reauthorization the Secretary of Homeland Security to across Wisconsin and Illinois. AARP bill will preserve the basic structure of take all appropriate actions to achieve recently ranked Mercy Health System the program and build on its success. operational control over all U.S. inter- the top employer for older workers in I urge Congress to pass the OAA re- national land and maritime borders the country. Mercy Health System at- authorization as soon as possible so within 18 months of its enactment. Ad- tracts and retains older workers by that seniors in need of SCSEP services ditionally, the bill authorizes 700 miles providing flexible work options, like have the tools to stay active in the of double-layered fencing at specified its Work-to-Retire Program, which of- workforce and their communities. But locations along the almost 2,000-mile fers reduced and seasonal work sched- beyond reauthorization, we must also southwest U.S. international border ules while maintaining health benefits. boost SCSEP’s funding, which is cur- with Mexico. Yet too few employers have followed This bill also takes the right ap- rently only enough to serve less than Mercy Health System’s lead in creating one percent of the eligible population. proach in terms of northern border se- better work options for older Ameri- curity. The legislation requires the De- As a member of the Appropriations cans. While most older workers want to Committee, I will continue to press for partment of Homeland Security to con- work past traditional retirement age, duct a study on the feasibility of a additional funding so that all older many do not want to work a tradi- Americans who want or need to work state of-the-art infrastructure security tional full-time schedule. Today, only system along the northern inter- longer have the opportunity to do so. about one-third of older workers have national land and maritime border of As older Americans live longer and flexible work schedules. Even when em- the United States. The study shall in- healthier lives, most have the ability ployers offer flexible work options like clude the necessity of implementing and desire to remain active. Some want part-time work schedules, most do not such a system, the feasibility of imple- to maintain physical and mental also offer benefits: only 22 percent of menting such a system and the eco- health, some need to improve their fi- part-time workers have access to nomic impact implementing such a nancial security, and some want to health benefits. system will have along the northern continue to contribute to society. So while older workers and some em- border. Whatever the reason, it’s time to In my home state of Minnesota, we ployers have begun to reinvent retire- change the way we think about retire- share 547 miles of border with Canada ment, we have a long way to go. That ment. Older Americans are a valuable and 458 of those miles are a water is why I authored the Older Worker Op- asset to our nation’s businesses, com- boundary. I want to make it clear to portunity Act, which aims to expand munities, and economy, and we must my constituents and our Canadian opportunities for older Americans to tap their reservoir of experience and friends that this legislation should not work longer if they so choose. The cen- talents. Our seniors deserve it, and our be used to justify construction of a terpiece of this legislation is a tax economic future may well depend on it. wall along the northern border but to credit for employers that offer flexible, f take an inventory of the systems that reduced, or seasonal work schedules to older workers while maintaining their CHILD AND FAMILY SERVICES are working and not working and en- IMPROVEMENT ACT sure that we put in place the most ef- health and pension benefits. Such a fective approach. We are going to credit would reward employers like Mr. GRASSLEY. Mr. President, yes- measure twice before building once. Mercy Health System who are doing terday, the House of Representatives The United States and Canada share the right thing, while encouraging passed the Senate amendment to S. a long history of working together on other employers to follow their lead. 3525, which represents the bipartisan issues of mutual concern. Both coun- Greater workplace flexibility would and bicameral agreement on the Child tries share a common border and com- not only benefit older Americans, but and Family Services Improvement Act mon objectives: to ensure that the bor- would also reduce employer costs by of 2006. der is open for business, but closed to increasing productivity and job reten- I was pleased to have introduced the crime. The Canada-United States tion. Senate amendment with my friend and Smart Border Declaration and Action Just this week, the National Com- partner on the Senate Finance Com- Plan and programs such as the Secu- mittee to Preserve Social Security and mittee, Senator MAX BAUCUS. Senator rity and Prosperity Partnership and Medicare endorsed the Older Worker BAUCUS and I were joined by Senator the Integrated Border Enforcement Opportunity Act. In its letter of sup- ORRIN G. HATCH, and Senator JOHN D. Teams are great examples of coopera- port, president and CEO Barbara Ken- ROCKEFELLER, Jr. and Senator OLYMPIA tive initiatives that have proven suc- nelly offered that the bill ‘‘could help J. SNOWE. All of these members have a cessful. pave the way for significant increases long history of support for important I am fully confident this strong rela- in older worker employment.’’ I agree, programs to improve the well-being of tionship and commitment to border se- and I am proud to have them join our children.

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.039 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10279 This important legislation reauthor- cifically, Diedra Henry-Spires, Doug for five years (FYs 2007 through 2011) and ex- izes the Promoting Safe and Stable Steiger, and Michelle Easton. Addi- tends the discretionary funding authoriza- Families Program which provides serv- tionally, I am grateful to Senator tion of $200 million for each of those same five years. The legislation expands the re- ices to families for family support, ROCKEFELLER’s extremely knowledge- able aid Barbara Pryor. porting requirement to include both pro- family preservation, time-limited re- posed spending and actual spending under unification of families, and for adop- I appreciate the work of the staff on the CWS and PSSF programs, and at State tion and post-adoption services. These the Subcommittee on Human Re- option, other programs that support child are critical funding streams, and the sources of the House Committee on abuse prevention activities and child welfare reauthorization of the Promoting Safe Ways and Means, Matt Weidinger and services. The legislation also prohibits HHS and Stable Families Program ensures Christine Calpin for the majority and from making any payment of PSSF funds to that families can rely on these prevent- Nick Gwyn and Sonja Nesbit for the a State for administrative costs that exceed ative and supportive services. minority. 10 percent of total program expenditures (Federal and non-Federal) of a State. The legislation also aligns the Child I also thank the dedicated analyst Welfare Services Act with the preven- from the Congressional Research Serv- Reason for Change tion activities of the Promoting Safe ice, Emilie Stoltzfus who provided staff The PSSF program supports four cat- and Stable Families Program by pro- with invaluable expertise on child wel- egories of services provided to children and families: family preservation services, com- viding incentives to States to invest in fare programs. Thanks to Christina Hawley Anthony munity-based family support services, time- prevention services while allowing from the Congressional Budget Office limited reunification services, and adoption States to continue current State as well as legislative counsels Ruth promotion and support services. The legisla- spending on existing State priorities. Ernst and James Grossman. tion recognizes the importance of encour- S. 3525 provides support for increased Finally, I appreciate the efforts of aging States to invest in these activities. caseworker visits as well as adopts a Thus the legislation provides for the $200 my own Finance Committee policy million increase in mandatory PSSF funds version of President Bush’s proposal to lead on this issue, Becky Shipp as well provide a voucher for mentoring serv- over the next five years included in the Def- as Mark Hayes, Ted Totman, and Kolan icit Reduction Act of 2005 (Pub. L. 109–171). ices for children of prisoners. Davis. In total $345 million in mandatory funds (the Additionally, the legislation in- Mr. President, because a formal con- recent $305 million allotment of annual man- creases access for funding for Indian ference was not convened on this bill, datory funds, plus a $40 million annual in- tribes, which was a key priority of both there is no conference report filed. crease provided under the Deficit Reduction Senator BAUCUS and Senator KENT However, the staff has prepared a sec- Act of 2005) will be provided in each of FYs CONRAD. tion-by-section analysis of the Senate- 2007 through 2011. The legislation that will soon be House agreement for purposes of the The legislation also will ensure better signed by the President also includes legislative history. oversight and accountability of spending grants for regional partnerships to ad- under the CWS and PSSF programs by re- Mr. President, some will say this has quiring States to report on projected and ac- dress the growing problem of meth- been a ‘‘do nothing congress.’’ I tual spending under these two programs. amphetamine and other substance couldn’t disagree more, and I believe Specifically, data on actual spending will abuse and addictions that have had a that the children and families served help track State investments for the four substantial impact on child welfare by this legislation would disagree as priorities of the PSSF program. systems and services. well. Section 4—Targeting of Promoting Safe and Sta- Funding for these competitive grants Mr. President, I ask unanimous con- ble Families Program Resources was a key priority of mine, and I am sent that the section-by-section anal- Current Law pleased that the compromise we were ysis to which I referred be printed in Current law requires States to include as- able to work out with the House main- the RECORD. surances in their PSSF plan that they will tains the support for grants to improve There being no objection, the mate- spend significant portions of their PSSF the outcomes for children affected by rial was ordered to be printed in the funds in each of four priority areas: (1) fam- methamphetamine abuse and addic- RECORD, as follows: ily preservation services; (2) community- SECTION-BY-SECTION ANALYSIS based family support services; (3) time-lim- tion. ited family reunification services; and (4) S. 3525, THE CHILD AND FAMILY SERVICES Mr. President, the Senate Finance adoption promotion and support services. IMPROVEMENT ACT OF 2006, AS AMENDED Committee did a great deal of work on S. 3525 issues relating to child welfare. We (Prepared by the Staff of the U.S. House The legislation retains the four priorities held the first full committee hearing in Committee on Ways and Means and the U.S. Senate Committee on Finance, Sep- of PSSF while targeting the additional $40 10 years on child welfare, and we held tember 27, 2006) million per year provided under the Deficit an additional hearing on the effects of Section 1—Short Title Reduction Act of 2005 (Pub. L. 109–171) to two the methamphetamine epidemic on the new priorities: (1) support for monthly case- ‘‘The Child and Family Services Improve- worker visits; and (2) competitive grants to child welfare system. We worked on a ment Act of 2006’’ bipartisan basis to mark up and pass promote the well-being of children in or at Section 2—Findings risk of placement in the child welfare system the Improving Outcomes for Children The legislation makes a number of findings Affected by Meth Act of 2005. Key pro- as a result of their parent’s abuse of meth- regarding the provision of services under two amphetamine or other substances. visions of that bill are features in the child welfare programs authorized under The legislation provides a total of $95 mil- legislation which will soon be signed Title IV–B of the Social Security Act, the lion to States to support monthly case- into law. Child Welfare Services (CWS) program and worker visits of children in foster care under But there is more that can be done to the Promoting Safe and Stable Families the responsibility of the State, with a pri- strengthen and improve child welfare (PSSF) program. The findings note the im- mary emphasis on activities designed to im- portance of monthly caseworker visits in im- services. I intend to continue to work prove caseworker retention, recruitment, proving outcomes for children. They also training, and ability to access the benefits of on a bipartisan basis to develop and outline the relationship between the entry of enact reforms to ensure that all chil- technology. States will receive $40 million children into the child welfare system and from FY 2006 PSSF funds (with these funds their parent’s abuse of methamphetamine dren have access to loving, permanent available through FY 2009), $5 million in FY and other substances. homes. 2008, $10 million in FY 2009, and $20 million in I would like to take this opportunity Section 3—Reauthorization of the Promoting each of FYs 2010 and 2011 to support monthly to thank the staff who worked tire- Safe and Stable Families Program caseworker visits. States cannot use these lessly to get this bill done. Members of Current Law funds to supplant any Federal funds already Congress in both the House and the For fiscal year (FY) 2006, authorizes man- paid to the State under the Title IV–E pro- datory funding of $345 million for the Pro- gram that could be used for the purposes Senate are very well served by our moting Safe and Stable Families (PSSF) pro- staffs. These men and women care a outlined above. gram (Title IV–B, Subpart 2 of the Social Se- To promote the well-being of children af- great deal about these programs, and curity Act) and discretionary funding of $200 fected by their parent’s abuse of meth- we are indebted to them for their in- million for each of FYs 2002 through 2006. amphetamine or other substances, the legis- sights and analysis. S. 3525 lation provides a total of $145 million to the I am grateful to the talented staff The legislation extends the mandatory Secretary of the Department of Health and from the office of Senator BAUCUS, spe- PSSF funding authorization of $345 million Human Services (HHS) to award competitive

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.067 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10280 CONGRESSIONAL RECORD — SENATE September 27, 2006 grants to regional partnerships to pursue in- Parental substance abuse is a well-known abused and neglected children. The legisla- novative approaches to help children and problem affecting the child welfare system, tion significantly increases the amount of families. Funding will be $40 million in FY and the Office of Applied Studies of the Sub- funds provided to tribes and allows tribal 2007, $35 million in FY 2008, $30 million, in stance Abuse and Mental Health Services consortia to apply for PSSF funds. This step FY 2009 and $20 million in each of FYs 2010 Administration reported that the number of is being taken to encourage the further de- and 2011. Partnerships must include the new uses of methamphetamines (meth) has velopment of tribal child welfare programs, State child welfare agency or an Indian tribe increased 72 percent in the past decade. A which largely serve severely disadvantaged and at least one other eligible partner, in- study by the National Association of Coun- communities and families and can do so in a cluding: child welfare service providers (non- ties which surveyed 300 counties in 13 States culturally appropriate manner. Permanency profit and for-profit), community providers reported that meth abuse is a major cause of outcomes for Indian children can be im- of health or mental health services, local law child abuse and neglect. Forty percent of all proved if tribal consortia are able to have ac- enforcement agencies, judges and court per- the child welfare officials in the survey re- cess to an allotment of PSSF funding on the sonnel, juvenile justice officials, school per- ported an increase in out-of-home place- same basis as is currently available to Indian sonnel, the State agency responsible for ad- ments due to meth abuse in 2005. tribes. This will facilitate smaller tribes’ ministering the substance abuse prevention Section 5—Allotments and Grants to Indian building their own programs and will allow and treatment block grant (authorized under Tribes for administrative efficiencies in tribal pro- Title XIX–B, Subpart II of the Public Health Current Law gram administration. Services Act), and any other providers, agen- Requires that 1 percent of all mandatory To collect additional data and ensure prop- cies, personnel, officials or entities related PSSF funds, and 2 percent of any discre- er oversight of these funds, tribes and tribal to the provision of child and family services. tionary appropriations for the PSSF pro- consortia interested in applying for this sub- Grants of between $500,000 and $1 million per gram, be set aside for tribal programs. (The stantial increase in PSSF funds will be re- year will be awarded for 2 to 5 year periods. minimum tribal funding provided is $3.45 quired to adhere to the same data and moni- A priority will be given to grant applica- million and the maximum annual tribal toring plan requirements as States. This ad- tions that propose to combat methamphet- funding possible is $7.45 million.) ditional data will inform how these funds amine abuse, given its substantial affect on Out of the tribal funds reserved, Indian have helped the tribes better ensure the safe- child welfare in some areas. Funding for the tribes or tribal organizations with an ap- ty, permanency, and well-being of tribal grants must be used to support the purposes proved plan must be allotted PSSF funds children. of this program, which may include family- (based on the relative share of tribal persons Section 6—Improvements to the Child Welfare based comprehensive long-term substance under age 21 but only among tribes or tribal Services (CWS) Program abuse treatment services, early intervention organizations with approved plans). The Sec- Current Law and prevention services, mental health serv- retary of HHS may exempt a tribe from any Up to $325 million annually is authorized ices, parent skills training, and replication plan requirement that it determines would on an indefinite basis for the Child Welfare of successful models for providing family- be inappropriate for that tribe (taking into Services (CWS) program, which provides based comprehensive long-term substance account the resources, needs, and other cir- funds to States to support a wide range of abuse treatment services. Grantees must cumstances of that tribe). However, no tribe child welfare activities. Federal funding rep- provide a 15 percent match in the first and or tribal organization may have an approved resents 75 percent of total funding for this second year, a 20 percent match in the third plan (or receive funds) unless its allotment is program, and States are required to con- and fourth year, and a 25 percent match in equal to at least $10,000. Funds allotted are tribute 25 percent of total CWS funding from the fifth year. In-kind contributions can paid directly to the tribal organization of State funds. the Indian tribe to which the money is allot- qualify towards the match requirement. The S. 3525 ted. Secretary of HHS must consult with State The legislation maintains the annual dis- S. 3525 leaders to develop performance indicators cretionary authorization level of $325 million and reporting is required of all grant recipi- The legislation increases the set-aside for per year but limits the funding authorization ents. tribal programs to 3 percent of any discre- to FYs 2007 through 2011. The legislation also The legislation also redirects current tionary funds appropriated. It also increases specifies that the purpose of the CWS pro- PSSF research funding to support evalua- the set-aside for tribal programs to 3 percent gram for which funds may be expended is to tion, research, and technical assistance re- of the mandatory funds authorized and promote State flexibility in the development lated to the above two PSSF funding prior- which remain after the separate reservation and expansion of a coordinated child and ities. In each of FYs 2007 through 2011, at of funds is made for (1) monthly caseworker family services program that utilizes com- least $1 million must be spent for research visits, and (2) competitive grants to combat munity-based agencies and that ensures all and technical assistance activities that sup- methamphetamine and other substance children are raised in safe, loving families, port monthly caseworker visits and at least abuse. Therefore, the minimum funding by: (1) protecting and promoting the welfare $1 million must be spent for research and available per year for tribal programs would of all children; (2) preventing the neglect, technical assistance activities with respect be $9.15 million and the maximum funding abuse, or exploitation of children; (3) sup- to the competitive grant program to pro- would be $15.15 million. The legislation porting at-risk families through services mote the well-being of children in or at risk eliminates the ability of the Secretary of which allow children, where appropriate, to of placement in the child welfare system due HHS to exempt tribes from the PSSF plan remain safely with their families or return to a parent’s abuse of methamphetamine or requirements related to nonsupplantation, to their families in a timely manner; (4) pro- other substances. data reporting, and monitoring. However, moting the safety, permanence and well- Reason for Change the Secretary retains the ability to waive for being of children in foster care and adoptive The targeting of funds to support monthly Indian tribes the PSSF requirement to in- families; and (5) providing training, profes- visits of foster children is in response to re- vest significant amounts of program funds in sional development and support to ensure a search highlighting how monthly visits lead each of the four PSSF activities and to spend well-qualified child welfare workforce. to better outcomes for children. The Child no more than 10 percent of PSSF funds on The legislation eliminates the plan re- and Family Service Reviews (CFSRs) com- administrative costs. quirements related to child day care stand- pleted in each State found a strong correla- The legislation also permits tribal con- ards and those related to the use of para- tion between frequent caseworker visits with sortia to have access to an allotment of professionals or volunteers and restates and children and positive outcomes for children, PSSF funds (and related technical assist- renumbers the remaining provisions with such as timely achievement of permanency ance) on the same basis as such funds are generally the same intent. It rewrites the and other indicators of child well-being. currently available to Indian tribes. A tribal provision concerning policies and procedures However, despite the fact that nearly all consortium’s allotment is to be determined for children abandoned shortly after birth to States had written standards suggesting based on the number of tribal persons under assert that a State must have in effect ad- monthly visits were State policy, a Decem- age 21 in each tribe that is a part of the trib- ministrative and judicial procedures for chil- ber 2005 report completed by the HHS Office al consortium. If tribes choose to apply col- dren who are abandoned at or shortly after of the Inspector General found that only 20 lectively as a consortium, the population of birth (including policies and procedures pro- States were able to produce reports showing tribal persons under age 21 for each tribe viding for legal representation of the chil- whether caseworkers actually visited chil- would be combined in order to determine the dren) to ensure expeditious decisions can be dren in foster care on at least a monthly size of the grant to the consortium, includ- made for their permanent placement. Fur- basis. States are encouraged to invest these ing whether the consortium meets the $10,000 ther, it clarifies that the State may include resources in those activities with proven ef- eligibility threshold in the Act. A tribal con- residential educational programs as a living fectiveness in supporting monthly case- sortium could select which Indian tribal or- arrangement for children for whom reunifi- worker visits of foster children and should be ganization (among the tribes in the consor- cation, adoption, or guardianship have been cognizant that these funds may not supplant tium) would receive the direct payment of ruled out as permanency goals. This provi- what States already spend from their Title its allotment. sion does not undermine current State poli- IV–E programs for these activities. These re- Reason for Change cies regarding placement of children in adop- sources are intended to increase State in- The legislation recognizes the importance tive homes and does not eliminate the 25 bed vestment in these important areas. of assisting tribes in their efforts to assist policy.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.027 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10281 Beginning October 1, 2007 (i.e. the begin- matching requirement in order to draw down regarding the voucher pilot program’s effec- ning of FY 2008), the legislation limits ad- their full allotment of Federal CWS funds. tiveness. ministrative funding to 10 percent, but de- The share of non-Federal spending that is re- Reason for Change fines administrative funds to exclude case- quired in a State that does not meet its visi- worker services and supervision of such serv- tation target level in a year increases by a The continuation of the Mentoring Chil- ices. Also beginning in FY 2008, the legisla- minimum of 1 percentage point, up to a max- dren of Prisoners program will enable public tion limits how much each State can expend imum of 5 percentage points, depending on and private organizations to establish or ex- from Federal CWS funding for foster care the degree to which the State has missed its pand projects that provide one-on-one men- maintenance payments, adoption assistance target level; absent the commitment of addi- toring for children of incarcerated parents payments, or child day care to what the tional State funds, Federal funds would be and those recently released from prison. At State can show that it spent for such pur- reduced to yield the modified State share of the same time, children have not been able poses in FY 2005. Further, beginning with FY overall CWS funding, consistent with the de- to access mentoring services in some States 2008, States are not allowed to use State gree of the State’s failure to achieve its visi- and rural areas because of the absence of a spending on foster care maintenance pay- tation target for that year. site-based grant to provide this service. The ments to meet the State matching require- No later than March 31, 2010, HHS must voucher pilot program will evaluate the ef- ment to receive Federal CWS fund in submit to the House Committee on Ways and fectiveness of using vouchers to expand the amounts that exceed what the State spent Means and the Senate Committee on Finance delivery of mentoring services to children of from such funds in FY 2005. a report that outlines the progress States prisoners, including to children in rural and The legislation also adds new requirements have made in meeting their caseworker visi- underserved areas. to the CWS plan the State submits to (1) de- tation standards and that offers rec- Section 9—Reauthorization of the Court Im- scribe how the State consults with and in- ommendations, developed in consultation provement Program volves physicians and other appropriate med- with State administrators of child welfare Current Law ical professionals in the assessment of chil- programs and members of State legislatures, dren in foster care and in determining appro- to assist States in meeting this standard. For each of FYs 2002 through 2006, an eligi- ble highest State court (with an approved ap- priate medical treatment, and (2) develop a Reason for Change plan on how to respond, track and continue plication) is entitled to a share of funds to Holding States accountable for achieving assess and make improvements to its han- care for children receiving child welfare monthly caseworker visits for at least 90 per- services in the event of a disaster. dling of child welfare procedures. A set-aside cent of foster children responds to research of $10 million from the mandatory funds au- Reason for Change highlighting how monthly visits lead to bet- thorized and 3.3 percent of any discretionary The legislation will reorganize and update ter outcomes for children. HHS shall work appropriation is provided from the PSSF the CWS program and encourage more effec- with the States to establish a plan to program to support the Court Improvement tive oversight. It also aligns the program to achieve this goal by FY 2012 and States are Program. To receive its full allotment of be coterminous with the reauthorization of encouraged to invest the new PSSF re- these funds the court, in each of FYs 2002 the PSSF program to allow for better coordi- sources provided in FY 2006 and later fiscal through 2006, is required to provide at least nation between the two programs. It will en- years in activities that have been shown to 25 percent of the expenditures for this pur- courage States to invest funding in preven- be effective in achieving increased case- pose. tion services, but allows each State to main- worker visitation of foster children. The tain in the coming years its FY 2005 level of above accountability measure will ensure S. 3525 spending from Federal CWS funds for foster that, even in the case of a State that fails to The legislation reauthorizes the funding care, adoption assistance and child care pur- fulfill its specified level of caseworker visits, for the Court Improvement Program for 5 poses. It adds a new State planning require- the full Federal CWS allotment to a State years, through FY 2011. ment to ensure consultation with medical will remain available so long as that State Reason for Change professionals as well as State planning to increases its State CWS spending modestly, continue the availability of child welfare according to the provisions of the legisla- The Court Improvement Program has services during a disaster. tion. played an important role in assisting State courts in their efforts to expedite judicial Section 7—Monthly Caseworker Standard Section 8—Reauthorization of Program for Men- proceedings for at-risk children. The legisla- Current Law toring Children of Prisoners tion will ensure these funds continue to re- Current Law There is no minimum Federal standard for main available, and is in addition to the $100 monthly visits of foster children in State The Mentoring Children of Prisoners pro- million provided over FYs 2006 through 2010 custody. gram is administered by HHS and makes under the Deficit Reduction Act of 2005 (Pub. S. 3525 competitive grants to support the establish- L. 109–171) to support training and data col- ment or expansion and operation of pro- The legislation requires the State to up- lection efforts of State courts. grams that provide mentoring services to date its CWS State plan by October 1, 2007 to children of prisoners. Section 10—Requirement for Foster Care Pro- describe its standards for the content and ceedings to Include, in an Age-Appropriate S. 3525 frequency of caseworker visits of foster chil- Manner, Consultation with the Child that dren in State custody, which at a minimum The legislation reauthorizes the existing Is the Subject of the Proceeding must ensure that children are visited on a Mentoring Children of Prisoners program Current Law monthly basis and that the caseworker visits through FY 2011 at such sums as may be nec- are well-planned and focused on issues perti- essary and increases the HHS set-aside for Current law does not include a standard for nent to case planning and service delivery to research, technical assistance, and evalua- consulting with children in court pro- ensure the safety, permanency, and well- tion from 2.5 percent to 4 percent. It author- ceedings. being of children. izes a new 3-year pilot program to provide S. 3525 The legislation also sets a minimum Fed- vouchers to qualified mentoring groups to The legislation requires States to assure eral standard requiring each State and terri- offer services to individual children of pris- that in any permanency hearing held with tory to achieve by October 1, 2011 monthly oners, but specifies both annual caps on respect to the child, including any hearing caseworker visits for at least 90 percent of funding for this purpose and that at least $25 regarding the transition of the child from foster children in State custody, with the million must be available each year for site- foster care to independent living, the court majority of those visits occurring in the based grants provided under the program. or administrative body conducting the hear- child’s residence. Each State and territory The voucher pilot program will be adminis- ing consults in an age-appropriate manner would be held accountable for its efforts and tered by a national group that will work with the child regarding the plan being pro- the legislation prescribes a planning process closely with HHS to manage the program posed for the child. to achieve this goal. To receive FY 2008 CWS with the goal to distribute least 3,000 vouch- funds, States must submit to HHS data for ers in the first year, 8,000 vouchers in the Reason for Change FY 2007 on the percentage of foster children second year and 13,000 vouchers in the third Each child deserves the opportunity to par- visited on a monthly basis by their case- year. The legislation specifies that the na- ticipate and be consulted in any court pro- worker and the percentage of those visits tional group must identify in its voucher dis- ceeding affecting his or her future, in an age- that occurred in the child’s residence. Based tribution plan how the group will prioritize appropriate manner. on this data, HHS will work with each State providing vouchers to children in areas Section 11—Technical Amendments to set target levels for the State to meet to which have not been served under the cur- achieve a 90 percent monthly visitation rent site-based mentoring program. During Section 12—Effective Dates standard by FY 2012 and will establish these the third year of this pilot HHS shall provide The legislation will become effective on target levels by June 30, 2008. Then, begin- a report based on an independent evaluation October 1, 2006, except for provisions with ning in FY 2009, States must achieve their to the House Committee on Ways and Means other specified effective dates or if HHS de- annual goal for the percentage of caseworker and the Senate Committee on Finance on the termines that a State legislature must act visits and the percentage of visits that occur number of children who received vouchers before the State can comply with the in the child’s residence, or face an enhanced for mentoring services and any conclusions changes.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.029 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10282 CONGRESSIONAL RECORD — SENATE September 27, 2006 HONORING CHIEF JUDGE WILLIAM title insurance and the maintenance of ADDITIONAL STATEMENTS WALTER WILKINS, Jr. land records came under challenge. Mr. DEMINT. Mr. President, I rise His leadership of ALTA over this past today to honor the years of dedicated year was a natural extension of his cor- TRIBUTE TO JARED JENSEN service that William Walter Wilkins, porate experience. As president of Old ∑ Mr. ALLARD. Mr. President, today I Chief Judge of the U.S. Court of Ap- Republic National Title Insurance honor the service and sacrifice of Offi- peals for the Fourth Circuit, has given Company, one of the leading title un- cer Jared Jensen. to the Federal judiciary. Hailing from derwriters in this country and my My wife Joan and I were deeply sad- my hometown of Greenville, SC, his State of Minnesota, Rande has experi- dened to hear of the death of Officer contributions to South Carolina and ence being both a leader and a spokes- Jared Jensen while in the line of duty. our Nation are immeasurable. person for a large company. It takes a person of great courage to Chief Judge Wilkins began his public As ALTA president, Rande made nu- become an officer of the law. It takes a service in 1967 as an officer in the U.S. merous trips to State conventions strong, hardworking, and considerate Army, eventually earning the rank of across the country to get to know his individual. It takes a special someone colonel in the U.S. Army Reserves. colleagues better, hear their concerns who is willing to pay the ultimate Upon his honorable discharge from the for their businesses and the industry, price in protecting the safety of others. Army, Chief Judge Wilkins worked as a and came back ready to find out how Officer Jared Jensen was just this law clerk for the Honorable Clement F. ALTA could help. He also came to person. He served the Colorado Springs Haynsworth, Jr., U.S. Court of Appeals Washington to promote the importance Police Department with honor and Fourth Circuit until 1970, then going on of title insurance and land record valor for more than 3 years. Officer to become a legal assistant for the late maintenance. Jared Jensen was a dedicated police of- Senator Strom Thurmond. And Sen- ALTA has been well served by ficer who had a passion for upholding ator Thurmond got it exactly right Rande’s leadership. I congratulate him the law. when he called Chief Judge Wilkins ‘‘a on his year as president and best wish- Officer Jared Jensen was a husband, man of character and unquestionable es on his future endeavors. a brother, and a son. He is survived by integrity.’’ f his wife Natalie, a brother, who also While in private practice, Chief serves the Colorado Springs Police De- Judge Wilkins was elected as the first MIDDLE GEORGIA BUCKS SENIOR partment, and his loving parents. Republican Solicitor for the Thirteenth BOYS BASKETBALL TEAM Among his many hobbies and interests, Judicial Circuit since Reconstruction, Mr. CHAMBLISS. Mr. President, I Officer Jared Jensen was an avid a post that showcased his extensive have submitted a resolution to con- NASCAR racing fan and golfer. knowledge and mastery of the legal gratulate the 2006 Middle Georgia Throughout his life, Jared’s caring profession. Bucks Senior Boys Basketball Team of heart was evident in his devotion to In 1981, newly elected President Ron- Macon, GA, for their winning season. family and friends, his love of animals, ald Reagan used his first Presidential Not only did they win the 2006 Amateur and his loyalty to his fellow officers appointment to nominate Chief Judge Athletic Union National Champion- with whom he served. Wilkins to the position of the U.S. Dis- ship, AAU, they won the 2006 State of The city of Colorado Springs has lost trict Judge for the District of South Georgia AAU Championship and the a valuable member of its community, Carolina. Chief Judge Wilkins was con- 2006 Hoosier Showcase in Indianapolis, and we are all forever grateful for Offi- firmed by this body on July 20, 1981 and IN, as well. The Bucks finished the sea- cer Jared Jensen’s service and dedica- received his commission on July 22, son with an undefeated record of 27 tion to the safety and well-being of 1981. wins and 0 losses. On August 1, they others. His service to the city of Colo- In 1985, President Reagan appointed claimed their national victory by de- rado Springs is highly commendable, Chief Judge Wilkins to be the first feating the North Carolina Gators by a and his contributions will be remem- Chair of the United States Sentencing score of 97 to 75. bered. Commission, where he was given the This resolution recognizes and com- On October 6, 2006, the Police Cross task of creating guidelines for the sen- mends the hard work, tenacity, and and Medal of Valor will be presented to tencing of Federal defendants. He steadfast commitment to excellence of Officer Jared Jensen, posthumously, served in this capacity until 1994. Dur- the members, parents, coaches, and and given to his widow Natalie at the ing that time, he was also appointed to managers of the Middle Georgia Bucks. 21st Annual Medal of Valor Award be U.S. Circuit Judge for the Fourth It also commends the Amateur Ath- Ceremony in Colorado Springs, Colo- Circuit Court of Appeals, where he has letic Union for continuing the tradi- rado. These awards represent his ex- served as Chief Judge since 2003. tion of fostering the development of traordinary heroism and honorable Chief Judge Wilkins is a nationally sportsmanship, discipline, and self-as- service to the Colorado Springs Police recognized jurist and is known for this surance in young adults. This talented Department. scholarship, sharp wit, and unyielding team, managed by Alfonza Hall and I extend my deepest appreciation to allegiance to the rule of law. Not only coached by Melvin Flowers, Chris Officer Jared Jensen. May his bravery is the State of South Carolina honored Cromartie, and Al Hagan, has brought and unwavering sense of duty serve as to be the home of a man of his integ- great pride to the State of Georgia and a role model for the future generation rity, but the United States is privi- the Middle Georgia community, where of law officers.∑ leged to have such a distinguished ju- the fans have shown unwavering enthu- f rist defending our American legal sys- siasm, support, and admiration for the tem. players and coaches. COMMENDING FORT PECK RES- I commend Chief Judge Wilkins for Mr. President, I would like to recog- ERVATION AND FEDERAL HIGH- his 25 years of public service to the nize the players individually for their WAYS ADMINISTRATION United States. accomplishment: Lehmon Colbert; ∑ Mr. BURNS. Mr. President, I want to f LaShun Watson; Anthony Miller; take this moment to call the Senate’s Terrell ‘‘Sput’’ Dunham; Keith attention to a historic agreement that HONORING RANDE YEAGER Ramsey; Giles Mack; Antonio Steele; was signed today between the Federal Mr. COLEMAN. Mr. President, I Tay Waller; Jarvis Ogletree; Rashad Highways Administration and the As- would like to take this opportunity to Faust; Sean LeGree; Jermaine Sparks; siniboine & Sioux tribes at the Fort commend Rande Yeager, a constituent Josh Williams; Akila Carter; and Jere- Peck Reservation in Montana. of mine, on completing a year as presi- miah Crutcher. I extend my heartfelt Today, Fort Peck entered into an dent of the American Land Title Asso- congratulations to each of these play- agreement with FHWA to directly ciation, ALTA. He ably represented the ers and their families, and to all in- manage highway funds for the reserva- land title industry at a time when the volved in the organization. I urge my tion, allowing increased focus on the value and public policy purposes of colleagues to support the resolution. local needs of tribal members. Fort

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.050 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10283 Peck is one of five tribes that were se- barked on what ultimately became his women at Purdue University. Always lected for this new partnership. By em- lifelong professional passion: improv- committed to establishing a more posi- powering the tribes to administer these ing the safety and security of this Na- tive and constructive atmosphere for funds directly, FHWA is recognizing tion’s maritime interests. women on campus, her pioneering force the critical need for improved trans- Admiral Kime commanded the Ma- brought to life a vision to make science portation infrastructure on tribal rine Safety Office in Baltimore, and more appealing to women. With enthu- lands. From increased safety to eco- served as the principal U.S. negotiator siasm and energy, she developed an ex- nomic development, tribal authorities at the International Maritime Organi- perimental curriculum that proved suc- are best suited to direct this funding in zation, IMO, conference in London cessful and increased undergraduate a manner that will serve the needs of where he was a key contributor during enrollment of women at Purdue from their communities. drafting of the liquefied gas container 600 to over 1,400. In the recently passed highway bill, ship safety codes. Also during his time In 1942, as the dark clouds of World the Indian reservation roads account in Washington, Admiral Kime oversaw War II gathered over our Nation, Dr. was substantially increased, which also the structural design of the Coast Statton felt compelled to duty and demonstrates the Federal commitment Guard’s Polar Class icebreakers—two took a leave of absence from Purdue to to tribal transportation needs. I was vessels that have proven to be the anvil join the Naval Women’s Reserve. pleased to support this increase, and upon which this Nation’s scientific re- Shortly after receiving her commission even more pleased that Montana is search at the Earth’s poles has been in the Navy as a lieutenant, President leading the way in this new era of gov- forged. Roosevelt signed an amendment to ernment-to-government cooperation in While commanding the Coast Guard’s Public Law 773, thereby establishing administering these funds. Eleventh District, Admiral Kime was the Coast Guard’s Women Reserve. I am a firm believer that empowering summoned to direct the Federal re- Known for her brilliance as an orga- folks on the ground to address the spe- sponse to the Exxon Valdez oil spill, an nizer and administrator, a newly pro- cific needs of their communities gen- event of national significance that in- moted Lieutenant Commander Strat- erally yields the best results, and no fluenced the rest of his career. Admiral ton was sworn in as Coast Guard Wom- where is that more true than in Indian Kime went on to serve as Chief of the en’s Reserve new director, simulta- Country. Montana’s tribes are working Marine Safety, Security and Environ- neously making Dr. Statton the first tirelessly to improve the quality of life mental Division in Washington DC and women accepted for service as a com- for their people, and investing in basic was ultimately confirmed by the 101st missioned officer in the history of the infrastructure, like roads, is the foun- Congress as Commandant of the U.S. U.S. Coast Guard. dation of economic growth in these Coast Guard in 1990. Lieutenant Commander Stratton im- rural areas. Safe, reliable roads are As Commandant, Admiral Kime mediately left her mark on the newly needed to get kids to school, people to oversaw implementation of the land- established Reserve Service. Shortly work, and products to market. This is mark Oil Pollution Act of 1990. This after accepting the position of director a basic need we are talking about here, act streamlined and strengthened the she sent a memo to wartime Coast and I am confident that the leaders at Federal Government’s ability to pre- Guard Commandant ADM Russell R. the Fort Peck reservation are best vent and respond to catastrophic oil Waesche. Dr. Stratton wrote, ‘‘The suited to tackle these challenges. spills. For his immense successes in motto of the Coast Guard is ‘Semper I would like to congratulate Fort improving commercial shipping regula- Paratus—Always Ready.’ The initials Peck and FHWA for this tions, he was awarded the 1993 Inter- of this motto are, of course, S-P-A-R. groundbreaking partnership. I am national Maritime Prize by the Inter- Why not call the members of the Wom- hopeful that we can build on this ini- national Maritime Organization. en’s Reserve SPARs?. . . . As I under- tiative and expand the ability of tribal From overseeing the structural de- stand it, a spar is a supporting beam leaders to shape the future of their peo- sign of our Polar ice breaking fleet to and that is what we hope each member ple. ∑ pioneering improvements in the way or the Women’s Reserve will be.’’ And f our Nation prevents and responds to oil so they were. spills in the wake of the Exxon Valdez Under Stratton’s inspiring leadership HONORING ADMIRAL JOHN disaster, Admiral Kime’s influence and the newly named SPARs expanded to WILLIAM KIME energy remains visible in the wonderful include nearly 1,000 officers and over ∑ Ms. SNOWE. Mr. President, I would performance of the U.S. Coast Guard 10,0000 enlisted women. These dedi- like to take a moment today to honor today. cated, selfless women initially replaced and pay tribute to ADM John William Mr President, I ask all Members of men working in traditional clerical Kime, the 19th commandant of the the Senate to join me in recognizing and routine services at shore stations, Coast Guard who passed away on Sep- Admiral Kime’s service in our Nation’s but as the war progressed, SPARs tember 14, 2006. Coast Guard and remembering both his worked as parachute riggers, pilot During his distinguished 41-year ca- life and his dedication to the United trainer operators, aviation machinists’ reer in the Coast Guard, Admiral Kime States of America.∑ mates, and air control tower operators. embodied the ideals of superior public f Known as the ‘‘women behind the men service. An officer of great vision and behind the guns,’’ their duties eventu- ability, his leadership as the Com- HONORING THE SERVICE OF DR. ally extended to include the most im- mandant of the Coast Guard from 1990 DOROTHY C. STRATTON portant port security, logistical, and to 1994 left an indelible legacy of re- ∑ Ms. SNOWE. Mr. President, on Sep- administrative jobs. By wars end, the source stewardship, environmental pro- tember 17, 2006, this Nation lost an- SPARs successes had forever changed tection, and increased national secu- other distinguished member of our the role of women in the Coast Guard, rity. ‘‘greatest generation,’’ Dr. Dorothy and Dr. Stratton had been promoted to Admiral Kime graduated from the Constance Stratton. She was 107. the rank of captain, another first for U.S. Coast Guard Academy in 1957. Fol- An inspirational leader and true pa- the U.S. Coast Guard. lowing graduation, he immediately triot, Dr. Stratton was born in March Following her time as SPAR direc- went to sea, serving in both deck and of 1899, attended high school in the tor, Dr. Stratton became the first di- engineering assignments aboard the Midwest, and graduated from Ottawa rector of personnel at the International Coast Guard cutter Casco. In 1960, he University with a bachelor of arts de- Monetary Fund, followed by service as assumed command of Loran Station gree in 1933. She went on to earn a mas- executive director of the Girl Scouts of Wake Island. ter of arts degree in psychology from the U.S.A. She was also the United Na- After his tour of duty in the South the University of Chicago and a doc- tions representative of the Inter- Pacific, Admiral Kime earned masters torate of philosophy from Columbia national Federation of University degrees in marine engineering and University. Women. naval engineering from the Massachu- After earning her degrees, Dr. Strat- History is replete with events dem- setts Institute of Technology and em- ton became the first full-time dean of onstrating the service and sacrifices

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.111 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10284 CONGRESSIONAL RECORD — SENATE September 27, 2006 made by American women. More than resourced largely from federal FY05 dens, and the lack of affordable health 400,000 women served during World War funds, include defining the procure- insurance options in Maine. II. We are humbled by their love and ment process related to executing this The small business owners that ap- dedication to our Nation. effort; completing a foundational anal- pear on ‘‘Back To Business’’ frequently I ask my colleagues to join with me ysis, the development of ‘‘white pa- cite Maine’s business climate as chal- today in honoring and recognizing pers,’’ to define the precise relevance of lenging on several fronts. Moving for- CAPT Dorothy Stratton for her service the effort; completing required Depart- ward, it is critical that we also think to the United States, the U.S. Coast ment of Defense accreditation of forward and equip America’s small Guard and its Reserve, and for the in- deployable communications capabili- businesses with the knowledge and spiration and legacy she created for the ties; completing a national survey of tools to confront the challenges of to- women of this great Nation.∑ communications requirements, capa- morrow so that they can create jobs f bilities, and existing shortfalls to con- and continue to strengthen our econ- firm that there is a national need for omy. I can proudly report that ‘‘Back RECOGNIZING MISSOURI this type of capability; providing To Business’’ offers Maine small busi- ORGANIZATIONS deployable communications capabili- nesses vital knowledge and useful tools ∑ Mr. BOND. Mr. President, I would ties for testing/validation. These capa- and resources. We must not forget that like to take this opportunity to recog- bilities will directly support the Na- the Federal and State governments nize the valuable efforts of the Mis- tional Guard, as well as legitimize the should be partners, working together souri National Guard, Missouri School concept that state government prior to with the business community to sup- Boards’ Association, and National and during times of emergency can le- port small businesses. Guard Bureau as they have collabo- verage Guard equipment; and providing Small businesses create nearly three- rated to support Missouri’s deployable communications capabili- quarters of all net new jobs, represent prototypical satellite/wireless commu- ties to be shared with the Missouri 97 percent of all business in Maine, and nications efforts. They have signifi- School Boards’ Association in order employ 61 percent of Maine’s workers. cantly contributed to our knowledge that the association, during non- Mainers are more than ever relying and experience in delivering inter- emergency situations, can validate ap- upon small business ownership as an agency, interoperable communications plications with schools. alternative to the traditional work- capabilities relevant to both the Na- With remaining Federal funds appro- place where the manufacturing indus- tion and Show Me state. priated in fiscal year 2005, the Missouri try and corporate America once offered The Missouri School Boards’ Associa- School Boards’ Association will also life long futures for workers. tion has closely collaborated with the coordinate an effort to validate the As chair of the Senate Small Busi- National Guard to demonstrate that a ability to leverage emerging wireless ness Committee, I have introduced an limited amount of Federal funding can technologies in a defined geographical ambitious legislative agenda to break be leveraged to provide for the creation area in Missouri. This demonstration down small business barriers. I re- of interagency, interoperable, satellite/ will also validate the relevance of cently introduced a bill that would ex- wireless, disaster response communica- IPTV, Internet protocol television, pand the Small Business Administra- tions capability, creating reliable with wireless technologies so that tion’s Historically Underutilized Busi- local, State and Federal communica- field-based educational opportunities ness Zones or HUBZones program to in- tions infrastructure. This capability can be transmitted ‘‘live’’ to school clude rural Maine towns and regions can support a number of initiatives, in- classrooms. From Federal fiscal year that were previously ineligible. Ac- cluding first responder training, dis- 2006 funds, the Missouri School Boards’ cording to the SBA, 110 Maine busi- tance learning, telemedicine, and local Association will coordinate a wireless nesses in 11 counties received more law enforcement. It is significant to demonstration project in a second de- than $12.7 million in HUBZone Pro- note that a critical component of this fined geographical area in Missouri. gram dollars in fiscal year 2005. Unfor- demonstration effort is to prove that This project will incorporate lessons tunately, current law is preventing various agencies can leverage common, learned from the initial demonstration more regions in Maine from being cer- shared infrastructure, which reduces project in a defined geographical space. tified as HUBZones. Under my bill, sustainment costs and improves gov- Once again, I thank the Missouri Na- small businesses in rural Maine, in- ernment efficiency. Every indication is tional Guard, Missouri School Boards’ cluding the Katahdin region, would be that this model can successfully sup- Association, and National Guard Bu- classified as HUBZones to qualify and port information security and network reau for their work to support Mis- compete for Federal contracts and sub- defense requirements. souri’s prototypical satellite/wireless contracts. Since beginning the Missouri effort, communications efforts. It is an out- I have also worked hard to find a so- much has already been learned. Les- standing example of collaboration.∑ lution to the small business health in- sons learned include: interagency f surance crisis. Small businesses in interoperability offers an opportunity Maine and across the country are to transform how we communicate and COMMENDATION TO THE ‘‘BACK TO trapped in stagnant, dysfunctional in- for significant cost avoidance, includ- BUSINESS’’ RADIO PROGRAM surance markets with premiums that ing the reduction of annual recurring ∑ Ms. SNOWE. Mr. President, as chair are increasing at exponential percent- costs; impediments to interagency of the Senate Committee on Small age levels. Last year, I requested a interoperability are not because the Business and Entrepreneurship, I rise Government Accountability Office Re- technology is unavailable or because today to commend the University of port that showed a startling market security requirements cannot be ad- Maine and Machias Savings Bank for consolidation. In Maine, five large in- dressed; and challenges and opportuni- underwriting the ‘‘Back To Business’’ surance companies control 98 percent ties related to successful interagency radio program hosted by Deb Neuman of the market, leaving small businesses communications interoperability exist for a second year. with few affordable coverage options. at all local, State, and Federal Govern- Heard on WVOM in Old Town, ME, This is why I have long championed ment levels. Back To Business is an advice and news legislation that would create Small The Missouri National Guard has program geared specifically toward fos- Business Health Plans, which would validated the use of affordable satellite tering the creation, development, and allow small businesses to pool together technology to create reliable, redun- continued success of small businesses nationally, to offer quality health in- dant disaster response network com- in Maine. It has been a strong, sup- surance products to their employees at munications. The National Guard has portive, and unwavering voice for significantly lower costs. This year we leveraged existing resources and Maine’s small businesses, providing an came closer than ever before to passing teamed with State and Federal agen- interactive forum that discusses press- SBHPs into law, and I will continue to cies to confirm the reliability and ca- ing issues of the day, such as small push forward with my colleagues on pabilities of a planned network. Ongo- business access to investment capital, both sides of the political aisle, to fash- ing activities to support these efforts, regulatory, and tax compliance bur- ion bipartisan legislation that can be

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.066 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10285 signed into law to bring small busi- report of the committee of conference H.R. 1215. An act to provide for the imple- nesses relief. on the disagreeing votes of the two mentation of a Green Chemistry Research Mr. President, I again commend Houses on the amendment of the Sen- and Development Program, and for other purposes. WVOM’s ‘‘Back to Business’’ program, ate to the bill (H.R. 5631) making ap- H.R. 2679. An act to amend the Revised which is a true public service to propriations for the Department of De- Statutes ofthe United States to prevent the Mainers. Their mission to educate fense for the fiscal year ending Sep- use of the legal system in a manner that ex- elected officials, opinion leaders, and tember 30, 2007, and for other purposes. torts money from State and local govern- the people of Maine about the impor- The message also announced that the ments, and the Federal Government, and in- tance of small businesses to our econ- House agrees to the amendments of the hibits such governments’ constitutional ac- omy and our country is invaluable.∑ Senate to the amendments of the tions under the first, tenth, and fourteenth amendments. f House to the bill (S. 3525) to amend H.R. 4377. An act to extend the time re- subpart 2 of part B of title IV of the So- quired for construction of a hydroelectric GFWC TRAVELERS CLUB cial Security Act to improve outcomes project, and for other purposes. CELEBRATES 100TH ANNIVERSARY for children in families affected by H.R. 4417. An act to provide for the rein- ∑ Mr. THUNE. Mr. President, today I methamphetamine abuse and addic- statement of a license for a certain Federal tion, to reauthorize the promoting safe Energy Regulatory project. recognize GFWC Travelers Club of H.R. 4559. An act to provide for the convey- Chamberlain, SD. On September 12, and stable families program, and for ance of certain National Forest System land 2006, GFWC Travelers Club celebrated other purposes. to the towns of Laona and Wabeno, Wis- its 100th anniversary. The message further announced that consin, and for other purposes. As the oldest continuing volunteer the House has passed the bill (S. 403) to H.R. 4942. An act to establish a capability club in Brule County, GFWC Travelers amend title 18, United States Code, to and office to promote cooperation between prohibit taking minors across State entities of the United States and its allies in Club has been a leader in providing the global war on terrorism for the purpose funding and assistance in numerous lines in circumvention of laws requir- of engaging in cooperative endeavors focused areas. They have been involved in ing the involvement of parents in abor- on the research, development, and commer- founding and supporting libraries, both tion decisions, with an amendment, in cialization of high-priority technologies in- locally and nationally, granting edu- which it requests the concurrence of tended to detect, prevent, respond to, re- cational scholarships, helping to main- the Senate. cover from, and mitigate against acts of ter- tain Ellsworth Air Force Base in South rorism and other high consequence events f and to address the homeland security needs Dakota and many other valuable and ENROLLED BILLS SIGNED of Federal, State, and local governments. necessary community projects. H.R. 5092. An act to modernize and reform It gives me great pleasure to rise and The message also announced that the the Bureau of Alcohol, Tobacco, Firearms, recognize the great work that GFWC Speaker has signed the following en- and Explosives. Travelers Club has done and to wish rolled bills: H.R. 5103. An act to provide for the convey- ance of the former Konnarock Lutheran them all the best of luck as they cele- S. 1275. An act to designate the facility of Girls School in Smyth County, Virginia, brate their 100th anniversary.∑ the United States Postal Service located at which is currently owned by the United 7172 North Tongass Highway, Ward Cove, f States and administered by the Forest Serv- Alaska, as the ‘‘Alice R. Brusich Post Office ice, to facilitate the restoration and reuse of Building’’. RECOGNIZING THE CUSTER the property, and for other purposes. SENIOR CENTER S. 1323. An act to designate the facility of H.R. 5136. An act to establish a National the United States Postal Service located on ∑ Mr. THUNE. Mr. President, today I Integrated Drought Information System Lindbald Avenue, Girdwood, Alaska, as the within the National Oceanic and Atmos- recognize the Custer Senior Center of ‘‘Dorothy and Connie Hibbs Post Office pheric Administration to improve drought Custer, SD, on its 35th anniversary. Building’’. monitoring and forecasting capabilities. Custer Senior Center truly deserves S.2690. An act to designate the facility of H.R. 5313. An act to reserve a small per- this recognition for its years of service the United States Postal Service located at centage of the amounts made available to to the seniors of Custer and of South 8801 Sudley road in Manassas, Virginia, as the Secretary of Agriculture for the farm- the ‘‘Harry J. Parrish Post Office’’. Dakota. land protection program to fund challenge H.R. 1442. An act to complete the codifica- grants to encourage the purchase of con- The Custer Senior Center first began tion of title 46, United States Code, ‘‘Ship- when VISTA volunteers Peggy and servation easements and other interests in ping’’, as positive law. land to be held by a State agency, county, or David Viers placed an advertisement in The enrolled bills were subsequently other eligible entity, and for other purposes. the Custer Chronicle asking those in- signed by the President pro tempore H.R. 5533. An act to prepare and strengthen terested in starting a community sen- the biodefenses of the United States against (Mr. STEVENS). ior center to meet at the Community deliberate, accidental, and natural outbreaks Church on April 6, 1970. The citizens of f of illness, and for other purposes. Custer came together and the Senior H.R. 5835. An act to amend title 38, United ENROLLED BILL SIGNED States Code, to improve information man- Center officially opened in May of 1970 agement within the Department of Veterans with 52 charter members. At 11:57 a.m., a message from the House of Representatives, delivered by Affairs, and for other purposes. Since this time, the Custer Senior H.R. 6131. An act to permit certain expend- Center has provided an invaluable com- Ms. Niland, one of its reading clerks, itures from the Leaking Underground Stor- munity service by creating a wel- announced that the Speaker has signed age Tank Trust Fund. coming place for Custer’s senior citi- the following enrolled bill: H.R. 6159. An act to extend temporarily S. 3525. An act to amend part B of title IV certain authorities of the Small Business Ad- zens to meet together for fellowship ministration. and support. I am confident that the ofthe Social Security Act to reauthorize the promoting safe and stable families program, H.R. 6160. An act to recruit and retain Bor- Senior Center will continue to bring and for other purposes. der Patrol Agents. together Custer’s citizens of all ages in H.R. 6164. An act to amend title IV of the the years to come. The enrolled bill was subsequently Public Health Service Act to revise and ex- I would like to offer my congratula- signed by the President pro tempore tend the authorities of the National Insti- tions to the Custer Senior Center on (Mr. STEVENS). tutes of Health, and for other purposes. their 35th anniversary and wish them The message further announced that At 1:06 p.m., a message from the the House has passed the following the best of luck as they celebrate this House of Representatives, delivered by important event.∑ bills, without amendment: Mr. Hays, one of its reading clerks, an- S. 176. An act to extend the deadline for f nounced that the House has passed the commencement of construction of a hydro- MESSAGES FROM THE HOUSE following bills, in which it requests the electric project in the State of Alaska. concurrence of the Senate: S. 244. An act to extend the deadline for At 9:33 a.m., a message from the H.R. 971. An act to extend the deadline for commencement of construction of a hydro- House of Representatives, delivered by commencement of construction of certain electric project in the State of Wyoming. Mr. Hays, one of its reading clerks, an- hydroelectric projects in Connecticut, and The message also announced that nounced that the House agrees to the for other purposes. pursuant to 10 U.S.C. 9355(a), amended

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.043 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10286 CONGRESSIONAL RECORD — SENATE September 27, 2006 by Public Law 108–375, and the order of H.R. 4377. An act to extend the time re- toration Plan; to the Committee on Environ- the House of December 18, 2005, the quired for construction of a hydroelectric ment and Public Works. Speaker reappoints the following Mem- project, and for other purposes. EC–8439. A communication from the Acting H.R. 4417. An act to provide for the rein- Assistant Secretary for Fish and Wildlife and ber of the House of Representatives to Parks, Fish and Wildlife Service, Depart- the Board of Visitors to the United statement of a license for a certain Federal Energy Regulatory project. ment of the Interior, transmitting, pursuant States Air Force Academy: Ms. KIL- to law, the report of a rule entitled ‘‘Migra- f PATRICK of Michigan. tory Bird Hunting: Late Seasons and Bag and MEASURES READ THE FIRST TIME Possession Limits for Certain Migratory At 3:00 p.m., a message from the Game Birds’’ (RIN1018–AU42) received on House of Representatives, delivered by The following bill was read the first September 21, 2006; to the Committee on En- Mr. Hays, one of its reading clerks, an- time: vironment and Public Works. nounced that the House has agreed to H.R. 5132. An act to direct the Secretary of EC–8440. A communication from the Acting the following concurrent resolution, in the Interior to conduct a special resource Assistant Secretary for Fish and Wildlife and which it requests the concurrence of study to determine the suitability and feasi- Parks, Fish and Wildlife Service, Depart- ment of the Interior, transmitting, pursuant the Senate: bility of including in the National Park Sys- tem certain sites in Monroe County, Michi- to law, the report of a rule entitled ‘‘Migra- H. Con. Res. 483. Concurrent resolution gan, relating to the Battles of the River Rai- tory Bird Hunting: Migratory Bird Hunting providing for a conditional adjournment of sin during the War of 1812. Regulations on Certain Federal Indian Res- the House of Representatives and a condi- ervations and Ceded Lands for the 2006–07 tional recess or adjournment of the Senate. f Early Season’’ (RIN1018–AU42) received on ENROLLED BILLS PRESENTED September 21, 2006; to the Committee on En- At 6:13 p.m., a message from the vironment and Public Works. House of Representatives, delivered by The Secretary of the Senate an- EC–8441. A communication from the Acting Mr. Hays, one of its reading clerks, an- nounced that on today, September 27, Assistant Secretary for Fish and Wildlife and nounced that the House has passed the 2006, she had presented to the President Parks, Fish and Wildlife Service, Depart- following bill, without amendment: of the United States the following en- ment of the Interior, transmitting, pursuant S. 3850. An act to improve ratings quality rolled bills: to law, the report of a rule entitled ‘‘Migra- tory Bird Hunting: Final Frameworks for for the protection of investors and in the S. 1275. An act to designate the facility of public interest by fostering accountability, Late Season Migratory Bird Hunting Regula- the United States Postal Service located at tions’’ (RIN1018–AU42) received on Sep- transparency, and competition in the credit 7172 North Tongass Highway, Ward Cove, rating agency industry. tember 21, 2006; to the Committee on Envi- Alaska, as the ‘‘Alice R. Brusich Post Office ronment and Public Works. Building’’. EC–8442. A communication from the Assist- At 6:57 p.m., a message from the S. 1323. An act to designate the facility of House of Representatives, delivered by ant Secretary, Office of Legislative Affairs, the United States Postal Service located on Department of State, transmitting, pursuant Ms. Chiappardi, one of its reading Lindbald Avenue, Girdwood, Alaska, as the to law, the certification of a proposed manu- clerks, announced that the House has ‘‘Dorothy and Connie Hibbs Post Office facturing license agreement for the manufac- passed the following bills, in which it Building’’. ture of significant military equipment requests the concurrence of the Senate: S. 2690. An act to designate the facility of abroad and the export of defense articles or H.R. 5347. An act to reauthorize the HOPE the United States Postal Service located at defense services in the amount of $50,000,000 VI program for revitalization of public hous- 8801 Sudley road in Manassas, Virginia, as to Jordan; to the Committee on Foreign Re- ing projects. the ‘‘Harry J. Parrish Post Office’’. lations. H.R. 6166. An act to amend title 10, United S. 3525. An act to amend part B oftitle IV EC–8443. A communication from the Regu- States Code, to authorize trial by military of the Social Security Act to reauthorize the lations Coordinator, Centers for Medicare commission for violations of the law of war, promoting safe and stable families program, and Medicaid Services, Department of and for other purposes. and for other purposes. Health and Human Services, transmitting, pursuant to law, the report of a rule entitled f f ‘‘Rural Health Clinics: Amendments to Par- ENROLLED BILLS SIGNED EXECUTIVE AND OTHER ticipation Requirements and Payment Provi- The message further announced that COMMUNICATIONS sions; and Establishment of a Quality As- sessment and Performance Improvement the Speaker has signed the following The following communications were Program; Suspension of Effectiveness’’ enrolled bills: laid before the Senate, together with ((RIN0938–AJ17)(CMS–1910–IFC)) received on S. 176. An act to extend the deadline for accompanying papers, reports, and doc- September 22, 2006; to the Committee on commencement of construction of a hydro- uments, and were referred as indicated: Health, Education, Labor, and Pensions. electric project in the State of Alaska. EC–8444. A communication from the Regu- EC–8435. A communication from the Con- S. 244. An act to extend the deadline for lations Coordinator, Centers for Medicare gressional Review Coordinator, Animal and commencement of construction of a hydro- and Medicaid Services, Department of Plant Health Inspection Service, Department electric project in the State of Wyoming. Health and Human Services, transmitting, of Agriculture, transmitting, pursuant to H.R. 2066. An act to amend title 40, United pursuant to law, the report of a rule entitled law, the report of a rule entitled ‘‘Importa- States Code, to establish a Federal Acquisi- ‘‘Fire Safety Requirements for Certain tion of Table Grapes from Namibia’’ (Docket tion Service, to replace the General Supply Health Care Facilities; Alcohol-Based Hand No. APHIS–2006–0025) received on September Fund and the Information Technology Fund Sanitizer Amendment’’ ((RIN0938– with an Acquisition Services Fund, and for 22, 2006; to the Committee on Agriculture, AN36)(CMS–3145–F)) received on September other purposes. Nutrition, and Forestry. 22, 2006; to the Committee on Health, Edu- H.R. 5074. An act to amend the Railroad EC–8436. A communication from the Direc- cation, Labor, and Pensions. Retirement Act of 1974 to provide for contin- tor, Regulatory Review Group, Commodity EC–8445. A communication from the Gen- ued payment of railroad retirement annu- Credit Corporation, Department of Agri- eral Counsel, Federal Retirement Thrift In- ities by the Department of the treasury, and culture, transmitting, pursuant to law, the vestment Board, transmitting, pursuant to for other purposes. report of a rule entitled ‘‘Storage, Handling, law, the report of a rule entitled ‘‘Court Or- H.R. 5187. An act to amend the John F. and Ginning Requirements for Cotton Mar- ders and Legal Processes Affecting Thrift Kennedy Center Act to authorize additional keting Assistance Loan Collateral’’ Savings Plan Accounts’’ (5 CFR Part 1653) re- appropriations for the John F. Kennedy Cen- (RIN0560–AH48) received on September 22, ceived on September 22, 2006; to the Com- ter for the Performing Arts for fiscal year 2006; to the Committee on Agriculture, Nu- mittee on Homeland Security and Govern- 2007. trition, and Forestry. mental Affairs. f EC–8437. A communication from the Under EC–8446. A communication from the Prin- Secretary, Research Education Economics, cipal Deputy Associate Administrator, Office MEASURES PLACED ON THE Department of Agriculture, transmitting, of Policy, Economics and Innovation, Envi- CALENDAR pursuant to law, the report of a rule entitled ronmental Protection Agency, transmitting, The following bill was read the sec- ‘‘National Research Initiative Competitive pursuant to law, the report of a rule entitled ond time, and placed on the calendar: Grants Program—Revisions to Administra- ‘‘Bentazon, Carboxin, Dipropyl tive Provisions’’ (RIN0524–AA32) received on S. 3936. A bill to invest in innovation and Isocinchomeronate, Oil of Lemongrass (Oil of September 22, 2006; to the Committee on Ag- education to improve the competitiveness of Lemon) and Oil of Orange; Tolerance Ac- riculture, Nutrition, and Forestry. the United States in the global economy. tions’’ (FRL No. 8093-5) received on Sep- EC–8438. A communication from the Assist- tember 22, 2006; to the Committee on Agri- The following bills were read the first ant Secretary of the Army (Civil Works), culture, Nutrition, and Forestry. and second times by unanimous con- transmitting, pursuant to law, a report rel- EC–8447. A communication from the Prin- sent, and placed on the calendar: ative to the Comprehensive Everglades Res- cipal Deputy Associate Administrator, Office

VerDate Aug 31 2005 04:45 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.039 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10287 of Policy, Economics and Innovation, Envi- sions; Volatile Organic Compound Control By Mr. INHOFE, from the Committee on ronmental Protection Agency, transmitting, for El Paso, Gregg, Nueces, and Victoria Environment and Public Works, without pursuant to law, the report of a rule entitled Counties and the Ozone Standard Nonattain- amendment: ‘‘Flufenoxuron; Pesticide Tolerance’’ (FRL ment Areas of Beaumont/Port Arthur, Dal- S. 3630. A bill to amend the Federal Water No. 8092-3) received on September 22, 2006; to las/Fort Worth, and Houston/Galveston’’ Pollution Control Act to reauthorize a pro- the Committee on Agriculture, Nutrition, (FRL No. 8224-7) received on September 22, gram relating to the Lake Pontchartrain and Forestry. 2006; to the Committee on Environment and Basin, and for other purposes (Rept. No. 109– EC–8448. A communication from the Prin- Public Works. 352). cipal Deputy Associate Administrator, Office EC–8456. A communication from the Prin- By Mr. INHOFE, from the Committee on of Policy, Economics and Innovation, Envi- cipal Deputy Associate Administrator, Office Environment and Public Works, with an ronmental Protection Agency, transmitting, of Policy, Economics and Innovation, Envi- amendment: pursuant to law, the report of a rule entitled ronmental Protection Agency, transmitting, H.R. 3929. A bill to amend the Water De- ‘‘Metconazole; Pesticide Tolerance’’ (FRL pursuant to law, the report of a rule entitled salination Act of 1996 to authorize the Sec- No. 8085-2) received on September 22, 2006; to ‘‘National Ambient Air Quality Standards retary of the Interior to assist in research the Committee on Agriculture, Nutrition, for Particulate Matter’’ (FRL No. 8225-3) re- and development, environmental and feasi- and Forestry. ceived on September 22, 2006; to the Com- bility studies, and preliminary engineering EC–8449. A communication from the Prin- mittee on Environment and Public Works. for the Municipal Water District of Orange cipal Deputy Associate Administrator, Office EC–8457. A communication from the Prin- County, California, Dana Point Desalination of Policy, Economics and Innovation, Envi- cipal Deputy Associate Administrator, Office Project located at Dana Point, California ronmental Protection Agency, transmitting, of Policy, Economics and Innovation, Envi- (Rept. No. 109–353). ronmental Protection Agency, transmitting, pursuant to law, the report of a rule entitled f ‘‘Quizalofop Ethyl; Pesticide Tolerance’’ pursuant to law, the report of a rule entitled (FRL No. 8094-5) received on September 22, ‘‘National Priorities List, Final Rule’’ (FRL EXECUTIVE REPORTS OF 2006; to the Committee on Agriculture, Nu- No. 8223-3) received on September 22, 2006; to COMMITTEES the Committee on Environment and Public trition, and Forestry. The following executive reports of EC–8450. A communication from the Prin- Works. cipal Deputy Associate Administrator, Office EC–8458. A communication from the Prin- nominations were submitted: of Policy, Economics and Innovation, Envi- cipal Deputy Associate Administrator, Office By Mr. STEVENS for the Committee on ronmental Protection Agency, transmitting, of Policy, Economics and Innovation, Envi- Commerce, Science, and Transportation. pursuant to law, the report of a rule entitled ronmental Protection Agency, transmitting, Calvin L. Scovel, of Virginia, to be Inspec- ‘‘p-Chlorophenoxyacetic Acid, Glyphosate, pursuant to law, the report of a rule entitled tor General, Department of Transportation. Difenzoquat, and Hexazinone; Tolerance Ac- ‘‘Protection of Stratospheric Ozone: Listing *Charles Darwin Snelling, of Pennsylvania, tions’’ (FRL No. 8089-6) received on Sep- of Substitutes for Ozone-Depleting Sub- to be a Member of the Board of Directors of tember 22, 2006; to the Committee on Agri- stances—Fire Suppression and Explosion the Metropolitan Washington Airports Au- culture, Nutrition, and Forestry. Protection’’ ((RIN2060-AM24) (FRL No. 8223- thority for a term expiring May 30, 2012. EC–8451. A communication from the Prin- 4)) received on September 22, 2006; to the *David H. Pryor, of Arkansas, to be a Mem- cipal Deputy Associate Administrator, Office Committee on Environment and Public ber of the Board of Directors of the Corpora- of Policy, Economics and Innovation, Envi- Works. tion for Public Broadcasting for a term ex- ronmental Protection Agency, transmitting, EC–8459. A communication from the Prin- piring January 31, 2008. pursuant to law, the report of a rule entitled cipal Deputy Associate Administrator, Office *Chris Boskin, of California, to be a Mem- of Policy, Economics and Innovation, Envi- ‘‘Pendimethalin; Pesticide Tolerance’’ (FRL ber of the Board of Directors of the Corpora- ronmental Protection Agency, transmitting, No. 8092-6) received on September 22, 2006; to tion for Public Broadcasting for a term ex- pursuant to law, the report of a rule entitled the Committee on Agriculture, Nutrition, piring January 31, 2012. ‘‘Protection of Stratospheric Ozone: Notice *Sharon Lynn Hays, of Virginia, to be an and Forestry. EC–8452. A communication from the Con- 21 for Significant New Alternatives Policy Associate Director of the Office of Science gressional Review Coordinator, Animal and Program’’ ((RIN2060-AG12) (FRL No. 8223-9)) and Technology Policy. *Cynthia A. Glassman, of Virginia, to be Plant Health Inspection Service, Department received on September 22, 2006; to the Com- Under Secretary of Commerce for Economic of Agriculture, transmitting, pursuant to mittee on Environment and Public Works. EC–8460. A communication from the Prin- Affairs. law, the report of a rule entitled ‘‘Low Path- cipal Deputy Associate Administrator, Office *Collister Johnson, Jr., of Virginia, to be ogenic Avian Influenza; Voluntary Control of Policy, Economics and Innovation, Envi- Administrator of the Saint Lawrence Sea- Program and Payment of Indemnity’’ (Dock- ronmental Protection Agency, transmitting, way Development Corporation for a term of et No. APHIS-2005-0109) received on Sep- pursuant to law, the report of a rule entitled seven years. tember 22, 2006; to the Committee on Agri- ‘‘Withdrawal of Certain Chemical Substances culture, Nutrition, and Forestry. Mr. STEVENS. Mr. President, for the EC–8453. A communication from the Prin- from Preliminary Assessment Information Committee on Commerce, Science, and cipal Deputy Associate Administrator, Office Reporting and Health and Safety Data Re- Transportation I report favorably the porting Rules’’ ((RIN2070-AB08) (FRL No. of Policy, Economics and Innovation, Envi- following nomination lists which were ronmental Protection Agency, transmitting, 8096-5)) received on September 22, 2006; to the Committee on Environment and Public printed in the Records on the dates in- pursuant to law, the report of a rule entitled dicated, and ask unanimous consent, to ‘‘Approval and Promulgation of Air Quality Works. EC–8461. A communication from the Assist- Implementation Plans; West Virginia; Emis- save the expense of reprinting on the ant Attorney General, Office of Legislative sion Reductions to Meet Phase II of the Ni- Executive Calendar that these nomina- Affairs, Department of Justice, transmit- trogen Oxides (NO ) SIP Call’’ (FRL No. 8225- tions lie at the Secretary’s desk for the x ting, pursuant to law, a report relative to 1) received on September 22, 2006; to the information of Senators. the administration of the Foreign Agents Committee on Environment and Public The PRESIDING OFFICER. Without objec- Registration Act for the six months ending Works. tion, it is so ordered. December 31, 2005; to the Committee on the EC–8454. A communication from the Prin- Coast Guard nominations beginning with cipal Deputy Associate Administrator, Office Judiciary. EC–8462. A communication from the Direc- Paul S. Szwed and ending with Brigid M. of Policy, Economics and Innovation, Envi- tor, Regulations Management, Board of Vet- Pavilonis, which nominations were received ronmental Protection Agency, transmitting, erans’ Appeals, Department of Veterans Af- by the Senate and appeared in the Congres- pursuant to law, the report of a rule entitled fairs, transmitting, pursuant to law, the re- sional Record on September 20, 2006. ‘‘Approval and Promulgation of Air Quality port of a rule entitled ‘‘Board of Veterans’ Coast Guard nominations beginning with Implementation Plans; Pennsylvania; Addi- Appeals: Clarification of a Notice of Dis- Margaret A. Blomme and ending with Rickey tional NO Emission Reductions to Support x agreement’’ (RIN2900-AL97) received on Sep- D. Thomas, which nominations were received Philadelphia-Trenton-Wilmington One-Hour tember 22, 2006; to the Committee on Vet- by the Senate and appeared in the Congres- Ozone Nonattainment Area, and Remaining erans’ Affairs. sional Record on September 21, 2006. NOx SIP Call Requirements’’ (FRL No. 8224- Coast Guard nominations beginning with 9) received on September 22, 2006; to the f Meredith L. Austin and ending with Werner Committee on Environment and Public REPORTS OF COMMITTEES A. Winz, which nominations were received by Works. the Senate and appeared in the Congres- EC–8455. A communication from the Prin- The following reports of committees sional Record on September 21, 2006. cipal Deputy Associate Administrator, Office were submitted: Coast Guard nominations beginning with of Policy, Economics and Innovation, Envi- By Mr. INHOFE, from the Committee on Joyce E. Aivalotis and ending with Jose M. ronmental Protection Agency, transmitting, Environment and Public Works, with an Zuniga, which nominations were received by pursuant to law, the report of a rule entitled amendment in the nature of a substitute: the Senate and appeared in the Congres- ‘‘Approval and Promulgation of Air Quality S. 1848. A bill to promote remediation of sional Record on September 21, 2006. Implementation Plans; Texas; Revisions to inactive and abandoned mines, and for other By Mr. GRASSLEY for the Committee on Control Volatile Organic Compound Emis- purposes (Rept. No. 109–351). Finance.

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.043 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10288 CONGRESSIONAL RECORD — SENATE September 27, 2006 *John K. Veroneau, of Virginia, to be a the self-employed, and for other purposes; to S. Res. 588. A resolution to express the Deputy United States Trade Representative, the Committee on Finance. sense of the Senate that States should have with the Rank of Ambassador. By Mr. KERRY: in place backup systems to deal with any *Robert K. Steel, of Connecticut, to be an S. 3953. A bill to foster development of mi- failure of electronic voting equipment during Under Secretary of the Department of the nority-owned small businesses; to the Com- the November 7, 2006, general election; to the Treasury. mittee on Small Business and Entrepreneur- Committee on Rules and Administration. By Mr. CRAIG for the Committee on Vet- ship. By Mrs. LINCOLN (for herself, Mr. erans’ Affairs. By Mr. KENNEDY (for himself and Mr. CRAIG, Mr. CHAMBLISS, Mr. DORGAN, *Robert T. Howard, of Virginia, to be an MENENDEZ): Mr. CONRAD, Mr. GRASSLEY, Mr. Assistant Secretary of Veterans Affairs (In- S. 3954. A bill to amend title XVIII of the PRYOR, Mr. HARKIN, Mr. CRAPO, Mr. formation and Technology). Social Security Act to require monthly re- DEWINE, Mr. TALENT, Mr. BAUCUS, porting regarding the number of individuals Mr. THUNE, Mr. BURNS, Mr. BOND, Mr. *Nomination was reported with rec- who have fallen into the part D donut hole ommendation that it be confirmed sub- ENZI, Ms. STABENOW, Mr. COCHRAN, and the amount such individuals are spend- and Mr. JOHNSON): ject to the nominee’s commitment to ing on covered part D drugs while in the S. Con. Res. 119. A concurrent resolution respond to requests to appear and tes- donut hole; to the Committee on Finance. expressing the sense of Congress that public tify before any duly constituted com- By Mr. LIEBERMAN (for himself, Mr. policy should continue to protect and mittee of the Senate. SMITH, Mr. AKAKA, Ms. CANTWELL, strengthen the ability of farmers and ranch- (Nominations without an asterisk Mr. CHAFEE, Mrs. CLINTON, Mr. DAY- ers to join together in cooperative self-help were reported with the recommenda- TON, Mr. FEINGOLD, Mr. JEFFORDS, efforts; to the Committee on Agriculture, Mr. KENNEDY, Mr. KERRY, Mr. LAU- tion that they be confirmed.) Nutrition, and Forestry. TENBERG, Mr. LEAHY, Mr. LEVIN, Mrs. By Mr. VITTER: f MURRAY, and Mr. WYDEN): S. Con. Res. 120. A concurrent resolution S. 3955. A bill to provide benefits to domes- expressing the support of Congress for the INTRODUCTION OF BILLS AND tic partners of Federal employees; to the JOINT RESOLUTIONS creation of a National Hurricane Museum Committee on Homeland Security and Gov- and Science Center in southwest Louisiana; The following bills and joint resolu- ernmental Affairs. to the Committee on Commerce, Science, tions were introduced, read the first By Mr. DEWINE: and Transportation. S. 3956. A bill to create a grant program for and second times by unanimous con- collaboration programs that ensure coordi- f sent, and referred as indicated: nation among criminal justice agencies, ADDITIONAL COSPONSORS By Mr. FRIST: adult protective service agencies, victim as- S. 3946. A bill to make an alien who is a sistance programs, and other agencies or or- S. 304 member of a criminal gang removable from ganizations providing services to individuals At the request of Mr. LAUTENBERG, the United States and inadmissible to the with disabilities in the investigation and re- the name of the Senator from New Jer- United States, to permit the Secretary of sponse to abuse of or crimes committed sey (Mr. MENENDEZ) was added as a co- Homeland Security to deny a visa to an alien against such individuals; to the Committee sponsor of S. 304, a bill to amend title who is a national of a country that has de- on the Judiciary. 18, United States Code, to prohibit cer- nied or delayed accepting an alien removed By Mr. INHOFE: tain interstate conduct relating to ex- S. 3957. A bill to protect freedom of speech from the United States, and for other pur- otic animals. poses; to the Committee on the Judiciary. exercisable by houses of worship or medi- By Mr. FRIST: ation and affiliated organizations; to the S. 408 S. 3947. A bill to permit the Secretary of Committee on Finance. At the request of Mr. DEWINE, the Homeland Security to grant citizenship to By Mrs. CLINTON (for herself, Mr. name of the Senator from Arkansas an alien who serves on active duty in the SPECTER, Mr. KENNEDY, and Ms. MI- (Mrs. LINCOLN) was added as a cospon- Armed Forces, to assist such an alien in ap- KULSKI): sor of S. 408, a bill to provide for pro- plying for citizenship, and for other pur- S. 3958. A bill to establish the United States Public Service Academy; to the Com- grams and activities with respect to poses; to the Committee on the Judiciary. the prevention of underage drinking. By Mr. FRIST: mittee on Homeland Security and Govern- S. 3948. A bill to amend chapter 27 of title mental Affairs. S. 440 18, United States Code, to prohibit the unau- By Mr. WARNER (for himself and Mr. At the request of Mr. BUNNING, the thorized construction, financing, or, with ALLEN): name of the Senator from Maine (Ms. S. 3959. A bill to amend the Internal Rev- reckless disregard, permitting the construc- SNOWE) was added as a cosponsor of S. tion or use on one’s land, of a tunnel or sub- enue Code of 1986 to exclude from gross in- come certain combat zone compensation of 440, a bill to amend title XIX of the So- terranean passageway between the United cial Security Act to include podiatrists States and another country; to the Com- civilian employees of the United States; to the Committee on Finance. as physicians for purposes of covering mittee on the Judiciary. By Mr. KENNEDY: physicians services under the medicaid By Mr. FRIST: S. 3960. A bill to provide for the competi- S. 3949. A bill to study the geographic areas program. tive status for certain Internal Revenue in Mexico from which illegal immigrants are S. 1085 Service employees; to the Committee on Fi- At the request of Mr. KENNEDY, the entering the United States and to develop nance. plans to address the social, political, and By Mr. STEVENS (for himself, Mr. name of the Senator from New York economic conditions that are contributing to INOUYE, Mr. LOTT, and Mr. LAUTEN- (Mrs. CLINTON) was added as a cospon- such illegal immigration; to the Committee BERG): sor of S. 1085, a bill to provide for paid on Foreign Relations. S. 3961. A bill to provide for enhanced safe- sick leave to ensure that Americans By Ms. SNOWE (for herself and Mr. ty in pipeline transportation, and for other can address their own health needs and KERRY): purposes; to the Committee on Commerce, the health needs of their families. S. 3950. A bill to amend the Internal Rev- Science, and Transportation. S. 1508 enue Code of 1986 to allow a credit against By Mr. DOMENICI (for himself and Mr. income tax for qualified equity investments CRAIG): At the request of Mr. COCHRAN, the in certain small businesses; to the Com- S. 3962. A bill to enhance the management name of the Senator from New Mexico mittee on Finance. and disposal of spent nuclear fuel and high- (Mr. DOMENICI) was added as a cospon- By Mr. SMITH (for himself, Mr. level radioactive waste, to assure protection sor of S. 1508, a bill to require Senate CONRAD, Mr. KERRY, and Mr. BINGA- of public health and safety, to ensure the candidates to file designations, state- MAN): territorial integrity and security of the re- ments, and reports in electronic form. S. 3951. A bill to amend the Internal Rev- pository at Yucca Mountain, and for other At the request of Mr. FEINGOLD, the enue Code of 1986 and the Employee Retire- purposes; to the Committee on Energy and ment Income Security Act of 1974 to increase Natural Resources. name of the Senator from Michigan the retirement security of women and small (Mr. LEVIN) was added as a cosponsor of f business owners, and for other purposes; to S. 1508, supra. the Committee on Finance. SUBMISSION OF CONCURRENT AND S. 1740 By Mr. BINGAMAN (for himself and SENATE RESOLUTIONS At the request of Mr. CRAPO, the Mr. SMITH): The following concurrent resolutions name of the Senator from Georgia (Mr. S. 3952. A bill to amend the Internal Rev- enue Code of 1986 to allow employees not and Senate resolutions were read, and CHAMBLISS) was added as a cosponsor of covered by qualified retirement plans to save referred (or acted upon), as indicated: S. 1740, a bill to amend the Internal for retirement through automatic payroll de- By Mr. FEINGOLD (for himself and Mr. Revenue Code of 1986 to allow individ- posit IRAs, to facilitate similar savings by KERRY): uals to defer recognition of reinvested

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.046 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10289 capital gains distributions from regu- consin (Mr. KOHL) was added as a co- 3934, a bill to terminate authorization lated investment companies. sponsor of S. 3795, a bill to amend title for the project for navigation, Rock- S. 2491 XVIII of the Social Security Act to port Harbor, Maine. At the request of Mr. CORNYN, the provide for a two-year moratorium on S. 3936 name of the Senator from New York certain Medicare physician payment At the request of Mr. FRIST, the (Mr. SCHUMER) was added as a cospon- reductions for imaging services. names of the Senator from South Da- sor of S. 2491, a bill to award a Congres- S. 3800 kota (Mr. JOHNSON), the Senator from sional gold medal to Byron Nelson in At the request of Mr. HAGEL, the Indiana (Mr. LUGAR) and the Senator recognition of his significant contribu- name of the Senator from Florida (Mr. from West Virginia (Mr. ROCKEFELLER) tions to the game of golf as a player, a NELSON) was added as a cosponsor of S. were added as cosponsors of S. 3936, a teacher, and a commentator. 3800, a bill to amend the Foreign As- bill to invest in innovation and edu- S. 2563 sistance Act of 1961 to require recipi- cation to improve the competitiveness At the request of Mr. COCHRAN, the ents of United States foreign assist- of the United States in the global econ- name of the Senator from Mississippi ance to certify that the assistance will omy. (Mr. LOTT) was added as a cosponsor of not be used to intentionally traffic in S. 3943 S. 2563, a bill to amend title XVIII of goods or services that contain counter- At the request of Mrs. BOXER, the the Social Security Act to require feit marks or for other purposes that names of the Senator from Massachu- prompt payment to pharmacies under promote the improper use of intellec- setts (Mr. KERRY), the Senator from part D, to restrict pharmacy co-brand- tual property, and for other purposes. New Jersey (Mr. LAUTENBERG), the Sen- ing on prescription drug cards issued ator from Colorado (Mr. SALAZAR), the S. 3812 under such part, and to provide guide- Senator from New York (Mrs. CLINTON) At the request of Mr. ISAKSON, the lines for Medication Therapy Manage- and the Senator from Nevada (Mr. name of the Senator from Arizona (Mr. ment Services programs offered by pre- REID) were added as cosponsors of S. scription drug plans and MA–PD plans MCCAIN) was added as a cosponsor of S. 3943, a bill to amend the Help America under such part. 3812, a bill to require the Food and Vote Act of 2002 to reimburse jurisdic- S. 2659 Drug Administration to conduct con- tions for amounts paid or incurred in At the request of Mr. AKAKA, the sumer testing to determine the appro- preparing, producing, and using contin- name of the Senator from South Da- priateness of the current labeling re- gency paper ballots in the November 7, kota (Mr. JOHNSON) was added as a co- quirements for indoor tanning devices 2006, Federal general election. and determine whether such require- sponsor of S. 2659, a bill to amend title S. RES. 585 ments provide sufficient information 38, United States Code, to provide for At the request of Mr. VITTER, his the eligibility of Indian tribal organi- to consumers regarding the risks that name was added as a cosponsor of S. zations for grants for the establish- the use of such devices pose for the de- Res. 585, a resolution commending the ment of veterans cemeteries on trust velopment of irreversible damage to New Orleans Saints of the National lands. the skin, including skin cancer, and for Football League for winning their S. 3651 other purposes. Monday Night Football game on Mon- At the request of Mr. DURBIN, the S. 3855 day, September 25, 2006 by a score of 23 name of the Senator from Mississippi At the request of Mr. CONRAD, the to 3. (Mr. COCHRAN) was added as a cospon- name of the Senator from Iowa (Mr. f sor of S. 3651, a bill to reduce child HARKIN) was added as a cosponsor of S. marriage, and for other purposes. 3855, a bill to provide emergency agri- STATEMENTS ON INTRODUCED S. 3681 cultural disaster assistance, and for BILLS AND JOINT RESOLUTIONS At the request of Mr. DOMENICI, the other purposes. By Mr. FRIST: names of the Senator from Oklahoma S. 3887 S. 3946. A bill to make an alien who (Mr. COBURN) and the Senator from At the request of Mr. DORGAN, the is a member of a criminal gang remov- Louisiana (Mr. VITTER) were added as name of the Senator from Michigan able from the United States and inad- cosponsors of S. 3681, a bill to amend (Mr. LEVIN) was added as a cosponsor of missible to the United States, to per- the Comprehensive Environmental Re- S. 3887, a bill to prohibit the Internal mit the Secretary of Homeland Secu- sponse Compensation and Liability Act Revenue Service from using private rity to deny a visa to an alien who is a of 1980 to provide that manure shall debt collection companies, and for national of a country that has denied not be considered to be a hazardous other purposes. or delayed accepting an alien removed substance, pollutant, or contaminant. from the United States, and for other S. 3912 S. 3707 purposes; to the Committee on the Ju- At the request of Mr. ENSIGN, the At the request of Mr. LOTT, the name diciary. name of the Senator from New Mexico of the Senator from Pennsylvania (Mr. (Mr. BINGAMAN) was added as a cospon- SANTORUM) was added as a cosponsor of By Mr. FRIST: sor of S. 3912, a bill to amend title S. 3707, a bill to improve consumer ac- S. 3947. A bill to permit the Secretary XVIII of the Social Security Act to ex- cess to passenger vehicle loss data held of Homeland Security to grant citizen- tend the exceptions process with re- by insurers. ship to an alien who serves on active spect to caps on payments for therapy S. 3742 duty in the Armed Forces, to assist services under the Medicare program. At the request of Mr. LOTT, the name such an alien in applying for citizen- of the Senator from Mississippi (Mr. S. 3913 ship, and for other purposes; to the COCHRAN) was added as a cosponsor of At the request of Mr. ROCKEFELLER, Committee on the Judiciary. S. 3742, a bill to amend the Internal the names of the Senator from Mary- land (Mr. SARBANES), the Senator from By Mr. FRIST: Revenue Code of 1986 to provide incen- S. 3948. A bill to amend chapter 27 of Wisconsin (Mr. KOHL), the Senator tives to encourage investment in the title 18, United States Code, to prohibit from South Dakota (Mr. JOHNSON) and expansion of freight rail infrastructure the unauthorized construction, financ- the Senator from New Jersey (Mr. LAU- capacity and to enhance modal tax eq- ing, or, with reckless disregard, per- TENBERG) were added as cosponsors of uity. mitting the construction or use on S. 3744 S. 3913, a bill to amend title XXI of the Social Security Act to eliminate fund- one’s land, of a tunnel or subterranean At the request of Mr. DURBIN, the passageway between the United States name of the Senator from Maine (Ms. ing shortfalls for the State Children’s Health Insurance Program (SCHIP) for and another country; to the Committee COLLINS) was added as a cosponsor of S. on the Judiciary. 3744, a bill to establish the Abraham fiscal year 2007. Lincoln Study Abroad Program. S. 3934 By Mr. FRIST: S. 3795 At the request of Ms. SNOWE, the S. 3949. A bill to study the geographic At the request of Mr. ROCKEFELLER, name of the Senator from Maine (Ms. areas in Mexico from which illegal im- the name of the Senator from Wis- COLLINS) was added as a cosponsor of S. migrants are entering the United

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.048 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10290 CONGRESSIONAL RECORD — SENATE September 27, 2006 States and to develop plans to address it clear that criminals have no place in There being no objection, the text of the social, political, and economic con- the United States, we should simulta- the bills was ordered to be printed in ditions that are contributing to such neously do everything we can to wel- the RECORD, as follows: illegal immigration; to the Committee come the finest people from around the S. 3946 on Foreign Relations. world. Every year, over 8,000 people Be it enacted by the Senate and House of Rep- Mr. FRIST. Mr. President, like all of who are not U.S. citizens enlist in our resentatives of the United States of America in my colleagues in this body, I recognize armed forces. Congress assembled, that our immigration system needs They serve with valor and distinction SECTION 1. SHORT TITLE. vast improvements. While we have . . . they defend our liberty. If they This Act may be cited as the ‘‘Community spent a great deal of time discussing wish to become citizens, they should Protection Against International Gangs immigration over the past year, it ap- not face unnecessary burdens. Act’’. SEC. 2. INADMISSIBILITY AND REMOVAL OF pears unlikely that this body will pass Under my legislation, anyone who ALIEN GANG MEMBERS. comprehensive reform before we break gives our military 2 years of honorable (a) INADMISSIBILITY.—Section 212(a)(2) of for the recess. This week we have been and satisfactory service can acquire the Immigration and Nationality Act (8 discussing an important bill that would citizenship under an expedited process. U.S.C. 1182(a)(2)) is amended by adding at the begin the process completely securing Service in the military strongly im- end the following: our southern border. I support that bill plies that a person has acquired the ‘‘(J) ALIENS ASSOCIATED WITH CRIMINAL wholeheartedly and I would also hope things we expect from new citizens: a GANGS.—Unless the Secretary of Homeland to make other improvements to our command of English, good moral char- Security or the Attorney General waives the application of this subparagraph, any alien immigration laws we can make before acter, understanding of our history and who a consular officer, the Attorney Gen- we end this session. appreciation for our democratic insti- eral, or the Secretary of Homeland Security Today, therefore, I’m proposing four tutions. Thus, soldiers, sailors, airmen, knows or has reason to believe— separate bills intended to strengthen and marines whose chains of command ‘‘(i) is, or has been, a member of a criminal our immigration system. certify that they’ve met these require- street gang (as defined in section 521(a) of One will help military men and ments should be able to acquire citi- title 18, United States Code); or women become citizens more quickly, zenship by filling out some simple pa- ‘‘(ii) has participated in the activities of another will make it easier to remove perwork and swearing the citizenship such a criminal street gang, knowing or hav- gang members from our country, an- oath. ing reason to know that such activities pro- other will impose tough penalties on I believe that the Senate should do moted, furthered, aided, or supported the il- legal activity of the criminal street gang, people who tunnel beneath our borders, everything it can to speed the citizen- is inadmissible.’’. and the fourth will begin an effort to ship process for others in the military (b) REMOVAL.—Section 237(a)(2) (8 U.S.C. stop illegal immigration at its source. who do not want to avail themselves of 1227(a)(2)) is amended by adding at the end I’d like to discuss all four bills brief- this process. In particular, we must do the following: ly . . . they have different purposes and away with the burdensome, duplicative ‘‘(F) ALIENS ASSOCIATED WITH CRIMINAL will all complement each other in ef- process that requires military enlistees GANGS.—Unless the Secretary of Homeland forts to improve our immigration sys- to give fingerprints once when they Security or the Attorney General waives the tem. join the military and again when they application of this subparagraph, any alien I am introducing the Community who the Secretary of Homeland Security or apply for citizenship. At the same the Attorney General knows or has reason to Protection Against International time, we should establish a high-qual- believe— Gangs Act. Street gangs remain the ity, toll-free information center to pro- ‘‘(i) is, or at any time after admission has bane of our society. Their members sell vide timely, accurate information to been, a member of a criminal street gang (as narcotics, steal, and commit horrific any servicemember interested in be- defined in section 521(a) of title 18, United acts of violence. Many of these gangs— coming a citizen. States Code); or groups like Mara Salvatrucha, better Finally, I am introducing the Illegal ‘‘(ii) has participated in the activities of known as MS–13—draw their member- Immigration Source Study and Focus such a criminal street gang, knowing or hav- ship from immigrants to the United Act. Finally, I believe we need to do ing reason to know that such activities pro- States. While the overwhelming major- more to deal with the underlying moted, furthered, aided, or supported the il- legal activity of the criminal street gang, ity of immigrants in the United States causes of much illegal immigration: so- is deportable.’’. obey the law, those who join these cial, economic, and political conditions SEC. 3. PENALTY FOR FAILURE TO ACCEPT AN gangs wreak havoc on immigrant com- in Mexico that lead many to believe ALIEN REMOVED FROM THE UNITED munities all over the country. they have no choice but as to leave STATES. To protect our Nation, we need to their homeland. Illegal immigration Section 243(d) of the Immigration and Na- stop them . . . now. hurts both the United States and Mex- tionality Act (8 U.S.C. 1253(d)) is amended to read as follows: Thus, I’m proposing the CPAIGA Act. ico. Our governments must work to- This law will make our policy clear: ‘‘(d) DENYING VISAS TO NATIONALS OF COUN- gether so we can understand what TRY DENYING OR DELAYING ACCEPTING immigrants who join gangs are no areas produce the most illegal immi- ALIEN.—The Secretary of Homeland Secu- longer welcome in our country. Under grants and what we might do to help rity, after making a determination that the my bill, anyone who joins a gang or immigrants. government of a foreign country has denied helps one faces immediate deportation My bill would begin a process of col- or unreasonably delayed accepting an alien proceedings. In addition, my bill will laboration. It will mandate regular re- who is a citizen, subject, national, or resi- let the Secretary of State and the Sec- ports on the areas that produce the dent of that country after the alien has been ordered removed, and after consultation with retary of Homeland Security deny most illegal immigrants and, just as visas to the nationals of any country the Secretary of State, may instruct the importantly, focus our own aid to Mex- Secretary of State to deny a visa to any cit- that refuses to take back its own ico on improving the conditions that izen, subject, national, or resident of that criminals. produce illegal immigration in the first country until the country accepts the alien I am also introducing the Enhanced place. that was ordered removed.’’. Border Tunnel Prevention Act. To en- Steps like those I have proposed will S. 3947 hance our crackdown on sophisticated not change our immigration system Be it enacted by the Senate and House of Rep- criminal conspiracies, we should also overnight. They will not end illegal im- resentatives of the United States of America in impose tough new penalties on those migration. Congress assembled, who construct tunnels under our bor- But they will make our cities safer, SECTION 1. SHORT TITLE. der. People who build tunnels, or allow stem the flow of illegal immigration, This Act may be cited as the ‘‘Soldiers to them to be built on land that they own and help those who serve in our armed Citizens Act’’. or control, should face serious time in forces. These are worthy measures and SEC. 2. CITIZENSHIP FOR MEMBERS OF THE ARMED FORCES. prison. Smugglers who use them should I urge all of my colleagues to support Section 329 of the Immigration and Nation- have their penalties doubled. We can’t them. ality Act (8 U.S.C. 1440) is amended— allow our borders to become a sieve. I ask unanimous consent that the (1) in subsection (b), by striking ‘‘sub- In addition, I am introducing the Sol- text of the bills be printed in the section (a)’’ and inserting ‘‘subsection (a) or diers to Citizens Act. Just as we make RECORD. (d)’’; and

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.056 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10291 (2) by adding at the end the following: employees who operate the telephone service (4) ensure reasonable consistency with ‘‘(d) Notwithstanding any other provision required by paragraph (1), including the other relevant directives, other sentencing of law, except for provisions relating to rev- breadth of the knowledge related to the nat- guidelines, and statutes; ocation of citizenship under subsection (c), uralization process of such employees. (5) make any necessary and conforming an individual who is not a citizen of the S.3948 changes to the sentencing guidelines and pol- United States shall not be denied the oppor- Be it enacted by the Senate and House of Rep- icy statements; and tunity to apply for membership in the (6) ensure that the sentencing guidelines United States Armed Forces. Such an indi- resentatives of the United States of America in Congress assembled, adequately meet the purposes of sentencing vidual who becomes an active duty member set forth in section 3553(a)(2) of title 18, of the United States Armed Forces shall, SECTION 1. SHORT TITLE. United States Code. This Act may be cited as the ‘‘Enhanced consistent with this section and with the ap- S. 3949 proval of the individual’s chain of command, Border Tunnel Prevention Act’’. be granted United States citizenship after SEC. 2. CONSTRUCTION OF BORDER TUNNEL OR Be it enacted by the Senate and House of Rep- performing at least 2 years of honorable and PASSAGE. resentatives of the United States of America in satisfactory service on active duty. Not later (a) IN GENERAL.—Chapter 27 of title 18, Congress assembled, than 90 days after such requirements are met United States Code, is amended by adding at SECTION 1. SHORT TITLE. with respect to an individual, such indi- the end the following: This Act may be cited as the ‘‘Illegal Im- vidual shall be granted United States citi- ‘‘§ 554. Border tunnels and passages migration Source Study and Focus Act’’. zenship. ‘‘(a) Any person who knowingly constructs SEC. 2. STUDIES AND REPORTS ON ILLEGAL IM- MIGRATION FROM MEXICO. ‘‘(e) An alien described in subsection (d) or finances the construction of a tunnel or (a) STUDIES.—Not later than 1 year after shall be naturalized without regard to the re- subterranean passage that crosses the inter- the date of the enactment of this Act, and quirements of this title or any other require- national border between the United States once every 5 years thereafter, the Secretary ments, processes, or procedures of the Sec- and another country, other than a lawfully of State, in cooperation with the Secretary retary of Homeland Security, if the alien— authorized tunnel or passage known to the of Homeland Security, shall conduct a ‘‘(1) files an application for naturalization Secretary of Homeland Security and subject study— in accordance with such procedures to carry to inspection by the Bureau of Immigration (1) to identify the geographic areas in Mex- out this section as may be established by and Customs Enforcement, shall be impris- ico from which— regulation by the Secretary of Homeland Se- oned for not more than 25 years. (A) large numbers of residents are leaving curity or the Secretary of Defense; ‘‘(b) Any person who knows or recklessly to enter the United States in violation of ‘‘(2) demonstrates to the alien’s military disregards the construction or use of a tun- Federal immigration law; and chain of command proficiency in the English nel or passage described in subsection (a) on (B) large percentages of the population of language, good moral character, and knowl- land that the person owns or controls shall such areas are leaving to enter the United edge of the Federal Government and United be imprisoned for not more than 15 years. States in violation of Federal immigration States history, consistent with the require- ‘‘(c) Any person who uses a tunnel or pas- law; and ments contained in this Act; and sage described in subsection (a) to unlaw- (2) to analyze the social, political, and eco- ‘‘(3) takes the oath required under section fully smuggle an alien, goods (in violation of nomic conditions in the geographic areas 337 of this Act and participates in an oath section 545), controlled substances, weapons identified under paragraph (1) that con- administration ceremony in accordance with of mass destruction (including biological tribute to illegal immigration into the this Act.’’. weapons), or a member of a terrorist organi- United States. SEC. 3. WAIVER OF REQUIREMENT FOR FINGER- zation (as defined in section 212(a)(3)(B)(vi) (b) REPORTS.—Not later than 16 months PRINTS FOR MEMBERS OF THE of the Immigration and Nationality Act (8 ARMED FORCES. after the date of the enactment of this Act, U.S.C. 1182(a)(3)(B)(vi))) shall be subject to a Notwithstanding any other provision of and every 5 years thereafter, the Secretary maximum term of imprisonment that is law or any regulation, the Secretary of of State shall submit to Congress a report twice the maximum term of imprisonment Homeland Security shall use the fingerprints that— that would have otherwise been applicable provided by an individual at the time the in- (1) describes the results of the study con- had the unlawful activity not made use of dividual enlists in the Armed Forces to sat- ducted under subsection (a); and such a tunnel or passage.’’. isfy any requirement for fingerprints as part (2) provides recommendations on how the (b) CLERICAL AMENDMENT.—The table of of an application for naturalization if the in- Government of the United States can im- sections for chapter 27 of title 18, United dividual— prove the conditions described in subsection States Code, is amended by adding at the end (1) may be naturalized pursuant to section (a)(2). the following: 328 or 329 of the Immigration and Nation- ‘‘Sec. 554. Border tunnels and passages.’’. SEC. 3. IMMIGRATION IMPACT FOCUS AREAS. ality Act (8 U.S.C. 1439 and 1440); (a) DESIGNATION.—Based on the results of (c) CRIMINAL FORFEITURE.—Section (2) was fingerprinted in accordance with each study conducted under section 2(a) and 982(a)(6) of title 18, United States Code, is the requirements of the Department of De- subject to subsection (b), the Administrator amended by inserting ‘‘554,’’ before ‘‘1425,’’. fense at the time the individual enlisted in of the United States Agency for Inter- the Armed Forces; and SEC. 3. DIRECTIVE TO THE UNITED STATES SEN- national Development, in consultation with (3) submits an application for naturaliza- TENCING COMMISSION. the Secretary of State, the Secretary of tion not later than 12 months after the date (a) IN GENERAL.—Pursuant to its authority Homeland Security, and appropriate officials the individual enlisted in the Armed Forces. under section 994 of title 28, United States of the Government of Mexico, shall designate SEC. 4. PROVISION OF INFORMATION ON NATU- Code, and in accordance with this section, not more than 4 geographic areas within RALIZATION TO MEMBERS OF THE the United States Sentencing Commission Mexico as Immigration Impact Focus Areas. ARMED FORCES. shall promulgate or amend sentencing guide- (b) POPULATION LIMITS.—An area may not The Secretary of Homeland Security lines to provide for increased penalties for be designated as an Immigration Impact shall— persons convicted of offenses described in Focus Area under subsection (a) unless the (1) establish a dedicated toll-free telephone section 554 of title 18, United States Code, as population of such area is— service available only to members of the added by section 2. (1) not less than 0.5 percent of the total Armed Forces and the families of such mem- (b) REQUIREMENTS.—In carrying out this population of Mexico; and bers to provide information related to natu- section, the United States Sentencing Com- (2) not more than 5.0 percent of the total ralization pursuant to section 328 or 329 of mission shall— population of Mexico. the Immigration and Nationality Act (8 (1) ensure that the sentencing guidelines, (c) DEVELOPMENT ASSISTANCE PLAN.—The U.S.C. 1439 and 1440), including the status of policy statements, and official commentary Administrator of the United States Agency an application for such naturalization; reflect the serious nature of the offenses de- for International Development, in consulta- (2) ensure that the telephone service re- scribed in section 554 of title 18, United tion with the Secretary of State, shall de- quired by paragraph (1) is operated by em- States Code, and the need for aggressive and velop a plan to concentrate, to the extent ployees of the Department of Homeland Se- appropriate law enforcement action to pre- practicable, economic development and hu- curity who— vent such offenses; manitarian assistance provided to Mexico in (A) have received specialized training on (2) provide adequate base offense levels for the Immigration Impact Focus Areas des- the naturalization process for members of offenses under such section; ignated under subsection (a). the Armed Forces and the families of such (3) account for any aggravating or miti- members; and gating circumstances that might justify ex- Ms. SNOWE (for herself and Mr. (B) are physically located in the same unit ceptions, including— KERRY): as the military processing unit that adju- (A) the use of a tunnel or passage described S. 3950. A bill to amend the Internal dicates applications for naturalization pur- in subsection (a) of such section to facilitate suant to such section 328 or 329; and other felonies; and Revenue Code of 1986 to allow a credit (3) implement a quality control program to (B) the circumstances for which the sen- against income tax for qualified equity monitor, on a regular basis, the accuracy tencing guidelines currently provide applica- investments in certain small busi- and quality of information provided by the ble sentencing enhancements; nesses; to the Committee on Finance.

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.051 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10292 CONGRESSIONAL RECORD — SENATE September 27, 2006 Ms. SNOWE. Mr. President, to help help finance emerging small businesses ‘‘(1) QUALIFIED INVESTOR.—The term ‘quali- start-up small businesses obtain access in virtually every sector of the econ- fied investor’ means— to capital, today I rise with my col- omy. ‘‘(A) an individual who qualifies as an ac- credited investor under rules and regulations league Senator KERRY to introduce the Our bill would remedy this situation prescribed by the Commissioner of the Secu- Access to Capital for Entrepreneurs by encouraging more angel investors to rities and Exchange Commission, or Act of 2006 or ACE Act. Our bill would fund more of our Nation’s smallest ‘‘(B) a partnership with respect to which encourage equity investments in quali- businesses. These businesses are crit- all of the partners are individuals who qual- fied small businesses by providing so- ical to the economy, as they generate ify as accredited investors under rules and called ‘‘angel investors’’ with a tax in- 60 percent to 80 percent of net new jobs regulations prescribed by the Commissioner centive to fund new small business en- and contribute more than 50 percent of of the Securities and Exchange Commission. terprises. Angel investors are high-net- non-farm private-sector output. ‘‘(2) QUALIFIED EQUITY INVESTMENT.—The worth individuals who invest in and In addition, if the provisions of the term ‘qualified equity investment’ means the transfer of cash or cash equivalents in support start-up companies in the crit- ACE Act are signed into law, many exchange for stock or capital interest in a ical early stages of growth. small businesses that would otherwise qualified small business. As Chair of the Senate Committee on fail for lack of adequate resources ‘‘(3) QUALIFIED SMALL BUSINESS.—The term Small Business and Entrepreneurship, I could grow and expand, creating more ‘qualified small business’ means a private meet with prospective entrepreneurs in jobs for Americans, and further bol- small business concern (within the meaning Maine and across the country and re- stering our Nation’s economy. With no of section 3 of the Small Business Act)— peatedly hear about their dreams of incentive, angel investments helped ‘‘(A) that meets the applicable size stand- starting dynamic new businesses. Un- create 198,000 jobs in the United States ard (as in effect on January 1, 2005) estab- fortunately, their hopes can sometimes lished by the Administrator of the Small during 2005. Imagine how many more Business Administration pursuant to sub- be dashed when these entrepreneurs en- jobs we could create if we enact the tax section (a)(2) of such section, and counter barriers to raising the funds credit we are proposing today. ‘‘(B) has its principal place of business in they need to get their ‘‘start-up’’ en- I am committed to supporting our the United States. terprises off the ground. Nation’s small business community by For purposes of this section, all members of For entrepreneurs and other aspiring increasing its access to capital. The en- the same controlled group of corporations small business owners, a self-evident trepreneurial spirit of our 25 million (within the meaning of section 267(f)) and all truth since the founding of our country small businesses dates back to our Na- persons under common control (within the is that it takes money to make money. meaning of section 52(b)) shall be treated as tion’s founding. From family farms to 1 qualified small business. Our legislation makes that goal a little software development, small businesses ‘‘(d) ACTIVE BUSINESS REQUIREMENT.— easier for aspiring small business own- are the heart of our economy and the ‘‘(1) IN GENERAL.—Holding stock in a quali- ers by ensuring that our entrepreneurs linchpin for the innovation that moves fied small business shall not be treated as a have access to venture capital and our country forward. Americans who qualified equity investment unless, during credit markets so they can continue to assume the risks and responsibilities substantially all of the qualified investor’s drive America’s economic growth and inherent in owning and operating a holding period for such stock, such qualified job creation. Since small businesses business deserve our praise, admiration small business meets the active business re- represent 99 percent of all employers and unwavering support. quirements of paragraph (2). and create nearly 75 percent of all net I ask unanimous consent that the ‘‘(2) REQUIREMENTS.— new jobs, Congress must do everything ‘‘(A) IN GENERAL.—For purposes of para- text of the bill be printed in the graph (1), the requirements of this paragraph within its power to help them grow and RECORD. are met by a qualified small business for any thrive. There being no objection, the text of period if during such period at least 80 per- Under the Access to Capital for En- the bill was ordered to be printed in cent (by value) of the assets of such qualified trepreneurs Act of 2006, angel investors the RECORD, as follows: small business are used by such qualified would be eligible for a 25 percent tax S. 3950 small business in the active conduct of 1 or credit to offset up to $500,000 of invest- more qualified trades or businesses. Be it enacted by the Senate and House of Rep- ‘‘(B) SPECIAL RULE FOR CERTAIN ACTIVI- ments per year. Because the legislation resentatives of the United States of America in TIES.—For purposes of subparagraph (A), if, limits the investment per small busi- Congress assembled, ness to $250,000, which is the amount a in connection with any future qualified trade SECTION 1. SHORT TITLE. or business, a qualified small business is en- typical entrepreneur requires to begin This Act may be cited as the ‘‘Access to gaged in— operations, an investor would have to Capital for Entrepreneurs Act of 2006’’. ‘‘(i) start-up activities described in section invest in at least two companies to re- SEC. 2. EQUITY INVESTMENT IN SMALL BUSINESS 195(c)(1)(A), ceive the full $500,000 tax credit. To TAX CREDIT. ‘‘(ii) activities resulting in the payment or qualify for the tax incentive, the angel (a) IN GENERAL.—Subpart D of part IV of incurring of expenditures which may be investor must have an income of subchapter A of chapter 1 of the Internal treated as research and experimental ex- $200,000 over a two-year period, or net Revenue Code of 1986 (relating to business re- penditures under section 174, or lated credits) is amended by adding at the worth of $1 million. It’s patterned after ‘‘(iii) activities with respect to in-house re- end the following new section: search expenses described in section 41(b)(4), successful tax credits that have been ‘‘SEC. 45N. EQUITY INVESTMENT IN SMALL BUSI- assets used in such activities shall be treated enacted in 21 states, including Maine. NESS TAX CREDIT. as used in the active conduct of a qualified Recent research shows that venture ‘‘(a) GENERAL RULE.—For purposes of sec- trade or business. Any determination under capitalists are now targeting their in- tion 38, in the case of a qualified investor, this subparagraph shall be made without re- vestments for larger businesses or for the equity investment in small business tax gard to whether a qualified small business later in a business’s development, leav- credit determined under this section for the has any gross income from such activities at ing precious little seed money for new taxable year is an amount equal to 25 per- the time of the determination. ventures. Today, venture capitalists in- cent of the amount of each qualified equity ‘‘(C) QUALIFIED TRADE OR BUSINESS.—For vest an average of $7 million per deal, investment made by the qualified investor purposes of this paragraph, the term ‘quali- during the taxable year. fied trade or business’ is as defined in section an amount that far exceeds the needs ‘‘(b) CREDIT AMOUNT.—For purposes of de- 1202(e)(3). of a nascent small business. Moreover, termining the small business tax credit ‘‘(D) STOCK IN OTHER ENTITIES.— in 2005, of the $21.7 billion invested by under subsection (a)— ‘‘(i) LOOK-THRU IN CASE OF SUBSIDIARIES.— venture capitalists, just 3.3 percent was ‘‘(1) LIMITATION PER QUALIFIED INVESTOR.— For purposes of this subsection, stock and allocated to start-up small businesses. The amount of qualified equity investments debt in any subsidiary entity shall be dis- There were 227,000 angel investors made by the qualified investor during the regarded and the parent qualified small busi- who were active in 2005. Yet there are taxable year shall not exceed $500,000. ness shall be deemed to own its ratable share hundreds of thousands more waiting to ‘‘(2) LIMITATION PER QUALIFIED SMALL BUSI- of the subsidiary’s assets, and to conduct its be created. IRS statistics show that NESS.—The amount of qualified equity in- ratable share of the subsidiary’s activities. vestments made by the qualified investor in ‘‘(ii) PORTFOLIO STOCK OR SECURITIES.—A the ratio of potential to active angel a qualified small business during the taxable qualified small business shall be treated as investors is between 7 to 1 and 10 to 1. year shall not exceed $250,000. failing to meet the requirements of subpara- There is an enormous untapped market ‘‘(c) DEFINITIONS.—For purposes of this sec- graph (A) for any period during which more of future investors who we can call to tion— than 10 percent of the value of its assets (in

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.052 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10293 excess of liabilities) consists of stock or se- qualified equity investment made by a quali- in taxable years beginning after December curities in other entities which are not sub- fied investor in a qualified small business 31, 2011.’’. sidiaries of such qualified small business that is a related party to the qualified inves- (b) CREDIT MADE PART OF GENERAL BUSI- other than assets described in subparagraph tor. NESS CREDIT.—Subsection (b) of section 38 of (E)). ‘‘(2) RELATED PARTY.—For purposes of the Internal Revenue Code of 1986 is amended ‘‘(iii) SUBSIDIARY.—For purposes of this paragraph (1), a person is a related party by striking ‘‘and’’ at the end of paragraph subparagraph, an entity shall be considered a with respect to another person if such person (29), by striking the period at the end of subsidiary if the parent owns more than 50 bears a relationship to such other person de- paragraph (30) and inserting ‘‘, and’’, and by percent of the combined voting power of all scribed in section 267(b) or 707(b), or if such adding at the end the following new para- classes of stock entitled to vote, or more persons are engaged in trades or businesses graph: than 50 percent in value of all outstanding under common control (within the meaning ‘‘(31) in the case of a taxpayer, the equity stock, of such entity. of subsections (a) and (b) of section 52). investment in small business tax credit de- ‘‘(E) WORKING CAPITAL.—For purposes of ‘‘(g) RECAPTURE OF CREDIT IN CERTAIN termined under section 45N(a).’’. (c) CLERICAL AMENDMENT.—The table of subparagraph (A), any assets which— CASES.— sections for subpart D of part IV of sub- ‘‘(i) are held as a part of the reasonably re- ‘‘(1) IN GENERAL.—If, at any time during chapter A of chapter 1 of the Internal Rev- quired working capital needs of a qualified the 3-year period beginning on the date that trade or business of the qualified small busi- enue Code of 1986 is amended by adding at the qualified equity investment is made by the end the following new item: ness, or the qualified investor, there is a recapture ‘‘(ii) are held for investment and are rea- event with respect to such investment, then ‘‘Sec. 45N. Equity investment in small busi- sonably expected to be used within 2 years to the tax imposed by this chapter for the tax- ness tax credit.’’. finance research and experimentation in a able year in which such event occurs shall be (d) EFFECTIVE DATE.—The amendments qualified trade or business or increases in increased by the credit recapture amount. made by this section shall apply to qualified working capital needs of a qualified trade or ‘‘(2) CREDIT RECAPTURE AMOUNT.—For pur- equity investments made after December 31, business, poses of paragraph (1), the credit recapture 2006, in taxable years beginning after such shall be treated as used in the active conduct amount is an amount equal to the sum of— date. of a qualified trade or business. For periods ‘‘(A) the aggregate decrease in the credits after the qualified small business has been in allowed to the taxpayer under section 38 for By Mr. BINGAMAN (for himself existence for at least 2 years, in no event all prior taxable years which would have re- and Mr. SMITH): may more than 50 percent of the assets of sulted if no credit had been determined S. 3952. A bill to amend the Internal the qualified small business qualify as used under this section with respect to such in- Revenue Code of 1986 to allow employ- in the active conduct of a qualified trade or vestment, plus ees not covered by qualified retirement business by reason of this subparagraph. ‘‘(B) interest at the underpayment rate es- plans to save for retirement through ‘‘(F) MAXIMUM REAL ESTATE HOLDINGS.—A tablished under section 6621 on the amount qualified small business shall not be treated automatic payroll deposit IRAs, to fa- determined under subparagraph (A) for each as meeting the requirements of subparagraph cilitate similar savings by the self-em- prior taxable year for the period beginning (A) for any period during which more than 10 ployed, and for other purposes; to the on the due date for filing the return for the percent of the total value of its assets con- Committee on Finance. prior taxable year involved. sists of real property which is not used in the Mr. BINGAMAN. Mr. President, I rise No deduction shall be allowed under this active conduct of a qualified trade or busi- chapter for interest described in subpara- today with my colleagues, Senator ness. For purposes of the preceding sentence, SMITH and Senator KERRY, to introduce the ownership of, dealing in, or renting of graph (B). ‘‘(3) RECAPTURE EVENT.—For purposes of this important legislation that will en- real property shall not be treated as the ac- sure that more working Americans tive conduct of a qualified trade or business. paragraph (1), there is a recapture event with respect to a qualified equity investment if have a retirement account. This legis- ‘‘(G) COMPUTER SOFTWARE ROYALTIES.—For purposes of subparagraph (A), rights to com- such investment is sold, transferred, or ex- lation is the result of the collaborative puter software which produces active busi- changed by the qualified investor, but only work done by David John of the Herit- ness computer software royalties (within the to the extent that such sale, transfer, or ex- age Foundation and Mark Iwry of the meaning of section 543(d)(1)) shall be treated change is not the direct result of a complete Retirement Security Project to provide as an asset used in the active conduct of a or partial liquidation of the qualified small a simple, cost-effective way to increase business in which such qualified equity in- trade or business. retirement security for our Nation’s ‘‘(e) CERTAIN PURCHASES BY QUALIFIED IN- vestment is made. ‘‘(4) SPECIAL RULES.— workers who currently do not have a VESTOR OF ITS OWN STOCK.— retirement plan. The Automatic IRA ‘‘(1) REDEMPTIONS FROM QUALIFIED INVES- ‘‘(A) TAX BENEFIT RULE.—The tax for the Act of 2006 will require employers who TOR OR RELATED PERSON.—Stock acquired by taxable year shall be increased under para- the qualified investor shall not be treated as graph (1) only with respect to credits allowed do not currently sponsor a retirement a qualified equity investment if, at any time by reason of this section which were used to plan to offer their workers the oppor- during the 4-year period beginning on the reduce tax liability. In the case of credits tunity to have part of their paycheck date 2 years before the issuance of such not so used to reduce tax liability, the to be sent directly to an IRA. This will stock, the qualified small business issuing carryforwards and carrybacks under section not only help millions of Americans 39 shall be appropriately adjusted. such stock purchased (directly or indirectly) begin saving for their retirement but any of its stock from the qualified investor ‘‘(B) NO CREDITS AGAINST TAX.—Any in- crease in tax under this subsection shall not will also provide subtle encouragement or from a person related (within the meaning to employers to sponsor a qualified re- of section 267(b) or 707(b)) to the qualified in- be treated as a tax imposed by this chapter vestor. for purposes of determining the amount of tirement account such as a SIMPLE or ‘‘(2) SIGNIFICANT REDEMPTIONS.—Stock any credit under this chapter or for purposes a 401(k). issued by a qualified small business to a of section 55. In 2004, it was estimated that as qualified investor shall not be treated as a ‘‘(h) BASIS REDUCTION.—The basis of any many as 71 million Americans work for qualified equity investment if, during the 2- qualified equity investment shall be reduced an employer who does not offer them year period beginning on the date 1 year be- by the amount of any credit determined any kind of retirement plan—almost fore the issuance of such stock, such quali- under this section with respect to such in- half of all of our country’s workers. fied small business made 1 or more purchases vestment. Without an employer-sponsored retire- ‘‘(i) REGULATIONS.— of its stock with an aggregate value (as of ment plan, many of these workers will ‘‘(1) IN GENERAL.—The Secretary shall pre- the time of the respective purchases) exceed- not be saving adequately for their re- ing 5 percent of the aggregate value of all of scribe such regulations as necessary to carry its stock as of the beginning of such 2-year out the provisions of this section. tirement. The first steps to addressing period. ‘‘(2) CERTIFICATION OF QUALIFIED EQUITY IN- this growing inequity are to ensure ‘‘(3) TREATMENT OF CERTAIN TRANS- VESTMENT.—Such regulations shall require that all workers have easy access to a ACTIONS.—If any transaction is treated under that a qualified investor— retirement account and the ability to section 304(a) as a distribution in redemption ‘‘(A) certify that the small business in have part of their wages go directly of the stock of any qualified small business, which the equity investment is made meets from their paycheck into this account. for purposes of subparagraphs (A) and (B), the requirements described in subsection Both of these features have been prov- such qualified small business shall be treated (c)(3), and ‘‘(B) include the name, address, and tax- en to encourage retirement savings and as purchasing an amount of its stock equal are imperative if we are going to ad- to the amount treated as such a distribution payer identification number of such small under section 304(a). business on the return claiming the credit dress our national retirement savings ‘‘(f) SPECIAL RULE FOR RELATED PARTIES.— under subsection (a). rate. ‘‘(1) IN GENERAL.—No credit shall be al- ‘‘(j) TERMINATION.—This section shall not Under this legislation, all employers lowed under subsection (a) with respect to a apply to qualified equity investments made with more than 10 employees who do

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.054 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10294 CONGRESSIONAL RECORD — SENATE September 27, 2006 not sponsor a qualified retirement or tirement by allowing them to have their em- mechanism of regular payroll deposits that pension plan must offer its employees ployers regularly transfer amounts from continue automatically (an opportunity now the ability to have wages remitted di- their paycheck to an IRA. limited mostly to 401(k)-eligible workers). Employers above a certain size (e.g., 10 em- rectly to an automatic IRA through We are by no means suggesting that the automatic IRA proposal is the only step that ployees) that have been in business for at payroll deduction. These employers should be taken to expand retirement sav- least two years but that still do not sponsor will not be required to make any con- ings for small business workers. In fact, we any plan for their employees would be called tributions to these accounts and will have long believed in the primacy of em- upon to offer employees this payroll-deduc- receive a tax credit to offset the ad- ployer-sponsored retirement plans as vehi- tion saving option. These employers would ministrative costs of remitting part of cles for pension coverage. Additionally, we receive a temporary tax credit for simply serving as a conduit for saving, by making the employee’s wages to the IRA. It is continue to advocate strongly for the expan- sion of pension coverage through automatic regular payroll deposit available to their em- entirely up to the employer as to what ployees. Employers would receive a small ad- IRA options the employees would have. features in 401(k) and similar retirement sav- ings plans. ditional tax credit for each employee who For instance, the employer could de- The automatic 401(k) approach makes in- participates. Other employers that do not cide to remit the funds to the IRA of telligent use of defaults—the outcomes that sponsor a plan also would receive the tax the employee’s choice or the employer occur when individuals are unable or unwill- credit if they offered payroll deduction sav- could decide to remit the money to the ing to make an affirmative choice or other- ing. Firms would be provided a standard notice wise fail to act—to enlist the power of iner- financial institution of his or her to inform employees of the automatic IRA tia to promote saving. Automating enroll- choice. The employer will also have a (payroll-deduction saving) option, and a ment, escalation of contributions, invest- new option—the ability to remit the standard form to elicit from each employee a ment, and rollovers expands coverage in sev- decision either to participate or to opt out. money to a new, simplified type of eral ways. Enrolling employees in a plan un- For most employees, the payroll deductions IRA, the automatic IRA. A board, simi- less they opt out increases significantly the would be made by direct deposit similar to lar to the Federal Government’s exist- number of eligible employees who partici- the very common direct deposit of paychecks ing Thrift Savings Plan Board, would pate in the plan. Escalating the amount of to employees’ accounts at their financial in- create standards for these new ac- the default contribution tends to increase stitutions. counts that must be followed by par- the amount people save over time. Providing To maximize participation, employers ticipating financial service companies. for a default investment (which participants would be provided a standard enrollment This board will also be responsible for can reject in favor of other alternatives) re- module reflecting current best practices in flecting consensus investment principles enrollment procedures. The use of automatic educating the public about the impor- such as diversification and asset allocation tance of having a qualified retirement enrollment (whereby employees automati- tends to raise the expected investment re- cally participate at a statutorily specified account as part of their duties. turn on contributions. Finally, making re- rate of contribution unless they opt out) Mr. President, it is going to take a tention or rollover of benefits rather than would be encouraged in two ways. First, the bipartisan approach to address our Na- consumption the default when an employee standard materials provided to employers tion’s retirement savings problems. I leaves a job furthers the long-term preserva- would be framed so as to present auto enroll- again want to applaud the efforts made tion of retirement savings for their intended ment as the presumptive enrollment method, by Mr. John of the Heritage Founda- purposes. By helping improve performance although employer would be able to opt for tion and Mr. Iwry from the Retirement under the nondiscrimination standards and the alternative of obtaining responses from generally making plans more effective in Security Project in advancing this pro- all employees. Second, employers using auto providing retirement benefits, the automatic enrollment to promote participation would posal. It is now up to all of us in this 401(k) can also encourage more employers to not need to obtain responses from unrespon- Chamber to follow their example and sponsor or continue sponsoring plans. sive employees. As discussed earlier, evi- pass this legislation. The automatic IRA builds on the success of dence from the 401(k) universe strongly sug- I ask unanimous consent that the the automatic 401(k). Moreover, as explained gests that high levels of participation tend material be printed in the RECORD. below, we would intend and expect the intro- to result not only from auto enrollment but There being no objection, the mate- duction of automatic IRAs to expand the also from the practice of eliciting from each rial was ordered to be printed in the number of employers that choose to sponsor eligible individual an explicit decision to 401(k) or SIMPLE plans instead of offering participate or to opt out. RECORD, as follows: only automatic IRAs. But for millions of Employers making direct deposit or pay- THE RETIREMENT SECURITY PROJECT workers who continue to have no employer roll deduction available would be protected PURSUING UNIVERSAL RETIREMENT SECURITY plan, the automatic IRA would provide a val- from potential fiduciary liability and from THROUGH AUTOMATIC IRAS uable retirement savings opportunity. having to choose or arrange default invest- (Testimony before the Subcommittee on The automatic IRA proposal is set out in ments. Instead, diversified default invest- Long-Term Growth and Debt Reduction, the remainder of this written statement. ments and a handful of standard, low-cost in- Committee on Finance, United States Sen- EXECUTIVE SUMMARY OF PROPOSAL vestment alternatives would be specified by statute and regulation. Payroll deduction ate, June 29, 2006) This testimony proposes an ambitious but contributions would be transferred, at the Chairman Smith, Ranking Member Kerry, practical set of initiatives to expand dra- employer’s option, to a central repository, and Senator Grassley, we appreciate the op- matically retirement savings in the United which would remit them to IRAs designated States—especially to those not currently of- portunity to testify before you. We are sub- by employees or, absent employee designa- fered an employer-provided retirement plan. mitting our testimony as a single joint tion, to a default collective retirement ac- The essential strategy here, as in the case of statement because we believe strongly in the count. need for a common strategy to expand retire- the automatic 401(k) described above, is to Investment management as well as record ment savings, and in the importance of ap- make saving more automatic—and hence keeping and other administrative functions proaching these issues in a manner that easier, more convenient, and more likely to would be contracted to private sector finan- transcends ideological and partisan dif- occur. As noted, making saving easier by cial institutions to the fullest extent prac- ferences. making it automatic has been shown to be ticable. Costs would be minimized through a At the request of Committee staff, this remarkably effective at boosting participa- no-frills design relying on index funds, written statement focuses on our proposal to tion in 401(k) plans, but roughly half of U.S. economies of scale, and maximum use of expand retirement savings for small business workers are not offered a 401(k) or any other electronic technologies, and modeled to workers—the automatic IRA. We are pleased type of employer-sponsored plan. Among the some degree on the Thrift Savings Plan for by the positive reaction the proposal has re- 153 million working Americans in 2004, over federal government employees. Once ac- ceived and are grateful to our colleagues, in- 71 million worked for an employer that did counts reached a predetermined balance cluding those in government and in various not sponsor a retirement plan of any kind, (e.g., $15,000) sufficient to make them suffi- stakeholder organizations, who have contrib- and another 17 million did not participate in ciently profitable to attract the interest of uted to these ideas. their employer’s plan. This testimony ex- the full range of IRA providers, account own- With the looming retirement security cri- plores a new and, we believe, promising ap- ers would have the option to transfer them sis facing our country, policy-makers from proach to expanding the benefits of auto- to IRAs of their choosing. both parties are focused on ways to strength- matic saving to a wider array of the popu- This approach involves no employer con- en pensions and increase savings. Our pro- lation: the ‘‘automatic IRA.’’ tributions, no employer compliance with posal for automatic IRAs would provide a The automatic IRA would feature direct qualified plan or ERISA requirements, and, relatively simple, cost-effective way to in- payroll deposits to a low-cost, diversified in- as noted, no employer liability or responsi- crease retirement security for the estimated dividual retirement account. Most American bility for selecting investments, for selecting 71 million workers whose employers (usually employees not covered by an employer-spon- an IRA provider, or for opening IRAs for em- smaller businesses) do not sponsor plans. It sored retirement plan would be offered the ployees. It also steers clear of any adverse would enable these employees to save for re- opportunity to save through the powerful impact on employer-sponsored plans or on

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.055 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10295 the incentives designed to encourage firms Moreover, as discussed, an increasing share Tax credit for employers that serve as conduit to adopt new plans. In fact, the indirect in- of 401(k) plans are including automatic fea- for employee contributions tended effect of the proposal would be to tures that make saving easier and bolster Under our proposal, firms that do not pro- draw small employers into the private pen- participation. When firms are not willing to vide employees a qualified retirement plan, sion system. sponsor 401(k)-type plans, the automatic IRA such as a pension, profit-sharing, or 401(k) Our proposed approach would seek to cap- proposed here would apply many of the les- plan, would be given an incentive (a tem- italize on the rapid trend toward automated sons learned from 401(k) plans so that more porary tax credit) to offer those employees or electronic fund transfers. With the spread workers could enjoy automated saving to the opportunity to make their own payroll of new, low-cost technologies, employers are build assets—but without imposing any sig- deduction contributions to IRAs using the increasingly using automated or electronic nificant burden on employers. Employers employers’ payroll systems as a conduit. The systems to manage payroll, including with- that do not sponsor plans for their employ- tax credit would be available to a firm for holding and federal tax deposits, and for ees could facilitate saving by employees— the first two years in which it offered payroll other transfers of funds. Many employers use without sponsoring a plan, without making deposit saving to an IRA, in order to help the an outside payroll service provider, an on- employer matching contributions, and with- firm adjust to any modest administrative line payroll service, or software to perform out complying with plan qualification or fi- costs associated with the ‘‘automatic IRA.’’ these functions, including direct deposit of duciary standards. Employers can help em- This automatic IRA credit would be designed paychecks to accounts designated by em- ployees save simply by offering to remit a to avoid competing with the tax credit avail- ployees. portion of their pay to an IRA, preferably by For firms already offering direct deposit, able under current law to small businesses direct deposit, at little or no cost to the em- that adopt a new employer-sponsored retire- including many that use outside payroll pro- ployer. viders, direct deposit to an IRA would entail ment plan. no additional cost, insofar as these systems Such direct deposit savings using IRAs SMALL BUSINESS NEW PLAN STARTUP CREDIT have unused fields that could be used for the would not and should not replace retirement Under current law, an employer with 100 or additional direct deposit destination. Other plans, such as pension, profit sharing, 401(k), fewer employees that starts a new retire- small businesses still write paychecks by or SIMPLE–IRA plans. Indeed, the auto- ment plan for the first time can generally hand, complete the federal tax deposit forms matic IRA would be carefully designed so as claim a tax credit for a portion of its startup and Forms W–2 by hand, and deliver them to to avoid any adverse effect on employer costs. The credit equals 50 percent of the employees and to the local depositary insti- sponsorship of ‘‘real’’ plans, which must ad- cost of establishing and administering the tution. Our proposal would not require these here to standards requiring reasonably broad plan (including educating employees about employers to make the transition to auto- or proportionate coverage of moderate and the plan) up to $500 per year. The employer matic payroll processing or use of on-line lower-income workers and various safe- can claim the credit of up to $500 for each of systems (although it might have the effect of guards for employees, and which often in- the first three years of the plan. encouraging such transitions). volve employer contributions. Instead, pay- Accordingly, the automatic IRA tax credit At the same time, we would not be inclined roll-deduction direct deposit savings, as en- could be set, for example, at $50 plus $10 per to deny payroll deduction savings to all em- visioned here, would promote wealth accu- employee enrolled. It would be capped at, ployees of employers that do not yet use mulation for retirement by filling in the cov- say, $250 or $300 in the aggregate—low automatic payroll processing (and we would erage gaps around employer-sponsored re- enough to make the credit meaningful only not want to give small employers an incen- tirement plans. Moreover, as described for very small businesses, and lower than the tive to drop automatic payroll processing). below, the arrangements we propose are de- $500 three-year credit available under cur- These employees would benefit from the signed to set the stage for small employers rent law for establishing a new employer ability to save through regular payroll de- to ‘‘graduate’’ from offering payroll deduc- plan. Employers would be precluded from posits at the workplace whether the deposits tion to sponsoring an actual retirement plan. claiming both the new plan startup credit are made electronically or by hand. Employ- EMPLOYEE ACCESS TO PAYROLL DEPOSIT SAVING and the proposed automatic IRA credit; oth- ees would still have the advantages of a erwise, somewhat larger employers might The automatic IRA is a means of facili- method of saving that, once begun, continues have a financial incentive to limit a new tating direct deposits to a retirement ac- automatically, that is more likely to begin plan to fewer than all of their employees in count, giving employees access to the power because of workplace enrollment arrange- order to earn an additional credit for pro- of direct deposit saving. In much the same ments and peer group reinforcement, and viding payroll deposit saving to other em- way that millions of employees have their that often will not reduce take-home pay. To ployees. As in the case of the current new pay directly deposited to their account at a that end, we outline below a strategy to ad- plan startup credit, employers also would be bank or other financial institution, and mil- dress these situations efficiently and with ineligible for the credit if they had sponsored lions more elect to contribute to 401(k) plans minimal cost. a retirement plan during the preceding three by payroll deduction, employees would have For the self-employed and others who have years for substantially the same group of the choice to instruct the employer to send no employer, regular contributions to IRAs employees covered by the automatic IRA. would be facilitated in three principal ways: an amount they select directly from their Example: Joe employs four people in his (1) extending the payroll deposit option to paychecks to an IRA. Employers generally auto body shop, and currently does not spon- many independent contractors who work for would be required to offer their employees sor a retirement plan for his employees. If employers (other than the very smallest the opportunity to save through such direct Joe chooses to adopt a 401(k) or SIMPLE– businesses); (2) enabling taxpayers to direct deposit or payroll-deduction IRAs. IRA plan, he and each of his employees gen- the IRS to make direct deposit of a portion Direct deposit to IRAs is not new. In 1997, erally can contribute up to $15,000 (401(k)) or of their income tax refunds; and (3) expand- Congress encouraged employers not ready or $10,000 (SIMPLE) a year, and the business ing access to automatic debit arrangements, willing to sponsor a retirement plan to at might be required to make employer con- including on-line and traditional means of least offer their employees the opportunity tributions. Under this scenario, Joe can access through professional and trade asso- to contribute to IRAs through payroll deduc- claim the startup tax credit for 50 percent of ciations that could help arrange for auto- tion. Both the IRS and the Department of his costs over three years up to $500 per year. matic debit and direct deposit to IRAs. Auto- Labor have issued administrative guidance Alternatively, if Joe decides only to offer matic debit essentially replicates the power to publicize the payroll deduction or direct his employees payroll deposit to an IRA, the of payroll deduction insofar as it continues deposit IRA option for employers and to ‘‘fa- business will not make employer contribu- automatically once the individual has cho- cilitate the establishment of payroll deduc- tions, and Joe can claim a tax credit for each sen to initiate it. tion IRAs.’’ This guidance has made clear of the next two years of $50 plus $10 for each In addition, a powerful financial incentive that employers can offer direct deposit IRAs employee who signs up to contribute out of to contribute might be provided by means of without the arrangement being treated as his own salary. matching deposits to the IRAs. Private fi- employer sponsorship of a retirement plan Employers with more than 10 employees nancial institutions that maintain the ac- that is subject to ERISA or qualified plan re- that have been in business for at least two counts could deliver matching contributions quirements. However, it appears that few years and that still do not sponsor any plan and be reimbursed through tax credits. employers actually have direct deposit or for their employees would be called upon to THE BASIC PROBLEM AND PROPOSED SOLUTION payroll-deduction IRAs—at least in a way offer employees this opportunity to save a In general, the households that tend to be that actively encourages employees to take portion of their own wages using payroll de- in the best financial position to confront re- advantage of the arrangement. After some posit. If the employer sponsored a plan de- tirement are the 42 percent of the workforce years of encouragement by the government, signed to cover only a subset of its employ- that participate in an employer-sponsored direct deposit IRAs have simply not caught ees (such as a particular subsidiary, division retirement plan. For reasons we have dis- on widely among employers and, con- or other business unit), it would have to cussed earlier, traditionally, the takeup rate sequently, offer little opportunity for em- offer the payroll deposit facility to the rest for IRAs (those who contribute as a percent- ployees to save. of its workforce (i.e., employees not in that age of those who are eligible) is less than 1 With this experience in mind, we propose a business unit) other than employees ex- in 10, but the takeup rate for employer-spon- new strategy designed to induce employers cluded from consideration under the quali- sored 401(k) plans tends to be on the order of to offer, and employees to take up, direct de- fied plan coverage standards (union-rep- 7 in 10. posit or payroll deposit saving. resented employees or nonresident aliens)

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.092 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10296 CONGRESSIONAL RECORD — SENATE September 27, 2006 and those in the permissible qualified plan amounts do vary from employee to employee those employers that already offer their em- eligibility waiting period. The arrangement and depend on the way each employee com- ployees direct deposit of paychecks but have would be structured so as to avoid, to the pletes IRS Form W–4 (which employers ordi- not used the same technology to provide em- fullest extent possible, employer costs or re- narily obtain from new hires to help the em- ployees a convenient retirement saving op- sponsibilities. The tax credit would be avail- ployer comply with income tax withholding). portunity. able both to those firms that are required to The employee’s payroll deposit IRA election Second, employers would have the ease of offer payroll deposit to all of their employ- might be made on an attachment or adden- ‘‘piggybacking’’ the payroll deposits to IRAs ees and to the small or new firms that are dum to the Form W–4. Because employees’ onto the federal tax deposits they currently not required to offer the automatic IRA, but salary reduction contributions to IRAs make. The process, including timing and lo- do so voluntarily. The intent would be to en- would ordinarily receive tax-favored treat- gistics, for both sets of deposits would be the courage, without requiring, the smallest em- ment, the employer would report on Form same. Accompanying or appended to the ex- ployers to participate. W–2 the reduced amount of the employee’s isting federal tax deposit forms would be a similar payroll deposit savings form ena- Acting as conduit entails little or no cost to em- taxable wages together with the amount of the employee’s contribution. bling the employer to send all payroll de- ployers posit savings to a single destination. The For many if not most employers, offering Direct deposit; automated fund transfers small employer who mails or delivers its fed- direct deposit or payroll deduction IRAs Our proposed approach would seek to cap- eral tax deposit check and form to the local would involve little or no cost. Unlike a italize on the rapid trend toward automated bank (or whose accountant or financial pro- 401(k) or other employer-sponsored retire- or electronic fund transfers. With the spread vider assists with this) would add another ment plan, the employer would not be main- of new, low-cost technologies, employers are check and form to the same mailing or deliv- taining a plan. First, there would be no em- increasingly using automated or electronic ery. ployer contributions: employer contributions systems to manage payroll, including with- Third, as noted, the existing convenient, to direct deposit IRAs would not be required holding and federal tax deposits, and for low-cost on-line system for federal tax de- or permitted. Employers willing to make re- other transfers of funds. It is common for posits would be expanded to accommodate a tirement contributions for their employees employers to retain an outside payroll serv- parallel stream of payroll deduction savings would continue to do so in accordance with ice provider to perform these functions, in- payments. the safeguards and standards governing em- cluding direct deposit of paychecks to ac- Since employers making payroll deduction ployer-sponsored retirement plans, such as counts designated by employees or contrac- savings available to their employees would SIMPLE–IRAs, 401(k)s, and traditional pen- tors. Other employers use an on-line payroll not be required to make contributions or to sions. (The SIMPLE–IRA is essentially a service that offers direct deposit and check comply with plan qualification or ERISA re- payroll deposit IRA with an employee con- printing (or that allows employers to write quirements with respect to these arrange- tribution limit that is in between the IRA checks by hand). Still others do not ments, the cost to employers would be mini- and 401(k) limits and with employer con- outsource their payroll tax and related func- mal. They would administer and implement employee elections to participate or to opt tributions, but without the annual reports, tions to a third-party payroll provider but do out through their payroll systems. On occa- plan documents, and most of the other ad- use readily available software or largely sion, employers might need to address mis- ministrative requirements applicable to paperless on-line methods to make their fed- takes or misunderstandings regarding em- other employer plans.) eral tax deposits and perhaps other fund ployee payroll deductions and deposit direc- Employer-sponsored retirement plans are transfers, just as increasing numbers of tions. The time and attention required of the the saving vehicles of choice and should be households pay bills and manage other finan- employer could generally be expected to be encouraged; the direct deposit IRA is a fall- cial transactions on line. (The IRS encour- minimized through orderly communications, back designed to apply to employees who are ages employers to use its free Electronic written or electronic, between employees not fortunate enough to be covered under an Federal Tax Payment System for making and employers, facilitated by the use of actual employer retirement plan. (As dis- federal tax deposits.) standard forms that ‘‘piggyback’’ on the ex- cussed below, it is also intended to encour- For the many firms that already offer isting IRS forms such as the W–4 used by in- age more employers to make the decision their workers direct deposit, including many dividuals to elect levels of income tax with- sooner or later to ‘‘graduate’’ to sponsorship that use outside payroll providers, direct de- holding. of an employer plan.) posit to an IRA would entail no additional Exemption for small and new employers Direct deposit or payroll deduction IRAs cost, even in the short term, insofar as the also would minimize employer responsibil- employer’s system has unused fields that As discussed, the requirement to offer pay- roll deposit to IRAs as a substitute for spon- ities. Firms would not be required to: comply could be used for the additional direct de- soring a retirement plan would not apply to with plan qualification or ERISA rules; es- posit destination. Other small businesses the smallest firms (those with up to 10 em- tablish or maintain a trust to hold assets still write their own paychecks by hand, ployees) or to firms that have not been in (since IRAs would receive the contributions); complete the federal tax deposit forms and business for at least two years. However, determine whether employees are actually Forms W–2 by hand, and deliver them to em- even small or new firms that are exempted eligible to contribute to an IRA; select in- ployees and to the local bank or other depos- would be encouraged to offer payroll deposit vestments for employee contributions; select itary institution. Our proposal would not re- through the tax credit described earlier. (In among IRA providers, or set up IRAs for em- quire these employers to make the transi- addition, a possible approach to implementa- ployees. tion to automatic payroll processing or use tion of this program would be to require pay- Employers would be required simply to let of on-line systems (although it might have roll deposit for the first year or two only by employees elect to make a payroll-deduction the beneficial effect of encouraging such non-plan sponsors that are above a slightly deposit to an IRA (in the manner described transitions). larger size. This would try out the new sys- below, with a standard notice informing em- At the same time, we would not be inclined tem and could identify any ‘‘bugs’’ or poten- ployees of the automatic IRA (payroll-de- to deny the benefits of payroll deduction sav- tial improvements before broader implemen- posit saving) option, and a standard form ings to all employees of employers that do tation.) eliciting the employee’s decision to partici- not yet use automatic payroll processing Employees of small employers that are ex- pate or to opt out. Employer then would im- (and we would not want to give small em- empted—like other individuals who do not plement deposits elected by employees. Em- ployers an incentive to drop automatic pay- work for an employer that is part of the pay- ployers would not be required to remit the roll processing). These employees would ben- roll deposit system outlined here—would be direct deposits to the IRA provider(s) any efit from the ability to save through regular able to use other mechanisms to facilitate faster than the timing of the federal payroll payroll deposits at the workplace whether saving. These include the ability to con- deposits they are required to make. (Those the deposits are made electronically or by tribute by instructing the IRS to make a di- deposits generally are required to be made hand. Employees would still have the advan- rect deposit of a portion of an income tax re- on a standard schedule, either monthly or tages of tax-favored saving that, once begun, fund, by setting up an automatic debit ar- twice a week.) Nor would employers be re- continues automatically, that is more likely rangement for IRA contributions (perhaps quired to remit direct deposits to a variety to begin because of workplace enrollment ar- with the help of a professional or trade asso- of different IRAs specified by their employ- rangements and peer group reinforcement, ciation), and by other means discussed ees (as explained below). and need not cause a visible reduction in below. A requirement to offer payroll-deduction take-home pay if begun promptly when em- Employee Participation to an IRA would by no means be onerous. It ployees are hired. Like a 401(k) contribution, the amount would dovetail neatly with what employers Accordingly, we would suggest a three- elected by the employee as a salary reduc- already do. Employers of course are already pronged strategy with respect to employers tion contribution generally would be tax-fa- required to withhold federal income tax and that do not use automatic payroll proc- vored. It either would be a ‘‘pre-tax’’ con- payroll tax from employees’ pay and remit essing. tribution to a traditional, tax-deductible those amounts to the federal tax deposit sys- First, a large proportion of the employers IRA—deducted or excluded from the employ- tem. While this withholding does not require that still process their payroll by hand ee’s gross income for tax purposes—or a con- the employer to administer an employee would be exempted under the exception for tribution to a Roth IRA, which instead re- election of the sort associated with direct de- very small employers described below. As a ceives tax-favored treatment upon distribu- posit to an IRA, the tax withholding result, this proposal would focus chiefly on tion. An employee who did not qualify to

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.094 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10297 make a deductible IRA contribution or a a) whether to participate at all; The conditions imposed by the Treasury Roth IRA contribution (for example, because b) where (with which financial institution) Department on 401(k) auto enrollment would of income that exceeds the applicable income to open an IRA (or, if they have an IRA al- apply to direct or payroll deposit IRA auto eligibility thresholds), would be responsible ready, whether to use it or open a new one); enrollment as well: all potentially auto en- for making the appropriate adjustment on c) whether the IRA should be a traditional rolled employees must receive advance writ- the employee’s tax return. The statute would or Roth IRA; ten notice (and annual notice) regarding the specify which type of IRA is the default, and d) how much to contribute to the IRA; and terms and conditions of the saving oppor- the firm would have no responsibility for en- e) how to invest the IRA. tunity and the auto enrollment, including suring that employees satisfied the applica- Once these decisions have been made, the the procedure for opting out, and all employ- ble IRA requirements. individual must still take the initiative to ees must be able to opt out at any time. It is often argued that a Roth IRA is the fill out the requisite paperwork (whether on It is not at all clear, however, whether preferred alternative for lowerincome indi- paper or electronically) to participate. Even simply allowing employers to use auto en- viduals on the theory that their marginal in- in 401(k) plans, where decisions (b) and, un- rollment with direct deposit IRAs will prove come tax rates are likely to increase as they less the plan offers a Roth 401(k) option, (c) to be effective. A key motivation for using become more successful economically. The are not required, millions of employees are auto enrollment in 401(k) plans is to improve argument is often made also that a Roth is deterred from participating because of the the plan’s score under the 401(k) non- preferable for many others on the assump- other three decisions or because they simply discrimination test by encouraging more tion that federal budget deficits will cause do not get around to enrolling in the plan. moderate- and lower-paid (‘‘nonhighly com- income tax rates to rise in the future. On ei- Overcoming the obstacles to participation: En- pensated’’) employees to participate, which ther of those assumptions, all other things couraging automatic enrollment in turn increases the permissible level of being equal, the Roth’s tax advantage for These obstacles can be overcome by mak- tax-preferred contributions for highly com- payouts would likely be more valuable than ing participation easier and more automatic, pensated employees. This motivation is ab- the traditional IRA’s tax deduction for con- in much the same way as is being done in- sent when the employer is merely providing tributions. In addition, the Roth, by pro- creasingly in the 401(k) universe. An em- direct deposit IRAs, rather than sponsoring a ducing less taxable income in retirement ployee eligible to participate in a 401(k) plan qualified plan such as a 401(k), because no years, could avoid exposing the individual to automatically has a savings vehicle ready to nondiscrimination standards apply unless a higher rate of incomerelated tax on social receive the employee’s contributions (the there is a plan. security benefits in retirement. plan sponsor sets up an account in the plan A second major motivation for using 401(k) This point of view, however, may well for each participating employee) and bene- auto enrollment in many companies is man- overstate the probability that our tax sys- fits from a powerful automatic savings agement’s sense of responsibility or concern tem, including the federal income tax, social mechanism in the form of regular payroll de- for employees and their retirement security. security taxes, and the tax treatment of the duction. With payroll deduction as the meth- Many executives involved in managing em- Roth IRA, will continue essentially as it is. od of saving, deposits continue to occur ployee plans and benefits have opted for auto If, instead of increasing marginal tax rates, automatically and regularly—without the enrollment because they believe far too we moved to a consumption or value added need for any action by the employee—once many employees are saving too little and in- tax or another system that exempts savings the employee has elected to participate. And vesting unwisely and need a strong push to or retirement savings from tax—or if a fu- finally, to jump-start that initial election to ‘‘do the right thing’’ and take advantage of ture Congress eliminated or limited the Roth participate, an increasing percentage of the 401(k) plan. This motivation—by no income tax (and social security benefits tax) 401(k) plan sponsors are using ‘‘automatic means present in all employers—is especially advantages—the choice of a Roth over a de- enrollment.’’ unlikely to be driving an employer that ductible IRA would entail giving up the pro- Auto enrollment tends to work most effec- merely permits payroll deposit to IRAs with- verbial bird in the hand for two in the bush. tively when it is followed by gradual esca- out sponsoring a retirement plan. Because the automatic IRA proposal would lation of the initial contribution rate. The Third, employers might have greater con- encourage but not require individuals to automatic contribution rate can increase ei- cern about potential employee reaction to save, the associated incentives for saving are ther on a regular, scheduled basis, such as 4 auto enrollment in the absence of an em- important. The instant gratification tax- percent in the first year, 5 percent in the sec- ployer matching contribution. The high re- payers can obtain from a deductible IRA ond year, etc., or in coordination with future turn on employees’ investment delivered by might do more to motivate many households pay raises. But if the default mode is partici- the typical 401(k) match helps give con- than the government’s long-term promise of pation in the plan (as it is under auto enroll- fidence to 401(k) sponsors using auto enroll- an uncertain tax benefit in an uncertain fu- ment), employees no longer need to over- ment that they are doing right by their em- ture. (In addition, by shifting the loss of tax come inertia and take the initiative in order ployees and need not worry unduly about po- revenues beyond the congressional budget to save; saving happens automatically, even tential complaints from workers who failed ‘‘window’’ period, the Roth also presents a if employees take no action. to read the notice. Finally, an employer concern that has special challenge to a policy of fiscal respon- Employers offering payroll deposit saving made some plan sponsors hesitate to use sibility.) Accordingly, we are inclined to to an IRA should be explicitly permitted to auto enrollment with 401(k) plans might make the traditional IRA the default but to arrange for appropriate automatic increases loom larger in the case of auto enrollment allow individuals to elect payroll deposits to in the automatic IRA contribution rate. with direct deposit IRAs. This is the concern a Roth. However, an employer facilitating saving in about avoiding a possible violation of state Employees covered an automatic IRA has far less of an incentive laws that prohibit deductions from employee to use automatic escalation (or to set the Employees eligible for payroll deposit sav- paychecks without the employee’s advance initial automatic contribution rate as high ings might be, for example, employees who written authorization. Assuming most direct as it thinks employees will accept) than an have worked for the employer on a regular deposit IRA arrangements are not employer employer sponsoring a 401(k) plan. The 401(k) basis (including parttime) for a specified pe- plans governed by ERISA, such state laws, as sponsor generally has a financial incentive riod of time and whose employment there is they apply to automatic IRAs, may not be to encourage nonhighly compensated em- expected to continue. Employers would not preempted by ERISA because they do not ployees to contribute as much as possible, be required, however, to offer direct deposit ‘‘relate to any employee benefit plan.’’ For because their average contribution level de- savings to employees they already cover reasons such as these, without a meaningful termines how much highly compensated em- under a retirement plan, including employ- change in the law, most employers that are ployees can contribute under the 401(k) non- ees eligible to contribute (whether or not unwilling to offer a qualified plan today are discrimination standards. Because no non- they actually do so) to a 401(k)-type salary- unlikely to take the initiative to automati- discrimination standards apply to IRAs, em- reduction arrangement. Accordingly, as dis- cally enroll employees in direct deposit ployers have no comparable incentive to cussed, an employer that limits retirement IRAs. plan coverage to a portion of its workforce maximize participation and contributions to Not requiring employers to use automatic enroll- generally would be required to offer direct IRAs. ment deposit or other payroll deduction saving to Automatic enrollment, which has typically the rest of the workforce. been applied to newly hired employees (as One possible response would be to require opposed to both new hires and employees employers to use automatic enrollment in THE AUTOMATIC IRA who have been with the employer for some conjunction with the direct deposit IRAs Obstacles to participation years), has produced dramatic increases in (while giving the employers a tax credit and Even if employers were required to offer 401(k) participation. This is especially true legal protections). The argument for such a direct deposit to IRAs, various impediments in the case of lower-income and minority requirement would be that it would likely would prevent many eligible employees from employees. In view of the basic similarities increase participation dramatically while taking advantage of the opportunity. To between employee payroll-deduction saving preserving employee choice (workers could save in an IRA, individuals must make a va- in a 401(k) and under a direct deposit IRA ar- always opt out), and that, for the reasons riety of decisions and must overcome inertia. rangement, the law should, at a minimum, summarized above, employers that do not At least five key questions are involved in permit employers to automatically enroll provide a qualified plan (or a match) are un- the process for employees: employees in direct deposit IRAs. likely to use auto enrollment voluntarily.

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00075 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.096 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10298 CONGRESSIONAL RECORD — SENATE September 27, 2006 The arguments against such a requirement isting employees would be excused from hav- employers file annually to transmit Forms include the concern that a workforce that ing to obtain elections from both new hires W–2 to the government. Failure to offer pay- presumably has not shown sufficient demand and existing employees. roll deposit savings would ultimately need to for a qualified retirement plan to induce the The required election would not obligate be backed up by an appropriate sanction, employer to offer one might react unfavor- employers to obtain a new election from such as the threat of civil monetary pen- ably to being automatically enrolled in di- each employee every year. Once an employee alties or an excise tax. rect deposit savings without a matching con- submitted an election form, that employee Portability of savings tribution. (In addition, some small business would not be required to make another elec- IRAs are inherently portable. Unlike a owners who have only a few employees and tion: as in most 401(k) plans, the initial elec- 401(k) or other employer plan, an IRA sur- work with all of them on a daily basis might tion would continue throughout the year and vives and functions independently of the in- take the view that automatic enrollment is from year to year unless and until the em- dividual saver’s employment status. Thus unnecessary because of the constant flow of ployee chose to change it. Similarly, an em- the IRA owner is not at risk of forfeiting or communication between the owner and each ployee who failed to submit an election form losing the account or suffering an interrup- employee.) and was auto enrolled by default in the pay- tion in the ability to contribute when chang- It is noteworthy, however, that recent pub- roll deposit IRA would continue to be auto ing or losing employment. As a broad gener- lic opinion polling shows strong support enrolled unless and until the employee took alization, the automatic IRAs outlined here among registered voters for making saving action to make an explicit election. presumably would be freely transferable to easier by making it automatic, with 71 per- To maximize participation, employers and with other IRAs and qualified plans that cent of respondents favoring a fully auto- would receive a standard enrollment module permit such transfers. (However, as discussed matic 401(k), including automatic enroll- reflecting current best practices in enroll- below, the investment limitations and other ment, automatic investment, and automatic ment procedures. A nationwide website with cost-containment features of these IRAs contribution increases over time, with the standard forms would serve as a repository raise the issue of whether transferability to opportunity to opt out at any stage. A vast of state-of-the-art best practices in and sav- other types of vehicles should be subject to majority (85 percent) of voters said that if ings education. The use of automatic enroll- restrictions.) they were automatically enrolled in a 401(k), ment (whereby employees automatically are MAKING A SAVINGS VEHICLE AVAILABLE they would not opt out, even when given the enrolled at a statutorily specified rate of opportunity to do so. In addition, given the contribution—such as 3% of pay—unless they Most current direct deposit arrangements choice, 59 percent of respondents preferred a opt out) would be encouraged in two ways. use a payroll-deduction savings mechanism workplace IRA with automatic enrollment First, the standard materials provided to similar to the 401(k), but, unlike the 401(k), to one without. employers would be framed so as to present do not give the employee a ready-made vehi- auto enrollment as the presumptive or per- cle or account to receive deposits. The em- Requiring explicit ‘‘Up or Down’’ employee elec- ployee must open a recipient account and tions while encouraging auto enrollment haps even the default enrollment method, al- though employers would be easily able to opt must identify the account to the employer. An alternative approach that has been out in favor of simply obtaining an ‘‘up or However, where the purpose of the direct de- used in 401(k) plans and might be particu- down’’ response from all employees. In ef- posit is saving, it would be useful to many larly well suited to payroll deposit savings is fect, such a ‘‘double default’’ approach would individuals who would rather not choose a to require all eligible employees to submit use the same principle at both the employer specific IRA to have a ready-made fallback an election that explicitly either accepts or and employee level by auto enrolling em- or default account available for the deposits. declines direct deposit to an IRA. Instead of Under this approach, modeled after the ployers into auto enrolling employees. Sec- treating employees who fail to respond as ei- SIMPLE-IRA, which currently covers an es- ond, as noted, employers using auto enroll- ther excluded or included, this ‘‘up or down’’ timated 2 million employees, individuals ment to promote participation would not election approach has no default. There is who wish to direct their contributions to a need to obtain responses from unresponsive evidence suggesting that requiring employ- specific IRA would do so. The employer employees. ees to elect one way or the other can raise would follow these directions as employers 401(k) participation nearly as much as auto Compliance and enforcement ordinarily do when they make direct depos- enrollment does. Requiring an explicit elec- Employers’ use of the required-election ap- its of paychecks to accounts specified by em- tion picks up many who would otherwise fail proach would also help solve an additional ployees. At the same time, the employer to participate because they do not complete problem—enforcing compliance with a re- would also have the option of simplifying its and return the enrollment form due to pro- quirement that employers offer direct de- task by remitting all employee contribu- crastination, inertia, inability to decide on posit savings. As a practical matter, many tions in the first instance to IRAs at a single investments or level of contribution, and the employers might question whether the IRS private financial institution that the em- like. would ever really be able to monitor and en- ployer designates. However, even in this Accordingly, a possible strategy for in- force such a requirement. Employers may be- case, employees would be able to transfer the creasing participation in payroll deposit lieve that, if the IRS asked an employer why contributions, without cost, from the em- IRAs would be to require employers to ob- none of its employees used direct deposit ployer’s designated financial institution to tain a written (including electronic) ‘‘up or IRAs, the employer could respond that it an IRA provider chosen by the employee. down’’ election from each eligible employee told its employees about this option and By designating a single IRA provider to re- either accepting or declining the direct de- they simply were not interested. However, if ceive all contributions, the employer could posit to an IRA. Under this strategy, em- employers that were required to offer direct avoid the potential administrative hassles of ployers that voluntarily auto enroll their deposit savings had to obtain a signed elec- directing deposits to a multitude of different employees in the direct deposit IRAs would tion from each eligible employee who de- IRAs for different employees, while employ- be excused from the requirement that they clined the payroll deposit option, employers ees would be free to transfer their contribu- obtain an explicit election from each em- would know that the IRS could audit their tions from the employer’s designated institu- ployee because all employees who fail to files for each employee’s election. This by tion to an IRA provider of their own choos- elect would be participating. This exemp- itself would likely improve compliance. ing. Even this approach, though, still places tion—treating an employer’s use of auto en- In fact, a single paper or e-mail notice a burden on either the employer or the em- rollment as an alternative means of satis- could advise the employee of the opportunity ployee to choose an IRA. For many small fying its required-election obligation—would to engage in payroll deduction savings and businesses, the choice might not be obvious add an incentive for employers to use auto elicit the employee’s response. The notice or simple. In addition, the market may not enrollment without requiring them to use it. and the employee’s election might be added be very robust because at least some of the Any firms that prefer not to use auto enroll- or attached to IRS Form W–4. (As noted, the major financial institutions that provide ment would simply obtain a completed elec- W–4 is the form an employer ordinarily ob- IRAs may well not be interested in selling tion from each employee, either electroni- tains from new hires and often from other new accounts that seem unlikely to grow cally or on a paper form. And either way— employees to help the employer comply with enough to be profitable within a reasonable whether the employer chose to use auto en- its income tax—withholding obligations.) If time. Some of the major financial firms ap- rollment or the required-election approach— the employer chose to use auto enrollment, pear to be motivated at least as much by a participation would likely increase signifi- the notice would also inform employees of desire to maximize the average account bal- cantly, perhaps even approaching the level that feature (including the default contribu- ance as by the goal of maximizing aggregate that might be achieved if auto enrollment tion level and investment and the procedure assets under management. They therefore were required for all payroll deposit IRAs. for opting out), and the employer’s records may shun small accounts that seem to lack This combined strategy for promoting pay- would need to show that employees who much potential for rapid growth. roll deposit IRA participation could be ap- failed to submit an election were in fact par- The current experience with automatic plied separately to new hires and existing ticipating in the payroll deduction savings. rollover IRAs is a case in point. Firms are employees: thus, an employer auto enrolling Employers would be required to certify an- required to establish these IRAs as a default new hires would be exempted from obtaining nually to the IRS that they were in compli- vehicle for qualified plan participants whose completed elections from all new hires (but ance with the payroll deposit savings re- employment terminates with an account bal- not from existing employees), while an em- quirements. This might be done in conjunc- ance of not more than $5,000 and who fail to ployer auto enrolling both new hires and ex- tion with the existing IRS Form W–3 that provide any direction regarding rollover or

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00076 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.098 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10299 other payout. The objective is to reduce have the option to transfer them to IRAs of ment costs and investment types. As a broad leakage of benefits from the tax-favored re- their choosing. generalization, asset management charges tirement system by stopping involuntary Cost containment tend to be low for money market funds, cer- cashouts of account balances between $1,000 tificates of deposit, and certain other rel- Both the direct deposit IRAs expressly se- and $5,000. (Plan sponsors continue to have atively low-risk, lower-return investments lected by employees and employers and the the option to cash out balances of up to that generally do not require active manage- standardized direct deposit IRAs that serve $1,000 and to retain in the plan account bal- ment. However, it appears that limiting indi- as default vehicles would be designed to min- ances between $1,000 and $5,000 instead of vidual accounts to these types of invest- imize the costs of investment management rolling them over to an IRA.) Because plan ments would be unnecessarily restrictive. As and account administration. It should be fea- sponsors are required to set up IRAs only for discussed below (under ‘‘Default Investment sible to realize substantial cost savings ‘‘unresponsive’’ participants—those who fail Fund’’), passively managed index funds, such through index funds, economies of scale in to give instructions as to the disposition of as those used in the Thrift Savings Plan, are asset management and administration, uni- their benefits—these IRAs are presumed to also relatively inexpensive. formity, and electronic technologies. be less likely than other IRAs are to attract A very different approach to cost contain- In accordance with statutory guidelines for ment would be to impose a statutory or reg- additional contributions. Accordingly, sig- all direct deposit IRAs, government contract nificant segments of the IRA provider indus- ulatory limitation on investment manage- specifications would call for a no-frills ap- ment and administrative fees that providers try have not been eager to cater to this seg- proach to participant services in the interest ment of the market. As a result, plan spon- could charge. One example is the United of minimizing costs. By contrast to the wide Kingdom’s limit on permissible charges for sors have tended to reduce their cashout open investment options provided in most level from $5,000 to $1,000 so that new IRAs management of ‘‘stakeholder pension’’ ac- current IRAs and the high (and costlier) counts—an annual 150 basis point fee cap for would not have to be established. level of customer service provided in many For somewhat similar reasons, IRA pro- five years that is scheduled to drop to 100 401(k) plans, the standard account would pro- viders might expect payroll deposit IRAs to basis points thereafter. As another and more vide only a few investment options (pat- be less profitable than other products. As a limited example, the U.S. Department of terned after the Thrift Savings Plan, if not result, employers and employees might well Labor has imposed a kind of limitation on more limited), would permit individuals to find that providers are not marketing to fees charged by providers of automatic roll- change their investments only once or twice them aggressively and that the array of pay- over IRAs established by employers for ter- a year, and would emphasize transparency of roll deposit IRA choices is comparatively minating employees who fail to provide any investment and other fees and other ex- limited. direction regarding the disposition of ac- penses. The prospect of tens of millions of personal count balances of up to $5,000. Labor regula- Specifically, costs of direct deposit IRAs retirement accounts with relatively small tions provide a fiduciary safe harbor for auto might be reduced by federal standards that, balances likely to grow relatively slowly rollover IRAs that preserve principal and to the extent possible, suggests that the market may need to be en- that do not charge fees greater than those Exclude brokerage services and retail eq- couraged to develop widely available low- charged by the IRA provider for other IRAs uity funds from the investment options cost personal accounts or IRAs. Otherwise, it provides. available under the IRA. for ‘‘small savers,’’ fixed-cost investment Presumably, a mandatory limit would give Limit the number of investment options management and administrative fees may rise to potential cross-subsidies from prod- under the IRA. ucts that are free of any limit on fees to the consume too much of the earnings on the ac- Allow individuals to change their invest- IRAs that are subject to the fee limit—a re- count and potentially even erode principal. ments only once or twice per year. sult that could be viewed either as an inap- A standard default account Specify a low-cost default investment op- propriate distortion or as a necessary and Accordingly, to facilitate saving and mini- tion and provide that, if any of an individ- appropriate allocation of resources. We mize costs, we believe that a strong case can ual’s account balance is invested in the de- would view a mandatory limit as a last re- be made for a default IRA that would be fault option, all of it must be. sort, preferring the market-based strategies automatically available to receive direct de- Prohibit loans (IRAs do not allow them in outlined above. posit contributions without requiring either any event) and perhaps limit preretirement Default investment fund the employee or employer to choose among withdrawals. Both the IRAs offered independently by IRA providers and without requiring the em- Limit access to customer service call cen- private financial institutions and explicitly ployee to take the initiative to open an IRA. ters. selected by employees or employers and the Under this approach, for the convenience of Preclude commissions. default IRAs would serve the important pur- both employees and employers, those who Make compliance testing unnecessary. pose of providing low-cost professional asset wish to save but have no time or taste for Give account owners only a single account management to millions of individual savers, the process of locating and choosing an IRA statement per year (especially if daily valu- presumably improving their aggregate in- would be able to use a standard default, or ation is built into the system and is avail- vestment results. To that end, all of these automatic, account. If neither the employer able to account owners). accounts would offer a similar, limited set of nor the employee designated a specific IRA Encourage the use of electronic and other investment options, including a default in- provider, the contributions would go to a new technologies (including enrollment on a vestment fund in which deposits would auto- personal retirement account within a plan web site) for fund transfers, record keeping, matically be invested unless the individual that would in some respects resemble the and communications among IRA providers, chose otherwise. This default investment federal Thrift Savings Plan (the 401(k)-type participating employees, and employers to would be a highly diversified ‘‘target asset retirement savings plan that covers federal reduce paperwork and cost. Electronic ad- allocation’’ or ‘‘life-cycle’’ fund comprised of government employees). ministration has considerable potential to a mix of equities and fixed income or stable These standard default accounts would be cut costs. value investments, and probably relying maintained and operated by private financial The availability to savers of a major low- heavily on index funds. (The life-cycle funds institutions under contract with the federal cost personal account alternative in the recently introduced into the federal Thrift government. To the fullest extent prac- form of the standard account may even help, Savings Plan are one possible model.) A por- ticable, the private sector would provide the through market competition, to drive down tion or all of the fixed income component investment funds, investment management, the costs and fees of IRAs offered separately could be comprised of Treasury inflation pro- record keeping, and related administrative by private financial institutions. Through ef- tected securities (‘‘TIPS’’) to protect against services. To serve as a default account for di- ficiencies associated with collective invest- the risk of inflation. rect deposits that have not been directed ment and greater uniformity, the standard The mix of equities and fixed income would elsewhere by employers or employees, an ac- account should help move the system away be intended to reflect the consensus of most count need not be maintained by a govern- from the retail-type cost structure char- personal investment advisers, which empha- mental entity. Given sufficient quality con- acteristic of current IRAs. It should also sizes sound asset allocation and diversifica- trol and adherence to reasonably uniform help create a broad infrastructure of indi- tion of investments—including exposure to standards, various private financial institu- vidual savings accounts that would cover equities (and perhaps other assets that have tions could contract to provide the default most of the working population. higher-risk and higher-return characteris- accounts, on a collective or individual insti- In conjunction with these steps, Congress tics), at least given the foundation of retire- tution basis, more or less interchangeably— and the regulators may be able to do more to ment income already delivered through So- perhaps allocating customers on a geo- require simplified, uniform disclosure and cial Security and assuming the funds will graphic basis or in accordance with other ar- description of IRA investment and adminis- not shortly be needed for expenses. The use rangements based on providers’ capacity. trative fees and charges (building on pre- of index funds would avoid the costs of active These fund managers could be selected vious work by the Department of Labor re- investment management while promoting through competitive bidding. Once indi- lating to 401(k) fees). Such disclosure should wide diversification. vidual default accounts reached a predeter- help consumers compare costs and thereby This default investment would actually mined balance (e.g., $15,000) sufficient to promote healthy price competition. consist of several different funds, depending make them potentially profitable for many Another approach would begin by recog- on the individual’s age, with the more con- private IRA providers, account owners would nizing the trade-off between asset manage- servative investments (such as those relying

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.100 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10300 CONGRESSIONAL RECORD — SENATE September 27, 2006 more heavily on TIPS) applicable to older in- By contrast, under our proposal, employers both employer-provided retirement savings dividuals who are closer to the time when making direct deposits would be insulated education efforts and employer matching they might need to use the funds. Individuals from such potential liability. These employ- contributions. The result is that the natu- who selected the default fund or were de- ers would have no liability or fiduciary re- rally eager savers, who tend to be in the faulted into it would have their account bal- sponsibility with respect to the manner in higher tax brackets, tend to subsidize or ances entirely invested in that fund. How- which direct deposits are invested in default bring along the naturally reluctant savers, ever, they would be free to exit the fund at IRAs or in nondefault IRAs (whether se- who often are in the lowest (including zero) specified times and opt for a different invest- lected by the employer or the employee), nor tax brackets. ment option among those offered within the would employers be exposed to potential li- Employer-sponsored retirement plans also IRA. ability with respect to any employee’s have other features that tend to make them The standard automatic (default) invest- choice of IRA provider or type of IRA. This effective in providing or promoting coverage. ment would also serve two other key pur- protection of employers is facilitated by As noted, the proposal outlined here seeks to poses. It would encourage employee partici- statutory designation of standard invest- transplant some of these features to the IRA pation in direct deposit savings by enabling ment types that reduces the need for contin- universe. These include the automatic avail- employees who are satisfied with the default uous professional investment advice. To pro- ability of a saving vehicle, the use of payroll to simplify what may be the most difficult tect workers against inappropriate IRA pro- deduction (which continues automatically decision they would otherwise be required to viders or inappropriate employer selection of once initiated), matching contributions (fur- make as a condition of participation (i.e., IRA providers while continuing to insulate ther discussed below), professional invest- how to invest). Finally, the standard default employers from fiduciary responsibility, em- ment management, and peer group reinforce- investment should encourage more employ- ployers could be precluded from imposing a ment of saving behavior. ers to use automatic enrollment (thereby particular IRA provider on its employees The automatic IRA must thus be designed boosting employee participation) by saving other than the government-contracted de- carefully to avoid competing with or crowd- them from having to choose a default invest- fault IRA or could be constrained to choose ing out employer plans and to avoid encour- ment. This, in turn, would make it easier to among an approved list of providers based on aging firms to drop or reduce the employer protect employers from responsibility for capital adequacy, soundness, and other cri- contributions that many make to plan par- IRA investments, especially employers using teria. ticipants. Owners and others who control the automatic enrollment (as discussed below). Public opinion polling decision whether to adopt or continue main- taining a retirement plan for employees We would not fully specify the default in- Recent public opinion polling has shown should continue to have incentives to spon- vestment by statute. It is desirable to main- overwhelming support for payroll deduction sor such plans. The ability to offer employ- tain a degree of flexibility in order to reflect direct deposit saving. Among registered vot- ees direct deposit to IRAs should be designed a consensus of expert financial advice over ers surveyed, 83 percent of respondents said so that it will not prompt employers to drop, time. Accordingly, general statutory guide- they would be agreeable to having their em- curtail, or refrain from adopting retirement lines would be fleshed out at the administra- ployer offer to sign them up for an IRA and tive level after regular comment by and con- plans. allow them to contribute to it through direct Probably the single most important pro- sultation with private-sector investment ex- deposit of a small amount from their pay- tection for employer plans is to set max- perts. check to help them save for retirement. An additional and major design issue is imum permitted contribution levels to the Similarly, 79 percent of registered voters ex- automatic IRA so that they will be sufficient whether the standard, limited set of invest- pressed support (and 54 percent expressed ment options for payroll deposit IRAs should to meet the demand for savings by most ‘‘strong’’ support) for giving taxpayers the households but not high enough to satisfy be only a minimum set of options in each option to have part of their income tax re- IRA, so that the IRA provider would be per- the appetite for tax-favored saving of busi- fund deposited into a retirement savings ac- ness owners or decision-makers. The average mitted to provide any additional options it count such as an IRA by just checking a box wished. Limiting the IRAs to these specified annual contribution to a 401(k) plan by a on their tax return. nonhighly compensated employee is some- options would best serve the purposes of con- In addition, the polling shows very strong what greater than $2,000, and average annual taining costs, improving investment results support for a requirement that goes far be- 401(k) contributions by employees generally for IRA owners in the aggregate, and simpli- yond our proposal, that every company offer tend to be on the order of 7 percent of pay. fying individuals’ investment choices. At the its employees some kind of retirement A $3,000 contribution is 7.5 percent of pay for same time, such restrictions would constrain plan—such as a pension or 401(k), or at least a family earning $40,000, and 6 percent of pay the market, potentially limit innovation, an IRA to which employees could contribute. and limit choice for individuals who prefer for a family earning $50,000. Among registered voters surveyed in August Yet IRA contribution limits are already other alternatives. 2005, 77 percent supported such a require- higher than these contribution levels. IRAs One of the ways to resolve this tradeoff ment (and 59 percent responded that they currently allow a married couple to con- would be to limit direct deposit IRAs to the were ‘‘strongly’’ in support). As discussed, tribute up to $8,000 ($4,000 each) on a tax-fa- prescribed array of investment options with- the approach described in this paper would vored basis, and an additional $1,000 ($500 out imposing any comparable limits on other not require employers to offer their employ- each) if they are age 50 or older. By 2008, IRAs, and to allow owners of direct deposit ees retirement plans, but would give firms a these figures are scheduled to rise to $10,000 IRAs (including default IRAs) to transfer or financial incentive to offer their employees plus $2,000 ($1,000 each) for those age 50 or roll over their account balances between the access to payroll deduction as a convenient older. These amounts—the current $9,000 a two classes of accounts. Under this approach, and easy means of saving, and would require year for those age 50 and over ($8,000 for oth- the owner of a direct deposit IRA could firms above a certain size and maturity to ers) and the post-2007 $12,000 annual amount transfer the account balance to other (unre- extend this offer to their employees. for those age 50 and over ($10,000 for others)— stricted) IRAs that are willing to accept THE IMPORTANCE OF PROTECTING EMPLOYER may well be enough to satisfy the desire of such transfers (but perhaps only after the ac- PLANS many small-business owners for tax-favored count balance reaches a specified amount Employer-sponsored pension, profit-shar- retirement savings. Even some small-busi- that would no longer be unprofitable to most ing, 401(k), and other plans can be particu- ness owners that might consider saving IRA providers). While such a transfer to an larly effective—more so than IRAs—in accu- somewhat more than $10,000 or $12,000 per unrestricted IRA would deprive the owner of mulating benefits for employees. As noted year might well conclude that they are bet- the cost-saving advantages of the no-frills, earlier, the participation rate in 401(k)s, for ter off not incurring the cost of making con- limited-choice model, such a system would example, tends to range from two thirds to tributions and providing a plan for their em- still enable individuals to retain the effi- three quarters of eligible employees, in con- ployees because the net benefit to them of ciencies and cost protection associated with trast to IRAs, in which fewer than 1 in 10 eli- having a plan for employees is not greater the standard low-cost model if they so gible individuals participates. Employer than the net benefit of simply saving choose. plans tend to be far more effective than IRAs through IRAs and giving their employees ac- Employers protected from any risk of fiduciary at providing coverage because of a number of cess to IRAs. liability attributes: for one thing, pension and profit- Accordingly, at the most, payroll deposit Employers traditionally have been particu- sharing plans, for example, are funded by IRAs should not permit contributions above larly concerned about the risk of fiduciary employer contributions that automatically the current IRA dollar limits, and could be liability associated with their selection of are made for the benefit of eligible employ- limited to a lower amount such as $3,000. (A retirement plan investments. ees without requiring the employee to take 3% of pay contribution would remain below This concern extends to the employer’s any initiative in order to participate. Sec- $3,000 for employees whose compensation did designation of default investments that em- ond, essentially all tax-qualified employer not exceed $100,000.) Imposing a lower limit ployees are free to decline in favor of alter- plans must abide by standards that either on the payroll deduction IRA would reduce native investments. In the IRA universe, em- seek to require reasonably proportionate to some degree the risk that employees will ployers transferring funds to automatic roll- coverage of rank and-file workers or give the exceed the maximum IRA dollar contribu- over IRAs and employer-sponsored SIMPLE- employer a distinct incentive to encourage tion limit because of auto enrollment, com- IRAs retain a measure of fiduciary responsi- widespread participation by employees. This bined with possible other contributions to an bility for initial investments. encouragement typically takes the form of IRA. That is already a risk under current

VerDate Aug 31 2005 04:15 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00078 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.102 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10301 law, but the automatic nature of auto enroll- ployer-sponsored plan (for example, because view this proposal as providing a valuable ment increases the risk, especially if auto of better matching, tax treatment, invest- new opportunity to market 401(k)s, SIMPLE- escalation is implemented. There is a trade- ment options, or liquidity), it could unfortu- IRAs and other tax-favored retirement plans off between the desirability of limiting the nately divert employee contributions from to employers. Firms that, under this pro- contribution amount (to mitigate both this employer plans. This in turn could have a de- posal, were about to begin offering their em- risk and the risk of competing with em- stabilizing effect by making it difficult for ployees payroll deduction saving or had been ployer plans) and the simplicity of using an employers to meet the nondiscrimination offering their employees payroll deduction existing vehicle (the IRA) ‘‘as is’’. standards applicable to 401(k)s and other saving for a year or two could be encouraged In any event, the employee—not the em- plans and therefore potentially discouraging to ‘‘trade up’’ to an actual plan such as a ployer—would be responsible for monitoring employers from continuing the plans or their 401(k) or SIMPLE-IRA. any of all of their IRA contributions to com- contributions. While a detailed discussion of ply with the maximum limit (in part because these points is beyond the scope of this Especially because these plans can now be employees can contribute on their own and paper, it is important to maintain a relation- purchased at very low cost, it would seem through multiple employers). The ultimate ship between IRAs and employer-sponsored natural for many small businesses to grad- reconciliation would be made by the indi- retirement plans that preserves and protects uate from payroll deduction savings and vidual when filing the federal income tax re- the employer plans. complete the journey to a qualified plan in turn. Automatic payroll deduction can promote mar- order to obtain the added benefits in terms In addition, the automatic IRA should be keting and adoption of employer plans of recruitment, employee relations, and larg- er tax-favored saving opportunities for own- designed to avoid reducing ordinary employ- Our approach is designed not only to avoid ers and managers. ees’ incentives to contribute to employer- causing any reduction or contraction of em- sponsored plans such as 401(k)s. If workers ployer plans, but actually to promote expan- The following compares the maximum an- perceive a program such as direct deposit sion of employer plans. Consultants, third- nual tax-favored contribution levels for savings to IRAs as a more attractive destina- party administrators, financial institutions, IRAs, SIMPLE-IRA plans and 401(k) plans in tion for their contributions than an em- and other plan providers could be expected to effect for 2006:

IRA SIMPLE-IRA 401(k)

Under age 50 ...... $4,000 per spouse ($5,000 after 2007) ...... $10,000 $15,000 Age 50 and above ...... $4,500 per spouse ($6,000 after 2007) ...... $12,000 $20,000

In addition, as noted, small employers that otherwise, to make those arrangements easi- Extending direct deposit to independent con- adopt a new plan for the first time are enti- er to set up and use as a mechanism for sav- tractors tled to a tax credit of up to $500 each year for ing in IRAs. Millions of Americans are self-employed as three years. As discussed, the proposed tax Facilitating automatic debit iras through profes- independent contractors. Many of these credit for offering payroll deposit would be sional or trade associations workers receive regular payments from smaller, so as to maintain the incentive for firms, but because they are not employees, employers to go beyond the payroll deduc- Professional and trade associations could they are not subject to income tax or payroll tion or direct deposit IRA and adopt an ac- facilitate the establishment of IRAs and the tax withholding. These individuals might be tual plan such as a SIMPLE, 401(k), or other use of automatic debit and direct deposit to included in the direct deposit system by giv- employer plan. the IRAs. Independent contractors and other ing them the right to request that the firm individuals who do not have an employer ENCOURAGING CONTRIBUTIONS BY receiving their services direct deposit into often belong to such an association. The as- NONEMPLOYEES an IRA a specified portion from the com- sociation, for example, might be able to The payroll deposit system outlined thus pensation that would otherwise be paid to make saving easier for those members who far would not automatically cover self-em- them. wish to save by making available convenient ployed individuals, employees of the small- Compared to writing a large check to an arrangements for automatic debit of mem- est or newest businesses that are exempt IRA once a year, this approach has several bers’ accounts. Association websites can from any payroll deposit obligation, or cer- potential advantages to independent con- make it easy for members to sign up on line, tractors, which might well encourage them tain unemployed individuals who can save. A monitor the automatic debit savings, and to save. These include the ability to commit strategy centered on automatic arrange- make changes promptly when they wish to. themselves to save a portion of their com- ments can also make it easier for these peo- Although such associations generally lack pensation before they receive it (which, for ple to contribute to IRAs. the payroll-deduction mechanism that is some people, makes the decision to defer Encouraging automatic debit arrangements available to employers, they can help their consumption easier); the ability to avoid For individuals who are not employees or members set up a pipeline involving regular having to make an affirmative choice among who otherwise lack access to payroll deduc- automatic deposits (online or by traditional various IRA providers; remittance of the tion, automatic debit arrangements can means) from their personal bank or other fi- funds by the firm by direct deposit to the serve as a counterpart to automatic payroll nancial accounts to an IRA established for IRA; and, where payments are made to the deduction. Automatic debit enables individ- them. independent contractor on a regular basis, uals to spread payments out over time and an arrangement that, like regular payroll Facilitating direct deposit of income tax refunds to make payments on a regular and timely with holdings for employees, automatically to IRAs basis by having them automatically charged continues the pattern of saving through re- to and deducted from an account—such as a Another major element of a strategy to en- peated automatic payroll deductions unless checking or savings account or credit card— courage contributions outside of employ- and until the individual elects to change. at regular intervals on a set schedule. The ment would be to allow taxpayers to deposit In many cases, the independent service individual generally gives advance author- a portion of their income tax refunds di- provider will not have a sufficient connec- ization to the payer that manages the ac- rectly into an IRA by simply checking a box tion to a firm that receives the services, or count or the recipient of the payment, or on their tax returns. both the independent contractor and the both. The key is that, as in the case of pay- Currently, the IRS allows direct deposits firm will be unwilling to enter into a payroll roll deduction, once the initial authorization of refunds to be made to only one account. deposit type of arrangement. In such in- has been given, regular payments continue This all-or-nothing approach discourages stances, the independent contractor could without requiring further initiative on the many households from saving any of the re- contribute to an IRA using automatic debit part of the individual. For many consumers, fund because at least a portion of the refund (as discussed above) or by sending together automatic debit is a convenient way to pay is often needed for immediate expenses. Al- with the estimated taxes that generally are bills or make payments on mortgages or lowing households instead to split their re- due four times a year. other loans without having to remember to funds to deposit a portion directly into an Matching deposits as a financial incentive make each payment when due and without IRA could make saving simpler and, thus, A powerful financial incentive for direct having to write and mail checks. more likely. deposit saving by those who are not in the Similarly, as an element of an automatic The Bush administration has supported di- higher tax brackets (and who therefore de- IRA strategy, automatic debit can facilitate visible refunds in its last three budget docu- rive little benefit from a tax deduction or ex- saving while reducing paperwork and cutting ments; however, the necessary administra- clusion) would be a matching deposit to their costs. For example, households can be en- tive changes have yet to be implemented. direct deposit IRA. One means of delivering couraged to sign up on-line for regular auto- Since federal income tax refunds total near- such a matching deposit would be via the matic debits to a checking account or credit ly $230 billion a year (more than twice the bank, mutual fund, insurance carrier, bro- card that are directed to an IRA or other estimated annual aggregate amount of net kerage firm, or other financial institution saving vehicle. With on-line sign-up and personal savings in the United States), even that provides the direct deposit IRA. For ex- monitoring, steps can be taken to familiarize a modest increase in the proportion of re- ample, the first $500 contributed to an IRA more households with automatic debit ar- funds saved every year could bring about a by an individual who is eligible to make de- rangements and, via Internet websites and significant increase in savings. ductible contributions to an IRA might be

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.103 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10302 CONGRESSIONAL RECORD — SENATE September 27, 2006 matched by the private IRA provider on a sensible solution that provides a step- Business and Entrepreneurship, I have dollar-for-dollar basis, and the next $1,000 of ping stone toward employer-sponsored received firsthand testimony and contributions might be matched at the rate retirement plans. More workers are countless reports documenting the of 50 cents on the dollar. The financial pro- vider would be reimbursed for its matching likely to contribute to an IRA if the positive economic impact that occurs contributions through federal income tax contribution is deducted from their when we foster entrepreneurship in un- credits. payroll. Automatic IRAs will help com- derserved communities. There are signs Recent evidence from a randomized experi- bat the inertia that is a factor in our of significant economic returns when ment involving matched contributions to low savings rate. The bill also provides minority businesses are created and IRAs suggests that a simple matching de- a tax credit to help small businesses are able to grow in size and capacity. posit to an IRA can make individuals signifi- with the cost of implementation. Between 1987 and 1997, revenue from cantly more likely to contribute and more likely to contribute larger amounts. Women are often placed at a dis- minority owned firms rose by 22.5 per- Matching contributions—similar to those advantage in our retirement system be- cent, an increase equivalent to an an- provided by most 401(k) plan sponsors—not cause they cycle in and out of the work nual growth rate of 10 percent. Em- only would help induce individuals to con- force. The Women’s Retirement Secu- ployment opportunities within minor- tribute directly from their own pay, but also, rity Act of 2006 addresses this issue by ity owned firms increased by 23 percent if the match were automatically deposited in requiring employers that offer defined during that same period. There is a the IRA, would add to the amount saved in contribution plans to cover part-time clear correlation between the growth of the IRA. The use of matching deposits, how- ever, would make it necessary to implement employees that meet specific require- minority owned firms and the eco- procedures designed to prevent gaming—con- ments. nomic viability of the minority com- tributing to induce the matching deposit, Pension coverage needs to improve, munity. then quickly withdrawing those contribu- particularly for small businesses. In Although, these economic numbers tions to retain the use of those funds. Among 2004, only 26 percent of workers at tell a significant part of the story, they the possible approaches would be to place firms with fewer than 25 employees don’t tell the whole story of what these matching deposits in a separate subaccount participated in pension plans. Progress firms mean to the minority commu- subject to tight withdrawal rules and to im- nities they serve and represent. Many pose a financial penalty on early with- has been made on providing coverage drawals of matched contributions. to small businesses. Currently, more of these business leaders are first gen- American households have a compelling than 19 million workers are covered by eration immigrants; many are first need to increase their personal saving, espe- small business retirement plans, but generation business owners and many cially for long-term needs such as retire- more than 36 million Americans work represent, for those in their commu- ment. This paper proposes a strategy that for firms with less than 25 employees. nities, what hard work, determination would seek to make saving more auto- The Women’s Retirement Security and patience can do. matic—hence easier, more convenient, and Act of 2006 provides a start-up credit We must encourage those kinds of more likely to occur—largely by adapting to values in our minority communities the IRA universe practices and arrangements for new small business retirement con- that have proven successful in promoting tributions. In addition, it removes and, quite frankly, in our nation as a 401(k) participation. In our view, the auto- rules that discourage small employers whole. For generations, millions have matic IRA approach outlined here holds con- from adopting deferral only plans. come to our shores in search of a better siderable promise of expanding retirement life. Millions of others were brought savings for millions of workers. By Mr. KERRY: here by force and for years were not Mr. KERRY. Mr. President, I am S. 3953. A bill to foster development given a voice in how their lives would pleased to join my colleagues Senators of minority-owned small businesses; to turn out. But how ever we got here, we SMITH, CONRAD, and BINGAMAN in intro- the Committee on Small Business and all have become branches of this great ducing the Women’s Retirement Secu- Entrepreneurship. tree we call America. This tree is still rity Act of 2006. This legislation comes Mr. KERRY. Mr. President, I rise nourished by roots planted by our fore- on the heels of the passage of the Pen- today to introduce the Minority Entre- fathers more than 200 years ago. Those sion Protection Act of 2006, which preneurship Development Act of 2006. men and women planted the roots of makes improvements to the defined It’s especially appropriate that this bill hard work, innovation, faith and risk benefit pension plan system. be introduced during Hispanic Heritage taking. The legislation that we are intro- Month. Millions of Latino Americans When you think about it, those words ducing today builds upon that legisla- during this time reflect on their place are the perfect description of an entre- tion and focuses on defined contribu- in this country and the positive con- preneur. It is the spirit of entrepre- tion plans. Our pension system has tributions they have made here. One neurship that has made our nation shifted away from defined benefit plans area where we can be certain that the great. And that is why it is absolutely to defined contribution plans. We Hispanic community has made a sig- imperative that we continue to support should make it easier for employers to nificant contribution is in business. and develop that spirit in our minority offer defined contribution plans and for The principled and strong leadership of communities. To that end, this legisla- individuals to participate in these Hispanic Americans can be seen in cor- tion provides several tools to help mi- plans. porate boards and sole proprietorships nority entrepreneurs as they develop At a time when we have a negative alike. As a Nation, we must support and grow their businesses. savings rate that is the lowest since the development of the next generation First, this legislation will create an the Great Depression, we should pro- of business leaders within the Latino Office of Minority Small Business De- vide appropriate incentives to help in- community. I believe that this legisla- velopment. One of its primary func- dividuals save for retirement. In an ef- tion will help in that effort. tions will be to increase the number of fort to achieve this, the Women’s Re- This legislation is aimed at giving small business loans that minority tirement Security Act of 2006 focuses potential and burgeoning entre- businesses receive. Latinos, African- on increasing retirement savings, the preneurs the tools they need to realize Americans, Asian-Americans and preservation of income, equity in di- their goals. Whether those goals in- women have been receiving far fewer vorce, improving financial literacy, clude creating a small business that small business loans than they reason- and encouraging small businesses to will employ people from the commu- ably should. enter and remain in the employer re- nity or taking a small business and To ensure that this trend is reversed tirement plan system. making it into a major enterprise, it’s and minorities begin to get a greater This legislation increases savings by imperative that we develop the tools to share of loan dollars, venture capital allowing employees to contribute a help minority small business owners investments, counseling, and con- portion of their paycheck to an indi- succeed. tracting opportunities, this bill will vidual retirement account (IRA) if I want to take a moment and tell you give the new office the authority to their employer does not offer a pension why it’s so important to expand the monitor the outcomes for programs plan. Automatic IRAs will help the 71 numbers of entrepreneurs in the minor- under Capital Access, Entrepreneurial million workers that do not have em- ity community. As the Ranking Mem- Development, and Government Con- ployer-sponsored plans. It is a low-cost, ber on the Senate Committee on Small tracting. It also requires the head of

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00080 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.105 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10303 the Office to work with SBA’s partners, ment and entrepreneurship have played SECTION 1. SHORT TITLE. trade associations and business groups a significant role in the expansion of This Act may be cited as the ‘‘Honest to identify more effective ways to mar- the black middle class in this country Medicare Act of 2006’’. SEC. 2. MONTHLY REPORTING REGARDING THE ket to minority business owners, and for over a century. These business own- NUMBER OF INDIVIDUALS WHO to work with the head of Field Oper- ers are embodying the entrepreneurial HAVE FALLEN INTO THE PART D ations to ensure that district offices spirit that our forefathers carried with DONUT HOLE AND THE AMOUNT have staff and resources to market to them as they established this nation. SUCH INDIVIDUALS ARE SPENDING With this legislation, we will help to ON COVERED PART D DRUGS WHILE minorities. IN THE DONUT HOLE. Second, this legislation will create extend that spirit to the next genera- Section 1860D–1 of the Social Security Act the Minority Entrepreneurship and In- tion. Not only is this vital for our mi- (42 U.S.C. 1395w–101) is amended by adding at novation Pilot Program. This program nority communities, but it is vital for the end the following new subsection: will offer a competitive grant to His- America. I urge my colleagues to join ‘‘(d) INFORMATION REGARDING INDIVIDUALS torically Black Colleges and Univer- with me in support of the Minority En- WHO HAVE REACHED THE INITIAL COVERAGE LIMIT.—Not later than the 15th of each sities, Tribal Colleges, and Hispanic- trepreneurship Development Act of 2006. month (beginning with February 2007), the Serving Institutions to create an entre- Secretary shall make available to the public preneurship curriculum at these insti- By Mr. KENNEDY (for himself information on— tutions and to open Small Business De- ‘‘(1) the number of individuals enrolled in a and Mr. MENENDEZ): velopment Centers on campus to serve prescription drug plan or an MA–PD plan S. 3954. A bill to amend title XVIII of who have reached the initial coverage limit local businesses. the Social Security Act to require The goal of this program is to target applicable under the plan but who have not monthly reporting regarding the num- reached the annual out-of-pocket threshold students in highly skilled fields such as ber of individuals who have fallen into specified in section 1860D–2(b)(4)(B); and engineering, manufacturing, science the part D donut hole and the amount ‘‘(2) the amount such individuals are and technology, and guide them to- such individuals are spending on cov- spending on covered part D drugs after they wards entrepreneurship as a career op- ered part D drugs while in the donut have reached such limit and before they have tion. Traditionally, minority-owned hole; to the Committee on Finance. reached such threshold.’’. businesses are disproportionately rep- Mr. KENNEDY. Mr. President, more resented in the service sectors. Pro- By Mr. DEWINE: and more seniors are waking each day S 3956. A bill to create a grant pro- moting entrepreneurial education to and learning they’ve fallen into the undergraduate students will help ex- gram for collaboration programs that dreaded ‘‘donut hole’’—the gap in pre- ensure coordination among criminal pand business ownership beyond the scription drug coverage that leaves justice agencies, adult protective serv- service sectors to higher yielding tech- them with large drug costs to pay by ice agencies, victim assistance pro- nical and financial sectors. themselves until coverage resumes. As Third, this legislation will create the grams, and other agencies or organiza- a result, millions of seniors can’t afford tions providing services to individuals Minority Access to Information Dis- the drugs they urgently need, even with disabilities in the investigation tance Learning Pilot Program. This though they’re paying for Medicare and response to abuse of or crimes program will offer competitive grants coverage. committed against such individuals; to to well established national minority It’s important to have a full account- the Committee on the Judiciary. non-profit and business organizations ing of how many seniors are affected, Mr. DEWINE. Mr. President, it is a so that Congress and the public can to create distance learning programs well-known fact that people with dis- make sensible choices about Medicare. for small business owners who are in- abilities face a great risk of abuse and Senator MENENDEZ and I intend to in- terested in doing business with the fed- victimization—in fact, studies indicate troduce legislation to require Medicare eral government. that disabled adults experience vio- to track and publicly report how many The goal of this program is to pro- lence or abuse at least twice as often as enrollees fall into the donut hole, and vide low cost training to the many those without disabilities. This shame- how much they are spending them- small business owners who cannot af- ful situation is made even worse by the ford to pay a consultant thousands of selves for their needed prescriptions. We wouldn’t be facing this problem if fact that far too often these crimes are dollars for advice or training on how to not reported, or if they are reported, prepare themselves to contract with the administration and the Republican Congress had cared more about seniors they are not effectively prosecuted— the federal government. There are with the result that crime victims with thousands of small businesses in this than about drug industry profits when Medicare prescription drug coverage disabilities are left vulnerable to fur- country that are excellent and effi- ther victimization. This is a tragic sit- cient. They are primed to provide the was enacted. They refused to let Medi- care negotiate drug prices, which the uation and one which requires action. goods and services that this nation The good news is that we have a needs to stay competitive. This pro- Veterans Administration is allowed to do for veterans. Instead of allocating model to follow, a response which gram will help prepare them to do just adequate Federal funds to the drug works. Massachusetts has set up an ex- that. cellent program to enhance coopera- Finally, this legislation will extend benefit, they made sure that HMOs re- ceived large overpayments, which en- tion and coordination between law en- the Socially and Economically Dis- able them to force Medicare bene- forcement and the State officials and advantaged Business Program which ficiaries into their plans by offering programs which provide services and expired in 2003. This program provides extra benefits, while still allowing the care to the disabled, and this coordina- a Price Evaluation Adjustment for So- plans to make large profits. tion has greatly improved the ability cially and Economically Disadvantaged It’s long past time to correct this of the criminal justice system to pros- businesses as a way of increasing their glaring defect in Medicare drug cov- ecute these offenders and protect those competitiveness when bidding against erage. Once we have up-to-date infor- with disabilities from crime. In fact, larger firms. This is one more tool to mation on the damage being done by since the implementation of the pro- increase opportunities for our minority the donut hole, we can correct the gram, criminal referrals in these types small business owners. problem and give seniors the Medicare of cases in Massachusetts went up from I have outlined several ways that we coverage they deserve. 32 before the program began to 880 in can create a more positive environ- I ask by unanimous consent that the 2004, the most recent year for which we ment for our minority small business text of the bill be printed in the have statistics. community. These are reasonable steps RECORD. We should try to extend the success that we ought to take without delay. There being no objection, the text of of the Massachusetts program around Moreover, these are important steps the bill was ordered to be printed in the country. Accordingly, today I am that will help bolster a movement that the RECORD, as follows: introducing the Crime Victims with is already underway. According to U.S. S. 3954 Disabilities Act of 2006. This legislation Census data, Hispanics are opening Be it enacted by the Senate and House of Rep- would establish a $10 million Federal businesses 3 times faster than the na- resentatives of the United States of America in grant program to make money avail- tional average. Also, business develop- Congress assembled, able to States and localities which are

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00081 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.077 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10304 CONGRESSIONAL RECORD — SENATE September 27, 2006 interested in setting up similar pro- tional. Furthermore, the IRS admits state, when houses of worship are grams to enhance training, coordina- that it applies a ‘‘coded language’’ pol- banned absolutely from discussing tion, and cooperation within the law icy to political speech. That is, discus- matters of the state. enforcement and disabilities services sion of a moral issue, if it happens to The moral questions of the day are communities order to address this be a matter discussed in our public de- more often than not also fundamental problem. bates, is a political issue and is con- social and political questions—ques- The legislation would require a State sequently banned by the IRS. The tions that concern what we value as a or local government to design a cooper- American people may even be more nation. It is truly astounding that ative plan to improve the reporting and surprised to learn that the IRS is step- today, in America, religious leaders are prosecution of crimes against people ping up the enforcement of the ban on banned from any comment on those with disabilities, including within the political speech in houses of worship moral issues. It is not partisan; this system at least one criminal justice and has recently emphasized the ban on speech makes no distinction be- agency and at least one agency or orga- ‘‘coded language’’ policy. tween the ideological divide of left nization which provides services to in- A skeptic might assert that some- versus right in America: one church dividuals with disabilities. The legisla- thing as serious as an IRS-enforced ban leader is investigated for publicly op- tion encourages local innovation; as on political discourse in a church must posing abortion and another for dis- long as the application meets the basic have a tenured legislative history but- cussing the morality of the Iraq War. goals of protecting people with disabil- tressed by decades of sound First Indeed, the American people may be ities from crime and prosecuting those Amendment jurisprudence. The Amer- surprised to learn this about their who attempt to victimize them, it can ican people may be surprised to learn country. be designed in whatever way the appli- that the exact opposite is true. The The American people would allowing cants decide will work best in the af- First Amendment freedoms of houses religious leaders, of all kinds, to speak fected community. The grants would be of worship were stripped away in 1954 their consciences on the issues facing for a maximum of $300,000 over 2 years, by the ‘‘Johnson Amendment,’’ a floor our nation, and to do so without the with a potential for a one-time re- amendment named for then-Senator threat of IRS punishment through the newal. Lyndon Johnson, which placed an abso- revocation of their tax-exempt status. I have worked closely with the cre- lute ban on political speech by tax ex- This is why I am introducing legisla- ators of the Massachusetts program empt organizations. Although the leg- tion that will do just that. The Reli- and many others who work in law en- islative record is relatively silent on gious Freedom Act of 2006 simply forcement and who provide services to this matter, the amendment and its states that religious leaders may dis- crime victims and people with disabil- subsequent ban were enacted without a cuss political matters, as a Constitu- ities, and I believe this legislation will hearing, any debate, or any public com- tionally protected right, without the help States and localities create pro- ment. History also indicates that Sen- threat of an IRS investigation. Upon grams that can address the problem of ator Johnson enacted this ban as a enactment, this bill will reaffirm the violence against people with disabil- means of silencing some Supreme Court’s holding that this ities. This is a serious problem, and I anticommunist nonprofits that were country has a ‘‘profound national com- encourage my colleagues to support mobilizing against his political cam- mitment’’ to a national debate that is this effort to help address it. paign. It now silences important com- ‘‘uninhibited, robust, and wide-open.’’ ment on the issues of the day. Al- It will also reaffirm Martin Luther By Mr. INHOFE: though the Supreme Court has af- King, Jr.’s ideal of churches as the S. 3957. A bill to protect freedom of firmed and reaffirmed a ‘‘profound na- ‘‘conscience of the state.’’ I ask that speech exercisable by houses of worship tional commitment’’ to the proposition the text of this statement be included or mediation and affiliated organiza- that debate on issues should be ‘‘unin- in the CONGRESSIONAL RECORD by unan- tions; to the Committee on Finance. hibited, robust, and wide-open,’’ the de- imous consent. Mr. INHOFE. Mr. President, I rise bate has been unconstitutionally re- I ask unanimous consent that the today to introduce legislation which stricted for nearly 50 years. text of the bill be printed in the will protect the Constitutionally-guar- Whereas the legislative history of the RECORD. anteed exercise of free speech and exer- Johnson Amendment is dubious where There being no objection, the text of cise of religion, the Religious Freedom it even exists, the history of the rela- the bill was ordered to be printed in Act of 2006. tionship between politics and the pul- the RECORD, as follows: The American people may be sur- pit is a history of a positive force for S. 3957 prised to learn a few things about their change in momentous times in our his- Be it enacted by the Senate and House of government’s relationship with reli- tory when we as a nation have re- Representatives of the United States of America gion. They may be surprised to learn affirmed our commitment to an open in Congress assembled, that the Federal Government of the and tolerant society. From slavery to SECTION 1. SHORT TITLE. United States of America, in the land segregation, religious leaders in Amer- This Act may be cited as the ‘‘Religious of the free, does not allow religious ica clearly have been effective forces Freedom Act of 2006’’. leaders in houses of worship of all reli- for good, and they are also for more SEC. 2. PROTECTION OF FREEDOM OF SPEECH gious orders to say anything that modern issues such as abortion, as- FOR HOUSES OF WORSHIP OR MEDI- TATION. might be construed as political in na- sisted suicide, and human trafficking. (a) IN GENERAL.—Notwithstanding any ture. The American people may further Perhaps no one could better articulate other provision of law, no organization de- be surprised to learn that the federal an important aspect of the history of scribed in subsection (b) may be denied its agency tasked with enforcing the abso- politics and the pulpit than Martin Lu- Federal tax exemption under the Internal lute ban on political speech for houses ther King, Jr.: ‘‘The church must be re- Revenue Code of 1986 by administrative or of worship is the Internal Revenue minded that it is not the master or the judicial action, nor shall donors to such or- Service. It is the IRS that reviews the servant of the state, but rather the ganization be denied the deductibility of their contributions under such Code, because content of sermons and homilies and conscience of the state. It must be the such organization engages in an activity threatens to revoke those institutions’ guide and the critic of the state, and that is protected by the United States Con- tax-exempt status if they dare to speak never its tool . . . [or] it will become stitution, including comment on public out on the political matters of the day. an irrelevant social club without moral issues, election contests, and pending legis- Many times, the only evidence on or spiritual authority.’’ The Johnson lation made in the theological or philo- which the IRS will base their case is a Amendment silences the ‘‘conscience of sophical context of such organization. third-party complaint and may move the state.’’ It’s difficult to see how reli- (b) HOUSES OF WORSHIP OR MEDITATION AND forward with threatening letters and gious leaders can in any way continue AFFILIATED ORGANIZATIONS.—For purposes of subsection (a), an organization described in the revocation of their tax-exempt sta- to function as Martin Luther King Jr.’s this subsection is a church, synagogue, tus even if the prohibited activities— ideal of the church as the ‘‘conscience mosque, temple, or other house of worship or the exercise of their First Amendment of the state,’’ as the church has done so meditation (including any organization af- Rights—were incidental or uninten- effectively during trying times for our filiated with any of the foregoing)—

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.068 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10305 (1) with an established form of worship or Not only has the public service sector At the moment, a majority of the meditation and a recognizable creed that expressed a need for a young, talented, work in the reconstruction of these minimally acknowledges the right of others and high-qualified workforce, many countries is being done by the military to freely accept or reject such form and college students today have already ex- creed, and and the Department of State (DOS). (2) which meets 2 or more of the following pressed a strong desire to serve. A re- These dedicated men and women de- indicia: definite and distinct ecclesiastical cent study conducted by the Higher serve our gratitude. However, as I have government; formal code of doctrine and dis- Education Research Institute found said on a number of occasions, our cipline; distinct religious history; member- that more than two-thirds of the 2005 challenging task requires the coordina- ship not axiomatically associated with any freshman class expressed a desire to tion and work of Federal agencies other organization; organization of ordained serve others, the highest rate in a gen- across the spectrum. ministers; ordained ministers selected after eration. Regardless of whether one is in the completing prescribed courses of study; a lit- Unfortunately, as thousands of erature of its own; established places of wor- military or a civilian, there are certain ship or meditation; regular congregations; American youth seek to serve their Na- risks and hardships associated with regular religious services; classes for the re- tion in a civilian capacity, many are working overseas. As a result, the Fed- ligious instruction of youth or seniors or often priced out of public service due to eral Government provides certain in- both; auxiliaries to provide relief and suste- rising college debts. Over the past dec- centives to individuals when they take nance to the poor and deprived; and auxil- ade, the average debt burden for a col- on extremely challenging jobs. For ex- iaries to provide youth with morally-struc- lege graduate has increased by 58 per- ample, those in the military working tured community service and supervised op- cent. Many of the students who want to in a combat zone receive the Combat portunities to compete in sport and intel- serve our country owe more than lect-expanding activities as an alternative to Zone Tax Credit. destructive behavior such as crime and drug $20,000 in student loans after grad- This tax credit permits military per- use. uating from college. sonnel working in combat zones to ex- (c) CONSTRUCTION.—This section shall not By providing a quality college edu- clude a certain amount of income from be construed so as to exempt any organiza- cation at no cost to the student, the their Federal income taxes. This ben- tion described in subsection (b) from the op- U.S. Public Service Academy would tap efit for the military was established in eration of any other law generally applicable into the renewed sense of patriotism to all organizations and individuals. 1913. and civic obligation among young peo- Private contractors working in Iraq By Mrs. CLINTON (for herself, ple and create a corps of competent ci- and Afghanistan get a similar benefit. vilian leaders. Mr. SPECTER, Mr. KENNEDY, and Under the Foreign Earned Income Tax The establishment of a U.S. Public Ms. MIKULSKI): Credit, contractors are allowed to ex- Service Academy is an innovative way S. 3958. A bill to establish the United clude a portion of their income from States Public Service Academy; to the to strengthen and protect America by taxes while they work abroad, like in Committee on Homeland Security and creating a corps of well-trained, highly Iraq and Afghanistan. Governmental Affairs. qualified civilian leaders. I am hopeful To date, however, no similar benefit Mrs. CLINTON. Mr. President, I rise that my Senate colleagues from both exists for Federal employees serving in today to introduce legislation that will sides of the aisle will join me today to the same combat zones. I do not believe create an undergraduate institution de- move this legislation to the floor with- it is fair for our Federal employees to signed to cultivate a generation of out delay. be excluded from the same benefits young leaders dedicated to public serv- By Mr. WARNER (for himself and available to military personnel and pri- ice. The U.S. Public Service Academy Mr. ALLEN): vate contractors in the same combat Act, the PSA Act, will establish a na- S. 3959. A bill to amend the Internal zone. tional academy, modeled after the Revenue Code of 1986 to exclude from The Commonwealth of Virginia, of military service academies, to serve as gross income certain combat zone com- which I have been honored to serve for an extraordinary example of effective, pensation of civilian employees of the the last 28 years in the Senate, is home national public education. United States; to the Committee on Fi- to over 200,000 Federal employees. I The tragic events of September 11 nance. have long been a strong supporter of and the devastation of natural disas- Mr. WARNER. Mr. President, I rise our Federal employees as I have been ters Hurricanes Katrina and Rita have today along with my colleague Senator for our military personnel. demonstrated just how critical it is for GEORGE ALLEN to introduce the Fed- Our efforts in the war on terrorism our Nation to improve its ability to re- eral Employee Combat Zone Tax Par- can only be successful with a highly spond to future emergencies and to ity Act, which would provide parity to skilled and experienced workforce. I confront daily challenges. These events civilian Federal employees by extend- can personally attest to the dedication also underscore how much our Nation ing the tax credit currently received by of civil service employees throughout depends upon strong public institutions military personnel in combat zones to the Federal Government. Since the and competent civilian leadership at September 11th attacks, Federal em- all levels of society. the civilian Federal employees working Our country must improve its ability along side them. My fellow Virginian, ployees have been relocated, reas- to groom future public servants to fill Congressman FRANK WOLF, has intro- signed, and worked long hours under the pipeline as the baby boomer gen- duced a similar bill in the House of strenuous circumstances without com- eration approaches retirement from Representatives. plaints, proving time and again their critical public sector careers. Recent In addition, several Federal employee loyalty to their country is first and studies have shown that 2 million organizations, such as the American foremost. teachers are approaching retirement Federation of Government Employees During my service as Secretary of this decade alone, and more than 80 (AFGE), the National Treasury Em- the Navy during which I was privileged percent of law enforcement agencies ployees Union (NTEU), the Financial to have some 650,000 civilian employees are unable to fill positions due to a Management Association (FMA), the working side by side with the uni- lack of qualified candidates. Senior Executives Association (SEA), formed Navy, I valued very highly the The PSA Act will establish the U.S. the American Foreign Service Associa- sense of teamwork between the civilian Public Service Academy to provide a 4- tion (AFSA), and the National Federa- and uniformed members of the United year, federally subsidized college edu- tion of Federal Employees (NFFE), States Navy. Teamwork is an intrinsic cation for more than 5,000 students a strongly support this legislation. military value, in my judgment, and year in exchange for a 5-year commit- As of today, I have made eleven sepa- essential to mission accomplishment. ment to public service following grad- rate trips to Iraq and Afghanistan to A sense of parity and fairness is impor- uation. Academy graduates will help to see firsthand the work of our military tant for developing this teamwork. fill the void in public service our Na- personnel, which is essential to success In Iraq and Afghanistan, the team- tion will soon face by serving for 5 in these regions. In addition, the work work of the entire Federal Government years in areas such as public education, of our Federal civilian employees in is essential to harness our overall ef- public health, law enforcement, and these regions is significantly impor- forts to secure a measure of democracy the nonprofit sector. tant. for the peoples of those countries, and

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00083 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.071 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10306 CONGRESSIONAL RECORD — SENATE September 27, 2006 we need to make it easier for our Fed- their safety record has been steadily The House Transportation and Infra- eral employees to participate. improving. Unfortunately however, as structure Committee and the House I recently offered additional legisla- recent events in my State dem- Energy and Commerce Committee are tion to achieve this goal. My bill, S. onstrate, there is still much to be done. also working on pipeline safety legisla- 2600, would provide the heads of agen- This bill addresses the problems that tion. I hope that our three Committees cies other than DOS and the Depart- have occurred in Alaska and other safe- can work together over the next month ment of Defense (DOD) with the au- ty issues that have been brought to the while the Congress is out of session to thority, at their discretion, to give Committee’s attention. develop a joint legislative product that their employees who serve in Iraq and The bill reauthorizes the pipeline we can pass and have signed into law Afghanistan allowances, benefits, and safety programs of the Pipeline and when we return in November. Many of gratuities comparable to those pro- Hazardous Materials Safety Adminis- the provisions in the three bills are vided to State Department and DOD tration (PHMSA) for Fiscal Years 2007 similar and we should have enough employees serving in those countries. through 2010. common ground to achieve this goal. Currently, the agency heads of non- Highlights of the bill include: DOD and DOS agencies do not have Increased Department of Transpor- By Mr. DOMENICI (for himself such authority, and it is essential, as tation Resources Dedicated to Over- and Mr. CRAIG): part of the U.S. effort to bring democ- seeing Pipeline Safety—The bill pro- S. 3962. A bill to enhance the manage- racy and freedom to Iraq and Afghani- vides an additional 45 Federal inspec- ment and disposal of spent nuclear fuel stan, that agency heads be able to give tors (a 50 percent increase) over the 4 and high-level radioactive waste, to as- their workers in those countries the years of the bill at a cost of $6 million sure protection of public health and same benefits as those they work be- in Fiscal Year 2010. Currently PHMSA safety, to ensure the territorial integ- side. has 90 inspectors, but the DOT Inspec- rity and security of the repository at In the last estimate, there are almost tor General has stated in the past that Yucca Mountain, and for other pur- 2,000 Federal employees working a vari- these relatively low staffing levels are poses; to the Committee on Energy and ety of jobs in Iraq and Afghanistan. I a matter for concern. Ninety inspectors Natural Resources. am grateful for their hard work in po- translate to one inspector for every Mr. DOMENICI. Mr. President, I note tentially dangerous situations. And, I 18,000 miles of pipeline in this country. the arrival on the floor of the distin- know there are many other Federal Strengtened Programs to Reduce guished Senator from Nevada. The leg- employees who are anxious to serve Construction Related Damage to Pipe- islation that I will be talking about is their country and engage in these ef- lines—The bill includes new civil en- of significant interest to the Senator forts, but it is a lot to risk. forcement authority against exca- from Nevada. But it will take many Providing parity in this important vators and pipeline operators respon- months on the floor of the Senate be- tax credit would provide a significant sible for third-party damage incidents fore we finish. incentive for individuals to take on and provides grants to states that have Today my fellow Senators I am intro- this challenge—a challenge that Amer- damage prevention programs in place. ducing legislation that I believe will ica desperately needs Federal employ- Construction related damage, such as place the Department of Energy’s nu- ees to undertake. damage caused by excavation for a clear waste program back on track. Throughout the world, America’s highway project, is the greatest cause As we all know, the history of the civil servants are serving our govern- of pipeline accidents that result in Yucca Mountain project has been ment and our people, often in dan- death or injury. This occurs most often rocky at best. The Yucca Mountain gerous situations. They are on the on the distribution systems that run project has a very long pedigree, start- ground in the war on terrorism taking through the neighborhoods where peo- ing back to the late 1950’s when the Na- over new roles to relieve military per- ple live and work. These incidents have tional Academy of Sciences reported to sonnel of tasks civilian employees can increased by 49 percent since 1996. the Atomic Energy Commission sug- perform. They are playing a vital role Applying DOT Safety Standards to gesting that burying radioactive high- in the reconstruction of Iraq and Af- the Currently Unregulated Low Stress level waste in geologic formations ghanistan. Pipelines—On August 31, the DOT an- should receive consideration. We have a long tradition in Congress nounced proposed rules to cover low In the 1980s, when Congress decided of recognizing the valuable contribu- stress pipelines in unusually sensitive to pursue a geologic repository, we tions of our Federal employees in both areas. Pipeline operators will have to were quite optimistic—so optimistic the military service and in the civil meet new safety requirements, includ- that we told the Department of En- service by providing fair and equitable ing cleaning and continuous moni- ergy—DOE—to enter into contracts treatment. This bill gives us the abil- toring, along more than 1,200 miles of with utilities that promised that we ity to continue this tradition while at pipelines. However, low-stress lines would begin taking nuclear waste off the same time providing an important that aren’t in such sensitive areas their hands by 1998. Well, obviously incentive to help America meet its would continue to be unregulated. The that didn’t happen. What did happen needs. bill goes further than the regulation was that the courts found that the gov- I urge my colleagues to join with me and requires DOT oversight of all low- ernment is liable for its failure to meet in support of this legislation. stress pipelines. its contractual obligation. Increased Accountability of Pipeline While moving more slowly than By Mr. STEVENS (for himself, Company Officials—The bill includes a planned, DOE’s nuclear waste program Mr. INOUYE, Mr. LOTT, and Mr. provision that would require senior of- has made progress toward making the LAUTENBERG): ficials at pipeline companies to certify goal of a permanent geologic reposi- S. 3961. A bill to provide for enhanced that the information they are pro- tory for nuclear waste a reality. In safety in pipeline transportation, and viding to regulators is accurate. 2002, the President and Congress ap- for other purposes; to the Committee Enhanced Pipeline Research—The proved the Yucca Mountain site, and on Commerce, Science, and Transpor- bill would also boost PHMSA’s re- instructed DOE to file a license appli- tation. search and technology development cation for the repository with the Nu- Mr. STEVENS. Mr. President, I am budget for pipeline safety issues such clear Regulatory Commission—NRC. pleased to introduce the Pipeline In- as corrosion by $10 million over the That decision has been made. spection, Protection, Enforcement, and length of the bill. With the siting decision made, it will Safety Act of 2006. I am joined by my A Study of Pipelines Critical to En- now be up to the NRC to evaluate the colleagues from the Commerce, ergy Supply—The bill includes a study scientific data and determine whether Science, and Transportation Com- of oil pipelines that are critical to the the repository will permanently, and mittee, Senators INOUYE, LOTT and nation’s energy supply in order to de- safely, isolate nuclear waste. LAUTENBERG. termine if there are sufficient safety Yucca Mountain is the cornerstone of Pipelines are one of the safest forms regulations in place to ensure their our national comprehensive spent nu- of transportation, and in most cases safety. clear fuel management strategy for

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00084 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.079 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10307 this country. Let me be clear: We need Mountain by providing new authorities to come to spots in the Senate, stop- Yucca Mountain. We must make this for DOE to accept and store civilian overs where we will have to vote be- program work. I believe the bill intro- spent nuclear fuel within the states in cause it is good for the country, I am duced today will do that. which it was generated. counting in the column that if I have This bill will remove legal barriers In the mid term, this legislation lays done my work, will this Senator vote that will allow DOE to meet its obliga- the foundation to integrate Yucca for it, the Senator’s name. I believe if tion to accept and store spent nuclear Mountain and Global Nuclear Energy we do our work and get our votes prop- fuel as soon as possible, without pre- Partnership—GNEP—by providing that erly and line up what we propose, a judging the outcome of the NRC’s re- before spent fuel is shipped to Nevada, Senator such as Senator LOTT will not pository licensing decision. the Secretary of Energy determines if be running around asking people what The bill I will introduce today au- it can be recycled within a reasonable is going on in his State. thorizes the DOE to permanently with- amount of time. Current plans for This matter deserves his attention, draw 147,000 acres currently controlled GNEP do not include recycling all as it deserves my attention. I believe by the Bureau of Land Management, 55,000 metric tons of civilian spent fuel we will get that. the Air Force, and the Nevada Test that has already been generated. This I thank the Senator. Site, a license condition of the NRC. proposal will avoid moving waste to Mr. CRAIG. Mr. President, I rise This legislation will repeal the arbi- Nevada that should be shipped instead today to express my strong support for trary 70,000 metric ton statutory limit to a GNEP facility. the Nuclear Fuel Management and Dis- on emplacement of radioactive mate- In the long term, this measure pro- posal Act introduced today by Senator rial at Yucca Mountain. The capacity vides DOE with the authorities needed PETE DOMENICI. Senator DOMENICI has of the mountain will be determined by to execute the Yucca Mountain project, long been a courageous supporter of de- scientific and technical analysis. and to begin long term emplacement, pendable, emissions-free nuclear en- The DOE may also begin construc- while the GNEP program will reduce ergy, and he is largely responsible for tion of needed infrastructure for the re- the volume of material to be emplaced the current renaissance of nuclear pository and surface storage facilities in the mountain, eliminating the need power in this country—with upwards of as soon as they complete an environ- for a second repository program. 30 new nuclear reactors on the drawing mental impact statement that evalu- The three pieces of the fuel cycle board to be licensed in the next several ates these activities. that I have discussed today—interim years. Senator DOMENICI’s landmark This legislation will begin to consoli- storage, GNEP and Yucca Mountain— legislation will help assure the future date the defense waste and spent nu- will establish a comprehensive pro- of nuclear power in this country by clear fuel at Yucca Mountain. The bill gram that will provide confidence that providing the necessary legislation for requires DOE to file for a permit to our nation’s nuclear waste will be man- moving forward on the long-stalled build a surface storage facility at the aged safely both for current and future Yucca Mountain repository and au- Nevada Test Site at the same time it reactors. thorizing much-needed interim storage files its license application for a reposi- We can solve this problem and I hope for spent fuel and high-level waste that tory at Yucca Mountain. we can move forward together. has been accumulating around the As soon as the department receives I send to the desk a bill which does country. For used nuclear fuel that the permit for the surface storage fa- all of the things that I have just spo- will eventually be recycled, the Senate cilities from the NRC, the department ken to. I am sure many Senators and Energy and Water Appropriations bill may begin moving defense fuel and their staffs will be interested. This will approved by the Appropriations Com- waste to the Nevada Test Site. The certainly not proceed in any hurry; it mittee earlier this year provides for in- spent nuclear fuel from our Navy and will take a while. But I intend to move terim storage of commercial spent fuel defense activities that kept us safe dur- it as best I can. There will be opportu- at Consolidation and Preparation— ing the Cold War will be consolidated nities to stop the movement at every CAP—facilities. Senator DOMENICI’s and secure at the site. opportunity. I am just hopeful that we legislation introduced today addresses Only after the NRC issues a construc- will carry all the way through, as we defense spent fuel and high-level waste tion permit for Yucca Mountain, may have in the past, and go to conference that cannot be recycled, so that these the department begin moving civilian and take something to the President wastes will be sent to Yucca Mountain spent fuel to the Nevada Test Site. and see where we are. for storage and eventual disposal. In This bill will withdraw the land for The PRESIDING OFFICER. The Sen- this way, this bill removes the final the rail route for Yucca, a vital trans- ator from Mississippi. roadblock to developing new nuclear portation component. There is a provi- Mr. LOTT. Mr. President, I want to power in this country. sion that also provides that appropria- again express my appreciation to the And let me say a few words about tions from the Nuclear Waste Fund will distinguished Senator from New Mex- this ‘‘roadblock’’ to Yucca that has not count against the allocations for ico—I know this is a feeling shared by persisted for so many years. The Fed- discretionary spending. The DOE will a lot of Senators—for his efforts and eral Government made a promise to have access to the full funds in the Nu- leadership over many years in the Sen- take possession of spent nuclear fuel in clear Waste Fund, monies collected ate but particularly in the energy area. order to safely and permanently dis- from our constituents, to complete this He has been persistent. pose of it in a geologic repository. We project. We did pass a good energy policy bill promised to begin taking this fuel back This bill compliments the short, me- last year. Obviously, he would like for in 1998—8 years ago. However, through dium, and long term components of the it to have been, perhaps, even broader, concerted efforts by the state of Ne- nuclear fuel cycle that I began to talk but we got it done. It is making a con- vada and its congressional delegation, about this past summer. The thinking tribution and will continue to have a progress on Yucca has often slowed to of how to handle nuclear spent fuel in positive contribution into more diverse a crawl. This is the classic NIMBY atti- the late 1970s and early 1980s and the energy policy in this country from tude—‘‘not in my backyard.’’ And yet way we approached its management is which the American people will ben- my colleague from Nevada, Mr. REID, changing, we need to acknowledge that efit. has repeatedly called for this Congress change. I thank the Senator for his leader- and the administration to do some- In the short term, according to DOE’s ship on this particular area of the nu- thing to help reduce emissions of most optimistic schedule, the NRC’s clear repository. We must deal with greenhouse gases because of his con- construction permit will not be issued this issue. We can do it. His input was cerns about global warming. until 2011. The Consolidated and Prepa- critical. I thank him. This Congress and this administra- ration ‘‘CAP’’ proposal in the Energy Mr. DOMENICI. I thank the Senator. tion have done a great deal to promote and Water Appropriations bill begins to It is a pleasure working with him. emission-free power generation. This enable DOE to fulfill its contractual li- When I have legislation such as the Congress passed the Energy Policy Act ability for spent fuel storage before legislation I just described, which is last year, which provided financial in- DOE can move spent fuel to Yucca very difficult, and I know we are going centives for new, emission-free sources

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00085 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.073 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10308 CONGRESSIONAL RECORD — SENATE September 27, 2006 of energy, including wind, solar, clean election due to problems and delays with the Whereas, farmer- and rancher-owned co- coal—and nuclear. And earlier this new machines; operatives also play an important role in year, this administration introduced Whereas glitches in the electronic voter providing consumers in the United States the Advanced Energy Initiative—AEI— check-in system in Montgomery County, and abroad with a dependable supply of safe, Maryland, resulted in polls remaining open affordable, high-quality food, fiber and re- to support research and development of for additional hours and required a recount lated products; new energy sources—including nuclear of thousands of paper provisional ballots; Whereas, farmer- and rancher-owned co- power. In fact, the Global Nuclear En- Whereas 40 percent of registered voters na- operatives also help meet the energy needs of ergy Partnership—GNEP—is one part tionally are expected to cast ballots on new the United States, including through the of the AEI. One goal of GNEP is to re- machines in the November 7 midterm elec- production and marketing of renewable fuels duce the amount and toxicity of nu- tions; such as ethanol and biodiesel; clear waste ultimately destined for dis- Whereas the larger number of voters par- Whereas, there are nearly 3,000 farmer- and posal at Yucca Mountain; another goal ticipating in the November 7 midterm elec- rancher-owned cooperatives located through- tions may result in even more equipment out the United States with a combined mem- is to eventually help expand the de- failures than occurred in the primary elec- bership representing a majority of the nearly ployment of emission-free nuclear tions; 2 million farmers and ranchers in the United power in developing countries that oth- Whereas millions of voters could be States; and erwise would need to depend on burn- disenfranchised in the November 7 midterm Whereas, farmer- and rancher-owned co- ing fossil fuels for their growing energy elections, as thousands have already been in operatives also contribute significantly to demands. Contrary to Senator REID’s 2006 primary elections, due to the failure of the economic well being of rural America as comments about doing nothing to help electronic voting machines; and well as the overall economy, including ac- reduce greenhouse gas emissions, we Whereas former Attorney General Richard counting for as many as 250,000 jobs: Now, Thornburgh and former Ohio Governor Rich- therefore, be it have done a great deal to develop emis- ard Celeste, co-chairs of the Committee to Resolved by the Senate (the House of Rep- sion-free energy in this country and Study a Framework for Understanding Elec- resentatives concurring), That it is the Sense abroad. But the deployment of nuclear tronic Voting of the National Academies’ of the Congress that public policy should power requires that we manage the National Research Council wrote recently: continue to protect and strengthen the abil- spent fuel from nuclear power plants in ‘‘If major problems arise with unproven tech- ity of farmers and ranchers to join together a safe and responsible manner. One as- nology and new election procedures, the po- in cooperative self-help efforts— litical heat will be high indeed. . . . Jurisdic- (1) to improve their income from the mar- pect of that management strategy ketplace and their economic well-being; must be to open the Yucca Mountain tions need to come up with contingency plans for such November problems, if they (2) to capitalize on new market opportuni- repository as soon as possible. haven’t done so already. One possible exam- ties; and As Senator DOMENICI has said, Yucca ple: Make preparations to fall back to paper (3) to help meet the food and fiber needs of Mountain is the cornerstone of a com- ballots if necessary.’’: Now, therefore, be it consumers, provide for increased energy pro- prehensive spent-fuel management Resolved, That it is the sense of the Senate duction, promote rural development, main- strategy for this country, but Yucca that each State and jurisdiction that uses tain and create needed jobs, and contribute alone cannot meet the government’s electronic voting equipment should have in to a growing United States economy. spent-fuel obligations. Through GNEP place for use in the November 7, 2006, general f election a backup system, such as the use of we will also explore technologies that SENATE CONCURRENT RESOLU- promise to reduce the volume and tox- paper ballots, in the case of any failure of the electronic voting equipment. TION 120—EXPRESSING THE SUP- icity of spent fuel. Thus, GNEP, in- PORT OF CONGRESS FOR THE f terim storage and Yucca Mountain to- CREATION OF A NATIONAL HUR- gether provide a comprehensive pro- SENATE CONCURRENT RESOLU- RICANE MUSEUM AND SCIENCE gram for safely managing our Nation’s TION 119—EXPRESSING THE CENTER IN SOUTHWEST LOU- Nuclear waste. SENSE OF CONGRESS THAT PUB- ISIANA f LIC POLICY SHOULD CONTINUE Mr. VITTER submitted the following TO PROTECT AND STRENGTHEN SUBMITTED RESOLUTIONS concurrent resolution; which was re- THE ABILITY OF FARMERS AND ferred to the Committee on Commerce, RANCHERS TO JOIN TOGETHER Science, and Transportation: SENATE RESOLUTION 588—TO EX- IN COOPERATIVE SELF-HELP EF- S. CON. RES. 120 PRESS THE SENSE OF THE SEN- FORTS Whereas the Creole Nature Trail All-Amer- ATE THAT STATES SHOULD Mrs. LINCOLN (for herself, Mr. ican Road District Board of Commissioners HAVE IN PLACE BACKUP SYS- CRAIG, Mr. CHAMBLISS, Mr. DORGAN, has begun to create and develop a National TEMS TO DEAL WITH ANY FAIL- Mr. CONRAD, Mr. GRASSLEY, Mr. PRYOR, Hurricane Museum and Science Center in the southwest Louisiana area; URE OF ELECTRONIC VOTING Mr. HARKIN, Mr. CRAPO, Mr. DEWINE, Whereas protecting, preserving, and show- EQUIPMENT DURING THE NO- Mr. TALENT, Mr. BAUCUS, Mr. THUNE, VEMBER 7, 2006, GENERAL ELEC- casing the intrinsic qualities that make Lou- Mr. BURNS, Mr. BOND, Mr. ENZI, Ms. isiana a one-of-a-kind experience is the mis- TION STABENOW, Mr. COCHRAN, and Mr. JOHN- sion of the Creole Nature Trail All-American Mr. FEINGOLD (for himself and Mr. SON) submitted the following concur- Road; KERRY) submitted the following resolu- rent resolution; which was referred to Whereas the horrific experience and the tion; which was referred to the Com- the Committee on Agriculture, Nutri- devastating long-term effects of Hurricanes mittee on Rules and Administration: tion, and Forestry: Katrina and Rita will play a major role in the history of the United States; S. RES. 588 S. CON. RES. 119 Whereas a science center of this caliber Whereas widespread problems with new Whereas, the ability of farmers and ranch- will educate and motivate young and old in voting technology have been reported this ers in the United States to join together in the fields of meteorology, environmental year in primaries in Ohio, Arkansas, Illinois, cooperative self-help efforts is vital to their science, sociology, conservation, economics, Maryland, and elsewhere; continued economic viability; history, communications, and engineering; Whereas States such as Texas, Arkansas, Whereas, Federal laws have long recog- Whereas it is only appropriate that the ef- and others have had to unexpectedly admin- nized the importance of protecting and fects of hurricanes and the rebuilding efforts ister provisional ballots after electronic vot- strengthening the ability of farmers and be captured in a comprehensive center such ing machines failed; ranchers to join together in cooperative self- as a National Hurricane Museum and Science Whereas equipment malfunctions in the help efforts, including to cooperatively mar- Center to interpret the effects of hurricanes Arkansas district 16 State Senate primary ket their products, ensure access to competi- in and outside of Louisiana; and race precipitated a recount that, in turn, tive markets, and help achieve other impor- Whereas it is critical that the history of produced a new winner; tant public policy goals; past hurricanes be preserved so that all peo- Whereas computer problems in 4 southern Whereas, farmer- and rancher-owned co- ple in the United States can learn from this Indiana counties required workers to manu- operatives play an important role in helping history: Now, therefore, be it ally enter the number of votes for each can- farmers and ranchers improve their income Resolved by the Senate (the House of Rep- didate in each precinct; from the marketplace, manage their risk, resentatives concurring), That Congress sup- Whereas a deadline to test electronic vot- meet their credit and other input needs, and ports and encourages the creation of a Na- ing machines in West Virginia was pushed compete more effectively in a rapidly chang- tional Hurricane Museum and Science Cen- back to the day before the May 9 primary ing global economy; ter in southwest Louisiana.

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00086 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.078 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10309 AMENDMENTS SUBMITTED AND SA 5091. Mr. BENNETT (for Mr. FRIST) pro- such other lawful punishment or condition of PROPOSED posed an amendment to amendment SA 5090 punishment as the military commission proposed by Mr. BENNETT (for Mr. FRIST) to shall direct. SA 5075. Mr. LEVIN submitted an amend- the bill S. 403, supra. (d) EXECUTION OF PUNISHMENT.—The Sec- ment intended to be proposed to amendment retary of Defense is authorized to carry out f SA 5036 proposed by Mr. FRIST to the bill a sentence of punishment imposed by a mili- H.R. 6061, to establish operational control TEXT OF AMENDMENTS tary commission established pursuant to over the international land and maritime subsection (a) in accordance with such proce- borders of the United States; which was or- SA 5075. Mr. LEVIN submitted an dures as the Secretary may prescribe. dered to lie on the table. amendment intended to be proposed to (e) ANNUAL REPORT ON TRIALS BY MILITARY SA 5076. Mr. DURBIN submitted an amend- amendment SA 5036 proposed by Mr. COMMISSIONS.— ment intended to be proposed to amendment FRIST to the bill H.R. 6061, to establish (1) ANNUAL REPORT REQUIRED.—Not later SA 5036 proposed by Mr. FRIST to the bill operational control over the inter- than December 31 each year, the Secretary of H.R. 6061, supra; which was ordered to lie on national land and maritime borders of Defense shall submit to the Committees on the table. Armed Services of the Senate and the House SA 5077. Mr. BYRD submitted an amend- the United States; which was ordered to lie on the table; as follows: of Representatives a report on any trials ment intended to be proposed to amendment conducted by military commissions estab- SA 5036 proposed by Mr. FRIST to the bill In lieu of the matter proposed to be in- lished pursuant to subsection (a) during such H.R. 6061, supra; which was ordered to lie on serted, insert the following: year. the table. SECTION 1. SHORT TITLE. (2) FORM.—Each report under this sub- SA 5078. Mr. ROCKEFELLER submitted an This Act may be cited as the ‘‘Military section shall be submitted in unclassified amendment intended to be proposed to Commissions Act of 2006’’. form, but may include a classified annex. amendment SA 5036 proposed by Mr. FRIST to SEC. 2. FINDINGS. SEC. 4. MILITARY COMMISSIONS. the bill H.R. 6061, supra; which was ordered Congress makes the following findings: (a) MILITARY COMMISSIONS.— to lie on the table. (1) The Constitution of the United States (1) IN GENERAL.—Subtitle A of title 10, SA 5079. Mr. ROCKEFELLER submitted an grants to Congress the power ‘‘To define and United States Code, is amended by inserting amendment intended to be proposed to punish . . . Offenses against the Law of Na- after chapter 47 the following new chapter: amendment SA 5036 proposed by Mr. FRIST to the bill H.R. 6061, supra; which was ordered tions’’, as well as the power ‘‘To declare War ‘‘CHAPTER 47A—MILITARY COMMISSIONS . . . To raise and support Armies . . . [and] To to lie on the table. ‘‘SUBCHAPTER ...... Sec. SA 5080. Mr. MARTINEZ submitted an provide and maintain a Navy’’. ‘‘I. General Provisions ...... 948a. amendment intended to be proposed to (2) The military commission is the tradi- ‘‘II. Composition of Military Com- tional tribunal for the trial of persons en- amendment SA 5036 proposed by Mr. FRIST to missions ...... 948h. the bill H.R. 6061, supra; which was ordered gaged in hostilities for violations of the law ‘‘III. Pre-Trial Procedure ...... 948q. to lie on the table. of war. ‘‘IV. Trial Procedure ...... 949a. SA 5081. Mr. SPECTER submitted an (3) Congress has, in the past, both author- ‘‘V. Sentences ...... 949s. amendment intended to be proposed to ized the use of military commission by stat- ‘‘VI. Post-Trial Procedure and Re- amendment SA 5036 proposed by Mr. FRIST to ute and recognized the existence and author- view of Military Commissions ..... 950a. the bill H.R. 6061, supra; which was ordered ity of military commissions. ‘‘VII. Punitive Matters ...... 950aa. to lie on the table. (4) Military commissions have been con- ‘‘SUBCHAPTER I—GENERAL PROVISIONS SA 5082. Mr. SPECTER (for himself, Mr. vened both by the President and by military ‘‘Sec. LEAHY, and Mr. SMITH) submitted an amend- commanders in the field to try offenses ‘‘948a. Definitions. ment intended to be proposed to amendment against the law of war. ‘‘948b. Military commissions generally. SA 5036 proposed by Mr. FRIST to the bill (5) It is in the national interest for Con- ‘‘948c. Persons subject to military commis- H.R. 6061, supra; which was ordered to lie on gress to exercise its authority under the sions. the table. Constitution to enact legislation authorizing ‘‘948d. Jurisdiction of military commissions. and regulating the use of military commis- SA 5083. Mr. KENNEDY submitted an ‘‘§ 948a. Definitions sions to try and punish violations of the law amendment intended to be proposed to ‘‘In this chapter: amendment SA 5036 proposed by Mr. FRIST to of war. ‘‘(1) ALIEN.—The term ‘alien’ means an in- the bill H.R. 6061, supra; which was ordered (6) Military commissions established and operating under chapter 47A of title 10, dividual who is not a citizen of the United to lie on the table. States. SA 5084. Mr. KENNEDY submitted an United States Code (as enacted by this Act), ‘‘(2) CLASSIFIED INFORMATION.—The term amendment intended to be proposed to are regularly constituted courts affording, in the words of Common Article 3 of the Geneva ‘classified information’ means the following: amendment SA 5036 proposed by Mr. FRIST to ‘‘(A) Any information or material that has the bill H.R. 6061, supra; which was ordered Conventions, ‘‘all the judicial guarantees which are recognized as indispensable by civ- been determined by the United States Gov- to lie on the table. ernment pursuant to statute, Executive SA 5085. Mr. FRIST proposed an amend- ilized peoples’’. order, or regulation to require protection ment to the bill S. 3930, to authorize trial by SEC. 3. AUTHORIZATION FOR MILITARY COMMIS- against unauthorized disclosure for reasons military commission for violations of the SIONS. of national security. law of war, and for other purposes. (a) IN GENERAL.—The President is author- ‘‘(B) Any restricted data, as that term is SA 5086. Mr. LEVIN (for himself, Mr. DAY- ized to establish military commissions for defined in section 11 y. of the Atomic Energy TON, and Mr. REED) proposed an amendment the trial of alien unlawful enemy combat- Act of 1954 (42 U.S.C. 2014(y)). to the bill S. 3930, supra. ants engaged in hostilities against the ‘‘(3) LAWFUL ENEMY COMBATANT.—The term SA 5087. Mr. SPECTER (for himself, Mr. United States for violations of the law of war ‘lawful enemy combatant’ means an indi- LEAHY, Mr. DORGAN, Mr. DODD, Mr. DAYTON, and other offenses specifically made triable vidual who is— Mr. FEINGOLD, Mrs. CLINTON, and Mr. BINGA- by military commission as provided in chap- ‘‘(A) a member of the regular forces of a MAN) submitted an amendment intended to ter 47 of title 10, United States Code, and State party engaged in hostilities against be proposed by him to the bill S. 3930, supra. chapter 47A of title 10, United States Code the United States; SA 5088. Mr. KENNEDY (for himself, Mrs. (as enacted by this Act). ‘‘(B) a member of a militia, volunteer FEINSTEIN, and Mrs. CLINTON) submitted an (b) CONSTRUCTION.—The authority in sub- corps, or organized resistance movement be- amendment intended to be proposed by him section (a) may not be construed to alter or longing to a State party engaged in such to the bill S. 3930, supra; which was ordered limit the authority of the President under hostilities, which are under responsible com- to lie on the table. the Constitution and laws of the United mand, wear a fixed distinctive sign recogniz- SA 5089. Mr. MARTINEZ submitted an States to establish military commissions for able at a distance, carry their arms openly, amendment intended to be proposed to areas declared to be under martial law or in and abide by the law of war; or amendment SA 5066 submitted by Mrs. occupied territories should circumstances so ‘‘(C) a member of a regular armed force HUTCHISON (for herself and Mr. KYL) and in- require. who professes allegiance to a government en- tended to be proposed to the bill H.R. 6061, to (c) SCOPE OF PUNISHMENT AUTHORITY.—A gaged in such hostilities, but not recognized establish operational control over the inter- military commission established pursuant to by the United States. national land and maritime borders of the subsection (a) shall have authority to impose ‘‘(4) UNLAWFUL ENEMY COMBATANT.—The United States; which was ordered to lie on upon any person found guilty under a pro- term ‘unlawful enemy combatant’ means an the table. ceeding under chapter 47A of title 10, United individual engaged in hostilities against the SA 5090. Mr. BENNETT (for Mr. FRIST) pro- States Code (as so enacted), a sentence that posed an amendment to the bill S. 403, to is appropriate for the offense or offenses for United States who is not a lawful enemy amend title 18, United States Code, to pro- which there is a finding of guilt, including a combatant. hibit taking minors across State lines in cir- sentence of death if authorized under such ‘‘§ 948b. Military commissions generally cumvention of laws requiring the involve- chapter, imprisonment for life or a term of ‘‘(a) PURPOSE.—This chapter establishes ment of parents in abortion decisions. years, payment of a fine or restitution, or procedures governing the use of military

VerDate Aug 31 2005 06:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00087 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.065 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10310 CONGRESSIONAL RECORD — SENATE September 27, 2006 commissions to try alien unlawful enemy ‘‘948m. Number of members; excuse of mem- authority of a military commission under combatants engaged in hostilities against bers; absent and additional this chapter shall not prepare or review any the United States for violations of the law of members. report concerning the effectiveness, fitness, war and other offenses triable by military ‘‘§ 948h. Who may convene military commis- or efficiency of a military judge detailed to commission. sions the military commission which relates to his ‘‘(b) CONSTRUCTION OF PROVISIONS.—The ‘‘Military commissions under this chapter performance of duty as a military judge on procedures for military commissions set may be convened by the Secretary of Defense the military commission. forth in this chapter are based upon the pro- or by any officer or official of the United ‘‘§ 948k. Detail of trial counsel and defense cedures for trial by general courts-martial States designated by the Secretary for that counsel under chapter 47 of this title (the Uniform purpose. ‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) Code of Military Justice). Chapter 47 of this Trial counsel and military defense counsel title does not, by its terms, apply to trial by ‘‘§ 948i. Who may serve on military commis- shall be detailed for each military commis- military commission except as specifically sions sion under this chapter. provided therein or in this chapter, and ‘‘(a) IN GENERAL.—Any commissioned offi- cer of the armed forces on active duty is eli- ‘‘(2) Assistant trial counsel and assistant many of the provisions of chapter 47 of this and associate defense counsel may be de- title are by their terms inapplicable to mili- gible to serve on a military commission under this chapter, including commissioned tailed for a military commission under this tary commissions. The judicial construction chapter. and application of chapter 47 of this title, officers of the reserve components of the armed forces on active duty, commissioned ‘‘(3) Military defense counsel for a military while instructive, is therefore not of its own commission under this chapter shall be de- force binding on military commissions estab- officers of the National Guard on active duty in Federal service, or retired commissioned tailed as soon as practicable. lished under this chapter. ‘‘(4) The Secretary of Defense shall pre- ‘‘(c) INAPPLICABILITY OF CERTAIN PROVI- officers recalled to active duty. ‘‘(b) DETAIL OF MEMBERS.—When convening scribe regulations providing for the manner SIONS.—(1) The following provisions of this in which trial counsel and military defense title shall not apply to trial by military a military commission under this chapter, the convening authority shall detail as mem- counsel are detailed for military commis- commission under this chapter: sions under this chapter and for the persons ‘‘(A) Section 810 (article 10 of the Uniform bers thereof such members of the armed forces eligible under subsection (a) who, as in who are authorized to detail such counsel for Code of Military Justice), relating to speedy such military commissions. trial, including any rule of courts-martial the opinion of the convening authority, are best qualified for the duty by reason of age, ‘‘(b) TRIAL COUNSEL.—Subject to sub- relating to speedy trial. section (e), trial counsel detailed for a mili- ‘‘(B) Sections 831(a), (b), and (d) (articles education, training, experience, length of service, and judicial temperament. No mem- tary commission under this chapter must 31(a), (b), and (d) of the Uniform Code of be— Military Justice), relating to compulsory ber of an armed force is eligible to serve as a member of a military commission when ‘‘(1) a judge advocate (as that term is de- self-incrimination. fined in section 801 of this title (article 1 of ‘‘(C) Section 832 (article 32 of the Uniform such member is the accuser or a witness for the prosecution or has acted as an investi- the Uniform Code of Military Justice)) who Code of Military Justice), relating to pre- is— trial investigation. gator or counsel in the same case. ‘‘(c) EXCUSE OF MEMBERS.—Before a mili- ‘‘(A) a graduate of an accredited law school ‘‘(2) Other provisions of chapter 47 of this or is a member of the bar of a Federal court title shall apply to trial by military commis- tary commission under this chapter is as- sembled for the trial of a case, the convening or of the highest court of a State; and sion under this chapter only to the extent ‘‘(B) certified as competent to perform du- provided by the terms of such provisions or authority may excuse a member from par- ticipating in the case. ties as trial counsel before general courts- by this chapter. martial by the Judge Advocate General of ‘‘(d) TREATMENT OF RULINGS AND PRECE- ‘‘§ 948j. Military judge of a military commis- the armed force of which he is a member; or DENTS.—The findings, holdings, interpreta- sion ‘‘(2) a civilian who is— tions, and other precedents of military com- ‘‘(a) DETAIL OF MILITARY JUDGE.—A mili- ‘‘(A) a member of the bar of a Federal missions under this chapter may not be in- tary judge shall be detailed to each military court or of the highest court of a State; and troduced or considered in any hearing, trial, commission under this chapter. The Sec- ‘‘(B) otherwise qualified to practice before or other proceeding of a court-martial con- retary of Defense shall prescribe regulations the military commission pursuant to regula- vened under chapter 47 of this title. The find- providing for the manner in which military tions prescribed by the Secretary of Defense. ings, holdings, interpretations, and other judges are so detailed to military commis- ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject precedents of military commissions under sions. The military judge shall preside over to subsection (e), military defense counsel this chapter may not form the basis of any each military commission to which he has detailed for a military commission under holding, decision, or other determination of been detailed. this chapter must be a judge advocate (as so ‘‘(b) ELIGIBILITY.—A military judge shall a court-martial convened under that chap- defined) who is— be a commissioned officer of the armed ter. ‘‘(1) a graduate of an accredited law school forces who is a member of the bar of a Fed- ‘‘§ 948c. Persons subject to military commis- or is a member of the bar of a Federal court eral court, or a member of the bar of the sions or of the highest court of a State; and highest court of a State, and who is certified ‘‘Any alien unlawful enemy combatant en- ‘‘(2) certified as competent to perform du- to be qualified for duty under section 826 of gaged in hostilities or having supported hos- ties as defense counsel before general courts- this title (article 26 of the Uniform Code of tilities against the United States is subject martial by the Judge Advocate General of Military Justice) as a military judge in gen- to trial by military commission as set forth the armed force of which he is a member. eral courts-martial by the Judge Advocate in this chapter. ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE General of the armed force of which such ‘‘§ 948d. Jurisdiction of military commissions COUNSEL.—(1) The Chief Prosecutor in a mili- military judge is a member. tary commission under this chapter shall ‘‘A military commission under this chapter ‘‘(c) INELIGIBILITY OF CERTAIN INDIVID- meet the requirements set forth in sub- shall have jurisdiction to try persons subject UALS.—No person is eligible to act as mili- section (b)(1). to this chapter for any offense made punish- tary judge in a case of a military commis- able by this chapter, sections 904 and 906 of ‘‘(2) The Chief Defense Counsel in a mili- sion under this chapter if he is the accuser or tary commission under this chapter shall this title (articles 104 and 106 of the Uniform a witness or has acted as investigator or a Code of Military Justice), or the law of war, meet the requirements set forth in sub- counsel in the same case. section (c)(1). and may, under such limitations as the ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI- ‘‘(e) INELIGIBILITY OF CERTAIN INDIVID- President may prescribe, adjudge any pun- BILITY TO VOTE.—A military judge detailed UALS.—No person who has acted as an inves- ishment not forbidden by this chapter, in- to a military commission under this chapter tigator, military judge, or member of a mili- cluding the penalty of death when authorized may not consult with the members except in tary commission under this chapter in any under this chapter, chapter 47 of this title, or the presence of the accused (except as other- case may act later as trial counsel or mili- the law of war. wise provided in section 949d of this title), tary defense counsel in the same case. No trial counsel, and defense counsel, nor may ‘‘SUBCHAPTER II—COMPOSITION OF person who has acted for the prosecution be- he vote with the members. MILITARY COMMISSIONS fore a military commission under this chap- ‘‘(e) OTHER DUTIES.—A commissioned offi- ‘‘Sec. ter may act later in the same case for the de- cer who is certified to be qualified for duty ‘‘948h. Who may convene military commis- fense, nor may any person who has acted for as a military judge of a military commission sions. the defense before a military commission under this chapter may perform such other ‘‘948i. Who may serve on military commis- under this chapter act later in the same case duties as are assigned to him by or with the sions. for the prosecution. ‘‘948j. Military judge of a military commis- approval of the Judge Advocate General of sion. the armed force of which such officer is a ‘‘§ 948l. Detail or employment of reporters ‘‘948k. Detail of trial counsel and defense member or the designee of such Judge Advo- and interpreters counsel. cate General. ‘‘(a) COURT REPORTERS.—Under such regu- ‘‘948l. Detail or employment of reporters and ‘‘(f) PROHIBITION ON EVALUATION OF FITNESS lations as the Secretary of Defense may pre- interpreters. BY CONVENING AUTHORITY.—The convening scribe, the convening authority of a military

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00088 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.078 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10311 commission under this chapter shall detail ‘‘§ 948r. Compulsory self-incrimination pro- sion under this chapter from the procedures to or employ for the military commission hibited; statements obtained by torture or and rules of evidence otherwise applicable in qualified court reporters, who shall prepare a cruel, inhuman, or degrading treatment general courts-martial as may be required by verbatim record of the proceedings of and ‘‘(a) IN GENERAL.—No person shall be re- the unique circumstances of the conduct of testimony taken before the military com- quired to testify against himself at a pro- military and intelligence operations during mission. ceeding of a military commission under this hostilities or by other practical need. ‘‘(2) Notwithstanding any exceptions au- ‘‘(b) INTERPRETERS.—Under such regula- chapter. thorized by paragraph (1), the procedures and tions as the Secretary of Defense may pre- ‘‘(b) STATEMENTS OBTAINED BY TORTURE OR rules of evidence in trials by military com- scribe, the convening authority of a military CRUEL, INHUMAN, OR DEGRADING TREAT- mission under this chapter shall include, at commission under this chapter may detail to MENT.—A statement obtained by use of tor- a minimum, the following rights: or employ for the military commission inter- ture or by cruel, inhuman, or degrading ‘‘(A) To examine and respond to all evi- preters who shall interpret for the military treatment prohibited by section 1003 of the dence considered by the military commission commission, and, as necessary, for trial Detainee Treatment Act of 2005 (42 U.S.C. counsel and defense counsel for the military on the issue of guilt or innocence and for 2000dd), whether or not under color of law, sentencing. commission, and for the accused. shall not be admissible in a military com- ‘‘(c) TRANSCRIPT; RECORD.—The transcript ‘‘(B) To be present at all sessions of the mission under this chapter, except against a military commission (other than those for of a military commission under this chapter person accused of torture or such treatment shall be under the control of the convening deliberations or voting), except when ex- as evidence the statement was made. cluded under section 949d of this title. authority of the military commission, who ‘‘(c) STATEMENTS OBTAINED BY ALLEGED CO- shall also be responsible for preparing the ‘‘(C) To the assistance of counsel. ERCION NOT AMOUNTING TO TORTURE OR ‘‘(D) To self-representation, if the accused record of the proceedings of the military CRUEL, INHUMAN, OR DEGRADING TREAT- commission. knowingly and competently waives the as- MENT.—An otherwise admissible statement sistance of counsel, subject to the provisions ‘‘§ 948m. Number of members; excuse of mem- obtained through the use of alleged coercion of paragraph (4). bers; absent and additional members not amounting to torture or cruel, inhuman, ‘‘(E) To the suppression of evidence that is ‘‘(a) NUMBER OF MEMBERS.—(1) A military or degrading treatment prohibited by section not reliable or probative. commission under this chapter shall, except 1003 of the Detainee Treatment Act of 2005 ‘‘(F) To the suppression of evidence the as provided in paragraph (2), have at least may be admitted in evidence in a military probative value of which is substantially five members. commission under this chapter only if the outweighed by— ‘‘(2) In a case in which the accused before military judge finds that— ‘‘(i) the danger of unfair prejudice, confu- a military commission under this chapter ‘‘(1) the totality of the circumstances sion of the issues, or misleading the mem- may be sentenced to a penalty of death, the under which the statement was made render bers; or military commission shall have the number it reliable and possessing sufficient pro- ‘‘(ii) considerations of undue delay, waste of members prescribed by section 949m(c) of bative value; and of time, or needless presentation of cumu- this title. ‘‘(2) the interests of justice would best be lative evidence. ‘‘(b) EXCUSE OF MEMBERS.—No member of a served by admission of the statement into ‘‘(3) In making exceptions in the applica- military commission under this chapter may evidence. bility in trials by military commission under be absent or excused after the military com- ‘‘§ 948s. Service of charges this chapter from the procedures and rules mission has been assembled for the trial of a ‘‘The trial counsel assigned to a case be- otherwise applicable in general courts-mar- case unless excused— fore a military commission under this chap- tial, the Secretary of Defense may provide ‘‘(1) as a result of challenge; ter shall cause to be served upon the accused the following: ‘‘(2) by the military judge for physical dis- and military defense counsel a copy of the ‘‘(A) Evidence seized outside the United ability or other good cause; or charges upon which trial is to be had in States shall not be excluded from trial by ‘‘(3) by order of the convening authority English and, if appropriate, in another lan- military commission on the grounds that the for good cause. guage that the accused understands, suffi- evidence was not seized pursuant to a search ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.— ciently in advance of trial to prepare a de- warrant or authorization. Whenever a military commission under this fense. ‘‘(B) A statement of the accused that is chapter is reduced below the number of otherwise admissible shall not be excluded ‘‘SUBCHAPTER IV—TRIAL PROCEDURE members required by subsection (a), the trial from trial by military commission on may not proceed unless the convening au- ‘‘Sec. grounds of alleged coercion or compulsory thority details new members sufficient to ‘‘949a. Rules. self-incrimination so long as the evidence provide not less than such number. The trial ‘‘949b. Unlawfully influencing action of mili- complies with the provisions of section 948r may proceed with the new members present tary commission. of this title. after the recorded evidence previously intro- ‘‘949c. Duties of trial counsel and defense ‘‘(C) Evidence shall be admitted as authen- duced before the members has been read to counsel. tic so long as— the military commission in the presence of ‘‘949d. Sessions. ‘‘(i) the military judge of the military the military judge, the accused (except as ‘‘949e. Continuances. commission determines that there is suffi- ‘‘949f. Challenges. provided in section 949d of this title), and cient evidence that the evidence is what it is ‘‘949g. Oaths. counsel for both sides. claimed to be; and ‘‘949h. Former jeopardy. ‘‘(ii) the military judge instructs the mem- ‘‘SUBCHAPTER III—PRE-TRIAL ‘‘949i. Pleas of the accused. bers that they may consider any issue as to PROCEDURE ‘‘949j. Opportunity to obtain witnesses and authentication or identification of evidence ‘‘Sec. other evidence. in determining the weight, if any, to be ‘‘948q. Charges and specifications. ‘‘949k. Defense of lack of mental responsi- given to the evidence. ‘‘948r. Compulsory self-incrimination prohib- bility. ‘‘(D) Hearsay evidence not otherwise ad- ited; statements obtained by ‘‘949l. Voting and rulings. torture or cruel, inhuman, or ‘‘949m. Number of votes required. missible under the rules of evidence applica- degrading treatment. ‘‘949n. Military commission to announce ac- ble in trial by general courts-martial may be ‘‘948s. Service of charges. tion. admitted in a trial by military commission ‘‘949o. Record of trial. only if— ‘‘§ 948q. Charges and specifications ‘‘(i) the proponent of the evidence makes ‘‘(a) CHARGES AND SPECIFICATIONS.— ‘‘§ 949a. Rules known to the adverse party, sufficiently in Charges and specifications against an ac- ‘‘(a) PROCEDURES AND RULES OF EVI- advance of trial or hearing to provide the ad- cused in a military commission under this DENCE.—Pretrial, trial, and post-trial proce- verse party with a fair opportunity to meet chapter shall be signed by a person subject dures, including elements and modes of the evidence, the proponent’s intention to to chapter 47 of this title under oath before proof, for cases triable by military commis- offer the evidence, and the particulars of the a commissioned officer of the armed forces sion under this chapter may be prescribed by evidence (including information on the cir- authorized to administer oaths and shall the Secretary of Defense. Such procedures cumstances under which the evidence was state— may not be contrary to or inconsistent with obtained); and ‘‘(1) that the signer has personal knowl- this chapter. Except as otherwise provided in ‘‘(ii) the military judge finds that the to- edge of, or reason to believe, the matters set this chapter or chapter 47 of this title, the tality of the circumstances render the evi- forth therein; and procedures and rules of evidence applicable dence more probative on the point for which ‘‘(2) that they are true in fact to the best in trials by general courts-martial of the it is offered than other evidence which the of his knowledge and belief. United States shall apply in trials by mili- proponent can procure through reasonable ‘‘(b) NOTICE TO ACCUSED.—Upon the swear- tary commission under this chapter. efforts, taking into consideration the unique ing of the charges and specifications in ac- ‘‘(b) EXCEPTIONS.—(1) The Secretary of De- circumstances of the conduct of military and cordance with subsection (a), the accused fense, in consultation with the Attorney intelligence operations during hostilities. shall be informed of the charges and speci- General, may make such exceptions in the ‘‘(4)(A) The accused in a military commis- fications against him as soon as practicable. applicability in trials by military commis- sion under this chapter who exercises the

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00089 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.078 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10312 CONGRESSIONAL RECORD — SENATE September 27, 2006 right to self-representation under paragraph ‘‘(A) is a United States citizen; in trials by general courts-martial of the (2)(D) shall conform his deportment and the ‘‘(B) is admitted to the practice of law in a United States. conduct of the defense to the rules of evi- State, district, or possession of the United ‘‘(B) Classified information shall be pro- dence, procedure, and decorum applicable to States, or before a Federal court; tected and is privileged from disclosure if trials by military commission. ‘‘(C) has not been the subject of any sanc- disclosure would be detrimental to the na- ‘‘(B) Failure of the accused to conform to tion of disciplinary action by any court, bar, tional security. This subparagraph applies to the rules described in subparagraph (A) may or other competent governmental authority all stages of proceedings of military commis- result in a partial or total revocation by the for relevant misconduct; sions under this chapter. military judge of the right of self-representa- ‘‘(D) has been determined to be eligible for ‘‘(C) After the original classification au- tion under paragraph (2)(D). In such case, the access to information classified at the level thority or head of the agency concerned has detailed defense counsel of the accused or an Secret or higher; and certified in writing that evidence and the appropriately authorized civilian counsel ‘‘(E) has signed a written agreement to sources thereof have been declassified to the shall perform the functions necessary for the comply with all applicable regulations or in- maximum extent possible, consistent with defense. structions for counsel, including any rules of the requirements of national security, the ‘‘(c) DELEGATION OF AUTHORITY TO PRE- court for conduct during the proceedings. military judge may, to the extent prac- SCRIBE REGULATIONS.—The Secretary of De- ‘‘(4) If the accused is represented by civil- ticable in accordance with the rules applica- fense may delegate the authority of the Sec- ian counsel, military counsel detailed shall ble in trials by court-martial, authorize— retary to prescribe regulations under this act as associate counsel. ‘‘(i) the deletion of specified items of clas- chapter. ‘‘(5) The accused is not entitled to be rep- sified information from documents made ‘‘§ 949b. Unlawfully influencing action of mili- resented by more than one military counsel. available to the accused; tary commission However, the person authorized under regu- ‘‘(ii) the substitution of a portion or sum- ‘‘(a) IN GENERAL.—(1) No authority con- lations prescribed under section 948k of this mary of the information for such classified vening a military commission under this title to detail counsel, in such person’s sole documents; or chapter may censure, reprimand, or admon- discretion, may detail additional military ‘‘(iii) the substitution of a statement ad- ish the military commission, or any member, counsel to represent the accused. mitting relevant facts that the classified in- military judge, or counsel thereof, with re- ‘‘(6) Defense counsel may cross-examine formation would tend to prove. spect to the findings or sentence adjudged by each witness for the prosecution who testi- ‘‘(D) A claim of privilege under this para- the military commission, or with respect to fies before a military commission under this graph, and any materials in support thereof, any other exercises of its or their functions chapter. shall, upon the request of the Government, in the conduct of the proceedings. ‘‘§ 949d. Sessions be considered by the military judge in cam- ‘‘(2) No person may attempt to coerce or, era and shall not be disclosed to the accused. ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM- by any unauthorized means, influence— ‘‘(d) EXCLUSION OF ACCUSED FROM CERTAIN BERS.—(1) At any time after the service of ‘‘(A) the action of a military commission PROCEEDINGS.—The military judge may ex- charges which have been referred for trial by under this chapter, or any member thereof, clude the accused from any portion of a pro- military commission under this chapter, the in reaching the findings or sentence in any ceeding upon a determination that, after military judge may call the military com- case; being warned by the military judge, the ac- mission into session without the presence of ‘‘(B) the action of any convening, approv- cused persists in conduct that justifies exclu- the members for the purpose of— ing, or reviewing authority with respect to sion from the courtroom— ‘‘(A) hearing and determining motions their judicial acts; or ‘‘(1) to ensure the physical safety of indi- raising defenses or objections which are ca- ‘‘(C) the exercise of professional judgment viduals; or pable of determination without trial of the by trial counsel or defense counsel. ‘‘(2) to prevent disruption of the pro- issues raised by a plea of not guilty; ‘‘(3) The provisions of this subsection shall ceedings by the accused. not apply with respect to— ‘‘(B) hearing and ruling upon any matter ‘‘(A) general instructional or informational which may be ruled upon by the military ‘‘§ 949e. Continuances courses in military justice if such courses judge under this chapter, whether or not the ‘‘The military judge in a military commis- are designed solely for the purpose of in- matter is appropriate for later consideration sion under this chapter may, for reasonable structing members of a command in the sub- or decision by the members; cause, grant a continuance to any party for stantive and procedural aspects of military ‘‘(C) if permitted by regulations prescribed such time, and as often, as may appear to be commissions; or by the Secretary of Defense, receiving the just. ‘‘(B) statements and instructions given in pleas of the accused; and ‘‘§ 949f. Challenges ‘‘(D) performing any other procedural func- open proceedings by a military judge or ‘‘(a) CHALLENGES AUTHORIZED.—The mili- counsel. tion which may be performed by the military tary judge and members of a military com- ‘‘(b) PROHIBITION ON CONSIDERATION OF AC- judge under this chapter or under rules pre- mission under this chapter may be chal- TIONS ON COMMISSION IN EVALUATION OF FIT- scribed pursuant to section 949a of this title lenged by the accused or trial counsel for NESS.—In the preparation of an effectiveness, and which does not require the presence of cause stated to the military commission. fitness, or efficiency report or any other re- the members. The military judge shall determine the rel- ‘‘(2) Except as provided in subsections (b), port or document used in whole or in part for evance and validity of challenges for cause, (c), and (d), any proceedings under paragraph the purpose of determining whether a com- and may not receive a challenge to more (1) shall be conducted in the presence of the missioned officer of the armed forces is than one person at a time. Challenges by accused, defense counsel, and trial counsel, qualified to be advanced in grade, or in de- trial counsel shall ordinarily be presented termining the assignment or transfer of any and shall be made part of the record. and decided before those by the accused are such officer or whether any such officer ‘‘(b) DELIBERATION OR VOTE OF MEMBERS.— offered. should be retained on active duty, no person When the members of a military commission ‘‘(b) PEREMPTORY CHALLENGES.—The ac- may— under this chapter deliberate or vote, only cused and trial counsel are each entitled to ‘‘(1) consider or evaluate the performance the members may be present. one peremptory challenge, but the military of duty of any member of a military commis- ‘‘(c) CLOSURE OF PROCEEDINGS.—(1) The judge may not be challenged except for sion under this chapter; or military judge may close to the public all or cause. ‘‘(2) give a less favorable rating or evalua- part of the proceedings of a military com- ‘‘(c) CHALLENGES AGAINST ADDITIONAL tion to any commissioned officer because of mission under this chapter. MEMBERS.—Whenever additional members the zeal with which such officer, in acting as ‘‘(2) The military judge may close to the are detailed to a military commission under counsel, represented any accused before a public all or a portion of the proceedings this chapter, and after any challenges for military commission under this chapter. under paragraph (1) only upon making a spe- cause against such additional members are cific finding that such closure is necessary ‘‘§ 949c. Duties of trial counsel and defense presented and decided, the accused and trial to— counsel counsel are each entitled to one peremptory ‘‘(A) protect information the disclosure of ‘‘(a) TRIAL COUNSEL.—The trial counsel of a challenge against members not previously which could reasonably be expected to cause military commission under this chapter subject to peremptory challenge. shall prosecute in the name of the United damage to the national security, including ‘‘§ 949g. Oaths States. intelligence or law enforcement sources, ‘‘(b) DEFENSE COUNSEL.—(1) The accused methods, or activities; or ‘‘(a) IN GENERAL.—(1) Before performing shall be represented in his defense before a ‘‘(B) ensure the physical safety of individ- their respective duties in a military commis- military commission under this chapter as uals. sion under this chapter, military judges, provided in this subsection. ‘‘(3) A finding under paragraph (2) may be members, trial counsel, defense counsel, re- ‘‘(2) The accused shall be represented by based upon a presentation, including a pres- porters, and interpreters shall take an oath military counsel detailed under section 948k entation ex parte or in camera, by either to perform their duties faithfully. of this title. trial counsel or defense counsel. ‘‘(2) The form of the oath required by para- ‘‘(3) The accused may be represented by ci- ‘‘(4)(A) Subject to the provisions of this graph (1), the time and place of the taking vilian counsel if retained by the accused, paragraph, classified information shall be thereof, the manner of recording thereof, and provided that such civilian counsel— handled in accordance with rules applicable whether the oath shall be taken for all cases

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00090 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.078 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10313 in which duties are to be performed or for a trial counsel, in making documents available lower degree as to which there is no reason- particular case, shall be as provided in regu- to the accused pursuant to subsections (a) able doubt; and lations prescribed by the Secretary of De- and (b)— ‘‘(4) that the burden of proof to establish fense. The regulations may provide that— ‘‘(1) to delete specified items of classified the guilt of the accused beyond a reasonable ‘‘(A) an oath to perform faithfully duties information from such documents; doubt is upon the United States. as a military judge, trial counsel, or defense ‘‘(2) to substitute an unclassified summary ‘‘§ 949m. Number of votes required counsel may be taken at any time by any of the classified information in such docu- ‘‘(a) CONVICTION.—No person may be con- judge advocate or other person certified to ments; or victed by a military commission under this be qualified or competent for the duty; and ‘‘(3) to substitute an unclassified state- chapter of any offense, except as provided in ‘‘(B) if such an oath is taken, such oath ment admitting relevant facts that classified section 949i(b) of this title or by concurrence need not again be taken at the time the information in such documents would tend of two-thirds of the members present at the judge advocate or other person is detailed to to prove. time the vote is taken. that duty. ‘‘§ 949k. Defense of lack of mental responsi- ‘‘(b) SENTENCES.—(1) Except as provided in ‘‘(b) WITNESSES.—Each witness before a bility paragraphs (2) and (3), sentences shall be de- military commission under this chapter ‘‘(a) AFFIRMATIVE DEFENSE.—It is an af- termined by a military commission by the shall be examined on oath. firmative defense in a trial by military com- concurrence of two-thirds of the members ‘‘(c) OATH DEFINED.—In this section, the mission under this chapter that, at the time present at the time the vote is taken. term ‘oath’ includes an affirmation. of the commission of the acts constituting ‘‘(2) No person may be sentenced to death ‘‘§ 949h. Former jeopardy the offense, the accused, as a result of a se- by a military commission, except insofar ‘‘(a) IN GENERAL.—No person may, without vere mental disease or defect, was unable to as— his consent, be tried by a military commis- appreciate the nature and quality or the ‘‘(A) the penalty of death has been ex- sion under this chapter a second time for the wrongfulness of the acts. Mental disease or pressly authorized under this chapter, chap- same offense. defect does not otherwise constitute a de- ter 47 of this title, or the law of war for an ‘‘(b) SCOPE OF TRIAL.—No proceeding in fense. offense of which the accused has been found which the accused has been found guilty by ‘‘(b) BURDEN OF PROOF.—The accused in a guilty; military commission under this chapter military commission under this chapter has ‘‘(B) trial counsel expressly sought the upon any charge or specification is a trial in the burden of proving the defense of lack of penalty of death by filing an appropriate no- the sense of this section until the finding of mental responsibility by clear and con- tice in advance of trial; guilty has become final after review of the vincing evidence. ‘‘(C) the accused was convicted of the of- case has been fully completed. ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE- fense by the concurrence of all the members FENSE.—Whenever lack of mental responsi- present at the time the vote is taken; and ‘‘§ 949i. Pleas of the accused bility of the accused with respect to an of- ‘‘(D) all members present at the time the ‘‘(a) PLEA OF NOT GUILTY.—If an accused in fense is properly at issue in a military com- vote was taken concurred in the sentence of a military commission under this chapter mission under this chapter, the military death. after a plea of guilty sets up matter incon- judge shall instruct the members as to the ‘‘(3) No person may be sentenced to life im- sistent with the plea, or if it appears that defense of lack of mental responsibility prisonment, or to confinement for more than the accused has entered the plea of guilty under this section and shall charge the mem- 10 years, by a military commission under through lack of understanding of its mean- bers to find the accused— this chapter except by the concurrence of ing and effect, or if the accused fails or re- ‘‘(1) guilty; three-fourths of the members present at the fuses to plead, a plea of not guilty shall be ‘‘(2) not guilty; or time the vote is taken. entered in the record, and the military com- ‘‘(3) subject to subsection (d), not guilty by ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR mission shall proceed as though the accused reason of lack of mental responsibility. PENALTY OF DEATH.—(1) Except as provided had pleaded not guilty. ‘‘(d) MAJORITY VOTE REQUIRED FOR FIND- in paragraph (2), in a case in which the pen- ‘‘(b) FINDING OF GUILT AFTER GUILTY ING.—The accused shall be found not guilty alty of death is sought, the number of mem- PLEA.—With respect to any charge or speci- by reason of lack of mental responsibility bers of the military commission under this fication to which a plea of guilty has been under subsection (c)(3) only if a majority of chapter shall be not less than 12 members. made by the accused in a military commis- the members present at the time the vote is ‘‘(2) In any case described in paragraph (1) sion under this chapter and accepted by the taken determines that the defense of lack of in which 12 members are not reasonably military judge, a finding of guilty of the mental responsibility has been established. available for a military commission because charge or specification may be entered im- of physical conditions or military exigencies, ‘‘§ 949l. Voting and rulings mediately without a vote. The finding shall the convening authority shall specify a less- constitute the finding of the military com- ‘‘(a) VOTE BY SECRET WRITTEN BALLOT.— er number of members for the military com- mission unless the plea of guilty is with- Voting by members of a military commis- mission (but not fewer than 5 members), and drawn prior to announcement of the sen- sion under this chapter on the findings and the military commission may be assembled, tence, in which event the proceedings shall on the sentence shall be by secret written and the trial held, with not less than the continue as though the accused had pleaded ballot. number of members so specified. In any such not guilty. ‘‘(b) RULINGS.—(1) The military judge in a case, the convening authority shall make a military commission under this chapter detailed written statement, to be appended ‘‘§ 949j. Opportunity to obtain witnesses and shall rule upon all questions of law, includ- other evidence to the record, stating why a greater number ing the admissibility of evidence and all in- of members were not reasonably available. ‘‘(a) IN GENERAL.—(1) Defense counsel in a terlocutory questions arising during the pro- ‘‘§ 949n. Military commission to announce ac- military commission under this chapter ceedings. shall have a reasonable opportunity to ob- ‘‘(2) Any ruling made by the military judge tion tain witnesses and other evidence as pro- upon a question of law or an interlocutory ‘‘A military commission under this chapter vided in regulations prescribed by the Sec- question (other than the factual issue of shall announce its findings and sentence to retary of Defense. mental responsibility of the accused) is con- the parties as soon as determined. ‘‘(2) Process issued in military commis- clusive and constitutes the ruling of the ‘‘§ 949o. Record of trial sions under this chapter to compel witnesses military commission. However, a military ‘‘(a) RECORD; AUTHENTICATION.—Each mili- to appear and testify and to compel the pro- judge may change his ruling at any time dur- tary commission under this chapter shall duction of other evidence— ing the trial. keep a separate, verbatim, record of the pro- ‘‘(A) shall be similar to that which courts ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before ceedings in each case brought before it, and of the United States having criminal juris- a vote is taken of the findings of a military the record shall be authenticated by the sig- diction may lawfully issue; and commission under this chapter, the military nature of the military judge. If the record ‘‘(B) shall run to any place where the judge shall, in the presence of the accused cannot be authenticated by the military United States shall have jurisdiction thereof. and counsel, instruct the members as to the judge by reason of his death, disability, or ‘‘(b) DISCLOSURE OF EXCULPATORY EVI- elements of the offense and charge the mem- absence, it shall be authenticated by the sig- DENCE.—As soon as practicable, trial counsel bers— nature of the trial counsel or by a member if in a military commission under this chapter ‘‘(1) that the accused must be presumed to the trial counsel is unable to authenticate it shall disclose to the defense the existence of be innocent until his guilt is established by by reason of his death, disability, or absence. any known evidence that reasonably tends to legal and competent evidence beyond a rea- Where appropriate, and as provided in regu- exculpate or reduce the degree of guilt of the sonable doubt; lations prescribed by the Secretary of De- accused. ‘‘(2) that in the case being considered, if fense, the record of a military commission ‘‘(c) TREATMENT OF CERTAIN ITEMS.—In ac- there is a reasonable doubt as to the guilt of under this chapter may contain a classified cordance with the rules applicable in trials the accused, the doubt must be resolved in annex. by general courts-martial in the United favor of the accused and he must be acquit- ‘‘(b) COMPLETE RECORD REQUIRED.—A com- States, and to the extent provided in such ted; plete record of the proceedings and testi- rules, the military judge in a military com- ‘‘(3) that, if there is reasonable doubt as to mony shall be prepared in every military mission under this chapter may authorize the degree of guilt, the finding must be in a commission under this chapter.

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‘‘(c) PROVISION OF COPY TO ACCUSED.—A or affirm, instead, so much of the finding as ‘‘(ii) the record shows improper or incon- copy of the record of the proceedings of the includes a lesser included offense. sistent action by the military commission military commission under this chapter ‘‘§ 950b. Review by the convening authority with respect to the findings or sentence that shall be given the accused as soon as it is au- can be rectified without material prejudice ‘‘(a) NOTICE TO CONVENING AUTHORITY OF thenticated. If the record contains classified to the substantial rights of the accused. FINDINGS AND SENTENCE.—The findings and information, or a classified annex, the ac- ‘‘(B) In no case may a proceeding in revi- sentence of a military commission under cused shall receive a redacted version of the sion— this chapter shall be reported in writing record consistent with the requirements of ‘‘(i) reconsider a finding of not guilty of a promptly to the convening authority after section 949d(c)(4) of this title. Defense coun- specification or a ruling which amounts to a the announcement of the sentence. sel shall have access to the unredacted finding of not guilty; ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO record, as provided in regulations prescribed ‘‘(ii) reconsider a finding of not guilty of CONVENING AUTHORITY.—(1) The accused may any charge, unless there has been a finding by the Secretary of Defense. submit to the convening authority matters of guilty under a specification laid under ‘‘SUBCHAPTER V—SENTENCES for consideration by the convening authority that charge, which sufficiently alleges a vio- ‘‘Sec. with respect to the findings and the sentence lation; or ‘‘949s. Cruel or unusual punishments prohib- of the military commission under this chap- ‘‘(iii) increase the severity of the sentence ited. ter. unless the sentence prescribed for the offense ‘‘949t. Maximum limits. ‘‘(2)(A) Except as provided in subparagraph is mandatory. ‘‘949u. Execution of confinement. (B), a submittal under paragraph (1) shall be ‘‘(3) A rehearing may be ordered by the made in writing within 20 days after accused ‘‘§ 949s. Cruel or unusual punishments pro- convening authority if the convening author- has been give an authenticated record of hibited ity disapproves the findings and sentence trial under section 949o(c) of this title. ‘‘Punishment by flogging, or by branding, and states the reasons for disapproval of the ‘‘(B) If the accused shows that additional marking, or tattooing on the body, or any findings. If the convening authority dis- time is required for the accused to make a other cruel or unusual punishment, may not approves the finding and sentence and does submittal under paragraph (1), the convening be adjudged by a military commission under not order a rehearing, the convening author- authority may, for good cause, extend the this chapter or inflicted under this chapter ity shall dismiss the charges. A rehearing as applicable period under subparagraph (A) for upon any person subject to this chapter. The to the findings may not be ordered by the not more than an additional 20 days. use of irons, single or double, except for the convening authority when there is a lack of ‘‘(3) The accused may waive his right to purpose of safe custody, is prohibited under sufficient evidence in the record to support make a submittal to the convening author- this chapter. the findings. A rehearing as to the sentence ity under paragraph (1). Such a waiver shall may be ordered by the convening authority ‘‘§ 949t. Maximum limits be made in writing, and may not be revoked. if the convening authority disapproves the ‘‘The punishment which a military com- For the purposes of subsection (c)(2), the sentence. mission under this chapter may direct for an time within which the accused may make a offense may not exceed such limits as the submittal under this subsection shall be ‘‘§ 950c. Waiver or withdrawal of appeal President or Secretary of Defense may pre- deemed to have expired upon the submittal ‘‘(a) WAIVER OF RIGHT OF REVIEW.—(1) An scribe for that offense. of a waiver under this paragraph to the con- accused may file with the convening author- ‘‘§ 949u. Execution of confinement vening authority. ity a statement expressly waiving the right of the accused to appellate review by the ‘‘(a) IN GENERAL.—Under such regulations ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) as the Secretary of Defense may prescribe, a The authority under this subsection to mod- United States Court of Appeals for the sentence of confinement adjudged by a mili- ify the findings and sentence of a military Armed Forces under section 950f(a) of this tary commission under this chapter may be commission under this chapter is a matter of title of the final decision of the military carried into execution by confinement— the sole discretion and prerogative of the commission under this chapter. ‘‘(1) in any place of confinement under the convening authority. ‘‘(2) A waiver under paragraph (1) shall be control of any of the armed forces; or ‘‘(2) The convening authority is not re- signed by both the accused and a defense ‘‘(2) in any penal or correctional institu- quired to take action on the findings of a counsel. ‘‘(3) A waiver under paragraph (1) must be tion under the control of the United States military commission under this chapter. If filed, if at all, within 10 days after notice of or its allies, or which the United States may the convening authority takes action on the the action is served on the accused or on de- be allowed to use. findings, the convening authority may, in fense counsel under section 950b(c)(4) of this ‘‘(b) TREATMENT DURING CONFINEMENT BY his sole discretion, only— title. The convening authority, for good OTHER THAN THE ARMED FORCES.—Persons ‘‘(A) dismiss any charge or specification by cause, may extend the period for such filing confined under subsection (a)(2) in a penal or setting aside a finding of guilty thereto; or by not more than 30 days. correctional institution not under the con- ‘‘(B) change a finding of guilty to a charge ‘‘(b) WITHDRAWAL OF APPEAL.—Except in a trol of an armed force are subject to the to a finding of guilty to an offense that is a case in which the sentence as approved under same discipline and treatment as persons lesser included offense of the offense stated section 950b of this title extends to death, confined or committed by the courts of the in the charge. the accused may withdraw an appeal at any United States or of the State, District of Co- ‘‘(3)(A) The convening authority shall take time. lumbia, or place in which the institution is action on the sentence of a military commis- ‘‘(c) EFFECT OF WAIVER OR WITHDRAWAL.—A situated. sion under this chapter. ‘‘(B) Subject to regulations prescribed by waiver of the right to appellate review or the ‘‘SUBCHAPTER VI—POST-TRIAL PROCE- the Secretary of Defense, action under this withdrawal of an appeal under this section DURE AND REVIEW OF MILITARY COM- paragraph may be taken only after consider- bars review under section 950f of this title. MISSIONS ation of any matters submitted by the ac- ‘‘§ 950d. Appeal by the United States ‘‘Sec. cused under subsection (b) or after the time ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as ‘‘950a. Error of law; lesser included offense. for submitting such matters expires, which- provided in paragraph (2), in a trial by mili- ‘‘950b. Review by the convening authority. ever is earlier. tary commission under this chapter, the ‘‘950c. Waiver or withdrawal of appeal. ‘‘(C) In taking action under this paragraph, United States may take an interlocutory ap- ‘‘950d. Appeal by the United States. the convening authority may, in his sole dis- peal to the United States Court of Appeals ‘‘950e. Rehearings. cretion, approve, disapprove, commute, or for the Armed Forces under section 950f of ‘‘950f. Review by United States Court of Ap- suspend the sentence in whole or in part. The this title of any order or ruling of the mili- peals for the Armed Forces and convening authority may not increase a sen- tary judge that— Supreme Court. tence beyond that which is found by the ‘‘(A) terminates proceedings of the mili- ‘‘950g. Appellate counsel military commission. tary commission with respect to a charge or ‘‘950h. Execution of sentence; suspension of ‘‘(4) The convening authority shall serve specification; sentence. on the accused or on defense counsel notice ‘‘(B) excludes evidence that is substantial ‘‘950i. Finality of proceedings, findings, and of any action taken by the convening au- proof of a fact material in the proceeding; or sentences. thority under this subsection. ‘‘(C) relates to a matter under subsection ‘‘§ 950a. Error of law; lesser included offense ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) (c) or (d) of section 949d of this title. ‘‘(a) ERROR OF LAW.—A finding or sentence Subject to paragraphs (2) and (3), the con- ‘‘(2) The United States may not appeal of a military commission under this chapter vening authority of a military commission under paragraph (1) an order or ruling that may not be held incorrect on the ground of under this chapter may, in his sole discre- is, or amounts to, a finding of not guilty by an error of law unless the error materially tion, order a proceeding in revision or a re- the military commission with respect to a prejudices the substantial rights of the ac- hearing. charge or specification. cused. ‘‘(2)(A) Except as provided in subparagraph ‘‘(b) NOTICE OF APPEAL.—The United States ‘‘(b) LESSER INCLUDED OFFENSE.—Any re- (B), a proceeding in revision may be ordered shall take an appeal of an order or ruling viewing authority with the power to approve by the convening authority if— under subsection (a) by filing a notice of ap- or affirm a finding of guilty by a military ‘‘(i) there is an apparent error or omission peal with the military judge within five days commission under this chapter may approve in the record; or after the date of the order or ruling.

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‘‘(c) APPEAL.—An appeal under this section dures for the appointment of appellate coun- military commission under this chapter, in- shall be forwarded, by means specified in sel for the United States and for the accused cluding challenges to the lawfulness of pro- regulations prescribed the Secretary of De- in military commissions under this chapter. cedures of military commissions under this fense, directly to the United States Court of Appellate counsel shall meet the qualifica- chapter. Appeals for the Armed Forces. In ruling on tions of counsel for appearing before mili- ‘‘SUBCHAPTER VII—PUNITIVE MATTERS an appeal under this section, the Court may tary commissions under this chapter. ‘‘Sec. act only with respect to matters of law. ‘‘(b) REPRESENTATION OF UNITED STATES.— ‘‘950aa. Definitions; construction of certain ‘‘§ 950e. Rehearings Appellate counsel may represent the United offenses; common cir- ‘‘(a) COMPOSITION OF MILITARY COMMISSION States in any appeal or review proceeding cumstances. FOR REHEARING.—Each rehearing under this under this chapter. Appellate Government ‘‘950bb. Principals. chapter shall take place before a military counsel may represent the United States be- ‘‘950cc. Accessory after the fact. commission under this chapter composed of fore the Supreme Court in case arising under ‘‘950dd. Conviction of lesser offenses. members who were not members of the mili- this chapter when requested to do so by the ‘‘950ee. Attempts. tary commission which first heard the case. Attorney General. ‘‘950ff. Conspiracy. ‘‘(b) SCOPE OF REHEARING.—(1) Upon a re- ‘‘(c) REPRESENTATION OF ACCUSED.—The ac- ‘‘950gg. Solicitation. hearing— cused shall be represented before the United ‘‘950hh. Murder of protected persons. ‘‘(A) the accused may not be tried for any States Court of Appeals for the Armed ‘‘950ii. Attacking civilians. offense of which he was found not guilty by Forces or the Supreme Court by military ap- ‘‘950jj. Attacking civilian objects. the first military commission; and pellate counsel, or by civilian counsel if re- ‘‘950kk. Attacking protected property. ‘‘(B) no sentence in excess of or more than tained by him. ‘‘950ll. Pillaging. the original sentence may be imposed un- ‘‘§ 950h. Execution of sentence; suspension of ‘‘950mm. Denying quarter. less— sentence ‘‘950nn. Taking hostages. ‘‘950oo. Employing poison or similar weap- ‘‘(i) the sentence is based upon a finding of ‘‘(a) EXECUTION OF SENTENCE OF DEATH guilty of an offense not considered upon the ons. ONLY UPON APPROVAL BY THE PRESIDENT.—If ‘‘950pp. Using protected persons as a shield. merits in the original proceedings; or the sentence of a military commission under ‘‘(ii) the sentence prescribed for the offense ‘‘950qq. Using protected property as a shield. this chapter extends to death, that part of ‘‘950rr. Torture. is mandatory. the sentence providing for death may not be ‘‘(2) Upon a rehearing, if the sentence ap- ‘‘950ss. Cruel, unusual, or inhumane treat- executed until approved by the President. In ment or punishment. proved after the first military commission such a case, the President may commute, was in accordance with a pretrial agreement ‘‘950tt. Intentionally causing serious bodily remit, or suspend the sentence, or any part injury. and the accused at the rehearing changes his thereof, as he sees fit. plea with respect to the charges or specifica- ‘‘950uu. Mutilating or maiming. ‘‘(b) EXECUTION OF SENTENCE OF DEATH ‘‘950vv. Murder in violation of the law of war. tions upon which the pretrial agreement was ONLY UPON FINAL JUDGMENT OF LEGALITY OF ‘‘950ww. Destruction of property in violation based, or otherwise does not comply with PROCEEDINGS.—(1) If the sentence of a mili- of the law of war. pretrial agreement, the sentence as to those tary commission under this chapter extends ‘‘950xx. Using treachery or perfidy. charges or specifications may include any to death, the sentence may not be executed ‘‘950yy. Improperly using a flag of truce. punishment not in excess of that lawfully ad- until there is a final judgement as to the le- ‘‘950zz. Improperly using a distinctive em- judged at the first military commission. gality of the proceedings (and with respect blem. ‘‘§ 950f. Review by United States Court of Ap- to death, approval under subsection (a)). ‘‘950aaa. Intentionally mistreating a dead peals for the Armed Forces and Supreme ‘‘(2) A judgement as to legality of pro- body. Court ceedings is final for purposes of paragraph (1) ‘‘950bbb. Rape. ‘‘(a) REVIEW BY UNITED STATES COURT OF when— ‘‘950ccc. Hijacking or hazarding a vessel or APPEALS FOR THE ARMED FORCES.—(1) Sub- ‘‘(A) the time for the accused to file a peti- aircraft. ject to the provisions of this subsection, the tion for review by the United States Court of ‘‘950ddd. Terrorism. United States Court of Appeals for the Appeals for the Armed Forces has expired ‘‘950eee. Providing material support for ter- Armed Forces shall have exclusive jurisdic- and the accused has not filed a timely peti- rorism. tion to determine the final validity of any tion for such review and the case is not oth- ‘‘950fff. Wrongfully aiding the enemy. judgment rendered by a military commission erwise under review by the Court; or ‘‘950ggg. Spying. under this chapter. ‘‘(B) review is completed in accordance ‘‘950hhh. Contempt. ‘‘(2) The United States Court of Appeals for with the judgment of the United States ‘‘950iii. Perjury and obstruction of justice. the Armed Forces may not determine the Court of Appeals for the Armed Forces and ‘‘§ 950aa. Definitions; construction of certain final validity of a judgment of a military (A) a petition for a writ of certiorari is not offenses; common circumstances commission under this subsection until all timely filed, (B) such a petition is denied by ‘‘(a) DEFINITIONS.—In this subchapter: other appeals from the judgment under this the Supreme Court, or (C) review is other- ‘‘(1) The term ‘military objective’ means chapter have been waived or exhausted. wise completed in accordance with the judg- ‘‘(3)(A) An accused may seek a determina- combatants and those objects during an ment of the Supreme Court. armed conflict which, by their nature, loca- tion by the United States Court of Appeals ‘‘(c) SUSPENSION OF SENTENCE.—The Sec- for the Armed Forces of the final validity of tion, purpose, or use, effectively contribute retary of the Defense, or the convening au- to the war-fighting or war-sustaining capa- the judgment of the military commission thority acting on the case (if other than the under this subsection only upon petition to bility of an opposing force and whose total or Secretary), may suspend the execution of partial destruction, capture, or neutraliza- the Court for such determination. any sentence or part thereof in the case, ex- ‘‘(B) A petition on a judgment under sub- tion would constitute a definite military ad- cept a sentence of death. paragraph (A) shall be filed by the accused in vantage to the attacker under the cir- the Court not later than 20 days after the ‘‘§ 950i. Finality of proceedings, findings, and cumstances at the time of an attack. date on which written notice of the final de- sentences ‘‘(2) The term ‘protected person’ means any cision of the military commission is served ‘‘(a) FINALITY.—The appellate review of person entitled to protection under one or on the accused or defense counsel. records of trial provided by this chapter, and more of the Geneva Conventions, including ‘‘(C) The accused may not file a petition the proceedings, findings, and sentences of civilians not taking an active part in hos- under subparagraph (A) if the accused has military commissions as approved, reviewed, tilities, military personnel placed out of waived the right to appellate review under or affirmed as required by this chapter, are combat by sickness, wounds, or detention, section 950c(a) of this title. final and conclusive. Orders publishing the and military medical or religious personnel. ‘‘(4) The determination by the United proceedings of military commissions under ‘‘(3) The term ‘protected property’ means States Court of Appeals for the Armed this chapter are binding upon all depart- any property specifically protected by the Forces of the final validity of a judgment of ments, courts, agencies, and officers of the law of war, including buildings dedicated to a military commission under this subsection United States, except as otherwise provided religion, education, art, science, or chari- shall be governed by the provisions of sec- by the President. table purposes, historic monuments, hos- tion 1005(e)(3) of the Detainee Treatment Act ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS pitals, and places where the sick and wound- of 2005 (42 U.S.C. 801 note). FOR REVIEW OF MILITARY COMMISSION PROCE- ed are collected, but only if and to the extent ‘‘(b) REVIEW BY SUPREME COURT.—The Su- DURES AND ACTIONS.—Except as otherwise such property is not being used for military preme Court of the United States may re- provided in this chapter and notwithstanding purposes or is not otherwise a military ob- view by writ of certiorari pursuant to sec- any other provision of law (including section jective. The term includes objects properly tion 1257 of title 28 the final judgment of the 2241 of title 28 or any other habeas corpus identified by one of the distinctive emblems United States Court of Appeals for the provision), no court, justice, or judge shall of the Geneva Conventions, but does not in- Armed Forces in a determination under sub- have jurisdiction to hear or consider any clude civilian property that is a military ob- section (a). claim or cause of action whatsoever, includ- jective. ‘‘§ 950g. Appellate counsel ing any action pending on or filed after the ‘‘(b) CONSTRUCTION OF CERTAIN OFFENSES.— ‘‘(a) APPOINTMENT.—The Secretary of De- date of enactment of this chapter, relating The intent required for offenses under sec- fense shall, by regulation, establish proce- to the prosecution, trial, or judgment of a tions 950hh, 950ii, 950jj, 950kk, and 950ss of

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Using protected property as a shield ‘‘(c) COMMON CIRCUMSTANCES.—An offense punishment as a military commission under ‘‘Any person subject to this chapter who specified in this subchapter is triable by this chapter may direct, and, if death does positions, or otherwise takes advantage of military commission under this chapter only not result to any of the victims, by such pun- the location of, protected property with the if the offense is committed in the context of ishment, other than death, as a military intent to shield a military objective from at- and associated with armed conflict. commission under this chapter may direct. tack, or to shield, favor, or impede military ‘‘§ 950bb. Principals ‘‘§ 950jj. Attacking civilian objects operations, shall be punished as a military ‘‘Any person punishable under this chapter ‘‘Any person subject to this chapter who commission under this chapter may direct. who— intentionally engages in an attack upon a ci- ‘‘§ 950rr. Torture ‘‘(1) commits an offense punishable by this vilian object that is not a military objective ‘‘(a) OFFENSE.—Any person subject to this chapter, or aids, abets, counsels, commands, shall be punished as a military commission chapter who commits an act specifically in- or procures its commission; or under this chapter may direct. tended to inflict severe physical or mental ‘‘(2) causes an act to be done which if di- pain or suffering (other than pain or suf- rectly performed by him would be punishable ‘‘§ 950kk. Attacking protected property fering incidental to lawful sanctions) upon by this chapter, ‘‘Any person subject to this chapter who another person within his custody or phys- is a principal. intentionally engages in an attack upon pro- tected property shall be punished as a mili- ical control for the purpose of obtaining in- ‘‘§ 950cc. Accessory after the fact tary commission under this chapter may di- formation or a confession, punishment, in- ‘‘Any person subject to this chapter who, rect. timidation, coercion, or any reason based on knowing that an offense punishable by this discrimination of any kind, shall be pun- chapter has been committed, receives, com- ‘‘§ 950ll. Pillaging ished, if death results to one or more of the forts, or assists the offender in order to ‘‘Any person subject to this chapter who victims, by death or such other punishment hinder or prevent his apprehension, trial, or intentionally and in the absence of military as a military commission under this chapter punishment shall be punished as a military necessity appropriates or seizes property for may direct, and, if death does not result to commission under this chapter may direct. private or personal use, without the consent any of the victims, by such punishment, ‘‘§ 950dd. Conviction of lesser offenses of a person with authority to permit such ap- other than death, as a military commission ‘‘An accused may be found guilty of an of- propriation or seizure, shall be punished as a under this chapter may direct. fense necessarily included in the offense military commission under this chapter may ‘‘(b) SEVERE MENTAL PAIN OR SUFFERING charged or of an attempt to commit either direct. DEFINED.—In this section, the term ‘severe the offense charged or an attempt to commit ‘‘§ 950mm. Denying quarter mental pain or suffering’ has the meaning either the offense charged or an offense nec- ‘‘Any person subject to this chapter who, given that term in section 2340(2) of title 18. essarily included therein. with effective command or control over sub- ‘‘§ 950ss. Cruel, unusual, or inhumane treat- ‘‘§ 950ee. Attempts ordinate groups, declares, orders, or other- ment or punishment ‘‘(a) IN GENERAL.—Any person subject to wise indicates to those groups that there ‘‘Any person subject to this chapter who this chapter who attempts to commit any of- shall be no survivors or surrender accepted, subjects another person in their custody or fense punishable by this chapter shall be with the intent to threaten an adversary or under their physical control, regardless of punished as a military commission under to conduct hostilities such that there would nationality or physical location, to cruel, this chapter may direct. be no survivors or surrender accepted, shall unusual, or inhumane treatment or punish- ‘‘(b) SCOPE OF OFFENSE.—An act, done with be punished as a military commission under ment prohibited by the Fifth, Eighth, and specific intent to commit an offense under this chapter may direct. 14th Amendments to the Constitution of the this chapter, amounting to more than mere ‘‘§ 950nn. Taking hostages United States shall be punished, if death re- preparation and tending, even though fail- sults to the victim, by death or such other ‘‘Any person subject to this chapter who, ing, to effect its commission, is an attempt punishment as a military commission under having knowingly seized or detained one or to commit that offense. this chapter may direct, and, if death does more persons, threatens to kill, injure, or ‘‘(c) EFFECT OF CONSUMMATION.—Any per- not result to the victim, by such punish- continue to detain such person or persons son subject to this chapter may be convicted ment, other than death, as a military com- with the intent of compelling any nation, of an attempt to commit an offense although mission under this chapter may direct. it appears on the trial that the offense was person other than the hostage, or group of ‘‘§ 950tt. Intentionally causing serious bodily consummated. persons to act or refrain from acting as an injury ‘‘§ 950ff. Conspiracy explicit or implicit condition for the safety or release of such person or persons, shall be ‘‘(a) OFFENSE.—Any person subject to this ‘‘Any person subject to this chapter who chapter who intentionally causes serious conspires to commit one or more substantive punished, if death results to one or more of the victims, by death or such other punish- bodily injury to one or more persons, includ- offenses triable by military commission ing lawful combatants, in violation of the under this subchapter, and who knowingly ment as a military commission under this chapter may direct, and, if death does not re- law of war shall be punished, if death results does any overt act to effect the object of the to one or more of the victims, by death or conspiracy, shall be punished, if death re- sult to any of the victims, by such punish- ment, other than death, as a military com- such other punishment as a military com- sults to one or more of the victims, by death mission under this chapter may direct, and, or such other punishment as a military com- mission under this chapter may direct. if death does not result to any of the vic- mission under this chapter may direct, and, ‘‘§ 950oo. Employing poison or similar weap- tims, by such punishment, other than death, if death does not result to any of the vic- ons as a military commission under this chapter tims, by such punishment, other than death, ‘‘Any person subject to this chapter who may direct. as a military commission under this chapter intentionally, as a method of warfare, em- ‘‘(b) SERIOUS BODILY INJURY DEFINED.—In may direct. ploys a substance or weapon that releases a this section, the term ‘serious bodily injury’ ‘‘§ 950gg. Solicitation substance that causes death or serious and means bodily injury which involves— ‘‘Any person subject to this chapter who lasting damage to health in the ordinary ‘‘(1) a substantial risk of death; solicits or advises another or others to com- course of events, through its asphyxiating, ‘‘(2) extreme physical pain; mit one or more substantive offenses triable bacteriological, or toxic properties, shall be ‘‘(3) protracted and obvious disfigurement; by military commission under this chapter punished, if death results to one or more of or shall, if the offense solicited or advised is at- the victims, by death or such other punish- ‘‘(4) protracted loss or impairment of the tempted or committed, be punished with the ment as a military commission under this function of a bodily member, organ, or men- punishment provided for the commission of chapter may direct, and, if death does not re- tal faculty. the offense, but, if the offense solicited or sult to any of the victims, by such punish- ‘‘§ 950uu. Mutilating or maiming advised is not committed or attempted, he ment, other than death, as a military com- ‘‘Any person subject to this chapter who shall be punished as a military commission mission under this chapter may direct. intentionally injures one or more protected under this chapter may direct. ‘‘§ 950pp. Using protected persons as a shield persons by disfiguring the person or persons ‘‘§ 950hh. Murder of protected persons ‘‘Any person subject to this chapter who by any mutilation of the person or persons, ‘‘Any person subject to this chapter who positions, or otherwise takes advantage of, a or by permanently disabling any member, intentionally kills one or more protected protected person with the intent to shield a limb, or organ of the body of the person or persons shall be punished by death or such military objective from attack. or to shield, persons, without any legitimate medical or other punishment as a military commission favor, or impede military operations, shall dental purpose, shall be punished, if death under this chapter may direct. be punished, if death results to one or more results to one or more of the victims, by ‘‘§ 950ii. Attacking civilians of the victims, by death or such other pun- death or such other punishment as a mili- ‘‘Any person subject to this chapter who ishment as a military commission under this tary commission under this chapter may di- intentionally engages in an attack upon a ci- chapter may direct, and, if death does not re- rect, and, if death does not result to any of

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the victims, by such punishment, other than intentionally engages in an act that evinces (2) SUBMITTAL OF MODIFICATIONS.—Not later death, as a military commission under this a wanton disregard for human life, in a man- than 60 days before the date on which any chapter may direct. ner calculated to influence or affect the con- proposed modification of the procedures de- ‘‘§ 950vv. Murder in violation of the law of duct of government or civilian population by scribed in paragraph (1) shall go into effect, war intimidation or coercion, or to retaliate the Secretary shall submit to the commit- against government conduct, shall be pun- tees of Congress referred to in that para- ‘‘Any person subject to this chapter who ished, if death results to one or more of the graph a report describing such modification. intentionally kills one or more persons, in- victims, by death or such other punishment cluding lawful combatants, in violation of SEC. 5. AMENDMENTS TO OTHER LAWS. as a military commission under this chapter the law of war shall be punished by death or (a) DETAINEE TREATMENT ACT OF 2005.— may direct, and, if death does not result to such other punishment as a military com- Section 1004(b) of the Detainee Treatment any of the victims, by such punishment, mission under this chapter may direct. Act of 2005 (title X of Public Law 109–148; 119 other than death, as a military commission Stat. 2740; 42 U.S.C. 200dd–1(b)) is amended— ‘‘§ 950ww. Destruction of property in viola- under this chapter may direct. (1) by striking ‘‘may provide’’ and insert- tion of the law of war ‘‘§ 950eee. Providing material support for ter- ing ‘‘shall provide’’; ‘‘Any person subject to this chapter who rorism (2) by inserting ‘‘or investigation’’ after intentionally destroys property belonging to ‘‘(a) OFFENSE.—Any person subject to this ‘‘criminal prosecution’’; and another person in violation of the law of war chapter who provides material support or re- (3) by inserting ‘‘whether before United shall punished as a military commission sources, knowing or intending that they are States courts or agencies, foreign courts or under this chapter may direct. to be used in preparation for, or in carrying agencies, or international courts or agen- ‘‘§ 950xx. Using treachery or perfidy out, an act of terrorism (as set forth in sec- cies,’’ after ‘‘described in that subsection,’’. ‘‘Any person subject to this chapter who, tion 950ddd of this title), or who inten- (b) UNIFORM CODE OF MILITARY JUSTICE.— after inviting the confidence or belief of one tionally provides material support or re- Chapter 47 of title, 10, United States Code or more persons that they were entitled to, sources to an international terrorist organi- (the Uniform Code of Military Justice), is or obliged to accord, protection under the zation engaged in hostilities against the amended as follows: law of war, intentionally makes use of that United States, knowing that such organiza- (1) Section 802 (article 2 of the Uniform confidence or belief in killing, injuring, or tion has engaged or engages in terrorism (as Code of Military Justice) is amended by add- capturing such person or persons shall be so set forth), shall be punished as a military ing at the end the following new paragraph: punished, if death results to one or more of commission under this chapter may direct. ‘‘(13) Lawful enemy combatants (as that the victims, by death or such other punish- ‘‘(b) MATERIAL SUPPORT OR RESOURCES DE- term is defined in section 948a(3) of this title) ment as a military commission under this FINED.—In this section, the term ‘material who violate the law of war.’’. chapter may direct, and, if death does not re- support or resources’ has the meaning given (2) Section 821 (article 21 of the Uniform sult to any of the victims, by such punish- that term in section 2339A(b) of title 18. Code of Military Justice) is amended by ment, other than death, as a military com- ‘‘§ 950fff. Wrongfully aiding the enemy striking ‘‘by statute or law of war’’. mission under this chapter may direct. ‘‘Any person subject to this chapter who, (3) Section 836(a) (article 36(a) of the Uni- ‘‘§ 950yy. Improperly using a flag of truce in breach of an allegiance or duty to the form Code of Military Justice) is amended by inserting ‘‘(other than military commissions ‘‘Any person subject to this chapter who United States, knowingly and intentionally aids an enemy of the United States, or one of under chapter 47A of this title)’’ after ‘‘other uses a flag of truce to feign an intention to military tribunals’’. negotiate, surrender, or otherwise suspend the co-belligerents of the enemy, shall be UNITIVE ARTICLE OF CONSPIRACY.—Sec- punished as a military commission under (c) P hostilities when there is no such intention tion 881 of title 10, United States Code (arti- this chapter may direct. shall be punished as a military commission cle 81 of the Uniform Code of Military Jus- under this chapter may direct. ‘‘§ 950ggg. Spying tice)), is amended— ‘‘§ 950zz. Improperly using a distinctive em- ‘‘Any person subject to this chapter who, (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; blem in violation of the law of war and with intent and ‘‘Any person subject to this chapter who or reason to believe that it is to be used to (2) by adding at the end the following new intentionally uses a distinctive emblem rec- the injury of the United States or to the ad- subsection: ognized by the law of war for combatant pur- vantage of a foreign power, collects or at- ‘‘(b) Any person subject to this chapter or poses in a manner prohibited by the law of tempts to collect information by clandestine chapter 47A of this title who conspires with war shall be punished as a military commis- means or while acting under false pretenses, any other person to commit an offense under sion under this chapter may direct. for the purpose of conveying such informa- the law of war, and who knowingly does an tion to an enemy of the United States, or overt act to effect the object of the con- ‘‘§ 950aaa. Intentionally mistreating a dead one of the co-belligerents of the enemy, shall body spiracy, shall be punished, if death results to be punished by death or such other punish- one or more of the victims, by death or such ‘‘Any person subject to this chapter who ment as a military commission under this other punishment as a court-martial or mili- intentionally mistreats the body of a dead chapter may direct. tary commission may direct, and, if death person, without justification by legitimate ‘‘§ 950hhh. Contempt does not result to any of the victims, by such military necessary, shall be punished as a ‘‘A military commission under this chapter punishment, other than death, as a court- military commission under this chapter may martial or military commission may di- direct. may punish for contempt any person who uses any menacing word, sign, or gesture in rect.’’. ‘‘§ 950bbb. Rape its presence, or who disturbs its proceedings (d) REVIEW OF JUDGMENTS OF MILITARY ‘‘Any person subject to this chapter who by any riot or disorder. COMMISSIONS.— (1) REVIEW BY SUPREME COURT.—Section forcibly or with coercion or threat of force ‘‘§ 950iii. Perjury and obstruction of justice wrongfully invades the body of a person by 1259 of title 28, United States Code, is amend- ‘‘A military commission under this chapter penetrating, however slightly, the anal or ed by adding at the end the following new may try offenses and impose such punish- genital opening of the victim with any part paragraph: ment as the military commission may direct of the body of the accused, or with any for- ‘‘(5) Cases tried by military commission for perjury, false testimony, or obstruction eign object, shall be punished as a military and reviewed by the United States Court of of justice related to the military commis- commission under this chapter may direct. Appeals for the Armed Forces under section sion.’’. 950f of title 10.’’. ‘‘§ 950ccc. Hijacking or hazarding a vessel or (2) TABLES OF CHAPTERS AMENDMENTS.—The aircraft (2) DETAINEE TREATMENT ACT OF 2005.—Sec- tables of chapters at the beginning of sub- tion 1005(e) of the Detainee Treatment Act of ‘‘Any person subject to this chapter who title A and part II of subtitle A of title 10, 2005 (title X of Public Law 109–148; 119 Stat. intentionally seizes, exercises unauthorized United States Code, are each amended by in- 2740; 10 U.S.C. 801 note) is amended— control over, or endangers the safe naviga- serting after the item relating to chapter 47 (A) in paragraphs (3) and (4), by striking tion of a vessel or aircraft that is not a le- the following new item: ‘‘United States Court of Appeals for the Dis- gitimate military objective shall be pun- ‘‘Chapter 47A. Military Commissions 948a’’. trict of Columbia Circuit’’ each place it ap- ished, if death results to one or more of the (b) SUBMITTAL OF PROCEDURES TO CON- pears and inserting ‘‘United States Court of victims, by death or such other punishment GRESS.— Appeals for the Armed Forces’’; and as a military commission under this chapter (1) SUBMITTAL OF PROCEDURES.—Not later (B) in paragraph (3)— may direct, and, if death does not result to than 90 days after the date of the enactment (i) in subparagraph (A), by striking ‘‘pursu- any of the victims, by such punishment, of this Act, the Secretary of Defense shall ant to Military Commission Order No. 1. other than death, as a military commission submit to the Committees on Armed Serv- dated August 31, 2005 (or any successor mili- under this chapter may direct. ices of the Senate and the House of Rep- tary order)’’ and inserting ‘‘by a military ‘‘§ 950ddd. Terrorism resentatives a report setting forth the proce- commission under chapter 47A of title 10, ‘‘Any person subject to this chapter who dures for military commissions prescribed United States Code’’; intentionally kills or inflicts great bodily under chapter 47A of title 10, United States (ii) by striking subparagraph (B) and in- harm on one or more protected persons, or Code (as added by subsection (a)). serting the following new subparagraph (B):

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‘‘(ii) GRANT OF REVIEW.—Review under this (2) the Convention for the Amelioration of persons, including lawful combatants, in vio- paragraph shall be as of right.’’; the Condition of the Wounded, Sick, and lation of the law of war. (iii) in subparagraph (C)— Shipwrecked Members of the Armed Forces ‘‘(G) RAPE.—The act of a person who forc- (I) in clause (i)— at Sea, done at Geneva August 12, 1949 (6 ibly or with coercion or threat of force (aa) by striking ‘‘pursuant to the military UST 3217); wrongfully invades, or conspires or attempts order’’ and inserting ‘‘by a military commis- (3) the Convention Relative to the Treat- to invade, the body of a person by pene- sion’’; and ment of Prisoners of War, done at Geneva trating, however slightly, the anal or genital (bb) by striking ‘‘at Guantanamo Bay, August 12, 1949 (6 UST 3316); and opening of the victim with any part of the Cuba’’; and (4) the Convention Relative to the Protec- body of the accused, or with any foreign ob- (II) in clause (ii), by striking ‘‘pursuant to tion of Civilian Persons in Time of War, done ject. such military order’’ and inserting ‘‘by the at Geneva August 12, 1949 (6 UST 3516). ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act military commission’’; and SEC. 8. REVISION TO WAR CRIMES OFFENSE of person who forcibly or with coercion or (iv) in subparagraph (D)(i), by striking UNDER FEDERAL CRIMINAL CODE. threat of force engages, or conspires or at- ‘‘specified in the military order’’ and insert- (a) IN GENERAL.—Section 2441 of title 18, tempts to engage, in sexual contact with one ing ‘‘specified for a military commission’’. United States Code, is amended— or more persons, or causes, or conspires or SEC. 6. HABEAS CORPUS MATTERS. (1) in subsection (c), by striking paragraph attempts to cause, one or more persons to (a) IN GENERAL.—Section 2241 of title 28, (3) and inserting the following new para- engage in sexual contact. United States Code, is amended— graph (3): ‘‘(I) TAKING HOSTAGES.—The act of a person (1) by striking subsection (e) (as added by ‘‘(3) which constitutes a grave breach of who, having knowingly seized or detained section 1005(e)(1) of Public Law 109–148 (119 common Article 3 (as defined in subsection one or more persons, threatens to kill, in- Stat. 2742)) and by striking subsection (e) (as (d)) when committed in the context of and in jure, or continue to detain such person or added by added by section 1405(e)(1) of Public association with an armed conflict not of an persons with the intent of compelling any Law 109–163 (119 Stat. 3477)); and international character; or’’; and nation, person other than the hostage, or (2) by adding at the end the following new (2) by adding at the end the following new group of persons to act or refrain from act- subsection: subsection: ing as an explicit or implicit condition for ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.— ‘‘(e)(1) No court, justice, or judge shall the safety or release of such person or per- ‘‘(1) GRAVE BREACH OF COMMON ARTICLE 3.— have jurisdiction to hear or consider an ap- sons. In subsection (c)(3), the term ‘grave breach plication for a writ of habeas corpus filed by ‘‘(2) DEFINITIONS.—In the case of an offense of common Article 3’ means any conduct or on behalf of an alien detained outside of under subsection (a) by reason of subsection (such conduct constituting a grave breach of the United States who— (c)(3)— common Article 3 of the international con- ‘‘(A) is currently in United States custody; ‘‘(A) the term ‘severe mental pain or suf- ventions done at Geneva August 12, 1949), as or fering’ shall be applied for purposes of para- follows: ‘‘(B) has been determined by the United graph (1)(A) in accordance with the meaning ‘‘(A) TORTURE.—The act of a person who States to have been properly detained as an commits, or conspires or attempts to com- given that term in section 2340(2) of this enemy combatant. mit, an act specifically intended to inflict title; ‘‘(2) Except as provided in paragraphs (2) ‘‘(B) the term ‘serious bodily injury’ shall and (3) of section 1005(e) of the Detainee severe physical or mental pain or suffering (other than pain or suffering incidental to be applied for purposes of paragraph (1)(F) in Treatment Act of 2005 (10 U.S.C. 801 note), no accordance with the meaning given that court, justice, or judge shall have jurisdic- lawful sanctions) upon another person within his custody or physical control for the pur- term in section 113(b)(2) of this title; and tion to hear or consider any other action ‘‘(C) the term ‘sexual contact’ shall be ap- against the United States or its agents relat- pose of obtaining information or a confes- sion, punishment, intimidation, coercion, or plied for purposes of paragraph (1)(G) in ac- ing to any aspect of the detention, treat- cordance with the meaning given that term ment, or trial of an alien detained outside of any reason based on discrimination of any kind. in section 2246(3) of this title. the United States who— ‘‘(B) CRUEL, UNUSUAL, OR INHUMANE TREAT- ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS ‘‘(A) is currently in United States custody; MENT OR PUNISHMENT.—The act of a person WITH RESPECT TO COLLATERAL DAMAGE OR IN- or who subjects another person in the custody CIDENT OF LAWFUL ATTACK.—The intent speci- ‘‘(B) has been determined by the United or under the physical control of the United fied for the conduct stated in subparagraphs States to have been properly detained as an States Government, regardless of nationality (D), (E), and (F) of paragraph (1) precludes enemy combatant. or physical location, to cruel, unusual, or in- the applicability of those subparagraphs to ‘‘(3) In this subsection, the term ‘United an offense under subsection (a) by reasons of States’, when used in a geographic sense, has humane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments subsection (c)(3) with respect to— the meaning given that term in section ‘‘(A) collateral damage; or 1005(g) of the Detainee Treatment Act of to the Constitution of the United States. ‘‘(C) PERFORMING BIOLOGICAL EXPERI- ‘‘(B) death, damage, or injury incident to a 2005.’’. lawful attack. (b) EFFECTIVE DATE.—The amendments MENTS.—The act of a person who subjects, or ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES made by subsection (a) shall take effect on conspires or attempts to subject, one or TO PRISONER EXCHANGE.—Paragraph (1)(I) the date of the enactment of this Act, and more persons within his custody or physical does not apply to an offense under subsection shall apply to all cases, without exception, control to biological experiments without a (a) by reason of subsection (c)(3) in the case pending on or after the date of the enact- legitimate medical or dental purpose and in of a prisoner exchange during wartime.’’. ment of this Act which relate to any aspect so doing endangers the body or health of such person or persons. (b) CONSTRUCTION.—Such section is further of the detention, treatment, or trial of an amended by adding at the end the following alien detained outside the United States (as ‘‘(D) MURDER.—The act of a person who in- tentionally kills, or conspires or attempts to new subsections: that term is defined in section 2241(e)(3) of ‘‘(e) INAPPLICABILITY OF FOREIGN SOURCES kill, or kills whether intentionally or unin- title 28, United States Code (as added by sub- OF LAW IN INTERPRETATION.—No foreign tentionally in the course of committing any section (a)) since September 11, 2001. source of law shall be considered in defining other offense under this section, one or more SEC. 7. TREATY OBLIGATIONS NOT ESTAB- or interpreting the obligations of the United persons taking no active part in hostilities, LISHING GROUNDS FOR CERTAIN States under this title. including those placed out of active combat CLAIMS. ‘‘(f) NATURE OF CRIMINAL SANCTIONS.—The (a) IN GENERAL.—No person may invoke by sickness, wounds, detention, or any other criminal sanctions in this section provide the Geneva Conventions or any protocols cause. penal sanctions under the domestic law of thereto as an individually enforceable right ‘‘(E) MUTILATION OR MAIMING.—The act of a the United States for grave breaches of the in any civil action against an officer, em- person who intentionally injures, or con- international conventions done at Geneva ployee, member of the Armed Forces or an- spires or attempts to injure, or injures August 12, 1949. Such criminal sanctions do other agent of the United States Govern- whether intentionally or unintentionally in not alter the obligations of the United ment, or against the United States, for the the course of committing any other offense States under those international conven- purpose of any claim for damages for death, under this section, one or more persons tak- tions.’’. injury, or damage to property in any court of ing no active part in hostilities, including (c) PROTECTION OF CERTAIN UNITED STATES the United States or its States or territories. those placed out of active combat by sick- GOVERNMENT PERSONNEL.—Such section is This subsection does not affect the obliga- ness, wounds, detention, or any other cause, further amended by adding at the end the tions of the United States under the Geneva by disfiguring such person or persons by any following new subsection: Conventions. mutilation thereof or by permanently dis- ‘‘(g) PROTECTION OF CERTAIN UNITED (b) GENEVA CONVENTIONS DEFINED.—In this abling any member, limb, or organ of the STATES GOVERNMENT PERSONNEL.—The provi- section, the term ‘‘Geneva conventions’’ body of such person or persons, without any sions of section 1004 of the Detainee Treat- means— legitimate medical or dental purpose. ment Act of 2005 (42 U.S.C. 2000dd–1) shall (1) the Convention for the Amelioration of ‘‘(F) INTENTIONALLY CAUSING SERIOUS BOD- apply with respect to any criminal prosecu- the Condition of the Wounded and Sick in ILY INJURY.—The act of a person who inten- tion relating to the detention and interroga- Armed Forces in the Field, done at Geneva tionally causes, or conspires or attempts to tion of individuals described in such provi- August 12, 1949 (6 UST 3114); cause, serious bodily injury to one or more sions that is grounded in an offense under

VerDate Aug 31 2005 04:27 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00096 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.079 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10319

subsection (a) by reason of subsection (c)(3) (2) ELEMENTS.—In addition to any other (ii) the rendition process, including the lo- with respect to actions occurring between matter necessary to keep the congressional cations and custody from, through, and to September 11, 2001, and December 30, 2005.’’. intelligence committees fully and currently which the detainee was rendered; and SEC. 9. DETENTION COVERED BY REVIEW OF DE- informed about the detention and interroga- (iii) the knowledge, participation, and ap- CISIONS OF COMBATANT STATUS RE- tion program of the Central Intelligence proval of foreign governments in the ren- VIEW TRIBUNALS OF PROPRIETY OF Agency, each report under paragraph (1) dition process. DETENTION. shall include (but not be limited to), for the (E) For each detainee who was rendered or Section 1005(e)(2)(B)(i) of the Detainee period covered by such report, the following: otherwise transferred to the custody of an- Treatment Act of 2005 (title X of Public Law (A) A description of any detention facility other nation during or before the preceding 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is operated or used by the Central Intelligence three months— amended by striking ‘‘the Department of De- Agency. (i) the knowledge of the United States Gov- fense at Guantanamo Bay, Cuba’’ and insert- (B) A description of the detainee popu- ernment, if any, concerning the subsequent ing ‘‘the United States’’. lation, including— treatment of the detainee and the efforts SEC. 10. SEVERABILITY. (i) the name of each detainee; made by the United States Government to If any provision of this Act or amendment (ii) where each detainee was apprehended; obtain that information; made by a provision of this Act, or the appli- (iii) the suspected activities on the basis of (ii) the requests made by United States in- cation of such provision or amendment to which each detainee is being held; and telligence agencies to foreign governments any person or circumstance, is held to be un- (iv) where each detainee is being held. for information to be obtained from the de- constitutional, the remainder of this Act and (C) A description of each interrogation tainee; the amendments made by this Act, and the technique authorized for use and guidelines (iii) the information provided to United application of such provisions and amend- on the use of each such technique. States intelligence agencies by foreign gov- ments to any other person or circumstance, (D) A description of each legal opinion of ernments relating to the interrogation of the shall not be affected thereby. the Department of Justice and the General detainee; Counsel of the Central Intelligence Agency (iv) the current status of the detainee; SA 5076. Mr. DURBIN submitted an that is applicable to the detention and inter- (v) the status of any parliamentary, judi- amendment intended to be proposed to rogation program. cial, or other investigation about the ren- amendment SA 5036 proposed by Mr. (E) The actual use of interrogation tech- dition or other transfer; and FRIST to the bill H.R. 6061, to establish niques. (vi) any other information about potential operational control over the inter- (F) A description of the intelligence ob- risks to United States interests resulting national and maritime borders of the tained as a result of the interrogation tech- from the rendition or other transfer. niques utilized. United States, which was ordered to lie (c) CIA INSPECTOR GENERAL AND GENERAL (G) Any violation of law or abuse under the COUNSEL REPORTS.— on the table; as follows; detention and interrogation program by Cen- (1) ANNUAL REPORTS REQUIRED.—Not later On page ll, between lines lll and tral Intelligence Agency personnel, other than one year after the date of the enact- lll and insert the following: United States Government personnel or con- ment of this Act, and annually thereafter, (3) EXCEPTION TO RETROACTIVE APPLICA- tractors, or anyone else associated with the the Inspector General of the Central Intel- BILITY.—Notwithstanding paragraph (2), the program. ligence Agency and the General Counsel of amendments made by this subsection shall (H) An assessment of the effectiveness of the Central Intelligence Agency shall each take effect with respect to any individual ap- the detention and interrogation program. submit to the congressional intelligence pointed by the President to a position in any (I) An appendix containing all guidelines committees a report on the detention, inter- agency or department of the United States and legal opinions applicable to the deten- rogation and rendition programs of the Cen- on the date of the enactment of this Act tion and interrogation program, if not in- tral Intelligence Agency during the pre- cluded in a previous report under this sub- ceding year. SA 5077. Mr. BYRD submitted an section. (2) ELEMENTS.—Each report under para- amendment intended to be proposed to (b) DIRECTOR OF CENTRAL INTELLIGENCE graph (1) shall include, for the period covered amendment SA 5036 proposed by Mr. AGENCY REPORTS ON DISPOSITION OF DETAIN- by such report, the following: FRIST to the bill H.R. 6061, to establish EES.— (A) An assessment of the adherence of the operational control over the inter- (1) QUARTERLY REPORTS REQUIRED.—Not Central Intelligence Agency to any applica- national land and maritime borders of later than three months after the date of the ble law in the conduct of the detention, in- terrogation, and rendition programs of the the United States; which was ordered enactment of this Act, and every three months thereafter, the Director of the Cen- Central Intelligence Agency. to lie in the table; as follows: tral Intelligence Agency shall submit to the (B) Any violations of law or other abuse on On page 5, line 19, add at the end the fol- congressional intelligence committees a re- the part of personnel of the Central Intel- lowing: ‘‘The authority of the President to port on the detainees who, during the pre- ligence Agency, other United States Govern- establish new military commissions under ceding three months, were transferred out of ment personnel or contractors, or anyone this section shall expire on December 31, the detention program of the Central Intel- else associated with the detention, interro- 2011. However, the expiration of that author- ligence Agency. gation, and rendition programs of the Cen- ity shall not be construed to prohibit the (2) ELEMENTS.—In addition to any other tral Intelligence Agency in the conduct of conduct to finality of any proceedings of a matter necessary to keep the congressional such programs. military commission established under this intelligence committees fully and currently (C) An assessment of the effectiveness of section before that date.’’. informed about transfers out of the deten- the detention, interrogation, and rendition tion program of the Central Intelligence programs of the Central Intelligence Agency. SA 5078. Mr. ROCKEFELLER sub- Agency, each report under paragraph (1) (D) Any recommendations to ensure that mitted an amendment intended to be shall include (but not be limited to), for the the detention, interrogation, and rendition proposed to amendment SA 5036 pro- period covered by such report, the following: programs of the Central Intelligence Agency posed by Mr. FRIST to the bill H.R. 6061, (A) For each detainee who was transferred are conducted in a lawful and effective man- to establish operational control over to the custody of the Department of Defense ner. the international land and maritime for prosecution before a military commis- (3) CONSTRUCTION OF REPORTING REQUIRE- MENT.—Nothing in this subsection shall be borders of the United States; which sion, the name of the detainee and a descrip- tion of the activities that may be the subject construed to modify the authority and re- was ordered to lie on the table; as fol- of the prosecution. porting obligations of the Inspector General lows: (B) For each detainee who was transferred of the Central Intelligence Agency under sec- At the end, add the following: to the custody of the Department of Defense tion 17 of the Central Intelligence Agency SEC. 11. OVERSIGHT OF CENTRAL INTELLIGENCE for any other purpose, the name of the de- Act of 1949 (50 U.S.C. 403q) or any other law. AGENCY PROGRAMS. tainee and the purpose of the transfer. (d) CERTIFICATION OF COMPLIANCE.—Not (a) DIRECTOR OF CENTRAL INTELLIGENCE (C) For each detainee who was transferred later than three months after the date of the AGENCY REPORTS ON DETENTION AND INTERRO- to the custody of the Attorney General for enactment of this Act, and promptly upon GATION PROGRAM.— prosecution in a United States district court, any subsequent approval of interrogation (1) QUARTERLY REPORTS REQUIRED.—Not the name of the detainee and a description of techniques for use by the Central Intel- later than three months after the date of the the activities that may be the subject of the ligence Agency, the Attorney General shall enactment of this Act, and every three prosecution. submit to the congressional intelligence months thereafter, the Director of the Cen- (D) For each detainee who was rendered or committees— tral Intelligence Agency shall submit to the otherwise transferred to the custody of an- (1) an unclassified certification whether or congressional intelligence committees a re- other nation— not each approved interrogation technique port on the detention and interrogation pro- (i) the name of the detainee and a descrip- complies with the Constitution of the United gram of the Central Intelligence Agency dur- tion of the suspected terrorist activities of States and all applicable treaties, statutes, ing the preceding three months. the detainee; Executive orders, and regulations; and

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00097 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.079 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10320 CONGRESSIONAL RECORD — SENATE September 27, 2006 (2) an explanation of why each approved the following: ‘‘effective prevention of un- (A) the United States has historically in- technique complies with the Constitution of lawful entries into the United States, includ- terpreted the law of war and the Geneva Con- the United States and all applicable treaties, ing entries by terrorists, other unlawful ventions, including in particular common statutes, Executive orders, and regulations. aliens, instruments of terrorism, narcotics, Article 3, to prohibit a wide variety of cruel, (e) FORM OF REPORTS.—Except as provided and other contraband, as determined by the inhuman, and degrading treatment of mem- in subsection (d)(1), each report under this Secretary of Homeland Security.’’. bers of the United States Armed Forces and section shall be submitted in classified form. United States persons; (f) AVAILABILITY OF REPORTS.—Each report SA 5081. Mr. SPECTER submitted an (B) during and following previous armed under this section shall be fully accessible by amendment intended to be proposed to conflicts, the United States Government has each member of the congressional intel- amendment SA 5036 proposed by Mr. prosecuted persons for engaging in cruel, in- ligence committees. FRIST to the bill H.R. 6061, to establish human, and degrading treatment, including (g) DEFINITIONS.—In this section: operational control over the inter- the use of waterboarding techniques, stress (1) CONGRESSIONAL INTELLIGENCE COMMIT- positions, including prolonged standing, the TEES.—The term ‘‘congressional intelligence national land and maritime borders of the United States; which was ordered use of extreme temperatures, beatings, sleep committees’’ means— deprivation, and other similar acts; (A) the Select Committee on Intelligence to lie on the table; as follows: (C) this Act and the amendments made by of the Senate; and On page 93, strike line 5 and all that fol- this Act preserve the capacity of the United (B) the Permanent Select Committee on lows through page 94, line 9. States to prosecute nationals of enemy pow- Intelligence of the House of Representatives. ers for engaging in acts against members of (2) LAW.—The term ‘‘law’’ includes the SA 5082. Mr. SPECTER (for himself, the United States Armed Forces and United Constitution of the United States and any Mr. LEAHY, and Mr. SMITH) submitted States persons that have been prosecuted by applicable treaty, statute, Executive order, an amendment intended to be proposed the United States as war crimes in the past; or regulation. to amendment SA 5036 proposed by Mr. and SA 5079. Mr. ROCKEFELLER sub- FRIST to the bill H.R. 6061, to establish (D) should any United States person be mitted an amendment intended to be operational control over the inter- subjected to the following acts, without lim- itation, under circumstances in which the proposed to amendment SA 5036 pro- national land and maritime borders of the United States; which was ordered Geneva Conventions are applicable, the posed by Mr. FRIST to the bill H.R. 6061, United States would consider such acts to to establish operational control over to lie on the table; as follows: constitute punishable offenses under com- the international land and maritime On page 94, line 2, strike the quotation mon Article 3 and would act accordingly: borders of the United States; which marks and the second period and insert the forcing the person to be naked, perform sex- was ordered to lie on the table; as fol- following: ual acts, or pose in a sexual manner; apply- ‘‘(3)(A) Paragraph (1) shall not apply to an ing beatings, electric shocks, burns, or other lows: application for a writ of habeas corpus chal- At the end, add the following: forms of physical pain to the person; lenging the legality of the detention of an waterboarding the person; using dogs on the SEC. 11. DEADLINE FOR TRANSFER OF DETAIN- alien described in paragraph (1), including a EES HELD BY THE CENTRAL INTEL- person; inducing hypothermia or heat injury claim of innocence, filed by or on behalf of in the person; conducting a mock execution LIGENCE AGENCY. such an alien who has been detained by the (a) DEADLINE FOR TRANSFER.—Except as of the person; and depriving the person of United States for longer than 1 year. necessary food, water, or medical care. provided in subsection (b), not later than one ‘‘(B) No second or successive application year after the commencement of the deten- for a writ of habeas corpus may be filed by or tion of an individual by the Central Intel- SA 5085. Mr. FRIST proposed an on behalf of an alien described in paragraph ligence Agency, the Director of the Central amendment to the bill S. 3930, to au- (1).’’. Intelligence Agency shall— thorize trial by military commission (1) transfer the individual to the custody of SA 5083. Mr. KENNEDY submitted an for violations of the law of war, and for the Department of Defense for prosecution amendment intended to be proposed to other purposes; as follows: before a military commission or for any Strike all after the enacting clause and in- other lawful purpose for which the Depart- amendment SA 5036 proposed by Mr. sert the following: ment of Defense may hold the individual; FRIST to the bill H.R. 6061, to establish (2) transfer the individual to the Attorney operational control over the inter- SECTION 1. SHORT TITLE; TABLE OF CONTENTS. General for prosecution in a United States national land and maritime borders of (a) SHORT TITLE.—This Act may be cited as district court; or the United States; which was ordered the ‘‘Military Commissions Act of 2006’’. (b) TABLE OF CONTENTS.—The table of con- (3) transfer the individual to a foreign na- to lie on the table; as follows: tion in a manner consistent with the treaty tents for this Act is as follows: On page 94, strike lines 10 through 12 and Sec. 1. Short title; table of contents. obligations of the United States. insert the following: (b) EXTENSION.—The President may extend Sec. 2. Construction of Presidential author- the period otherwise provided by subsection SEC. 8. REVISIONS TO DETAINEE TREATMENT ity to establish military com- ACT OF 2005. (a), as previously extended (if at all) under missions. (a) PERMISSIBLE INTERROGATION TECH- this subsection, for the transfer of an indi- Sec. 3. Military commissions. NIQUES.— vidual under this section by an additional Sec. 4. Amendments to Uniform Code of (1) IN GENERAL.—Section 1002 of the De- period of 180 days if the President submits to Military Justice. tainee Treatment Act of 2005 (title X of Pub- the congressional intelligence committees a Sec. 5. Treaty obligations not establishing classified certification that it is in the na- lic Law 109–148; 119 Stat. 2739; 10 U.S.C. 801 grounds for certain claims. tional security interest of the United States note) is amended by striking ‘‘Department of Sec. 6. Implementation of treaty obliga- to retain the individual in the custody of the Defense’’ each place it appears in subsections tions. Central Intelligence Agency for such addi- (a) and (b) and inserting ‘‘United States Gov- Sec. 7. Habeas corpus matters. tional period. A separate certification shall ernment’’. Sec. 8. Revisions to Detainee Treatment Act be submitted with respect to each extension (2) CONFORMING AMENDMENT.—The heading of 2005 relating to protection of under this subsection. of such section is amended to read as follows: certain United States Govern- (c) CONGRESSIONAL INTELLIGENCE COMMIT- ‘‘SEC. 1002. UNIFORM STANDARDS FOR THE IN- ment personnel. TEES DEFINED.—In this section, the term TERROGATION OF PERSONS UNDER Sec. 9. Review of judgments of military ‘‘congressional intelligence committees’’ THE DETENTION OF THE UNITED commissions. means— STATES GOVERNMENT.’’. Sec. 10. Detention covered by review of deci- (1) the Select Committee on Intelligence of sions of Combatant Status Re- the Senate; and SA 5084. Mr. KENNEDY submitted an view Tribunals of propriety of (2) the Permanent Select Committee on In- amendment intended to be proposed to detention. telligence of the House of Representatives. amendment SA 5036 proposed by Mr. SEC. 2. CONSTRUCTION OF PRESIDENTIAL AU- FRIST to the bill H.R. 6061, to establish THORITY TO ESTABLISH MILITARY SA 5080. Mr. MARTINEZ submitted operational control over the inter- COMMISSIONS. The authority to establish military com- an amendment intended to be proposed national land and maritime borders of to amendment SA 5036 proposed by Mr. missions under chapter 47A of title 10, the United States; which was ordered United States Code, as added by section 3(a), FRIST to the bill H.R. 6061, to establish to lie on the table; as follows: operational control over the inter- may not be construed to alter or limit the On page 83, between lines 8 and 9, insert authority of the President under the Con- national land and maritime borders of the following: stitution of the United States and laws of the United States; which was ordered (2) PROTECTION OF UNITED STATES PER- the United States to establish military com- to lie on the table; as follows: SONS.—The Secretary of State shall notify missions for areas declared to be under mar- On page 2, line 18, strike ‘‘prevention’’ and other parties to the Geneva Conventions tial law or in occupied territories should cir- all that follows through line 21, and insert that— cumstances so require.

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00098 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.110 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10321 SEC. 3. MILITARY COMMISSIONS. commissions to try alien unlawful enemy under that chapter shall have jurisdiction to (a) MILITARY COMMISSIONS.— combatants engaged in hostilities against try a lawful enemy combatant for any of- (1) IN GENERAL.—Subtitle A of title 10, the United States for violations of the law of fense made punishable under this chapter. United States Code, is amended by inserting war and other offenses triable by military ‘‘(c) DETERMINATION OF UNLAWFUL ENEMY after chapter 47 the following new chapter: commission. COMBATANT STATUS DISPOSITIVE.—A finding, ‘‘CHAPTER 47A—MILITARY COMMISSIONS ‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS whether before, on, or after the date of the ‘‘Subchapter UNDER THIS CHAPTER.—The President is au- enactment of the Military Commissions Act ‘‘I. General Provisions ...... 948a thorized to establish military commissions of 2006, by a Combatant Status Review Tri- ‘‘II. Composition of Military Com- under this chapter for offenses triable by bunal or another competent tribunal estab- missions ...... 948h military commission as provided in this lished under the authority of the President ‘‘III. Pre-Trial Procedure ...... 948q chapter. or the Secretary of Defense that a person is ‘‘IV. Trial Procedure ...... 949a ‘‘(c) CONSTRUCTION OF PROVISIONS.—The an unlawful enemy combatant is dispositive ‘‘V. Sentences ...... 949s procedures for military commissions set for purposes of jurisdiction for trial by mili- ‘‘VI. Post-Trial Procedure and Re- forth in this chapter are based upon the pro- tary commission under this chapter. view of Military Commissions ..... 950a cedures for trial by general courts-martial ‘‘(d) PUNISHMENTS.—A military commission ‘‘VII. Punitive Matters ...... 950p under chapter 47 of this title (the Uniform under this chapter may, under such limita- ‘‘SUBCHAPTER I—GENERAL PROVISIONS Code of Military Justice). Chapter 47 of this tions as the Secretary of Defense may pre- ‘‘Sec. title does not, by its terms, apply to trial by scribe, adjudge any punishment not forbid- ‘‘948a. Definitions. military commission except as specifically den by this chapter, including the penalty of ‘‘948b. Military commissions generally. provided in this chapter. The judicial con- death when authorized under this chapter or ‘‘948c. Persons subject to military commis- struction and application of that chapter are the law of war. sions. not binding on military commissions estab- ‘‘948d. Jurisdiction of military commissions. ‘‘§ 948e. Annual report to congressional com- ‘‘948e. Annual report to congressional com- lished under this chapter. mittees ‘‘(d) INAPPLICABILITY OF CERTAIN PROVI- mittees. NNUAL EPORT EQUIRED SIONS.—(1) The following provisions of this ‘‘(a) A R R .—Not later ‘‘§ 948a. Definitions title shall not apply to trial by military than December 31 each year, the Secretary of ‘‘In this chapter: commission under this chapter: Defense shall submit to the Committees on ‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) ‘‘(A) Section 810 (article 10 of the Uniform Armed Services of the Senate and the House The term ‘unlawful enemy combatant’ Code of Military Justice), relating to speedy of Representatives a report on any trials means— trial, including any rule of courts-martial conducted by military commissions under ‘‘(i) a person who has engaged in hostilities relating to speedy trial. this chapter during such year. or who has purposefully and materially sup- ‘‘(B) Sections 831(a), (b), and (d) (articles ‘‘(b) FORM.—Each report under this section ported hostilities against the United States 31(a), (b), and (d) of the Uniform Code of shall be submitted in unclassified form, but or its co-belligerents who is not a lawful Military Justice), relating to compulsory may include a classified annex. enemy combatant (including a person who is self-incrimination. ‘‘SUBCHAPTER II—COMPOSITION OF part of the Taliban, al Qaeda, or associated ‘‘(C) Section 832 (article 32 of the Uniform MILITARY COMMISSIONS forces); or Code of Military Justice), relating to pre- ‘‘Sec. ‘‘(ii) a person who, before, on, or after the trial investigation. ‘‘948h. Who may convene military commis- date of the enactment of the Military Com- ‘‘(2) Other provisions of chapter 47 of this sions. missions Act of 2006, has been determined to title shall apply to trial by military commis- ‘‘948i. Who may serve on military commis- be an unlawful enemy combatant by a Com- sion under this chapter only to the extent sions. batant Status Review Tribunal or another provided by this chapter. ‘‘948j. Military judge of a military commis- competent tribunal established under the au- ‘‘(e) TREATMENT OF RULINGS AND PRECE- sion. thority of the President or the Secretary of DENTS.—The findings, holdings, interpreta- ‘‘948k. Detail of trial counsel and defense Defense. tions, and other precedents of military com- counsel. ‘‘(B) CO-BELLIGERENT.—In this paragraph, missions under this chapter may not be in- ‘‘948l. Detail or employment of reporters and the term ‘co-belligerent’, with respect to the troduced or considered in any hearing, trial, interpreters. United States, means any State or armed or other proceeding of a court-martial con- ‘‘948m. Number of members; excuse of mem- force joining and directly engaged with the vened under chapter 47 of this title. The find- United States in hostilities or directly sup- bers; absent and additional ings, holdings, interpretations, and other members. porting hostilities against a common enemy. precedents of military commissions under ‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘‘§ 948h. Who may convene military commis- this chapter may not form the basis of any ‘lawful enemy combatant’ means a person sions holding, decision, or other determination of who is— a court-martial convened under that chap- ‘‘Military commissions under this chapter ‘‘(A) a member of the regular forces of a ter. may be convened by the Secretary of Defense State party engaged in hostilities against ‘‘(f) STATUS OF COMMISSIONS UNDER COM- or by any officer or official of the United the United States; MON ARTICLE 3.—A military commission es- States designated by the Secretary for that ‘‘(B) a member of a militia, volunteer tablished under this chapter is a regularly purpose. corps, or organized resistance movement be- constituted court, affording all the necessary ‘‘§ 948i. Who may serve on military commis- longing to a State party engaged in such ‘judicial guarantees which are recognized as sions hostilities, which are under responsible com- indispensable by civilized peoples’ for pur- mand, wear a fixed distinctive sign recogniz- ‘‘(a) IN GENERAL.—Any commissioned offi- poses of common Article 3 of the Geneva able at a distance, carry their arms openly, cer of the armed forces on active duty is eli- Conventions. and abide by the law of war; or gible to serve on a military commission ‘‘(g) GENEVA CONVENTIONS NOT ESTAB- ‘‘(C) a member of a regular armed force under this chapter. LISHING SOURCE OF RIGHTS.—No alien unlaw- who professes allegiance to a government en- ‘‘(b) DETAIL OF MEMBERS.—When convening ful enemy combatant subject to trial by gaged in such hostilities, but not recognized a military commission under this chapter, military commission under this chapter may by the United States. the convening authority shall detail as mem- invoke the Geneva Conventions as a source ‘‘(3) ALIEN.—The term ‘alien’ means a per- bers of the commission such members of the of rights. son who is not a citizen of the United States. armed forces eligible under subsection (a), as ‘‘(4) CLASSIFIED INFORMATION.—The term ‘‘§ 948c. Persons subject to military commis- in the opinion of the convening authority, ‘classified information’ means the following: sions are best qualified for the duty by reason of ‘‘(A) Any information or material that has ‘‘Any alien unlawful enemy combatant is age, education, training, experience, length been determined by the United States Gov- subject to trial by military commission of service, and judicial temperament. No ernment pursuant to statute, Executive under this chapter. member of an armed force is eligible to serve order, or regulation to require protection ‘‘§ 948d. Jurisdiction of military commissions as a member of a military commission when such member is the accuser or a witness for against unauthorized disclosure for reasons ‘‘(a) JURISDICTION.—A military commission the prosecution or has acted as an investi- of national security. under this chapter shall have jurisdiction to gator or counsel in the same case. ‘‘(B) Any restricted data, as that term is try any offense made punishable by this ‘‘(c) EXCUSE OF MEMBERS.—Before a mili- defined in section 11 y. of the Atomic Energy chapter or the law of war when committed tary commission under this chapter is as- Act of 1954 (42 U.S.C. 2014(y)). by an alien unlawful enemy combatant be- sembled for the trial of a case, the convening ‘‘(5) GENEVA CONVENTIONS.—The term ‘Ge- fore, on, or after September 11, 2001. authority may excuse a member from par- neva Conventions’ means the international ‘‘(b) LAWFUL ENEMY COMBATANTS.—Mili- ticipating in the case. conventions signed at Geneva on August 12, tary commissions under this chapter shall 1949. not have jurisdiction over lawful enemy ‘‘§ 948j. Military judge of a military commis- ‘‘§ 948b. Military commissions generally combatants. Lawful enemy combatants who sion ‘‘(a) PURPOSE.—This chapter establishes violate the law of war are subject to chapter ‘‘(a) DETAIL OF MILITARY JUDGE.—A mili- procedures governing the use of military 47 of this title. Courts-martial established tary judge shall be detailed to each military

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00099 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.083 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10322 CONGRESSIONAL RECORD — SENATE September 27, 2006 commission under this chapter. The Sec- ‘‘(A) is a member of the bar of a Federal chapter is reduced below the number of retary of Defense shall prescribe regulations court or of the highest court of a State; and members required by subsection (a), the trial providing for the manner in which military ‘‘(B) is otherwise qualified to practice be- may not proceed unless the convening au- judges are so detailed to military commis- fore the military commission pursuant to thority details new members sufficient to sions. The military judge shall preside over regulations prescribed by the Secretary of provide not less than such number. The trial each military commission to which he has Defense. may proceed with the new members present been detailed. ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject after the recorded evidence previously intro- ‘‘(b) QUALIFICATIONS.—A military judge to subsection (e), military defense counsel duced before the members has been read to shall be a commissioned officer of the armed detailed for a military commission under the military commission in the presence of forces who is a member of the bar of a Fed- this chapter must be a judge advocate (as so the military judge, the accused (except as eral court, or a member of the bar of the defined) who is— provided in section 949d of this title), and highest court of a State, and who is certified ‘‘(1) a graduate of an accredited law school counsel for both sides. to be qualified for duty under section 826 of or is a member of the bar of a Federal court ‘‘SUBCHAPTER III—PRE-TRIAL this title (article 26 of the Uniform Code of or of the highest court of a State; and PROCEDURE Military Justice) as a military judge in gen- ‘‘(2) certified as competent to perform du- ‘‘Sec. eral courts-martial by the Judge Advocate ties as defense counsel before general courts- ‘‘948q. Charges and specifications. General of the armed force of which such martial by the Judge Advocate General of ‘‘948r. Compulsory self-incrimination prohib- military judge is a member. the armed force of which he is a member. ited; treatment of statements ‘‘(c) INELIGIBILITY OF CERTAIN INDIVID- ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE obtained by torture and other UALS.—No person is eligible to act as mili- COUNSEL.—(1) The Chief Prosecutor in a mili- statements. tary judge in a case of a military commis- tary commission under this chapter shall ‘‘948s. Service of charges. sion under this chapter if he is the accuser or meet the requirements set forth in sub- ‘‘§ 948q. Charges and specifications a witness or has acted as investigator or a section (b)(1). ‘‘(a) CHARGES AND SPECIFICATIONS.— counsel in the same case. ‘‘(2) The Chief Defense Counsel in a mili- Charges and specifications against an ac- ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI- tary commission under this chapter shall cused in a military commission under this BILITY TO VOTE.—A military judge detailed meet the requirements set forth in sub- chapter shall be signed by a person subject to a military commission under this chapter section (c)(1). to chapter 47 of this title under oath before ‘‘(e) INELIGIBILITY OF CERTAIN INDIVID- may not consult with the members of the a commissioned officer of the armed forces UALS.—No person who has acted as an inves- commission except in the presence of the ac- authorized to administer oaths and shall tigator, military judge, or member of a mili- cused (except as otherwise provided in sec- state— tary commission under this chapter in any tion 949d of this title), trial counsel, and de- ‘‘(1) that the signer has personal knowl- case may act later as trial counsel or mili- fense counsel, nor may he vote with the edge of, or reason to believe, the matters set tary defense counsel in the same case. No members of the commission. forth therein; and person who has acted for the prosecution be- ‘‘(e) OTHER DUTIES.—A commissioned offi- ‘‘(2) that they are true in fact to the best fore a military commission under this chap- cer who is certified to be qualified for duty of the signer’s knowledge and belief. ter may act later in the same case for the de- as a military judge of a military commission ‘‘(b) NOTICE TO ACCUSED.—Upon the swear- fense, nor may any person who has acted for under this chapter may perform such other ing of the charges and specifications in ac- the defense before a military commission duties as are assigned to him by or with the cordance with subsection (a), the accused under this chapter act later in the same case shall be informed of the charges against him approval of the Judge Advocate General of for the prosecution. the armed force of which such officer is a as soon as practicable. member or the designee of such Judge Advo- ‘‘§ 948l. Detail or employment of reporters ‘‘§ 948r. Compulsory self-incrimination pro- cate General. and interpreters hibited; treatment of statements obtained ‘‘(f) PROHIBITION ON EVALUATION OF FITNESS ‘‘(a) COURT REPORTERS.—Under such regu- by torture and other statements BY CONVENING AUTHORITY.—The convening lations as the Secretary of Defense may pre- ‘‘(a) IN GENERAL.—No person shall be re- authority of a military commission under scribe, the convening authority of a military quired to testify against himself at a pro- this chapter shall not prepare or review any commission under this chapter shall detail ceeding of a military commission under this report concerning the effectiveness, fitness, to or employ for the commission qualified chapter. or efficiency of a military judge detailed to court reporters, who shall make a verbatim ‘‘(b) EXCLUSION OF STATEMENTS OBTAINED the military commission which relates to his recording of the proceedings of and testi- BY TORTURE.—A statement obtained by use performance of duty as a military judge on mony taken before the commission. of torture shall not be admissible in a mili- ‘‘(b) INTERPRETERS.—Under such regula- the military commission. tary commission under this chapter, except tions as the Secretary of Defense may pre- against a person accused of torture as evi- ‘‘§ 948k. Detail of trial counsel and defense scribe, the convening authority of a military dence that the statement was made. counsel commission under this chapter may detail to ‘‘(c) STATEMENTS OBTAINED BEFORE ENACT- ‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) or employ for the military commission inter- MENT OF DETAINEE TREATMENT ACT OF 2005.— Trial counsel and military defense counsel preters who shall interpret for the commis- A statement obtained before December 30, shall be detailed for each military commis- sion and, as necessary, for trial counsel and 2005 (the date of the enactment of the De- sion under this chapter. defense counsel and for the accused. fense Treatment Act of 2005) in which the de- ‘‘(2) Assistant trial counsel and assistant ‘‘(c) TRANSCRIPT; RECORD.—The transcript gree of coercion is disputed may be admitted and associate defense counsel may be de- of a military commission under this chapter only if the military judge finds that— tailed for a military commission under this shall be under the control of the convening ‘‘(1) the totality of the circumstances ren- chapter. authority of the commission, who shall also ders the statement reliable and possessing ‘‘(3) Military defense counsel for a military be responsible for preparing the record of the sufficient probative value; and commission under this chapter shall be de- proceedings. ‘‘(2) the interests of justice would best be tailed as soon as practicable after the swear- ‘‘§ 948m. Number of members; excuse of mem- served by admission of the statement into ing of charges against the accused. bers; absent and additional members evidence. ‘‘(d) STATEMENTS OBTAINED AFTER ENACT- ‘‘(4) The Secretary of Defense shall pre- ‘‘(a) NUMBER OF MEMBERS.—(1) A military scribe regulations providing for the manner commission under this chapter shall, except MENT OF DETAINEE TREATMENT ACT OF 2005.— A statement obtained on or after December in which trial counsel and military defense as provided in paragraph (2), have at least 30, 2005 (the date of the enactment of the De- counsel are detailed for military commis- five members. sions under this chapter and for the persons ‘‘(2) In a case in which the accused before fense Treatment Act of 2005) in which the de- who are authorized to detail such counsel for a military commission under this chapter gree of coercion is disputed may be admitted only if the military judge finds that— such commissions. may be sentenced to a penalty of death, the ‘‘(1) the totality of the circumstances ren- ‘‘(b) TRIAL COUNSEL.—Subject to sub- military commission shall have the number ders the statement reliable and possessing section (e), trial counsel detailed for a mili- of members prescribed by section 949m(c) of sufficient probative value; tary commission under this chapter must this title. be— ‘‘(b) EXCUSE OF MEMBERS.—No member of a ‘‘(2) the interests of justice would best be ‘‘(1) a judge advocate (as that term is de- military commission under this chapter may served by admission of the statement into fined in section 801 of this title (article 1 of be absent or excused after the military com- evidence; and the Uniform Code of Military Justice) who— mission has been assembled for the trial of a ‘‘(3) the interrogation methods used to ob- ‘‘(A) is a graduate of an accredited law case unless excused— tain the statement do not amount to cruel, school or is a member of the bar of a Federal ‘‘(1) as a result of challenge; inhuman, or degrading treatment prohibited court or of the highest court of a State; and ‘‘(2) by the military judge for physical dis- by section 1003 of the Detainee Treatment ‘‘(B) is certified as competent to perform ability or other good cause; or Act of 2005. duties as trial counsel before general courts- ‘‘(3) by order of the convening authority ‘‘§ 948s. Service of charges martial by the Judge Advocate General of for good cause. ‘‘The trial counsel assigned to a case be- the armed force of which he is a member; or ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.— fore a military commission under this chap- ‘‘(2) a civilian who— Whenever a military commission under this ter shall cause to be served upon the accused

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00100 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.083 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10323 and military defense counsel a copy of the ‘‘(D) Evidence shall be admitted as authen- any other exercises of its or his functions in charges upon which trial is to be had. Such tic so long as— the conduct of the proceedings. charges shall be served in English and, if ap- ‘‘(i) the military judge of the military ‘‘(2) No person may attempt to coerce or, propriate, in another language that the ac- commission determines that there is suffi- by any unauthorized means, influence— cused understands. Such service shall be cient basis to find that the evidence is what ‘‘(A) the action of a military commission made sufficiently in advance of trial to pre- it is claimed to be; and under this chapter, or any member thereof, pare a defense. ‘‘(ii) the military judge instructs the mem- in reaching the findings or sentence in any ‘‘SUBCHAPTER IV—TRIAL PROCEDURE bers that they may consider any issue as to case; ‘‘Sec. authentication or identification of evidence ‘‘(B) the action of any convening, approv- ‘‘949a. Rules. in determining the weight, if any, to be ing, or reviewing authority with respect to ‘‘949b. Unlawfully influencing action of mili- given to the evidence. his judicial acts; or tary commission. ‘‘(E)(i) Except as provided in clause (ii), ‘‘(C) the exercise of professional judgment ‘‘949c. Duties of trial counsel and defense hearsay evidence not otherwise admissible by trial counsel or defense counsel. counsel. under the rules of evidence applicable in ‘‘(3) Paragraphs (1) and (2) do not apply ‘‘949d. Sessions. trial by general courts-martial may be ad- with respect to— ‘‘949e. Continuances. mitted in a trial by military commission if ‘‘(A) general instructional or informational ‘‘949f. Challenges. the proponent of the evidence makes known courses in military justice if such courses ‘‘949g. Oaths. to the adverse party, sufficiently in advance are designed solely for the purpose of in- ‘‘949h. Former jeopardy. to provide the adverse party with a fair op- structing members of a command in the sub- ‘‘949i. Pleas of the accused. portunity to meet the evidence, the inten- stantive and procedural aspects of military ‘‘949j. Opportunity to obtain witnesses and tion of the proponent to offer the evidence, commissions; or other evidence. ‘‘949k. Defense of lack of mental responsi- and the particulars of the evidence (includ- ‘‘(B) statements and instructions given in bility. ing information on the general cir- open proceedings by a military judge or ‘‘949l. Voting and rulings. cumstances under which the evidence was counsel. ‘‘949m. Number of votes required. obtained). The disclosure of evidence under ‘‘(b) PROHIBITION ON CONSIDERATION OF AC- ‘‘949n. Military commission to announce ac- the preceding sentence is subject to the re- TIONS ON COMMISSION IN EVALUATION OF FIT- tion. quirements and limitations applicable to the NESS.—In the preparation of an effectiveness, ‘‘949o. Record of trial. disclosure of classified information in sec- fitness, or efficiency report or any other re- ‘‘§ 949a. Rules tion 949j(c) of this title. port or document used in whole or in part for ‘‘(ii) Hearsay evidence not otherwise ad- the purpose of determining whether a com- ‘‘(a) PROCEDURES AND RULES OF EVI- missible under the rules of evidence applica- missioned officer of the armed forces is DENCE.—Pretrial, trial, and post-trial proce- qualified to be advanced in grade, or in de- dures, including elements and modes of ble in trial by general courts-martial shall termining the assignment or transfer of any proof, for cases triable by military commis- not be admitted in a trial by military com- such officer or whether any such officer sion under this chapter may be prescribed by mission if the party opposing the admission should be retained on active duty, no person the Secretary of Defense, in consultation of the evidence demonstrates that the evi- may— with the Attorney General. Such procedures dence is unreliable or lacking in probative ‘‘(1) consider or evaluate the performance shall, so far as the Secretary considers prac- value. of duty of any member of a military commis- ticable or consistent with military or intel- ‘‘(F) The military judge shall exclude any sion under this chapter; or ligence activities, apply the principles of law evidence the probative value of which is sub- ‘‘(2) give a less favorable rating or evalua- and the rules of evidence in trial by general stantially outweighed— tion to any commissioned officer because of courts-martial. Such procedures and rules of ‘‘(i) by the danger of unfair prejudice, con- the zeal with which such officer, in acting as evidence may not be contrary to or incon- fusion of the issues, or misleading the com- counsel, represented any accused before a sistent with this chapter. mission; or military commission under this chapter. ‘‘(b) RULES FOR MILITARY COMMISSION.—(1) ‘‘(ii) by considerations of undue delay, Notwithstanding any departures from the waste of time, or needless presentation of cu- ‘‘§ 949c. Duties of trial counsel and defense law and the rules of evidence in trial by gen- mulative evidence. counsel ‘‘(3)(A) The accused in a military commis- eral courts-martial authorized by subsection ‘‘(a) TRIAL COUNSEL.—The trial counsel of a (a), the procedures and rules of evidence in sion under this chapter who exercises the military commission under this chapter trials by military commission under this right to self-representation under paragraph shall prosecute in the name of the United chapter shall include the following: (1)(D) shall conform his deportment and the States. conduct of the defense to the rules of evi- ‘‘(A) The accused shall be permitted to ‘‘(b) DEFENSE COUNSEL.—(1) The accused present evidence in his defense, to cross-ex- dence, procedure, and decorum applicable to shall be represented in his defense before a amine the witnesses who testify against him, trials by military commission. military commission under this chapter as ‘‘(B) Failure of the accused to conform to and to examine and respond to evidence ad- provided in this subsection. mitted against him on the issue of guilt or the rules described in subparagraph (A) may ‘‘(2) The accused shall be represented by innocence and for sentencing, as provided for result in a partial or total revocation by the military counsel detailed under section 948k by this chapter. military judge of the right of self-representa- of this title. ‘‘(B) The accused shall be present at all tion under paragraph (1)(D). In such case, the ‘‘(3) The accused may be represented by ci- sessions of the military commission (other detailed defense counsel of the accused or an vilian counsel if retained by the accused, but than those for deliberations or voting), ex- appropriately authorized civilian counsel only if such civilian counsel— cept when excluded under section 949d of this shall perform the functions necessary for the ‘‘(A) is a United States citizen; title. defense. ‘‘(B) is admitted to the practice of law in a ‘‘(c) DELEGATION OF AUTHORITY TO PRE- ‘‘(C) The accused shall receive the assist- State, district, or possession of the United SCRIBE REGULATIONS.—The Secretary of De- ance of counsel as provided for by section States or before a Federal court; fense may delegate the authority of the Sec- 948k. ‘‘(C) has not been the subject of any sanc- retary to prescribe regulations under this ‘‘(D) The accused shall be permitted to rep- tion of disciplinary action by any court, bar, chapter. resent himself, as provided for by paragraph or other competent governmental authority ‘‘(d) NOTIFICATION TO CONGRESSIONAL COM- (3). for relevant misconduct; MITTEES OF CHANGES TO PROCEDURES.—Not ‘‘(2) In establishing procedures and rules of ‘‘(D) has been determined to be eligible for later than 60 days before the date on which evidence for military commission pro- access to classified information that is clas- any proposed modification of the procedures ceedings, the Secretary of Defense may pre- sified at the level Secret or higher; and in effect for military commissions under this scribe the following provisions: ‘‘(E) has signed a written agreement to chapter goes into effect, the Secretary of De- ‘‘(A) Evidence shall be admissible if the comply with all applicable regulations or in- fense shall submit to the Committee on military judge determines that the evidence structions for counsel, including any rules of Armed Services of the Senate and the Com- would have probative value to a reasonable court for conduct during the proceedings. mittee on Armed Services of the House of person. ‘‘(4) Civilian defense counsel shall protect Representatives a report describing the ‘‘(B) Evidence shall not be excluded from any classified information received during modification. trial by military commission on the grounds the course of representation of the accused that the evidence was not seized pursuant to ‘‘§ 949b. Unlawfully influencing action of mili- in accordance with all applicable law gov- a search warrant or other authorization. tary commission erning the protection of classified informa- ‘‘(C) A statement of the accused that is ‘‘(a) IN GENERAL.—(1) No authority con- tion and may not divulge such information otherwise admissible shall not be excluded vening a military commission under this to any person not authorized to receive it. from trial by military commission on chapter may censure, reprimand, or admon- ‘‘(5) If the accused is represented by civil- grounds of alleged coercion or compulsory ish the military commission, or any member, ian counsel, detailed military counsel shall self-incrimination so long as the evidence military judge, or counsel thereof, with re- act as associate counsel. complies with the provisions of section 948r spect to the findings or sentence adjudged by ‘‘(6) The accused is not entitled to be rep- of this title. the military commission, or with respect to resented by more than one military counsel.

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However, the person authorized under regu- ‘‘(f) PROTECTION OF CLASSIFIED INFORMA- regulations, consistent with this subsection, lations prescribed under section 948k of this TION.— for the use and protection of classified infor- title to detail counsel, in that person’s sole ‘‘(1) NATIONAL SECURITY PRIVILEGE.—(A) mation during proceedings of military com- discretion, may detail additional military Classified information shall be protected and missions under this chapter. A report on any counsel to represent the accused. is privileged from disclosure if disclosure regulations so prescribed, or modified, shall ‘‘(7) Defense counsel may cross-examine would be detrimental to the national secu- be submitted to the Committees on Armed each witness for the prosecution who testi- rity. The rule in the preceding sentence ap- Services of the Senate and the House of Rep- fies before a military commission under this plies to all stages of the proceedings of mili- resentatives not later than 60 days before the chapter. tary commissions under this chapter. date on which such regulations or modifica- ‘‘§ 949d. Sessions ‘‘(B) The privilege referred to in subpara- tions, as the case may be, go into effect. graph (A) may be claimed by the head of the ‘‘§ 949e. Continuances ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM- executive or military department or govern- BERS.—(1) At any time after the service of ment agency concerned based on a finding by ‘‘The military judge in a military commis- charges which have been referred for trial by the head of that department or agency sion under this chapter may, for reasonable military commission under this chapter, the that— cause, grant a continuance to any party for military judge may call the military com- ‘‘(i) the information is properly classified; such time, and as often, as may appear to be mission into session without the presence of and just. the members for the purpose of— ‘‘(ii) disclosure of the information would be ‘‘§ 949f. Challenges ‘‘(A) hearing and determining motions detrimental to the national security. ‘‘(a) CHALLENGES AUTHORIZED.—The mili- raising defenses or objections which are ca- ‘‘(C) A person who may claim the privilege tary judge and members of a military com- pable of determination without trial of the referred to in subparagraph (A) may author- mission under this chapter may be chal- issues raised by a plea of not guilty; ize a representative, witness, or trial counsel lenged by the accused or trial counsel for ‘‘(B) hearing and ruling upon any matter to claim the privilege and make the finding cause stated to the commission. The mili- which may be ruled upon by the military described in subparagraph (B) on behalf of tary judge shall determine the relevance and judge under this chapter, whether or not the such person. The authority of the represent- validity of challenges for cause. The military matter is appropriate for later consideration ative, witness, or trial counsel to do so is judge may not receive a challenge to more or decision by the members; presumed in the absence of evidence to the than one person at a time. Challenges by ‘‘(C) if permitted by regulations prescribed contrary. trial counsel shall ordinarily be presented by the Secretary of Defense, receiving the ‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA- and decided before those by the accused are pleas of the accused; and TION.— offered. ‘‘(D) performing any other procedural func- ‘‘(A) ALTERNATIVES TO DISCLOSURE.—To ‘‘(b) PEREMPTORY CHALLENGES.—Each ac- tion which may be performed by the military protect classified information from disclo- cused and the trial counsel are entitled to judge under this chapter or under rules pre- sure, the military judge, upon motion of one peremptory challenge. The military scribed pursuant to section 949a of this title trial counsel, shall authorize, to the extent judge may not be challenged except for and which does not require the presence of practicable— cause. the members. ‘‘(i) the deletion of specified items of clas- ‘‘(c) CHALLENGES AGAINST ADDITIONAL ‘‘(2) Except as provided in subsections (c) sified information from documents to be in- MEMBERS.—Whenever additional members and (e), any proceedings under paragraph (1) troduced as evidence before the military are detailed to a military commission under shall— commission; this chapter, and after any challenges for ‘‘(A) be conducted in the presence of the ‘‘(ii) the substitution of a portion or sum- cause against such additional members are accused, defense counsel, and trial counsel; mary of the information for such classified presented and decided, each accused and the and documents; or trial counsel are entitled to one peremptory ‘‘(B) be made part of the record. ‘‘(iii) the substitution of a statement of challenge against members not previously ‘‘(b) PROCEEDINGS IN PRESENCE OF AC- relevant facts that the classified information subject to peremptory challenge. CUSED.—Except as provided in subsections (c) would tend to prove. and (e), all proceedings of a military com- ‘‘(B) PROTECTION OF SOURCES, METHODS, OR ‘‘§ 949g. Oaths mission under this chapter, including any ACTIVITIES.—The military judge, upon mo- ‘‘(a) IN GENERAL.—(1) Before performing consultation of the members with the mili- tion of trial counsel, shall permit trial coun- their respective duties in a military commis- tary judge or counsel, shall— sel to introduce otherwise admissible evi- sion under this chapter, military judges, ‘‘(1) be in the presence of the accused, de- dence before the military commission, while members, trial counsel, defense counsel, re- fense counsel, and trial counsel; and protecting from disclosure the sources, porters, and interpreters shall take an oath ‘‘(2) be made a part of the record. methods, or activities by which the United to perform their duties faithfully. ‘‘(c) DELIBERATION OR VOTE OF MEMBERS.— States acquired the evidence if the military ‘‘(2) The form of the oath required by para- When the members of a military commission judge finds that (i) the sources, methods, or graph (1), the time and place of the taking under this chapter deliberate or vote, only activities by which the United States ac- thereof, the manner of recording the same, the members may be present. quired the evidence are classified, and (ii) and whether the oath shall be taken for all ‘‘(d) CLOSURE OF PROCEEDINGS.—(1) The the evidence is reliable. The military judge cases in which duties are to be performed or military judge may close to the public all or may require trial counsel to present to the for a particular case, shall be as prescribed part of the proceedings of a military com- military commission and the defense, to the in regulations of the Secretary of Defense. mission under this chapter, but only in ac- extent practicable and consistent with na- Those regulations may provide that— cordance with this subsection. tional security, an unclassified summary of ‘‘(A) an oath to perform faithfully duties ‘‘(2) The military judge may close to the the sources, methods, or activities by which as a military judge, trial counsel, or defense public all or a portion of the proceedings the United States acquired the evidence. counsel may be taken at any time by any under paragraph (1) only upon making a spe- ‘‘(C) ASSERTION OF NATIONAL SECURITY judge advocate or other person certified to cific finding that such closure is necessary PRIVILEGE AT TRIAL.—During the examina- be qualified or competent for the duty; and to— tion of any witness, trial counsel may object ‘‘(B) if such an oath is taken, such oath ‘‘(A) protect information the disclosure of to any question, line of inquiry, or motion to need not again be taken at the time the which could reasonably be expected to cause admit evidence that would require the dis- judge advocate or other person is detailed to damage to the national security, including closure of classified information. Following that duty. intelligence or law enforcement sources, such an objection, the military judge shall ‘‘(b) WITNESSES.—Each witness before a methods, or activities; or take suitable action to safeguard such classi- military commission under this chapter ‘‘(B) ensure the physical safety of individ- fied information. Such action may include shall be examined on oath. uals. the review of trial counsel’s claim of privi- ‘‘§ 949h. Former jeopardy ‘‘(3) A finding under paragraph (2) may be lege by the military judge in camera and on ‘‘(a) IN GENERAL.—No person may, without based upon a presentation, including a pres- an ex parte basis, and the delay of pro- his consent, be tried by a military commis- entation ex parte or in camera, by either ceedings to permit trial counsel to consult sion under this chapter a second time for the trial counsel or defense counsel. with the department or agency concerned as same offense. ‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN to whether the national security privilege ‘‘(b) SCOPE OF TRIAL.—No proceeding in PROCEEDINGS.—The military judge may ex- should be asserted. which the accused has been found guilty by clude the accused from any portion of a pro- ‘‘(3) CONSIDERATION OF PRIVILEGE AND RE- military commission under this chapter ceeding upon a determination that, after LATED MATERIALS.—A claim of privilege upon any charge or specification is a trial in being warned by the military judge, the ac- under this subsection, and any materials the sense of this section until the finding of cused persists in conduct that justifies exclu- submitted in support thereof, shall, upon re- guilty has become final after review of the sion from the courtroom— quest of the Government, be considered by case has been fully completed. ‘‘(1) to ensure the physical safety of indi- the military judge in camera and shall not viduals; or be disclosed to the accused. ‘‘§ 949i. Pleas of the accused ‘‘(2) to prevent disruption of the pro- ‘‘(4) ADDITIONAL REGULATIONS.—The Sec- ‘‘(a) ENTRY OF PLEA OF NOT GUILTY.—If an ceedings by the accused. retary of Defense may prescribe additional accused in a military commission under this

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00102 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.083 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10325 chapter after a plea of guilty sets up matter mission under this chapter that, at the time for an offense of which the accused has been inconsistent with the plea, or if it appears of the commission of the acts constituting found guilty; that the accused has entered the plea of the offense, the accused, as a result of a se- ‘‘(B) trial counsel expressly sought the guilty through lack of understanding of its vere mental disease or defect, was unable to penalty of death by filing an appropriate no- meaning and effect, or if the accused fails or appreciate the nature and quality or the tice in advance of trial; refuses to plead, a plea of not guilty shall be wrongfulness of the acts. Mental disease or ‘‘(C) the accused is convicted of the offense entered in the record, and the military com- defect does not otherwise constitute a de- by the concurrence of all the members mission shall proceed as though the accused fense. present at the time the vote is taken; and had pleaded not guilty. ‘‘(b) BURDEN OF PROOF.—The accused in a ‘‘(D) all the members present at the time ‘‘(b) FINDING OF GUILT AFTER GUILTY military commission under this chapter has the vote is taken concur in the sentence of PLEA.—With respect to any charge or speci- the burden of proving the defense of lack of death. fication to which a plea of guilty has been mental responsibility by clear and con- ‘‘(2) No person may be sentenced to life im- made by the accused in a military commis- vincing evidence. prisonment, or to confinement for more than sion under this chapter and accepted by the ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE- 10 years, by a military commission under military judge, a finding of guilty of the FENSE.—Whenever lack of mental responsi- this chapter except by the concurrence of charge or specification may be entered im- bility of the accused with respect to an of- three-fourths of the members present at the mediately without a vote. The finding shall fense is properly at issue in a military com- time the vote is taken. constitute the finding of the commission un- mission under this chapter, the military ‘‘(3) All other sentences shall be deter- less the plea of guilty is withdrawn prior to judge shall instruct the members of the com- mined by a military commission by the con- announcement of the sentence, in which mission as to the defense of lack of mental currence of two-thirds of the members event the proceedings shall continue as responsibility under this section and shall present at the time the vote is taken. though the accused had pleaded not guilty. charge them to find the accused— ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR ‘‘§ 949j. Opportunity to obtain witnesses and ‘‘(1) guilty; PENALTY OF DEATH.—(1) Except as provided other evidence ‘‘(2) not guilty; or in paragraph (2), in a case in which the pen- ‘‘(3) subject to subsection (d), not guilty by ‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense alty of death is sought, the number of mem- counsel in a military commission under this reason of lack of mental responsibility. bers of the military commission under this ‘‘(d) MAJORITY VOTE REQUIRED FOR FIND- chapter shall have a reasonable opportunity chapter shall be not less than 12. ING.—The accused shall be found not guilty to obtain witnesses and other evidence as ‘‘(2) In any case described in paragraph (1) by reason of lack of mental responsibility provided in regulations prescribed by the in which 12 members are not reasonably under subsection (c)(3) only if a majority of Secretary of Defense. available because of physical conditions or the members present at the time the vote is ‘‘(b) PROCESS FOR COMPULSION.—Process military exigencies, the convening authority taken determines that the defense of lack of issued in a military commission under this shall specify a lesser number of members for mental responsibility has been established. chapter to compel witnesses to appear and the military commission (but not fewer than testify and to compel the production of other ‘‘§ 949l. Voting and rulings 9 members), and the military commission evidence— ‘‘(a) VOTE BY SECRET WRITTEN BALLOT.— may be assembled, and the trial held, with ‘‘(1) shall be similar to that which courts Voting by members of a military commis- not fewer than the number of members so of the United States having criminal juris- sion under this chapter on the findings and specified. In such a case, the convening au- diction may lawfully issue; and on the sentence shall be by secret written thority shall make a detailed written state- ‘‘(2) shall run to any place where the ballot. ment, to be appended to the record, stating United States shall have jurisdiction thereof. ‘‘(b) RULINGS.—(1) The military judge in a why a greater number of members were not ‘‘(c) PROTECTION OF CLASSIFIED INFORMA- military commission under this chapter reasonably available. TION.—(1) With respect to the discovery obli- shall rule upon all questions of law, includ- ‘‘§ 949n. Military commission to announce ac- gations of trial counsel under this section, ing the admissibility of evidence and all in- the military judge, upon motion of trial terlocutory questions arising during the pro- tion counsel, shall authorize, to the extent prac- ceedings. ‘‘A military commission under this chapter ticable— ‘‘(2) Any ruling made by the military judge shall announce its findings and sentence to ‘‘(A) the deletion of specified items of clas- upon a question of law or an interlocutory the parties as soon as determined. sified information from documents to be question (other than the factual issue of ‘‘§ 949o. Record of trial mental responsibility of the accused) is con- made available to the accused; ‘‘(a) RECORD; AUTHENTICATION.—Each mili- clusive and constitutes the ruling of the ‘‘(B) the substitution of a portion or sum- tary commission under this chapter shall military commission. However, a military mary of the information for such classified keep a separate, verbatim, record of the pro- judge may change his ruling at any time dur- documents; or ceedings in each case brought before it, and ‘‘(C) the substitution of a statement admit- ing the trial. ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before the record shall be authenticated by the sig- ting relevant facts that the classified infor- nature of the military judge. If the record mation would tend to prove. a vote is taken of the findings of a military commission under this chapter, the military cannot be authenticated by the military ‘‘(2) The military judge, upon motion of judge by reason of his death, disability, or trial counsel, shall authorize trial counsel, judge shall, in the presence of the accused and counsel, instruct the members as to the absence, it shall be authenticated by the sig- in the course of complying with discovery nature of the trial counsel or by a member of obligations under this section, to protect elements of the offense and charge the mem- bers— the commission if the trial counsel is unable from disclosure the sources, methods, or ac- to authenticate it by reason of his death, dis- tivities by which the United States acquired ‘‘(1) that the accused must be presumed to be innocent until his guilt is established by ability, or absence. Where appropriate, and evidence if the military judge finds that the as provided in regulations prescribed by the sources, methods, or activities by which the legal and competent evidence beyond a rea- Secretary of Defense, the record of a mili- United States acquired such evidence are sonable doubt; tary commission under this chapter may classified. The military judge may require ‘‘(2) that in the case being considered, if contain a classified annex. trial counsel to provide, to the extent prac- there is a reasonable doubt as to the guilt of ‘‘(b) COMPLETE RECORD REQUIRED.—A com- ticable, an unclassified summary of the the accused, the doubt must be resolved in plete record of the proceedings and testi- sources, methods, or activities by which the favor of the accused and he must be acquit- mony shall be prepared in every military United States acquired such evidence. ted; commission under this chapter. ‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon ‘‘(3) that, if there is reasonable doubt as to as practicable, trial counsel shall disclose to the degree of guilt, the finding must be in a ‘‘(c) PROVISION OF COPY TO ACCUSED.—A the defense the existence of any evidence lower degree as to which there is no reason- copy of the record of the proceedings of the known to trial counsel that reasonably tends able doubt; and military commission under this chapter to exculpate the accused. Where exculpatory ‘‘(4) that the burden of proof to establish shall be given the accused as soon as it is au- evidence is classified, the accused shall be the guilt of the accused beyond a reasonable thenticated. If the record contains classified provided with an adequate substitute in ac- doubt is upon the United States. information, or a classified annex, the ac- cused shall be given a redacted version of the cordance with the procedures under sub- ‘‘§ 949m. Number of votes required section (c). record consistent with the requirements of ‘‘(a) CONVICTION.—No person may be con- section 949d of this title. Defense counsel ‘‘(2) In this subsection, the term ‘evidence victed by a military commission under this known to trial counsel’, in the case of excul- shall have access to the unredacted record, chapter of any offense, except as provided in as provided in regulations prescribed by the patory evidence, means exculpatory evidence section 949i(b) of this title or by concurrence Secretary of Defense. that the prosecution would be required to of two-thirds of the members present at the disclose in a trial by general court-martial time the vote is taken. ‘‘SUBCHAPTER V—SENTENCES under chapter 47 of this title. ‘‘(b) SENTENCES.—(1) No person may be sen- ‘‘Sec. ‘‘§ 949k. Defense of lack of mental responsi- tenced by a military commission to suffer ‘‘949s. Cruel or unusual punishments prohib- bility death, except insofar as— ited. ‘‘(a) AFFIRMATIVE DEFENSE.—It is an af- ‘‘(A) the penalty of death is expressly au- ‘‘949t. Maximum limits. firmative defense in a trial by military com- thorized under this chapter or the law of war ‘‘949u. Execution of confinement.

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Cruel or unusual punishments pro- of the military commission under this chap- ‘‘(iii) increase the severity of the sentence hibited ter. unless the sentence prescribed for the offense ‘‘Punishment by flogging, or by branding, ‘‘(2)(A) Except as provided in subparagraph is mandatory. marking, or tattooing on the body, or any (B), a submittal under paragraph (1) shall be ‘‘(3) A rehearing may be ordered by the other cruel or unusual punishment, may not made in writing within 20 days after the ac- convening authority if the convening author- be adjudged by a military commission under cused has been given an authenticated record ity disapproves the findings and sentence this chapter or inflicted under this chapter of trial under section 949o(c) of this title. and states the reasons for disapproval of the upon any person subject to this chapter. The ‘‘(B) If the accused shows that additional findings. If the convening authority dis- use of irons, single or double, except for the time is required for the accused to make a approves the finding and sentence and does purpose of safe custody, is prohibited under submittal under paragraph (1), the convening not order a rehearing, the convening author- this chapter. authority may, for good cause, extend the ity shall dismiss the charges. A rehearing as applicable period under subparagraph (A) for to the findings may not be ordered by the ‘‘§ 949t. Maximum limits not more than an additional 20 days. convening authority when there is a lack of ‘‘The punishment which a military com- ‘‘(3) The accused may waive his right to sufficient evidence in the record to support mission under this chapter may direct for an make a submittal to the convening author- the findings. A rehearing as to the sentence offense may not exceed such limits as the ity under paragraph (1). Such a waiver shall may be ordered by the convening authority President or Secretary of Defense may pre- be made in writing and may not be revoked. if the convening authority disapproves the scribe for that offense. For the purposes of subsection (c)(2), the sentence. time within which the accused may make a ‘‘§ 949u. Execution of confinement ‘‘§ 950c. Appellate referral; waiver or with- submittal under this subsection shall be ‘‘(a) IN GENERAL.—Under such regulations drawal of appeal as the Secretary of Defense may prescribe, a deemed to have expired upon the submittal ‘‘(a) AUTOMATIC REFERRAL FOR APPELLATE sentence of confinement adjudged by a mili- of a waiver under this paragraph to the con- REVIEW.—Except as provided under sub- tary commission under this chapter may be vening authority. section (b), in each case in which the final carried into execution by confinement— ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) decision of a military commission (as ap- ‘‘(1) in any place of confinement under the The authority under this subsection to mod- proved by the convening authority) includes control of any of the armed forces; or ify the findings and sentence of a military a finding of guilty, the convening authority ‘‘(2) in any penal or correctional institu- commission under this chapter is a matter of shall refer the case to the Court of Military tion under the control of the United States the sole discretion and prerogative of the Commission Review. Any such referral shall or its allies, or which the United States may convening authority. ‘‘(2)(A) The convening authority shall take be made in accordance with procedures pre- be allowed to use. action on the sentence of a military commis- scribed under regulations of the Secretary. ‘‘(b) TREATMENT DURING CONFINEMENT BY sion under this chapter. ‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) In OTHER THAN THE ARMED FORCES.—Persons ‘‘(B) Subject to regulations prescribed by each case subject to appellate review under confined under subsection (a)(2) in a penal or the Secretary of Defense, action on the sen- section 950f of this title, except a case in correctional institution not under the con- tence under this paragraph may be taken which the sentence as approved under sec- trol of an armed force are subject to the only after consideration of any matters sub- tion 950b of this title extends to death, the same discipline and treatment as persons mitted by the accused under subsection (b) accused may file with the convening author- confined or committed by the courts of the or after the time for submitting such mat- ity a statement expressly waiving the right United States or of the State, District of Co- ters expires, whichever is earlier. of the accused to such review. lumbia, or place in which the institution is ‘‘(C) In taking action under this paragraph, ‘‘(2) A waiver under paragraph (1) shall be situated. the convening authority may, in his sole dis- signed by both the accused and a defense ‘‘SUBCHAPTER VI—POST-TRIAL PROCE- cretion, approve, disapprove, commute, or counsel. DURE AND REVIEW OF MILITARY COM- suspend the sentence in whole or in part. The ‘‘(3) A waiver under paragraph (1) must be MISSIONS convening authority may not increase a sen- filed, if at all, within 10 days after notice on ‘‘Sec. tence beyond that which is found by the the action is served on the accused or on de- ‘‘950a. Error of law; lesser included offense. military commission. fense counsel under section 950b(c)(4) of this ‘‘950b. Review by the convening authority. ‘‘(3) The convening authority is not re- title. The convening authority, for good ‘‘950c. Appellate referral; waiver or with- quired to take action on the findings of a cause, may extend the period for such filing drawal of appeal. military commission under this chapter. If by not more than 30 days. ‘‘950d. Appeal by the United States. the convening authority takes action on the ‘‘(c) WITHDRAWAL OF APPEAL.—Except in a ‘‘950e. Rehearings. findings, the convening authority may, in case in which the sentence as approved under ‘‘950f. Review by Court of Military Commis- his sole discretion, may— section 950b of this title extends to death, sion Review. ‘‘(A) dismiss any charge or specification by the accused may withdraw an appeal at any ‘‘950g. Review by the United States Court of setting aside a finding of guilty thereto; or time. Appeals for the District of Co- ‘‘(B) change a finding of guilty to a charge ‘‘(d) EFFECT OF WAIVER OR WITHDRAWAL.— lumbia Circuit and the Su- to a finding of guilty to an offense that is a A waiver of the right to appellate review or preme Court. lesser included offense of the offense stated the withdrawal of an appeal under this sec- ‘‘950h. Appellate counsel. in the charge. tion bars review under section 950f of this ‘‘950i. Execution of sentence; procedures for ‘‘(4) The convening authority shall serve title. execution of sentence of death. on the accused or on defense counsel notice ‘‘§ 950d. Appeal by the United States ‘‘950j. Finality or proceedings, findings, and of any action taken by the convening au- sentences. thority under this subsection. ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as ‘‘§ 950a. Error of law; lesser included offense ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) provided in paragraph (2), in a trial by mili- Subject to paragraphs (2) and (3), the con- tary commission under this chapter, the ‘‘(a) ERROR OF LAW.—A finding or sentence vening authority of a military commission United States may take an interlocutory ap- of a military commission under this chapter peal to the Court of Military Commission may not be held incorrect on the ground of under this chapter may, in his sole discre- tion, order a proceeding in revision or a re- Review of any order or ruling of the military an error of law unless the error materially judge that— prejudices the substantial rights of the ac- hearing. ‘‘(2)(A) Except as provided in subparagraph ‘‘(A) terminates proceedings of the mili- cused. (B), a proceeding in revision may be ordered tary commission with respect to a charge or ‘‘(b) LESSER INCLUDED OFFENSE.—Any re- by the convening authority if— specification; viewing authority with the power to approve ‘‘(i) there is an apparent error or omission ‘‘(B) excludes evidence that is substantial or affirm a finding of guilty by a military in the record; or proof of a fact material in the proceeding; or commission under this chapter may approve ‘‘(ii) the record shows improper or incon- ‘‘(C) relates to a matter under subsection or affirm, instead, so much of the finding as sistent action by the military commission (d), (e), or (f) of section 949d of this title or includes a lesser included offense. with respect to the findings or sentence that section 949j(c) of this title. ‘‘§ 950b. Review by the convening authority can be rectified without material prejudice ‘‘(2) The United States may not appeal ‘‘(a) NOTICE TO CONVENING AUTHORITY OF to the substantial rights of the accused. under paragraph (1) an order or ruling that FINDINGS AND SENTENCE.—The findings and ‘‘(B) In no case may a proceeding in revi- is, or amounts to, a finding of not guilty by sentence of a military commission under sion— the military commission with respect to a this chapter shall be reported in writing ‘‘(i) reconsider a finding of not guilty of a charge or specification. promptly to the convening authority after specification or a ruling which amounts to a ‘‘(b) NOTICE OF APPEAL.—The United States the announcement of the sentence. finding of not guilty; shall take an appeal of an order or ruling ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO ‘‘(ii) reconsider a finding of not guilty of under subsection (a) by filing a notice of ap- CONVENING AUTHORITY.—(1) The accused may any charge, unless there has been a finding peal with the military judge within five days submit to the convening authority matters of guilty under a specification laid under after the date of such order or ruling. for consideration by the convening authority that charge, which sufficiently alleges a vio- ‘‘(c) APPEAL.—An appeal under this section with respect to the findings and the sentence lation; or shall be forwarded, by means specified

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00104 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.083 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10327 in regulations prescribed the Secretary of the District of Columbia Circuit shall have such a case, the President may commute, Defense, directly to the Court of Military exclusive jurisdiction to determine the valid- remit, or suspend the sentence, or any part Commission Review. In ruling on an appeal ity of a final judgment rendered by a mili- thereof, as he sees fit. under this section, the Court may act only tary commission (as approved by the con- ‘‘(c) EXECUTION OF SENTENCE OF DEATH with respect to matters of law. vening authority) under this chapter. ONLY UPON FINAL JUDGMENT OF LEGALITY OF ‘‘(d) APPEAL FROM ADVERSE RULING.—The ‘‘(B) The Court of Appeals may not review PROCEEDINGS.—(1) If the sentence of a mili- United States may appeal an adverse ruling the final judgment until all other appeals tary commission under this chapter extends on an appeal under subsection (c) to the under this chapter have been waived or ex- to death, the sentence may not be executed United States Court of Appeals for the Dis- hausted. until there is a final judgment as to the le- trict of Columbia Circuit by filing a petition ‘‘(2) A petition for review must be filed by gality of the proceedings (and with respect for review in the Court of Appeals within 10 the accused in the Court of Appeals not later to death, approval under subsection (b)). than 20 days after the date on which— days after the date of such ruling. Review ‘‘(2) A judgment as to legality of pro- ‘‘(A) written notice of the final decision of under this subsection shall be at the discre- ceedings is final for purposes of paragraph (1) the Court of Military Commission Review is tion of the Court of Appeals. when— served on the accused or on defense counsel; ‘‘§ 950e. Rehearings ‘‘(A) the time for the accused to file a peti- or ‘‘(a) COMPOSITION OF MILITARY COMMISSION tion for review by the Court of Appeals for ‘‘(B) the accused submits, in the form pre- FOR REHEARING.—Each rehearing under this the District of Columbia Circuit has expired scribed by section 950c of this title, a written chapter shall take place before a military and the accused has not filed a timely peti- notice waiving the right of the accused to re- commission under this chapter composed of tion for such review and the case is not oth- view by the Court of Military Commission members who were not members of the mili- erwise under review by that Court; or Review under section 950f of this title. tary commission which first heard the case. ‘‘(B) review is completed in accordance ‘‘(b) STANDARD FOR REVIEW.—In a case re- with the judgment of the United States ‘‘(b) SCOPE OF REHEARING.—(1) Upon a re- viewed by it under this section, the Court of Court of Appeals for the District of Columbia hearing— Appeals may act only with respect to mat- Circuit and— ‘‘(A) the accused may not be tried for any ters of law. ‘‘(i) a petition for a writ of certiorari is not offense of which he was found not guilty by ‘‘(c) SCOPE OF REVIEW.—The jurisdiction of the first military commission; and the Court of Appeals on an appeal under sub- timely filed; ‘‘(B) no sentence in excess of or more than section (a) shall be limited to the consider- ‘‘(ii) such a petition is denied by the Su- the original sentence may be imposed un- ation of— preme Court; or less— ‘‘(1) whether the final decision was con- ‘‘(iii) review is otherwise completed in ac- ‘‘(i) the sentence is based upon a finding of sistent with the standards and procedures cordance with the judgment of the Supreme guilty of an offense not considered upon the specified in this chapter; and Court. merits in the original proceedings; or ‘‘(2) to the extent applicable, the Constitu- ‘‘(d) SUSPENSION OF SENTENCE.—The Sec- ‘‘(ii) the sentence prescribed for the offense tion and the laws of the United States. retary of the Defense, or the convening au- is mandatory. ‘‘(d) SUPREME COURT.—The Supreme Court thority acting on the case (if other than the ‘‘(2) Upon a rehearing, if the sentence ap- may review by writ of certiorari the final Secretary), may suspend the execution of proved after the first military commission judgment of the Court of Appeals pursuant any sentence or part thereof in the case, ex- was in accordance with a pretrial agreement to section 1257 of title 28. cept a sentence of death. and the accused at the rehearing changes his ‘‘§ 950h. Appellate counsel plea with respect to the charges or specifica- ‘‘§ 950j. Finality or proceedings, findings, and tions upon which the pretrial agreement was ‘‘(a) APPOINTMENT.—The Secretary of De- sentences based, or otherwise does not comply with fense shall, by regulation, establish proce- ‘‘(a) FINALITY.—The appellate review of pretrial agreement, the sentence as to those dures for the appointment of appellate coun- records of trial provided by this chapter, and charges or specifications may include any sel for the United States and for the accused the proceedings, findings, and sentences of punishment not in excess of that lawfully ad- in military commissions under this chapter. military commissions as approved, reviewed, judged at the first military commission. Appellate counsel shall meet the qualifica- or affirmed as required by this chapter, are tions for counsel appearing before military final and conclusive. Orders publishing the ‘‘§ 950f. Review by Court of Military Commis- commissions under this chapter. sion Review proceedings of military commissions under ‘‘(b) REPRESENTATION OF UNITED STATES.— this chapter are binding upon all depart- ‘‘(a) ESTABLISHMENT.—The Secretary of De- Appellate counsel appointed under sub- ments, courts, agencies, and officers of the fense shall establish a Court of Military section (a)— United States, except as otherwise provided Commission Review which shall be composed ‘‘(1) shall represent the United States in by the President. of one or more panels, and each such panel any appeal or review proceeding under this ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS shall be composed of not less than three ap- chapter before the Court of Military Com- FOR REVIEW OF MILITARY COMMISSION PROCE- pellate military judges. For the purpose of mission Review; and DURES AND ACTIONS.—Except as otherwise reviewing military commission decisions ‘‘(2) may, when requested to do so by the provided in this chapter and notwithstanding under this chapter, the court may sit in pan- Attorney General in a case arising under this any other provision of law (including section els or as a whole in accordance with rules chapter, represent the United States before 2241 of title 28 or any other habeas corpus prescribed by the Secretary. the United States Court of Appeals for the provision), no court, justice, or judge shall ‘‘(b) APPELLATE MILITARY JUDGES.—The District of Columbia Circuit or the Supreme have jurisdiction to hear or consider any Secretary shall assign appellate military Court. claim or cause of action whatsoever, includ- judges to a Court of Military Commission ‘‘(c) REPRESENTATION OF ACCUSED.—The ac- ing any action pending on or filed after the Review. Each appellate military judge shall cused shall be represented by appellate coun- date of the enactment of the Military Com- meet the qualifications for military judges sel appointed under subsection (a) before the missions Act of 2006, relating to the prosecu- prescribed by section 948j(b) of this title or Court of Military Commission Review, the tion, trial, or judgment of a military com- shall be a civilian with comparable qualifica- United States Court of Appeals for the Dis- mission under this chapter, including chal- tions. No person may be serve as an appel- trict of Columbia Circuit, and the Supreme lenges to the lawfulness of procedures of late military judge in any case in which that Court, and by civilian counsel if retained by military commissions under this chapter. person acted as a military judge, counsel, or the accused. Any such civilian counsel shall reviewing official. meet the qualifications under paragraph (3) ‘‘SUBCHAPTER VII—PUNITIVE MATTERS ‘‘(c) CASES TO BE REVIEWED.—The Court of of section 949c(b) of this title for civilian ‘‘Sec. Military Commission Review, in accordance counsel appearing before military commis- ‘‘950p. Statement of substantive offenses. with procedures prescribed under regulations sions under this chapter and shall be subject of the Secretary, shall review the record in to the requirements of paragraph (4) of that ‘‘950q. Principals. each case that is referred to the Court by the section. ‘‘950r. Accessory after the fact. convening authority under section 950c of ‘‘§ 950i. Execution of sentence; procedures for ‘‘950s. Conviction of lesser included offense. this title with respect to any matter of law execution of sentence of death ‘‘950t. Attempts. raised by the accused. ‘‘(a) IN GENERAL.—The Secretary of De- ‘‘950u. Solicitation. ‘‘(d) SCOPE OF REVIEW.—In a case reviewed fense is authorized to carry out a sentence ‘‘950v. Crimes triable by military commis- by the Court of Military Commission Review imposed by a military commission under sions. under this section, the Court may act only this chapter in accordance with such proce- with respect to matters of law. ‘‘950w. Perjury and obstruction of justice; dures as the Secretary may prescribe. contempt. ‘‘§ 950g. Review by the United States Court of ‘‘(b) EXECUTION OF SENTENCE OF DEATH Appeals for the District of Columbia Cir- ONLY UPON APPROVAL BY THE PRESIDENT.—If ‘‘§ 950p. Statement of substantive offenses cuit and the Supreme Court the sentence of a military commission under ‘‘(a) PURPOSE.—The provisions of this sub- ‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.— this chapter extends to death, that part of chapter codify offenses that have tradition- (1)(A) Except as provided in subparagraph the sentence providing for death may not be ally been triable by military commissions. (B), the United States Court of Appeals for executed until approved by the President. In This chapter does not establish new

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crimes that did not exist before its enact- stitute a definite military advantage to the ‘‘(7) TAKING HOSTAGES.—Any person subject ment, but rather codifies those crimes for attacker under the circumstances at the to this chapter who, having knowingly seized trial by military commission. time of the attack. or detained one or more persons, threatens ‘‘(b) EFFECT.—Because the provisions of ‘‘(2) PROTECTED PERSON.—The term ‘pro- to kill, injure, or continue to detain such this subchapter (including provisions that tected person’ means any person entitled to person or persons with the intent of compel- incorporate definitions in other provisions of protection under one or more of the Geneva ling any nation, person other than the hos- law) are declarative of existing law, they do Conventions, including— tage, or group of persons to act or refrain not preclude trial for crimes that occurred ‘‘(A) civilians not taking an active part in from acting as an explicit or implicit condi- before the date of the enactment of this hostilities; tion for the safety or release of such person chapter. ‘‘(B) military personnel placed hors de or persons, shall be punished, if death results ‘‘§ 950q. Principals combat by sickness, wounds, or detention; to one or more of the victims, by death or ‘‘Any person is punishable as a principal and such other punishment as a military com- under this chapter who— ‘‘(C) military medical or religious per- mission under this chapter may direct, and, ‘‘(1) commits an offense punishable by this sonnel. if death does not result to any of the vic- chapter, or aids, abets, counsels, commands, ‘‘(3) PROTECTED PROPERTY.—The term ‘pro- tims, by such punishment, other than death, or procures its commission; tected property’ means property specifically as a military commission under this chapter ‘‘(2) causes an act to be done which if di- protected by the law of war (such as build- may direct. rectly performed by him would be punishable ings dedicated to religion, education, art, ‘‘(8) EMPLOYING POISON OR SIMILAR WEAP- by this chapter; or science or charitable purposes, historic ONS.—Any person subject to this chapter who ‘‘(3) is a superior commander who, with re- monuments, hospitals, or places where the intentionally, as a method of warfare, em- gard to acts punishable under this chapter, sick and wounded are collected), if such ploys a substance or weapon that releases a knew, had reason to know, or should have property is not being used for military pur- substance that causes death or serious and known, that a subordinate was about to com- poses or is not otherwise a military objec- lasting damage to health in the ordinary mit such acts or had done so and who failed tive. Such term includes objects properly course of events, through its asphyxiating, to take the necessary and reasonable meas- identified by one of the distinctive emblems bacteriological, or toxic properties, shall be ures to prevent such acts or to punish the of the Geneva Conventions, but does not in- punished, if death results to one or more of perpetrators thereof. clude civilian property that is a military ob- the victims, by death or such other punish- ment as a military commission under this ‘‘§ 950r. Accessory after the fact jective. ‘‘(4) CONSTRUCTION.—The intent specified chapter may direct, and, if death does not re- ‘‘Any person subject to this chapter who, sult to any of the victims, by such punish- knowing that an offense punishable by this for an offense under paragraph (1), (2), (3), (4), or (12) of subsection (b) precludes the appli- ment, other than death, as a military com- chapter has been committed, receives, com- mission under this chapter may direct. forts, or assists the offender in order to cability of such offense with regard to— ‘‘(A) collateral damage; or ‘‘(9) USING PROTECTED PERSONS AS A hinder or prevent his apprehension, trial, or SHIELD.—Any person subject to this chapter punishment shall be punished as a military ‘‘(B) death, damage, or injury incident to a lawful attack. who positions, or otherwise takes advantage commission under this chapter may direct. of, a protected person with the intent to ‘‘§ 950s. Conviction of lesser included offense ‘‘(b) OFFENSES.—The following offenses shield a military objective from attack, or to ‘‘An accused may be found guilty of an of- shall be triable by military commission shield, favor, or impede military operations, fense necessarily included in the offense under this chapter at any time without limi- shall be punished, if death results to one or charged or of an attempt to commit either tation: more of the victims, by death or such other the offense charged or an attempt to commit ‘‘(1) MURDER OF PROTECTED PERSONS.—Any punishment as a military commission under either the offense charged or an offense nec- person subject to this chapter who inten- this chapter may direct, and, if death does essarily included therein. tionally kills one or more protected persons not result to any of the victims, by such pun- shall be punished by death or such other pun- ‘‘§ 950t. Attempts ishment, other than death, as a military ishment as a military commission under this commission under this chapter may direct. ‘‘(a) IN GENERAL.—Any person subject to chapter may direct. this chapter who attempts to commit any of- ‘‘(10) USING PROTECTED PROPERTY AS A ‘‘(2) ATTACKING CIVILIANS.—Any person sub- fense punishable by this chapter shall be SHIELD.—Any person subject to this chapter ject to this chapter who intentionally en- who positions, or otherwise takes advantage punished as a military commission under gages in an attack upon a civilian population of the location of, protected property with this chapter may direct. as such, or individual civilians not taking ‘‘(b) SCOPE OF OFFENSE.—An act, done with the intent to shield a military objective active part in hostilities, shall be punished, specific intent to commit an offense under from attack, or to shield, favor, or impede if death results to one or more of the vic- this chapter, amounting to more than mere military operations, shall be punished as a tims, by death or such other punishment as preparation and tending, even though fail- military commission under this chapter may a military commission under this chapter ing, to effect its commission, is an attempt direct. may direct, and, if death does not result to to commit that offense. ‘‘(11) TORTURE.— any of the victims, by such punishment, ‘‘(c) EFFECT OF CONSUMMATION.—Any per- ‘‘(A) OFFENSE.—Any person subject to this son subject to this chapter may be convicted other than death, as a military commission chapter who commits an act specifically in- of an attempt to commit an offense although under this chapter may direct. tended to inflict severe physical or mental it appears on the trial that the offense was ‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any pain or suffering (other than pain or suf- consummated. person subject to this chapter who inten- fering incidental to lawful sanctions) upon tionally engages in an attack upon a civilian another person within his custody or phys- ‘‘§ 950u. Solicitation object that is not a military objective shall ical control for the purpose of obtaining in- ‘‘Any person subject to this chapter who be punished as a military commission under formation or a confession, punishment, in- solicits or advises another or others to com- this chapter may direct. timidation, coercion, or any reason based on mit one or more substantive offenses triable ‘‘(4) ATTACKING PROTECTED PROPERTY.—Any discrimination of any kind, shall be pun- by military commission under this chapter person subject to this chapter who inten- ished, if death results to one or more of the shall, if the offense solicited or advised is at- tionally engages in an attack upon protected victims, by death or such other punishment tempted or committed, be punished with the property shall be punished as a military as a military commission under this chapter punishment provided for the commission of commission under this chapter may direct. may direct, and, if death does not result to the offense, but, if the offense solicited or ‘‘(5) PILLAGING.—Any person subject to this any of the victims, by such punishment, advised is not committed or attempted, he chapter who intentionally and in the absence other than death, as a military commission shall be punished as a military commission of military necessity appropriates or seizes under this chapter may direct. under this chapter may direct. property for private or personal use, without ‘‘(B) SEVERE MENTAL PAIN OR SUFFERING DE- ‘‘§ 950v. Crimes triable by military commis- the consent of a person with authority to FINED.—In this section, the term ‘severe sions permit such appropriation or seizure, shall mental pain or suffering’ has the meaning ‘‘(a) DEFINITIONS AND CONSTRUCTION.—In be punished as a military commission under given that term in section 2340(2) of title 18. this section: this chapter may direct. ‘‘(12) CRUEL OR INHUMAN TREATMENT.— ‘‘(1) MILITARY OBJECTIVE.—The term ‘mili- ‘‘(6) DENYING QUARTER.—Any person sub- ‘‘(A) OFFENSE.—Any person subject to this tary objective’ means— ject to this chapter who, with effective com- chapter who commits an act intended to in- ‘‘(A) combatants; and mand or control over subordinate groups, de- flict severe or serious physical or mental ‘‘(B) those objects during an armed con- clares, orders, or otherwise indicates to pain or suffering (other than pain or suf- flict— those groups that there shall be no survivors fering incidental to lawful sanctions), in- ‘‘(i) which, by their nature, location, pur- or surrender accepted, with the intent to cluding serious physical abuse, upon another pose, or use, effectively contribute to the op- threaten an adversary or to conduct hos- within his custody or control shall be pun- posing force’s war-fighting or war-sustaining tilities such that there would be no survivors ished, if death results to the victim, by death capability; and or surrender accepted, shall be punished as a or such other punishment as a military com- ‘‘(ii) the total or partial destruction, cap- military commission under this chapter may mission under this chapter may direct, and, ture, or neutralization of which would con- direct. if death does not result to the victim, by

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00106 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.084 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10329 such punishment, other than death, as a or belief in killing, injuring, or capturing be punished as a military commission under military commission under this chapter may such person or persons shall be punished, if this chapter may direct. direct. death results to one or more of the victims, ‘‘(B) MATERIAL SUPPORT OR RESOURCES DE- ‘‘(B) DEFINITIONS.—In this paragraph: by death or such other punishment as a mili- FINED.—In this paragraph, the term ‘mate- ‘‘(i) The term ‘serious physical pain or suf- tary commission under this chapter may di- rial support or resources’ has the meaning fering’ means bodily injury that involves— rect, and, if death does not result to any of given that term in section 2339A(b) of title ‘‘(I) a substantial risk of death; the victims, by such punishment, other than 18. ‘‘(II) extreme physical pain; death, as a military commission under this ‘‘(26) WRONGFULLY AIDING THE ENEMY.—Any ‘‘(III) a burn or physical disfigurement of a chapter may direct. person subject to this chapter who, in breach serious nature (other than cuts, abrasions, or ‘‘(18) IMPROPERLY USING A FLAG OF TRUCE.— of an allegiance or duty to the United bruises); or Any person subject to this chapter who uses States, knowingly and intentionally aids an ‘‘(IV) significant loss or impairment of the a flag of truce to feign an intention to nego- enemy of the United States, or one of the co- function of a bodily member, organ, or men- tiate, surrender, or otherwise suspend hos- belligerents of the enemy, shall be punished tal faculty. tilities when there is no such intention shall as a military commission under this chapter ‘‘(ii) The term ‘severe mental pain or suf- be punished as a military commission under may direct. fering’ has the meaning given that term in this chapter may direct. ‘‘(27) SPYING.—Any person subject to this section 2340(2) of title 18. ‘‘(19) IMPROPERLY USING A DISTINCTIVE EM- chapter who with intent or reason to believe ‘‘(iii) The term ‘serious mental pain or suf- BLEM.—Any person subject to this chapter that it is to be used to the injury of the fering’ has the meaning given the term ‘se- who intentionally uses a distinctive emblem United States or to the advantage of a for- vere mental pain or suffering’ in section recognized by the law of war for combatant eign power, collects or attempts to collect 2340(2) of title 18, except that— purposes in a manner prohibited by the law information by clandestine means or while ‘‘(I) the term ‘serious’ shall replace the of war shall be punished as a military com- acting under false pretenses, for the purpose term ‘severe’ where it appears; and mission under this chapter may direct. of conveying such information to an enemy ‘‘(II) as to conduct occurring after the date ‘‘(20) INTENTIONALLY MISTREATING A DEAD of the United States, or one of the co-bellig- of the enactment of the Military Commis- BODY.—Any person subject to this chapter erents of the enemy, shall be punished by sions Act of 2006, the term ‘serious and non- who intentionally mistreats the body of a death or such other punishment as a mili- transitory mental harm (which need not be dead person, without justification by legiti- tary commission under this chapter may di- prolonged)’ shall replace the term ‘prolonged mate military necessity, shall be punished as rect. mental harm’ where it appears. a military commission under this chapter ‘‘(28) CONSPIRACY.—Any person subject to ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD- may direct. this chapter who conspires to commit one or ILY INJURY.— ‘‘(21) RAPE.—Any person subject to this more substantive offenses triable by mili- ‘‘(A) OFFENSE.—Any person subject to this chapter who forcibly or with coercion or tary commission under this chapter, and who chapter who intentionally causes serious threat of force wrongfully invades the body knowingly does any overt act to effect the bodily injury to one or more persons, includ- of a person by penetrating, however slightly, object of the conspiracy, shall be punished, if ing lawful combatants, in violation of the the anal or genital opening of the victim death results to one or more of the victims, law of war shall be punished, if death results with any part of the body of the accused, or by death or such other punishment as a mili- to one or more of the victims, by death or with any foreign object, shall be punished as tary commission under this chapter may di- such other punishment as a military com- a military commission under this chapter rect, and, if death does not result to any of mission under this chapter may direct, and, may direct. the victims, by such punishment, other than if death does not result to any of the vic- ‘‘(22) SEXUAL ASSAULT OR ABUSE.—Any per- death, as a military commission under this tims, by such punishment, other than death, son subject to this chapter who forcibly or chapter may direct. as a military commission under this chapter with coercion or threat of force engages in may direct. sexual contact with one or more persons, or ‘‘§ 950w. Perjury and obstruction of justice; ‘‘(B) SERIOUS BODILY INJURY DEFINED.—In causes one or more persons to engage in sex- contempt this paragraph, the term ‘serious bodily in- ual contact, shall be punished as a military ‘‘(a) PERJURY AND OBSTRUCTION OF JUS- jury’ means bodily injury which involves— commission under this chapter may direct. TICE.—A military commission under this ‘‘(i) a substantial risk of death; ‘‘(23) HIJACKING OR HAZARDING A VESSEL OR chapter may try offenses and impose such ‘‘(ii) extreme physical pain; AIRCRAFT.—Any person subject to this chap- punishment as the military commission may ‘‘(iii) protracted and obvious disfigure- ter who intentionally seizes, exercises unau- direct for perjury, false testimony, or ob- ment; or thorized control over, or endangers the safe struction of justice related to military com- ‘‘(iv) protracted loss or impairment of the navigation of a vessel or aircraft that is not missions under this chapter. function of a bodily member, organ, or men- a legitimate military objective shall be pun- ‘‘(b) CONTEMPT.—A military commission tal faculty. ished, if death results to one or more of the under this chapter may punish for contempt ‘‘(14) MUTILATING OR MAIMING.—Any person victims, by death or such other punishment any person who uses any menacing word, subject to this chapter who intentionally in- as a military commission under this chapter sign, or gesture in its presence, or who dis- jures one or more protected persons by dis- may direct, and, if death does not result to turbs its proceedings by any riot or dis- figuring the person or persons by any muti- any of the victims, by such punishment, order.’’. lation of the person or persons, or by perma- other than death, as a military commission (2) TABLES OF CHAPTERS AMENDMENTS.—The nently disabling any member, limb, or organ under this chapter may direct. tables of chapters at the beginning of sub- of the body of the person or persons, without ‘‘(24) TERRORISM.—Any person subject to title A, and at the beginning of part II of any legitimate medical or dental purpose, this chapter who intentionally kills or in- subtitle A, of title 10, United States Code, shall be punished, if death results to one or flicts great bodily harm on one or more pro- are each amended by inserting after the item more of the victims, by death or such other tected persons, or intentionally engages in relating to chapter 47 the following new punishment as a military commission under an act that evinces a wanton disregard for item: this chapter may direct, and, if death does human life, in a manner calculated to influ- ‘‘47A. Military Commissions ...... 948a’’. not result to any of the victims, by such pun- ence or affect the conduct of government or (b) SUBMITTAL OF PROCEDURES TO CON- ishment, other than death, as a military civilian population by intimidation or coer- GRESS.—Not later than 90 days after the date commission under this chapter may direct. cion, or to retaliate against government con- of the enactment of this Act, the Secretary ‘‘(15) MURDER IN VIOLATION OF THE LAW OF duct, shall be punished, if death results to of Defense shall submit to the Committees WAR.—Any person subject to this chapter one or more of the victims, by death or such on Armed Services of the Senate and the who intentionally kills one or more persons, other punishment as a military commission House of Representatives a report setting including lawful combatants, in violation of under this chapter may direct, and, if death forth the procedures for military commis- the law of war shall be punished by death or does not result to any of the victims, by such sions prescribed under chapter 47A of title 10, such other punishment as a military com- punishment, other than death, as a military United States Code (as added by subsection mission under this chapter may direct. commission under this chapter may direct. (a)). ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA- ‘‘(25) PROVIDING MATERIAL SUPPORT FOR SEC. 4. AMENDMENTS TO UNIFORM CODE OF TION OF THE LAW OF WAR.—Any person subject TERRORISM.— MILITARY JUSTICE. to this chapter who intentionally destroys ‘‘(A) OFFENSE.—Any person subject to this (a) CONFORMING AMENDMENTS.—Chapter 47 property belonging to another person in vio- chapter who provides material support or re- of title 10, United States Code (the Uniform lation of the law of war shall punished as a sources, knowing or intending that they are Code of Military Justice), is amended as fol- military commission under this chapter may to be used in preparation for, or in carrying lows: direct. out, an act of terrorism (as set forth in para- (1) APPLICABILITY TO LAWFUL ENEMY COM- ‘‘(17) USING TREACHERY OR PERFIDY.—Any graph (24)), or who intentionally provides BATANTS.—Section 802(a) (article 2(a)) is person subject to this chapter who, after in- material support or resources to an inter- amended by adding at the end the following viting the confidence or belief of one or more national terrorist organization engaged in new paragraph: persons that they were entitled to, or obliged hostilities against the United States, know- ‘‘(13) Lawful enemy combatants (as that to accord, protection under the law of war, ing that such organization has engaged or term is defined in section 948a(2) of this title) intentionally makes use of that confidence engages in terrorism (as so set forth), shall who violate the law of war.’’.

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(2) EXCLUSION OF APPLICABILITY TO CHAPTER national source of law shall supply a basis cluding serious physical abuse, upon another 47A COMMISSIONS.—Sections 821, 828, 848, for a rule of decision in the courts of the within his custody or control. 850(a), 904, and 906 (articles 21, 28, 48, 50(a), United States in interpreting the prohibi- ‘‘(C) PERFORMING BIOLOGICAL EXPERI- 104, and 106) are amended by adding at the tions enumerated in subsection (d) of such MENTS.—The act of a person who subjects, or end the following new sentence: ‘‘This sec- section 2441. conspires or attempts to subject, one or tion does not apply to a military commission (3) INTERPRETATION BY THE PRESIDENT.— more persons within his custody or physical established under chapter 47A of this title.’’. (A) As provided by the Constitution and by control to biological experiments without a (3) INAPPLICABILITY OF REQUIREMENTS RE- this section, the President has the authority legitimate medical or dental purpose and in LATING TO REGULATIONS.—Section 836 (article for the United States to interpret the mean- so doing endangers the body or health of 36) is amended— ing and application of the Geneva Conven- such person or persons. (A) in subsection (a), by inserting ‘‘, except tions and to promulgate higher standards ‘‘(D) MURDER.—The act of a person who in- as provided in chapter 47A of this title,’’ and administrative regulations for violations tentionally kills, or conspires or attempts to after ‘‘but which may not’’; and of treaty obligations which are not grave kill, or kills whether intentionally or unin- (B) in subsection (b), by inserting before breaches of the Geneva Conventions. tentionally in the course of committing any the period at the end ‘‘, except insofar as ap- (B) The President shall issue interpreta- other offense under this subsection, one or plicable to military commissions established tions described by subparagraph (A) by Exec- more persons taking no active part in the under chapter 47A of this title’’. utive Order published in the Federal Reg- hostilities, including those placed out of (b) PUNITIVE ARTICLE OF CONSPIRACY.—Sec- ister. combat by sickness, wounds, detention, or tion 881 of title 10, United States Code (arti- (C) Any Executive Order published under any other cause. cle 81 of the Uniform Code of Military Jus- this paragraph shall be authoritative (except ‘‘(E) MUTILATION OR MAIMING.—The act of a tice), is amended— as to grave breaches of common Article 3) as person who intentionally injures, or con- (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; a matter of United States law, in the same spires or attempts to injure, or injures and manner as other administrative regulations. whether intentionally or unintentionally in (2) by adding at the end the following new (D) Nothing in this section shall be con- the course of committing any other offense subsection: strued to affect the constitutional functions under this subsection, one or more persons ‘‘(b) Any person subject to this chapter and responsibilities of Congress and the judi- taking no active part in the hostilities, in- who conspires with any other person to com- cial branch of the United States. cluding those placed out of combat by sick- mit an offense under the law of war, and who (4) DEFINITIONS.—In this subsection: ness, wounds, detention, or any other cause, knowingly does an overt act to effect the ob- (A) GENEVA CONVENTIONS.—The term ‘‘Ge- by disfiguring the person or persons by any ject of the conspiracy, shall be punished, if neva Conventions’’ means— mutilation thereof or by permanently dis- death results to one or more of the victims, (i) the Convention for the Amelioration of abling any member, limb, or organ of his by death or such other punishment as a the Condition of the Wounded and Sick in court-martial or military commission may Armed Forces in the Field, done at Geneva body, without any legitimate medical or direct, and, if death does not result to any of August 12, 1949 (6 UST 3217); dental purpose. the victims, by such punishment, other than (ii) the Convention for the Amelioration of ‘‘(F) INTENTIONALLY CAUSING SERIOUS BOD- death, as a court-martial or military com- the Condition of the Wounded, Sick, and ILY INJURY.—The act of a person who inten- mission may direct.’’. Shipwrecked Members of the Armed Forces tionally causes, or conspires or attempts to SEC. 5. TREATY OBLIGATIONS NOT ESTAB- at Sea, done at Geneva August 12, 1949 (6 cause, serious bodily injury to one or more LISHING GROUNDS FOR CERTAIN UST 3217); persons, including lawful combatants, in vio- CLAIMS. (iii) the Convention Relative to the Treat- lation of the law of war. (a) IN GENERAL.—No person may invoke ‘‘(G) RAPE.—The act of a person who forc- the Geneva Conventions or any protocols ment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and ibly or with coercion or threat of force thereto in any habeas corpus or other civil wrongfully invades, or conspires or attempts action or proceeding to which the United (iv) the Convention Relative to the Protec- tion of Civilian Persons in Time of War, done to invade, the body of a person by pene- States, or a current or former officer, em- trating, however slightly, the anal or genital ployee, member of the Armed Forces, or at Geneva August 12, 1949 (6 UST 3516). (B) THIRD GENEVA CONVENTION.—The term opening of the victim with any part of the other agent of the United States is a party as body of the accused, or with any foreign ob- a source of rights in any court of the United ‘‘Third Geneva Convention’’ means the inter- national convention referred to in subpara- ject. States or its States or territories. ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act (b) GENEVA CONVENTIONS DEFINED.—In this graph (A)(iii). of a person who forcibly or with coercion or section, the term ‘‘Geneva Conventions’’ (b) REVISION TO WAR CRIMES OFFENSE threat of force engages, or conspires or at- means— UNDER FEDERAL CRIMINAL CODE.— tempts to engage, in sexual contact with one (1) the Convention for the Amelioration of (1) IN GENERAL.—Section 2441 of title 18, or more persons, or causes, or conspires or the Condition of the Wounded and Sick in United States Code, is amended— attempts to cause, one or more persons to Armed Forces in the Field, done at Geneva (A) in subsection (c), by striking paragraph engage in sexual contact. August 12, 1949 (6 UST 3114); (3) and inserting the following new para- ‘‘(I) TAKING HOSTAGES.—The act of a person (2) the Convention for the Amelioration of graph (3): who, having knowingly seized or detained the Condition of the Wounded, Sick, and ‘‘(3) which constitutes a grave breach of one or more persons, threatens to kill, in- Shipwrecked Members of the Armed Forces common Article 3 (as defined in subsection at Sea, done at Geneva August 12, 1949 (6 (d)) when committed in the context of and in jure, or continue to detain such person or UST 3217); association with an armed conflict not of an persons with the intent of compelling any (3) the Convention Relative to the Treat- international character; or’’; and nation, person other than the hostage, or ment of Prisoners of War, done at Geneva (B) by adding at the end the following new group of persons to act or refrain from act- August 12, 1949 (6 UST 3316); and subsection: ing as an explicit or implicit condition for (4) the Convention Relative to the Protec- ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.— the safety or release of such person or per- tion of Civilian Persons in Time of War, done ‘‘(1) PROHIBITED CONDUCT.—In subsection sons. at Geneva August 12, 1949 (6 UST 3516). (c)(3), the term ‘grave breach of common Ar- ‘‘(2) DEFINITIONS.—In the case of an offense SEC. 6. IMPLEMENTATION OF TREATY OBLIGA- ticle 3’ means any conduct (such conduct under subsection (a) by reason of subsection TIONS. constituting a grave breach of common Arti- (c)(3)— (a) IMPLEMENTATION OF TREATY OBLIGA- cle 3 of the international conventions done ‘‘(A) the term ‘severe mental pain or suf- TIONS.— at Geneva August 12, 1949), as follows: fering’ shall be applied for purposes of para- (1) IN GENERAL.—The acts enumerated in ‘‘(A) TORTURE.—The act of a person who graphs (1)(A) and (1)(B) in accordance with subsection (d) of section 2441 of title 18, commits, or conspires or attempts to com- the meaning given that term in section United States Code, as added by subsection mit, an act specifically intended to inflict 2340(2) of this title; (b) of this section, and in subsection (c) of severe physical or mental pain or suffering ‘‘(B) the term ‘serious bodily injury’ shall this section, constitute violations of com- (other than pain or suffering incidental to be applied for purposes of paragraph (1)(F) in mon Article 3 of the Geneva Conventions lawful sanctions) upon another person within accordance with the meaning given that prohibited by United States law. his custody or physical control for the pur- term in section 113(b)(2) of this title; (2) PROHIBITION ON GRAVE BREACHES.—The pose of obtaining information or a confes- ‘‘(C) the term ‘sexual contact’ shall be ap- provisions of section 2441 of title 18, United sion, punishment, intimidation, coercion, or plied for purposes of paragraph (1)(G) in ac- States Code, as amended by this section, any reason based on discrimination of any cordance with the meaning given that term fully satisfy the obligation under Article 129 kind. in section 2246(3) of this title; of the Third Geneva Convention for the ‘‘(B) CRUEL OR INHUMAN TREATMENT.—The ‘‘(D) the term ‘serious physical pain or suf- United States to provide effective penal act of a person who commits, or conspires or fering’ shall be applied for purposes of para- sanctions for grave breaches which are en- attempts to commit, an act intended to in- graph (1)(B) as meaning bodily injury that compassed in common Article 3 in the con- flict severe or serious physical or mental involves— text of an armed conflict not of an inter- pain or suffering (other than pain or suf- ‘‘(i) a substantial risk of death; national character. No foreign or inter- fering incidental to lawful sanctions), in- ‘‘(ii) extreme physical pain;

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00108 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.084 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10331 ‘‘(iii) a burn or physical disfigurement of a plication for a writ of habeas corpus filed by 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is serious nature (other than cuts, abrasions, or or on behalf of an alien detained by the amended by striking ‘‘the Department of De- bruises); or United States who has been determined by fense at Guantanamo Bay, Cuba’’ and insert- ‘‘(iv) significant loss or impairment of the the United States to have been properly de- ing ‘‘the United States’’. function of a bodily member, organ, or men- tained as an enemy combatant or is awaiting tal faculty; and such determination. SA 5086. Mr. LEVIN (for himself, Mr. ‘‘(E) the term ‘serious mental pain or suf- ‘‘(2) Except as provided in paragraphs (2) DAYTON, and Mr. REED) proposed an fering’ shall be applied for purposes of para- and (3) of section 1005(e) of the Detainee amendment to the bill S. 3930, to au- Treatment Act of 2005 (10 U.S.C. 801 note), no graph (1)(B) in accordance with the meaning thorize trial by military commission given the term ‘severe mental pain or suf- court, justice, or judge shall have jurisdic- fering’ (as defined in section 2340(2) of this tion to hear or consider any other action for violations of the law of war, and for title), except that— against the United States or its agents relat- other purposes; as follows: ‘‘(i) the term ‘serious’ shall replace the ing to any aspect of the detention, transfer, Strike out all after the enacting clause and term ‘severe’ where it appears; and treatment, trial, or conditions of confine- insert the following: ment of an alien who is or was detained by ‘‘(ii) as to conduct occurring after the date SECTION 1. SHORT TITLE. the United States and has been determined of the enactment of the Military Commis- This Act may be cited as the ‘‘Military by the United States to have been properly sions Act of 2006, the term ‘serious and non- Commissions Act of 2006’’. transitory mental harm (which need not be detained as an enemy combatant or is await- SEC. 2. FINDINGS. prolonged)’ shall replace the term ‘prolonged ing such determination.’’. Congress makes the following findings: mental harm’ where it appears. (b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on (1) The Constitution of the United States ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS the date of the enactment of this Act, and grants to Congress the power ‘‘To define and WITH RESPECT TO COLLATERAL DAMAGE OR IN- shall apply to all cases, without exception, punish . . . Offenses against the Law of Na- CIDENT OF LAWFUL ATTACK.—The intent speci- tions’’, as well as the power ‘‘To declare War fied for the conduct stated in subparagraphs pending on or after the date of the enact- ment of this Act which relate to any aspect . . . To raise and support Armies . . . [and] To (D), (E), and (F) or paragraph (1) precludes of the detention, transfer, treatment, trial, the applicability of those subparagraphs to provide and maintain a Navy’’. or conditions of detention of an alien de- an offense under subsection (a) by reasons of (2) The military commission is the tradi- tained by the United States since September subsection (c)(3) with respect to— tional tribunal for the trial of persons en- 11, 2001. ‘‘(A) collateral damage; or gaged in hostilities for violations of the law ‘‘(B) death, damage, or injury incident to a SEC. 8. REVISIONS TO DETAINEE TREATMENT of war. ACT OF 2005 RELATING TO PROTEC- lawful attack. (3) Congress has, in the past, both author- TION OF CERTAIN UNITED STATES ized the use of military commission by stat- ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES GOVERNMENT PERSONNEL. ute and recognized the existence and author- TO PRISONER EXCHANGE.—Paragraph (1)(I) (a) COUNSEL AND INVESTIGATIONS.—Section does not apply to an offense under subsection ity of military commissions. 1004(b) of the Detainee Treatment Act of 2005 (4) Military commissions have been con- (a) by reason of subsection (c)(3) in the case (42 U.S.C. 2000dd–1(b)) is amended— of a prisoner exchange during wartime. vened both by the President and by military (1) by striking ‘‘may provide’’ and insert- commanders in the field to try offenses ‘‘(5) DEFINITION OF GRAVE BREACHES.—The ing ‘‘shall provide’’; against the law of war. definitions in this subsection are intended (2) by inserting ‘‘or investigation’’ after only to define the grave breaches of common (5) It is in the national interest for Con- ‘‘criminal prosecution’’; and gress to exercise its authority under the Article 3 and not the full scope of United (3) by inserting ‘‘whether before United States obligations under that Article.’’. Constitution to enact legislation authorizing States courts or agencies, foreign courts or and regulating the use of military commis- (2) RETROACTIVE APPLICABILITY.—The agencies, or international courts or agen- amendments made by this subsection, except sions to try and punish violations of the law cies,’’ after ‘‘described in that subsection’’. of war. as specified in subsection (d)(2)(E) of section (b) PROTECTION OF PERSONNEL.—Section (6) Military commissions established and 2441 of title 18, United States Code, shall 1004 of the Detainee Treatment Act of 2005 operating under chapter 47A of title 10, take effect as of November 26, 1997, as if en- (42 U.S.C. 2000dd–1) shall apply with respect United States Code (as enacted by this Act), acted immediately after the amendments to any criminal prosecution that— are regularly constituted courts affording, in made by section 583 of Public Law 105–118 (as (1) relates to the detention and interroga- the words of Common Article 3 of the Geneva amended by section 4002(e)(7) of Public Law tion of aliens described in such section; Conventions, ‘‘all the judicial guarantees 107–273). (2) is grounded in section 2441(c)(3) of title which are recognized as indispensable by civ- (c) ADDITIONAL PROHIBITION ON CRUEL, IN- 18, United States Code; and ilized peoples’’. HUMAN, OR DEGRADING TREATMENT OR PUN- (3) relates to actions occurring between ISHMENT.— September 11, 2001, and December 30, 2005. SEC. 3. AUTHORIZATION FOR MILITARY COMMIS- SIONS. (1) IN GENERAL.—No individual in the cus- SEC. 9. REVIEW OF JUDGMENTS OF MILITARY tody or under the physical control of the COMMISSIONS. (a) IN GENERAL.—The President is author- United States Government, regardless of na- Section 1005(e)(3) of the Detainee Treat- ized to establish military commissions for tionality or physical location, shall be sub- ment Act of 2005 (title X of Public Law 109– the trial of alien unlawful enemy combat- ject to cruel, inhuman, or degrading treat- 148; 119 Stat. 2740; 10 U.S.C. 801 note) is ants engaged in hostilities against the ment or punishment. amended— United States for violations of the law of war (2) CRUEL, INHUMAN, OR DEGRADING TREAT- (1) in subparagraph (A), by striking ‘‘pur- and other offenses specifically made triable MENT OR PUNISHMENT DEFINED.—In this sub- suant to Military Commission Order No. 1. by military commission as provided in chap- section, the term ‘‘cruel, inhuman, or de- dated August 31, 2005 (or any successor mili- ter 47 of title 10, United States Code, and grading treatment or punishment’’ means tary order)’’ and inserting ‘‘by a military chapter 47A of title 10, United States Code cruel, unusual, and inhumane treatment or commission under chapter 47A of title 10, (as enacted by this Act). punishment prohibited by the Fifth, Eighth, United States Code’’; (b) CONSTRUCTION.—The authority in sub- and Fourteenth Amendments to the Con- (2) by striking subparagraph (B) and insert- section (a) may not be construed to alter or stitution of the United States, as defined in ing the following new subparagraph (B): limit the authority of the President under the United States Reservations, Declarations ‘‘(B) GRANT OF REVIEW.—Review under this the Constitution and laws of the United and Understandings to the United Nations paragraph shall be as of right.’’; States to establish military commissions for Convention Against Torture and Other (3) in subparagraph (C)— areas declared to be under martial law or in Forms of Cruel, Inhuman or Degrading (A) in clause (i)— occupied territories should circumstances so Treatment or Punishment done at New (i) by striking ‘‘pursuant to the military require. York, December 10, 1984. order’’ and inserting ‘‘by a military commis- (c) SCOPE OF PUNISHMENT AUTHORITY.—A (3) COMPLIANCE.—The President shall take sion’’; and military commission established pursuant to action to ensure compliance with this sub- (ii) by striking ‘‘at Guantanamo Bay, subsection (a) shall have authority to impose section, including through the establishment Cuba’’; and upon any person found guilty under a pro- of administrative rules and procedures. (B) in clause (ii), by striking ‘‘pursuant to ceeding under chapter 47A of title 10, United SEC. 7. HABEAS CORPUS MATTERS. such military order’’ and inserting ‘‘by the States Code (as so enacted), a sentence that (a) IN GENERAL.—Section 2241 of title 28, military commission’’; and is appropriate for the offense or offenses for United States Code, is amended by striking (4) in subparagraph (D)(i), by striking which there is a finding of guilt, including a both the subsection (e) added by section ‘‘specified in the military order’’ and insert- sentence of death if authorized under such 1005(e)(1) of Public Law 109–148 (119 Stat. ing ‘‘specified for a military commission’’. chapter, imprisonment for life or a term of 2742) and the subsection (e) added by added SEC. 10. DETENTION COVERED BY REVIEW OF DE- years, payment of a fine or restitution, or by section 1405(e)(1) of Public Law 109–163 CISIONS OF COMBATANT STATUS RE- such other lawful punishment or condition of (119 Stat. 3477) and inserting the following VIEW TRIBUNALS OF PROPRIETY OF punishment as the military commission new subsection (e): DETENTION. shall direct. ‘‘(e)(1) No court, justice, or judge shall Section 1005(e)(2)(B)(i) of the Detainee (d) EXECUTION OF PUNISHMENT.—The Sec- have jurisdiction to hear or consider an ap- Treatment Act of 2005 (title X of Public Law retary of Defense is authorized to carry out

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a sentence of punishment imposed by a mili- ‘‘(b) CONSTRUCTION OF PROVISIONS.—The ‘‘§ 948h. Who may convene military commis- tary commission established pursuant to procedures for military commissions set sions subsection (a) in accordance with such proce- forth in this chapter are based upon the pro- ‘‘Military commissions under this chapter dures as the Secretary may prescribe. cedures for trial by general courts-martial may be convened by the Secretary of Defense (e) ANNUAL REPORT ON TRIALS BY MILITARY under chapter 47 of this title (the Uniform or by any officer or official of the United COMMISSIONS.— Code of Military Justice). Chapter 47 of this States designated by the Secretary for that (1) ANNUAL REPORT REQUIRED.—Not later title does not, by its terms, apply to trial by purpose. than December 31 each year, the Secretary of military commission except as specifically ‘‘§ 948i. Who may serve on military commis- Defense shall submit to the Committees on provided therein or in this chapter, and sions Armed Services of the Senate and the House many of the provisions of chapter 47 of this of Representatives a report on any trials title are by their terms inapplicable to mili- ‘‘(a) IN GENERAL.—Any commissioned offi- conducted by military commissions estab- tary commissions. The judicial construction cer of the armed forces on active duty is eli- lished pursuant to subsection (a) during such and application of chapter 47 of this title, gible to serve on a military commission year. while instructive, is therefore not of its own under this chapter, including commissioned (2) FORM.—Each report under this sub- force binding on military commissions estab- officers of the reserve components of the section shall be submitted in unclassified lished under this chapter. armed forces on active duty, commissioned form, but may include a classified annex. ‘‘(c) INAPPLICABILITY OF CERTAIN PROVI- officers of the National Guard on active duty SEC. 4. MILITARY COMMISSIONS. SIONS.—(1) The following provisions of this in Federal service, or retired commissioned (a) MILITARY COMMISSIONS.— title shall not apply to trial by military officers recalled to active duty. (1) IN GENERAL.—Subtitle A of title 10, commission under this chapter: ‘‘(b) DETAIL OF MEMBERS.—When convening United States Code, is amended by inserting ‘‘(A) Section 810 (article 10 of the Uniform a military commission under this chapter, after chapter 47 the following new chapter: Code of Military Justice), relating to speedy the convening authority shall detail as mem- bers thereof such members of the armed ‘‘CHAPTER 47A—MILITARY COMMISSIONS trial, including any rule of courts-martial forces eligible under subsection (a) who, as in ‘‘SUBCHAPTER ...... Sec. relating to speedy trial. ‘‘(B) Sections 831(a), (b), and (d) (articles the opinion of the convening authority, are ‘‘I. General Provisions ...... 948a. best qualified for the duty by reason of age, ‘‘II. Composition of Military Com- 31(a), (b), and (d) of the Uniform Code of education, training, experience, length of missions ...... 948h. Military Justice), relating to compulsory service, and judicial temperament. No mem- ‘‘III. Pre-Trial Procedure ...... 948q. self-incrimination. ‘‘IV. Trial Procedure ...... 949a. ‘‘(C) Section 832 (article 32 of the Uniform ber of an armed force is eligible to serve as ‘‘V. Sentences ...... 949s. Code of Military Justice), relating to pre- a member of a military commission when ‘‘VI. Post-Trial Procedure and Re- trial investigation. such member is the accuser or a witness for view of Military Commissions ..... 950a. ‘‘(2) Other provisions of chapter 47 of this the prosecution or has acted as an investi- ‘‘VII. Punitive Matters ...... 950aa. title shall apply to trial by military commis- gator or counsel in the same case. ‘‘(c) EXCUSE OF MEMBERS.—Before a mili- ‘‘SUBCHAPTER I—GENERAL PROVISIONS sion under this chapter only to the extent provided by the terms of such provisions or tary commission under this chapter is as- ‘‘Sec. by this chapter. sembled for the trial of a case, the convening ‘‘948a. Definitions. authority may excuse a member from par- ‘‘(d) TREATMENT OF RULINGS AND PRECE- ‘‘948b. Military commissions generally. ticipating in the case. ‘‘948c. Persons subject to military commis- DENTS.—The findings, holdings, interpreta- ‘‘§ 948j. Military judge of a military commis- sions. tions, and other precedents of military com- ‘‘948d. Jurisdiction of military commissions. missions under this chapter may not be in- sion troduced or considered in any hearing, trial, ‘‘(a) DETAIL OF MILITARY JUDGE.—A mili- ‘‘§ 948a. Definitions or other proceeding of a court-martial con- tary judge shall be detailed to each military ‘‘In this chapter: vened under chapter 47 of this title. The find- commission under this chapter. The Sec- ‘‘(1) ALIEN.—The term ‘alien’ means an in- ings, holdings, interpretations, and other retary of Defense shall prescribe regulations dividual who is not a citizen of the United precedents of military commissions under providing for the manner in which military States. this chapter may not form the basis of any judges are so detailed to military commis- ‘‘(2) CLASSIFIED INFORMATION.—The term holding, decision, or other determination of sions. The military judge shall preside over ‘classified information’ means the following: a court-martial convened under that chap- each military commission to which he has ‘‘(A) Any information or material that has ter. been detailed. been determined by the United States Gov- ‘‘(b) ELIGIBILITY.—A military judge shall ernment pursuant to statute, Executive ‘‘§ 948c. Persons subject to military commis- sions be a commissioned officer of the armed order, or regulation to require protection forces who is a member of the bar of a Fed- ‘‘Any alien unlawful enemy combatant en- against unauthorized disclosure for reasons eral court, or a member of the bar of the gaged in hostilities or having supported hos- of national security. highest court of a State, and who is certified tilities against the United States is subject ‘‘(B) Any restricted data, as that term is to be qualified for duty under section 826 of to trial by military commission as set forth defined in section 11 y. of the Atomic Energy this title (article 26 of the Uniform Code of in this chapter. Act of 1954 (42 U.S.C. 2014(y)). Military Justice) as a military judge in gen- ‘‘(3) LAWFUL ENEMY COMBATANT.—The term ‘‘§ 948d. Jurisdiction of military commissions eral courts-martial by the Judge Advocate ‘lawful enemy combatant’ means an indi- ‘‘A military commission under this chapter General of the armed force of which such vidual who is— shall have jurisdiction to try persons subject military judge is a member. ‘‘(A) a member of the regular forces of a to this chapter for any offense made punish- ‘‘(c) INELIGIBILITY OF CERTAIN INDIVID- State party engaged in hostilities against able by this chapter, sections 904 and 906 of UALS.—No person is eligible to act as mili- the United States; this title (articles 104 and 106 of the Uniform tary judge in a case of a military commis- ‘‘(B) a member of a militia, volunteer Code of Military Justice), or the law of war, sion under this chapter if he is the accuser or corps, or organized resistance movement be- and may, under such limitations as the a witness or has acted as investigator or a longing to a State party engaged in such President may prescribe, adjudge any pun- counsel in the same case. hostilities, which are under responsible com- ishment not forbidden by this chapter, in- ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI- mand, wear a fixed distinctive sign recogniz- cluding the penalty of death when authorized BILITY TO VOTE.—A military judge detailed able at a distance, carry their arms openly, under this chapter, chapter 47 of this title, or to a military commission under this chapter and abide by the law of war; or the law of war. may not consult with the members except in ‘‘(C) a member of a regular armed force the presence of the accused (except as other- who professes allegiance to a government en- ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY COMMISSIONS wise provided in section 949d of this title), gaged in such hostilities, but not recognized trial counsel, and defense counsel, nor may by the United States. ‘‘Sec. he vote with the members. ‘‘(4) UNLAWFUL ENEMY COMBATANT.—The ‘‘948h. Who may convene military commis- ‘‘(e) OTHER DUTIES.—A commissioned offi- term ‘unlawful enemy combatant’ means an sions. cer who is certified to be qualified for duty individual engaged in hostilities against the ‘‘948i. Who may serve on military commis- as a military judge of a military commission United States who is not a lawful enemy sions. under this chapter may perform such other combatant. ‘‘948j. Military judge of a military commis- duties as are assigned to him by or with the ‘‘§ 948b. Military commissions generally sion. approval of the Judge Advocate General of ‘‘(a) PURPOSE.—This chapter establishes ‘‘948k. Detail of trial counsel and defense the armed force of which such officer is a procedures governing the use of military counsel. member or the designee of such Judge Advo- commissions to try alien unlawful enemy ‘‘948l. Detail or employment of reporters and cate General. combatants engaged in hostilities against interpreters. ‘‘(f) PROHIBITION ON EVALUATION OF FITNESS the United States for violations of the law of ‘‘948m. Number of members; excuse of mem- BY CONVENING AUTHORITY.—The convening war and other offenses triable by military bers; absent and additional authority of a military commission under commission. members. this chapter shall not prepare or review any

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00110 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.086 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10333 report concerning the effectiveness, fitness, qualified court reporters, who shall prepare a ‘‘§ 948r. Compulsory self-incrimination pro- or efficiency of a military judge detailed to verbatim record of the proceedings of and hibited; statements obtained by torture or the military commission which relates to his testimony taken before the military com- cruel, inhuman, or degrading treatment performance of duty as a military judge on mission. ‘‘(a) IN GENERAL.—No person shall be re- the military commission. ‘‘(b) INTERPRETERS.—Under such regula- quired to testify against himself at a pro- ‘‘§ 948k. Detail of trial counsel and defense tions as the Secretary of Defense may pre- ceeding of a military commission under this counsel scribe, the convening authority of a military chapter. ‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) commission under this chapter may detail to ‘‘(b) STATEMENTS OBTAINED BY TORTURE OR Trial counsel and military defense counsel or employ for the military commission inter- CRUEL, INHUMAN, OR DEGRADING TREAT- shall be detailed for each military commis- preters who shall interpret for the military MENT.—A statement obtained by use of tor- sion under this chapter. commission, and, as necessary, for trial ture or by cruel, inhuman, or degrading ‘‘(2) Assistant trial counsel and assistant counsel and defense counsel for the military treatment prohibited by section 1003 of the and associate defense counsel may be de- commission, and for the accused. Detainee Treatment Act of 2005 (42 U.S.C. tailed for a military commission under this ‘‘(c) TRANSCRIPT; RECORD.—The transcript 2000dd), whether or not under color of law, chapter. of a military commission under this chapter shall not be admissible in a military com- ‘‘(3) Military defense counsel for a military shall be under the control of the convening mission under this chapter, except against a commission under this chapter shall be de- authority of the military commission, who person accused of torture or such treatment tailed as soon as practicable. shall also be responsible for preparing the as evidence the statement was made. ‘‘(4) The Secretary of Defense shall pre- record of the proceedings of the military ‘‘(c) STATEMENTS OBTAINED BY ALLEGED CO- scribe regulations providing for the manner commission. ERCION NOT AMOUNTING TO TORTURE OR in which trial counsel and military defense CRUEL, INHUMAN, OR DEGRADING TREAT- ‘‘§ 948m. Number of members; excuse of mem- counsel are detailed for military commis- MENT.—An otherwise admissible statement bers; absent and additional members sions under this chapter and for the persons obtained through the use of alleged coercion who are authorized to detail such counsel for ‘‘(a) NUMBER OF MEMBERS.—(1) A military not amounting to torture or cruel, inhuman, such military commissions. commission under this chapter shall, except or degrading treatment prohibited by section ‘‘(b) TRIAL COUNSEL.—Subject to sub- as provided in paragraph (2), have at least 1003 of the Detainee Treatment Act of 2005 section (e), trial counsel detailed for a mili- five members. may be admitted in evidence in a military tary commission under this chapter must ‘‘(2) In a case in which the accused before commission under this chapter only if the be— a military commission under this chapter military judge finds that— ‘‘(1) a judge advocate (as that term is de- may be sentenced to a penalty of death, the ‘‘(1) the totality of the circumstances fined in section 801 of this title (article 1 of military commission shall have the number under which the statement was made render the Uniform Code of Military Justice)) who of members prescribed by section 949m(c) of it reliable and possessing sufficient pro- is— this title. bative value; and ‘‘(A) a graduate of an accredited law school ‘‘(b) EXCUSE OF MEMBERS.—No member of a ‘‘(2) the interests of justice would best be or is a member of the bar of a Federal court military commission under this chapter may served by admission of the statement into or of the highest court of a State; and be absent or excused after the military com- evidence. ‘‘(B) certified as competent to perform du- mission has been assembled for the trial of a ‘‘§ 948s. Service of charges ties as trial counsel before general courts- case unless excused— ‘‘The trial counsel assigned to a case be- martial by the Judge Advocate General of ‘‘(1) as a result of challenge; fore a military commission under this chap- the armed force of which he is a member; or ‘‘(2) by the military judge for physical dis- ter shall cause to be served upon the accused ‘‘(2) a civilian who is— ability or other good cause; or and military defense counsel a copy of the ‘‘(A) a member of the bar of a Federal ‘‘(3) by order of the convening authority charges upon which trial is to be had in court or of the highest court of a State; and for good cause. English and, if appropriate, in another lan- ‘‘(B) otherwise qualified to practice before ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.— guage that the accused understands, suffi- the military commission pursuant to regula- Whenever a military commission under this ciently in advance of trial to prepare a de- tions prescribed by the Secretary of Defense. chapter is reduced below the number of fense. ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject members required by subsection (a), the trial ‘‘SUBCHAPTER IV—TRIAL PROCEDURE to subsection (e), military defense counsel may not proceed unless the convening au- ‘‘Sec. detailed for a military commission under thority details new members sufficient to this chapter must be a judge advocate (as so ‘‘949a. Rules. provide not less than such number. The trial ‘‘949b. Unlawfully influencing action of mili- defined) who is— may proceed with the new members present ‘‘(1) a graduate of an accredited law school tary commission. after the recorded evidence previously intro- ‘‘949c. Duties of trial counsel and defense or is a member of the bar of a Federal court duced before the members has been read to or of the highest court of a State; and counsel. the military commission in the presence of ‘‘949d. Sessions. ‘‘(2) certified as competent to perform du- the military judge, the accused (except as ‘‘949e. Continuances. ties as defense counsel before general courts- provided in section 949d of this title), and ‘‘949f. Challenges. martial by the Judge Advocate General of counsel for both sides. ‘‘949g. Oaths. the armed force of which he is a member. ‘‘SUBCHAPTER III—PRE-TRIAL ‘‘949h. Former jeopardy. ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE ‘‘949i. Pleas of the accused. PROCEDURE COUNSEL.—(1) The Chief Prosecutor in a mili- ‘‘949j. Opportunity to obtain witnesses and tary commission under this chapter shall ‘‘Sec. other evidence. meet the requirements set forth in sub- ‘‘948q. Charges and specifications. ‘‘949k. Defense of lack of mental responsi- section (b)(1). ‘‘948r. Compulsory self-incrimination prohib- bility. ‘‘(2) The Chief Defense Counsel in a mili- ited; statements obtained by ‘‘949l. Voting and rulings. tary commission under this chapter shall torture or cruel, inhuman, or ‘‘949m. Number of votes required. meet the requirements set forth in sub- degrading treatment. ‘‘949n. Military commission to announce ac- section (c)(1). tion. ‘‘948s. Service of charges. ‘‘(e) INELIGIBILITY OF CERTAIN INDIVID- ‘‘949o. Record of trial. UALS.—No person who has acted as an inves- ‘‘§ 948q. Charges and specifications ‘‘§ 949a. Rules tigator, military judge, or member of a mili- ‘‘(a) CHARGES AND SPECIFICATIONS.— ‘‘(a) PROCEDURES AND RULES OF EVI- tary commission under this chapter in any Charges and specifications against an ac- DENCE.—Pretrial, trial, and post-trial proce- case may act later as trial counsel or mili- cused in a military commission under this dures, including elements and modes of tary defense counsel in the same case. No chapter shall be signed by a person subject proof, for cases triable by military commis- person who has acted for the prosecution be- to chapter 47 of this title under oath before sion under this chapter may be prescribed by fore a military commission under this chap- a commissioned officer of the armed forces the Secretary of Defense. Such procedures ter may act later in the same case for the de- authorized to administer oaths and shall may not be contrary to or inconsistent with fense, nor may any person who has acted for state— this chapter. Except as otherwise provided in the defense before a military commission ‘‘(1) that the signer has personal knowl- this chapter or chapter 47 of this title, the under this chapter act later in the same case edge of, or reason to believe, the matters set procedures and rules of evidence applicable for the prosecution. forth therein; and in trials by general courts-martial of the ‘‘§ 948l. Detail or employment of reporters ‘‘(2) that they are true in fact to the best United States shall apply in trials by mili- and interpreters of his knowledge and belief. tary commission under this chapter. ‘‘(a) COURT REPORTERS.—Under such regu- ‘‘(b) NOTICE TO ACCUSED.—Upon the swear- ‘‘(b) EXCEPTIONS.—(1) The Secretary of De- lations as the Secretary of Defense may pre- ing of the charges and specifications in ac- fense, in consultation with the Attorney scribe, the convening authority of a military cordance with subsection (a), the accused General, may make such exceptions in the commission under this chapter shall detail shall be informed of the charges and speci- applicability in trials by military commis- to or employ for the military commission fications against him as soon as practicable. sion under this chapter from the procedures

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00111 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.086 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10334 CONGRESSIONAL RECORD — SENATE September 27, 2006 and rules of evidence otherwise applicable in (2)(D) shall conform his deportment and the ‘‘(A) is a United States citizen; general courts-martial as may be required by conduct of the defense to the rules of evi- ‘‘(B) is admitted to the practice of law in a the unique circumstances of the conduct of dence, procedure, and decorum applicable to State, district, or possession of the United military and intelligence operations during trials by military commission. States, or before a Federal court; hostilities or by other practical need. ‘‘(B) Failure of the accused to conform to ‘‘(C) has not been the subject of any sanc- ‘‘(2) Notwithstanding any exceptions au- the rules described in subparagraph (A) may tion of disciplinary action by any court, bar, thorized by paragraph (1), the procedures and result in a partial or total revocation by the or other competent governmental authority rules of evidence in trials by military com- military judge of the right of self-representa- for relevant misconduct; mission under this chapter shall include, at tion under paragraph (2)(D). In such case, the ‘‘(D) has been determined to be eligible for a minimum, the following rights: detailed defense counsel of the accused or an access to information classified at the level ‘‘(A) To examine and respond to all evi- appropriately authorized civilian counsel Secret or higher; and dence considered by the military commission shall perform the functions necessary for the ‘‘(E) has signed a written agreement to on the issue of guilt or innocence and for defense. comply with all applicable regulations or in- sentencing. ‘‘(c) DELEGATION OF AUTHORITY TO PRE- structions for counsel, including any rules of ‘‘(B) To be present at all sessions of the SCRIBE REGULATIONS.—The Secretary of De- court for conduct during the proceedings. military commission (other than those for fense may delegate the authority of the Sec- ‘‘(4) If the accused is represented by civil- deliberations or voting), except when ex- retary to prescribe regulations under this ian counsel, military counsel detailed shall cluded under section 949d of this title. chapter. act as associate counsel. ‘‘(C) To the assistance of counsel. ‘‘§ 949b. Unlawfully influencing action of mili- ‘‘(5) The accused is not entitled to be rep- ‘‘(D) To self-representation, if the accused tary commission resented by more than one military counsel. knowingly and competently waives the as- However, the person authorized under regu- sistance of counsel, subject to the provisions ‘‘(a) IN GENERAL.—(1) No authority con- vening a military commission under this lations prescribed under section 948k of this of paragraph (4). title to detail counsel, in such person’s sole ‘‘(E) To the suppression of evidence that is chapter may censure, reprimand, or admon- ish the military commission, or any member, discretion, may detail additional military not reliable or probative. counsel to represent the accused. ‘‘(F) To the suppression of evidence the military judge, or counsel thereof, with re- spect to the findings or sentence adjudged by ‘‘(6) Defense counsel may cross-examine probative value of which is substantially each witness for the prosecution who testi- outweighed by— the military commission, or with respect to any other exercises of its or their functions fies before a military commission under this ‘‘(i) the danger of unfair prejudice, confu- chapter. sion of the issues, or misleading the mem- in the conduct of the proceedings. ‘‘(2) No person may attempt to coerce or, bers; or ‘‘§ 949d. Sessions by any unauthorized means, influence— ‘‘(ii) considerations of undue delay, waste ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM- ‘‘(A) the action of a military commission of time, or needless presentation of cumu- BERS.—(1) At any time after the service of under this chapter, or any member thereof, lative evidence. charges which have been referred for trial by ‘‘(3) In making exceptions in the applica- in reaching the findings or sentence in any military commission under this chapter, the bility in trials by military commission under case; military judge may call the military com- this chapter from the procedures and rules ‘‘(B) the action of any convening, approv- mission into session without the presence of otherwise applicable in general courts-mar- ing, or reviewing authority with respect to the members for the purpose of— tial, the Secretary of Defense may provide their judicial acts; or ‘‘(A) hearing and determining motions the following: ‘‘(C) the exercise of professional judgment raising defenses or objections which are ca- ‘‘(A) Evidence seized outside the United by trial counsel or defense counsel. pable of determination without trial of the States shall not be excluded from trial by ‘‘(3) The provisions of this subsection shall issues raised by a plea of not guilty; military commission on the grounds that the not apply with respect to— ‘‘(B) hearing and ruling upon any matter evidence was not seized pursuant to a search ‘‘(A) general instructional or informational which may be ruled upon by the military warrant or authorization. courses in military justice if such courses judge under this chapter, whether or not the ‘‘(B) A statement of the accused that is are designed solely for the purpose of in- matter is appropriate for later consideration otherwise admissible shall not be excluded structing members of a command in the sub- or decision by the members; from trial by military commission on stantive and procedural aspects of military ‘‘(C) if permitted by regulations prescribed grounds of alleged coercion or compulsory commissions; or by the Secretary of Defense, receiving the self-incrimination so long as the evidence ‘‘(B) statements and instructions given in pleas of the accused; and complies with the provisions of section 948r open proceedings by a military judge or ‘‘(D) performing any other procedural func- of this title. counsel. tion which may be performed by the military ‘‘(C) Evidence shall be admitted as authen- ‘‘(b) PROHIBITION ON CONSIDERATION OF AC- judge under this chapter or under rules pre- tic so long as— TIONS ON COMMISSION IN EVALUATION OF FIT- scribed pursuant to section 949a of this title ‘‘(i) the military judge of the military NESS.—In the preparation of an effectiveness, and which does not require the presence of commission determines that there is suffi- fitness, or efficiency report or any other re- the members. cient evidence that the evidence is what it is port or document used in whole or in part for ‘‘(2) Except as provided in subsections (b), claimed to be; and the purpose of determining whether a com- (c), and (d), any proceedings under paragraph ‘‘(ii) the military judge instructs the mem- missioned officer of the armed forces is (1) shall be conducted in the presence of the bers that they may consider any issue as to qualified to be advanced in grade, or in de- accused, defense counsel, and trial counsel, authentication or identification of evidence termining the assignment or transfer of any and shall be made part of the record. in determining the weight, if any, to be such officer or whether any such officer ‘‘(b) DELIBERATION OR VOTE OF MEMBERS.— given to the evidence. should be retained on active duty, no person When the members of a military commission ‘‘(D) Hearsay evidence not otherwise ad- may— under this chapter deliberate or vote, only missible under the rules of evidence applica- ‘‘(1) consider or evaluate the performance the members may be present. ble in trial by general courts-martial may be of duty of any member of a military commis- ‘‘(c) CLOSURE OF PROCEEDINGS.—(1) The admitted in a trial by military commission sion under this chapter; or military judge may close to the public all or only if— ‘‘(2) give a less favorable rating or evalua- part of the proceedings of a military com- ‘‘(i) the proponent of the evidence makes tion to any commissioned officer because of mission under this chapter. known to the adverse party, sufficiently in the zeal with which such officer, in acting as ‘‘(2) The military judge may close to the advance of trial or hearing to provide the ad- counsel, represented any accused before a public all or a portion of the proceedings verse party with a fair opportunity to meet military commission under this chapter. under paragraph (1) only upon making a spe- the evidence, the proponent’s intention to ‘‘§ 949c. Duties of trial counsel and defense cific finding that such closure is necessary offer the evidence, and the particulars of the counsel to— evidence (including information on the cir- ‘‘(a) TRIAL COUNSEL.—The trial counsel of a ‘‘(A) protect information the disclosure of cumstances under which the evidence was military commission under this chapter which could reasonably be expected to cause obtained); and shall prosecute in the name of the United damage to the national security, including ‘‘(ii) the military judge finds that the to- States. intelligence or law enforcement sources, tality of the circumstances render the evi- ‘‘(b) DEFENSE COUNSEL.—(1) The accused methods, or activities; or dence more probative on the point for which shall be represented in his defense before a ‘‘(B) ensure the physical safety of individ- it is offered than other evidence which the military commission under this chapter as uals. proponent can procure through reasonable provided in this subsection. ‘‘(3) A finding under paragraph (2) may be efforts, taking into consideration the unique ‘‘(2) The accused shall be represented by based upon a presentation, including a pres- circumstances of the conduct of military and military counsel detailed under section 948k entation ex parte or in camera, by either intelligence operations during hostilities. of this title. trial counsel or defense counsel. ‘‘(4)(A) The accused in a military commis- ‘‘(3) The accused may be represented by ci- ‘‘(4)(A) Subject to the provisions of this sion under this chapter who exercises the vilian counsel if retained by the accused, paragraph, classified information shall be right to self-representation under paragraph provided that such civilian counsel— handled in accordance with rules applicable

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This subparagraph applies to as a military judge, trial counsel, or defense ‘‘(2) to substitute an unclassified summary all stages of proceedings of military commis- counsel may be taken at any time by any of the classified information in such docu- sions under this chapter. judge advocate or other person certified to ments; or ‘‘(C) After the original classification au- be qualified or competent for the duty; and ‘‘(3) to substitute an unclassified state- thority or head of the agency concerned has ‘‘(B) if such an oath is taken, such oath ment admitting relevant facts that classified certified in writing that evidence and the need not again be taken at the time the information in such documents would tend sources thereof have been declassified to the judge advocate or other person is detailed to to prove. maximum extent possible, consistent with that duty. ‘‘§ 949k. Defense of lack of mental responsi- the requirements of national security, the ‘‘(b) WITNESSES.—Each witness before a bility military judge may, to the extent prac- military commission under this chapter ‘‘(a) AFFIRMATIVE DEFENSE.—It is an af- ticable in accordance with the rules applica- shall be examined on oath. firmative defense in a trial by military com- ble in trials by court-martial, authorize— ‘‘(c) OATH DEFINED.—In this section, the mission under this chapter that, at the time ‘‘(i) the deletion of specified items of clas- term ‘oath’ includes an affirmation. of the commission of the acts constituting sified information from documents made ‘‘§ 949h. Former jeopardy the offense, the accused, as a result of a se- available to the accused; ‘‘(a) IN GENERAL.—No person may, without vere mental disease or defect, was unable to ‘‘(ii) the substitution of a portion or sum- his consent, be tried by a military commis- appreciate the nature and quality or the mary of the information for such classified sion under this chapter a second time for the wrongfulness of the acts. Mental disease or documents; or same offense. defect does not otherwise constitute a de- ‘‘(iii) the substitution of a statement ad- ‘‘(b) SCOPE OF TRIAL.—No proceeding in fense. mitting relevant facts that the classified in- which the accused has been found guilty by ‘‘(b) BURDEN OF PROOF.—The accused in a formation would tend to prove. military commission under this chapter military commission under this chapter has ‘‘(D) A claim of privilege under this para- upon any charge or specification is a trial in the burden of proving the defense of lack of graph, and any materials in support thereof, the sense of this section until the finding of mental responsibility by clear and con- shall, upon the request of the Government, guilty has become final after review of the vincing evidence. be considered by the military judge in cam- case has been fully completed. ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE- era and shall not be disclosed to the accused. FENSE.—Whenever lack of mental responsi- ‘‘§ 949i. Pleas of the accused ‘‘(d) EXCLUSION OF ACCUSED FROM CERTAIN bility of the accused with respect to an of- PROCEEDINGS.—The military judge may ex- ‘‘(a) PLEA OF NOT GUILTY.—If an accused in fense is properly at issue in a military com- clude the accused from any portion of a pro- a military commission under this chapter mission under this chapter, the military ceeding upon a determination that, after after a plea of guilty sets up matter incon- judge shall instruct the members as to the being warned by the military judge, the ac- sistent with the plea, or if it appears that defense of lack of mental responsibility cused persists in conduct that justifies exclu- the accused has entered the plea of guilty under this section and shall charge the mem- sion from the courtroom— through lack of understanding of its mean- bers to find the accused— ‘‘(1) to ensure the physical safety of indi- ing and effect, or if the accused fails or re- ‘‘(1) guilty; viduals; or fuses to plead, a plea of not guilty shall be ‘‘(2) not guilty; or ‘‘(2) to prevent disruption of the pro- entered in the record, and the military com- ‘‘(3) subject to subsection (d), not guilty by ceedings by the accused. mission shall proceed as though the accused reason of lack of mental responsibility. ‘‘§ 949e. Continuances had pleaded not guilty. ‘‘(d) MAJORITY VOTE REQUIRED FOR FIND- ‘‘(b) FINDING OF GUILT AFTER GUILTY ‘‘The military judge in a military commis- ING.—The accused shall be found not guilty PLEA.—With respect to any charge or speci- sion under this chapter may, for reasonable by reason of lack of mental responsibility fication to which a plea of guilty has been cause, grant a continuance to any party for under subsection (c)(3) only if a majority of made by the accused in a military commis- such time, and as often, as may appear to be the members present at the time the vote is sion under this chapter and accepted by the just. taken determines that the defense of lack of military judge, a finding of guilty of the mental responsibility has been established. ‘‘§ 949f. Challenges charge or specification may be entered im- ‘‘§ 949l. Voting and rulings ‘‘(a) CHALLENGES AUTHORIZED.—The mili- mediately without a vote. The finding shall tary judge and members of a military com- constitute the finding of the military com- ‘‘(a) VOTE BY SECRET WRITTEN BALLOT.— mission under this chapter may be chal- mission unless the plea of guilty is with- Voting by members of a military commis- lenged by the accused or trial counsel for drawn prior to announcement of the sen- sion under this chapter on the findings and cause stated to the military commission. tence, in which event the proceedings shall on the sentence shall be by secret written The military judge shall determine the rel- continue as though the accused had pleaded ballot. evance and validity of challenges for cause, not guilty. ‘‘(b) RULINGS.—(1) The military judge in a and may not receive a challenge to more military commission under this chapter ‘‘§ 949j. Opportunity to obtain witnesses and shall rule upon all questions of law, includ- than one person at a time. Challenges by other evidence trial counsel shall ordinarily be presented ing the admissibility of evidence and all in- ‘‘(a) IN GENERAL.—(1) Defense counsel in a and decided before those by the accused are terlocutory questions arising during the pro- military commission under this chapter offered. ceedings. shall have a reasonable opportunity to ob- ‘‘(2) Any ruling made by the military judge ‘‘(b) PEREMPTORY CHALLENGES.—The ac- tain witnesses and other evidence as pro- upon a question of law or an interlocutory cused and trial counsel are each entitled to vided in regulations prescribed by the Sec- question (other than the factual issue of one peremptory challenge, but the military retary of Defense. mental responsibility of the accused) is con- judge may not be challenged except for ‘‘(2) Process issued in military commis- clusive and constitutes the ruling of the cause. sions under this chapter to compel witnesses military commission. However, a military ‘‘(c) CHALLENGES AGAINST ADDITIONAL to appear and testify and to compel the pro- judge may change his ruling at any time dur- MEMBERS.—Whenever additional members duction of other evidence— ing the trial. are detailed to a military commission under ‘‘(A) shall be similar to that which courts ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before this chapter, and after any challenges for of the United States having criminal juris- a vote is taken of the findings of a military cause against such additional members are diction may lawfully issue; and commission under this chapter, the military presented and decided, the accused and trial ‘‘(B) shall run to any place where the judge shall, in the presence of the accused counsel are each entitled to one peremptory United States shall have jurisdiction thereof. and counsel, instruct the members as to the challenge against members not previously ‘‘(b) DISCLOSURE OF EXCULPATORY EVI- elements of the offense and charge the mem- subject to peremptory challenge. DENCE.—As soon as practicable, trial counsel bers— ‘‘§ 949g. Oaths in a military commission under this chapter ‘‘(1) that the accused must be presumed to ‘‘(a) IN GENERAL.—(1) Before performing shall disclose to the defense the existence of be innocent until his guilt is established by their respective duties in a military commis- any known evidence that reasonably tends to legal and competent evidence beyond a rea- sion under this chapter, military judges, exculpate or reduce the degree of guilt of the sonable doubt; members, trial counsel, defense counsel, re- accused. ‘‘(2) that in the case being considered, if porters, and interpreters shall take an oath ‘‘(c) TREATMENT OF CERTAIN ITEMS.—In ac- there is a reasonable doubt as to the guilt of to perform their duties faithfully. cordance with the rules applicable in trials the accused, the doubt must be resolved in ‘‘(2) The form of the oath required by para- by general courts-martial in the United favor of the accused and he must be acquit- graph (1), the time and place of the taking States, and to the extent provided in such ted; thereof, the manner of recording thereof, and rules, the military judge in a military com- ‘‘(3) that, if there is reasonable doubt as to whether the oath shall be taken for all cases mission under this chapter may authorize the degree of guilt, the finding must be in a

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lower degree as to which there is no reason- ‘‘(c) PROVISION OF COPY TO ACCUSED.—A or affirm, instead, so much of the finding as able doubt; and copy of the record of the proceedings of the includes a lesser included offense. ‘‘(4) that the burden of proof to establish military commission under this chapter ‘‘§ 950b. Review by the convening authority the guilt of the accused beyond a reasonable shall be given the accused as soon as it is au- ‘‘(a) NOTICE TO CONVENING AUTHORITY OF doubt is upon the United States. thenticated. If the record contains classified FINDINGS AND SENTENCE.—The findings and information, or a classified annex, the ac- ‘‘§ 949m. Number of votes required sentence of a military commission under cused shall receive a redacted version of the ‘‘(a) CONVICTION.—No person may be con- this chapter shall be reported in writing record consistent with the requirements of victed by a military commission under this promptly to the convening authority after section 949d(c)(4) of this title. Defense coun- chapter of any offense, except as provided in the announcement of the sentence. sel shall have access to the unredacted section 949i(b) of this title or by concurrence ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO record, as provided in regulations prescribed of two-thirds of the members present at the CONVENING AUTHORITY.—(1) The accused may time the vote is taken. by the Secretary of Defense. submit to the convening authority matters ‘‘(b) SENTENCES.—(1) Except as provided in ‘‘SUBCHAPTER V—SENTENCES for consideration by the convening authority paragraphs (2) and (3), sentences shall be de- ‘‘Sec. with respect to the findings and the sentence termined by a military commission by the ‘‘949s. Cruel or unusual punishments prohib- of the military commission under this chap- concurrence of two-thirds of the members ited. ter. present at the time the vote is taken. ‘‘949t. Maximum limits. ‘‘(2)(A) Except as provided in subparagraph ‘‘(2) No person may be sentenced to death ‘‘949u. Execution of confinement. (B), a submittal under paragraph (1) shall be by a military commission, except insofar ‘‘§ 949s. Cruel or unusual punishments pro- made in writing within 20 days after accused as— hibited has been give an authenticated record of ‘‘(A) the penalty of death has been ex- ‘‘Punishment by flogging, or by branding, trial under section 949o(c) of this title. pressly authorized under this chapter, chap- ‘‘(B) If the accused shows that additional ter 47 of this title, or the law of war for an marking, or tattooing on the body, or any other cruel or unusual punishment, may not time is required for the accused to make a offense of which the accused has been found submittal under paragraph (1), the convening guilty; be adjudged by a military commission under this chapter or inflicted under this chapter authority may, for good cause, extend the ‘‘(B) trial counsel expressly sought the applicable period under subparagraph (A) for penalty of death by filing an appropriate no- upon any person subject to this chapter. The use of irons, single or double, except for the not more than an additional 20 days. tice in advance of trial; ‘‘(3) The accused may waive his right to ‘‘(C) the accused was convicted of the of- purpose of safe custody, is prohibited under this chapter. make a submittal to the convening author- fense by the concurrence of all the members ity under paragraph (1). Such a waiver shall present at the time the vote is taken; and ‘‘§ 949t. Maximum limits be made in writing, and may not be revoked. ‘‘(D) all members present at the time the ‘‘The punishment which a military com- For the purposes of subsection (c)(2), the vote was taken concurred in the sentence of mission under this chapter may direct for an time within which the accused may make a death. offense may not exceed such limits as the submittal under this subsection shall be ‘‘(3) No person may be sentenced to life im- President or Secretary of Defense may pre- deemed to have expired upon the submittal prisonment, or to confinement for more than scribe for that offense. of a waiver under this paragraph to the con- 10 years, by a military commission under ‘‘§ 949u. Execution of confinement vening authority. this chapter except by the concurrence of ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) three-fourths of the members present at the ‘‘(a) IN GENERAL.—Under such regulations as the Secretary of Defense may prescribe, a The authority under this subsection to mod- time the vote is taken. ify the findings and sentence of a military ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR sentence of confinement adjudged by a mili- commission under this chapter is a matter of PENALTY OF DEATH.—(1) Except as provided tary commission under this chapter may be the sole discretion and prerogative of the in paragraph (2), in a case in which the pen- carried into execution by confinement— convening authority. alty of death is sought, the number of mem- ‘‘(1) in any place of confinement under the ‘‘(2) The convening authority is not re- bers of the military commission under this control of any of the armed forces; or quired to take action on the findings of a chapter shall be not less than 12 members. ‘‘(2) in any penal or correctional institu- ‘‘(2) In any case described in paragraph (1) tion under the control of the United States military commission under this chapter. If in which 12 members are not reasonably or its allies, or which the United States may the convening authority takes action on the available for a military commission because be allowed to use. findings, the convening authority may, in of physical conditions or military exigencies, ‘‘(b) TREATMENT DURING CONFINEMENT BY his sole discretion, only— the convening authority shall specify a less- OTHER THAN THE ARMED FORCES.—Persons ‘‘(A) dismiss any charge or specification by er number of members for the military com- confined under subsection (a)(2) in a penal or setting aside a finding of guilty thereto; or mission (but not fewer than 5 members), and correctional institution not under the con- ‘‘(B) change a finding of guilty to a charge the military commission may be assembled, trol of an armed force are subject to the to a finding of guilty to an offense that is a and the trial held, with not less than the same discipline and treatment as persons lesser included offense of the offense stated number of members so specified. In any such confined or committed by the courts of the in the charge. case, the convening authority shall make a United States or of the State, District of Co- ‘‘(3)(A) The convening authority shall take detailed written statement, to be appended lumbia, or place in which the institution is action on the sentence of a military commis- to the record, stating why a greater number situated. sion under this chapter. ‘‘(B) Subject to regulations prescribed by of members were not reasonably available. ‘‘SUBCHAPTER VI—POST-TRIAL PROCE- the Secretary of Defense, action under this DURE AND REVIEW OF MILITARY COM- ‘‘§ 949n. Military commission to announce ac- paragraph may be taken only after consider- MISSIONS tion ation of any matters submitted by the ac- ‘‘A military commission under this chapter ‘‘Sec. cused under subsection (b) or after the time shall announce its findings and sentence to ‘‘950a. Error of law; lesser included offense. for submitting such matters expires, which- the parties as soon as determined. ‘‘950b. Review by the convening authority. ever is earlier. ‘‘§ 949o. Record of trial ‘‘950c. Waiver or withdrawal of appeal. ‘‘(C) In taking action under this paragraph, ‘‘950d. Appeal by the United States. ‘‘(a) RECORD; AUTHENTICATION.—Each mili- the convening authority may, in his sole dis- tary commission under this chapter shall ‘‘950e. Rehearings. cretion, approve, disapprove, commute, or ‘‘950f. Review by United States Court of Ap- keep a separate, verbatim, record of the pro- suspend the sentence in whole or in part. The peals for the Armed Forces and ceedings in each case brought before it, and convening authority may not increase a sen- Supreme Court. the record shall be authenticated by the sig- tence beyond that which is found by the ‘‘950g. Appellate counsel nature of the military judge. If the record military commission. ‘‘950h. Execution of sentence; suspension of cannot be authenticated by the military ‘‘(4) The convening authority shall serve sentence. judge by reason of his death, disability, or on the accused or on defense counsel notice ‘‘950i. Finality of proceedings, findings, and absence, it shall be authenticated by the sig- of any action taken by the convening au- sentences. nature of the trial counsel or by a member if thority under this subsection. the trial counsel is unable to authenticate it ‘‘§ 950a. Error of law; lesser included offense ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) by reason of his death, disability, or absence. ‘‘(a) ERROR OF LAW.—A finding or sentence Subject to paragraphs (2) and (3), the con- Where appropriate, and as provided in regu- of a military commission under this chapter vening authority of a military commission lations prescribed by the Secretary of De- may not be held incorrect on the ground of under this chapter may, in his sole discre- fense, the record of a military commission an error of law unless the error materially tion, order a proceeding in revision or a re- under this chapter may contain a classified prejudices the substantial rights of the ac- hearing. annex. cused. ‘‘(2)(A) Except as provided in subparagraph ‘‘(b) COMPLETE RECORD REQUIRED.—A com- ‘‘(b) LESSER INCLUDED OFFENSE.—Any re- (B), a proceeding in revision may be ordered plete record of the proceedings and testi- viewing authority with the power to approve by the convening authority if— mony shall be prepared in every military or affirm a finding of guilty by a military ‘‘(i) there is an apparent error or omission commission under this chapter. commission under this chapter may approve in the record; or

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‘‘(ii) the record shows improper or incon- ‘‘(c) APPEAL.—An appeal under this section dures for the appointment of appellate coun- sistent action by the military commission shall be forwarded, by means specified in sel for the United States and for the accused with respect to the findings or sentence that regulations prescribed the Secretary of De- in military commissions under this chapter. can be rectified without material prejudice fense, directly to the United States Court of Appellate counsel shall meet the qualifica- to the substantial rights of the accused. Appeals for the Armed Forces. In ruling on tions of counsel for appearing before mili- ‘‘(B) In no case may a proceeding in revi- an appeal under this section, the Court may tary commissions under this chapter. sion— act only with respect to matters of law. ‘‘(b) REPRESENTATION OF UNITED STATES.— ‘‘(i) reconsider a finding of not guilty of a ‘‘§ 950e. Rehearings Appellate counsel may represent the United specification or a ruling which amounts to a ‘‘(a) COMPOSITION OF MILITARY COMMISSION States in any appeal or review proceeding finding of not guilty; FOR REHEARING.—Each rehearing under this under this chapter. Appellate Government ‘‘(ii) reconsider a finding of not guilty of chapter shall take place before a military counsel may represent the United States be- any charge, unless there has been a finding commission under this chapter composed of fore the Supreme Court in case arising under of guilty under a specification laid under members who were not members of the mili- this chapter when requested to do so by the that charge, which sufficiently alleges a vio- tary commission which first heard the case. Attorney General. lation; or ‘‘(b) SCOPE OF REHEARING.—(1) Upon a re- ‘‘(c) REPRESENTATION OF ACCUSED.—The ac- ‘‘(iii) increase the severity of the sentence hearing— cused shall be represented before the United unless the sentence prescribed for the offense ‘‘(A) the accused may not be tried for any States Court of Appeals for the Armed is mandatory. offense of which he was found not guilty by Forces or the Supreme Court by military ap- ‘‘(3) A rehearing may be ordered by the the first military commission; and pellate counsel, or by civilian counsel if re- convening authority if the convening author- ‘‘(B) no sentence in excess of or more than tained by him. ity disapproves the findings and sentence the original sentence may be imposed un- ‘‘§ 950h. Execution of sentence; suspension of and states the reasons for disapproval of the less— sentence findings. If the convening authority dis- ‘‘(i) the sentence is based upon a finding of ‘‘(a) EXECUTION OF SENTENCE OF DEATH approves the finding and sentence and does guilty of an offense not considered upon the ONLY UPON APPROVAL BY THE PRESIDENT.—If not order a rehearing, the convening author- merits in the original proceedings; or the sentence of a military commission under ity shall dismiss the charges. A rehearing as ‘‘(ii) the sentence prescribed for the offense this chapter extends to death, that part of to the findings may not be ordered by the is mandatory. the sentence providing for death may not be convening authority when there is a lack of ‘‘(2) Upon a rehearing, if the sentence ap- executed until approved by the President. In sufficient evidence in the record to support proved after the first military commission such a case, the President may commute, the findings. A rehearing as to the sentence was in accordance with a pretrial agreement remit, or suspend the sentence, or any part may be ordered by the convening authority and the accused at the rehearing changes his thereof, as he sees fit. if the convening authority disapproves the plea with respect to the charges or specifica- ‘‘(b) EXECUTION OF SENTENCE OF DEATH sentence. tions upon which the pretrial agreement was ONLY UPON FINAL JUDGMENT OF LEGALITY OF ‘‘§ 950c. Waiver or withdrawal of appeal based, or otherwise does not comply with PROCEEDINGS.—(1) If the sentence of a mili- pretrial agreement, the sentence as to those ‘‘(a) WAIVER OF RIGHT OF REVIEW.—(1) An tary commission under this chapter extends charges or specifications may include any accused may file with the convening author- to death, the sentence may not be executed punishment not in excess of that lawfully ad- ity a statement expressly waiving the right until there is a final judgement as to the le- judged at the first military commission. of the accused to appellate review by the gality of the proceedings (and with respect United States Court of Appeals for the ‘‘§ 950f. Review by United States Court of Ap- to death, approval under subsection (a)). Armed Forces under section 950f(a) of this peals for the Armed Forces and Supreme ‘‘(2) A judgement as to legality of pro- title of the final decision of the military Court ceedings is final for purposes of paragraph (1) commission under this chapter. ‘‘(a) REVIEW BY UNITED STATES COURT OF when— ‘‘(2) A waiver under paragraph (1) shall be APPEALS FOR THE ARMED FORCES.—(1) Sub- ‘‘(A) the time for the accused to file a peti- signed by both the accused and a defense ject to the provisions of this subsection, the tion for review by the United States Court of counsel. United States Court of Appeals for the Appeals for the Armed Forces has expired ‘‘(3) A waiver under paragraph (1) must be Armed Forces shall have exclusive jurisdic- and the accused has not filed a timely peti- filed, if at all, within 10 days after notice of tion to determine the final validity of any tion for such review and the case is not oth- the action is served on the accused or on de- judgment rendered by a military commission erwise under review by the Court; or fense counsel under section 950b(c)(4) of this under this chapter. ‘‘(B) review is completed in accordance title. The convening authority, for good ‘‘(2) The United States Court of Appeals for with the judgment of the United States cause, may extend the period for such filing the Armed Forces may not determine the Court of Appeals for the Armed Forces and by not more than 30 days. final validity of a judgment of a military (A) a petition for a writ of certiorari is not ‘‘(b) WITHDRAWAL OF APPEAL.—Except in a commission under this subsection until all timely filed, (B) such a petition is denied by case in which the sentence as approved under other appeals from the judgment under this the Supreme Court, or (C) review is other- section 950b of this title extends to death, chapter have been waived or exhausted. wise completed in accordance with the judg- the accused may withdraw an appeal at any ‘‘(3)(A) An accused may seek a determina- ment of the Supreme Court. time. tion by the United States Court of Appeals ‘‘(c) SUSPENSION OF SENTENCE.—The Sec- ‘‘(c) EFFECT OF WAIVER OR WITHDRAWAL.—A for the Armed Forces of the final validity of retary of the Defense, or the convening au- waiver of the right to appellate review or the the judgment of the military commission thority acting on the case (if other than the withdrawal of an appeal under this section under this subsection only upon petition to Secretary), may suspend the execution of bars review under section 950f of this title. the Court for such determination. any sentence or part thereof in the case, ex- ‘‘(B) A petition on a judgment under sub- cept a sentence of death. ‘‘§ 950d. Appeal by the United States paragraph (A) shall be filed by the accused in ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as the Court not later than 20 days after the ‘‘§ 950i. Finality of proceedings, findings, and provided in paragraph (2), in a trial by mili- date on which written notice of the final de- sentences tary commission under this chapter, the cision of the military commission is served ‘‘(a) FINALITY.—The appellate review of United States may take an interlocutory ap- on the accused or defense counsel. records of trial provided by this chapter, and peal to the United States Court of Appeals ‘‘(C) The accused may not file a petition the proceedings, findings, and sentences of for the Armed Forces under section 950f of under subparagraph (A) if the accused has military commissions as approved, reviewed, this title of any order or ruling of the mili- waived the right to appellate review under or affirmed as required by this chapter, are tary judge that— section 950c(a) of this title. final and conclusive. Orders publishing the ‘‘(A) terminates proceedings of the mili- ‘‘(4) The determination by the United proceedings of military commissions under tary commission with respect to a charge or States Court of Appeals for the Armed this chapter are binding upon all depart- specification; Forces of the final validity of a judgment of ments, courts, agencies, and officers of the ‘‘(B) excludes evidence that is substantial a military commission under this subsection United States, except as otherwise provided proof of a fact material in the proceeding; or shall be governed by the provisions of sec- by the President. ‘‘(C) relates to a matter under subsection tion 1005(e)(3) of the Detainee Treatment Act ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS (c) or (d) of section 949d of this title. of 2005 (42 U.S.C. 801 note). FOR REVIEW OF MILITARY COMMISSION PROCE- ‘‘(2) The United States may not appeal ‘‘(b) REVIEW BY SUPREME COURT.—The Su- DURES AND ACTIONS.—Except as otherwise under paragraph (1) an order or ruling that preme Court of the United States may re- provided in this chapter and notwithstanding is, or amounts to, a finding of not guilty by view by writ of certiorari pursuant to sec- any other provision of law (including section the military commission with respect to a tion 1257 of title 28 the final judgment of the 2241 of title 28 or any other habeas corpus charge or specification. United States Court of Appeals for the provision), no court, justice, or judge shall ‘‘(b) NOTICE OF APPEAL.—The United States Armed Forces in a determination under sub- have jurisdiction to hear or consider any shall take an appeal of an order or ruling section (a). claim or cause of action whatsoever, includ- under subsection (a) by filing a notice of ap- ‘‘§ 950g. Appellate counsel ing any action pending on or filed after the peal with the military judge within five days ‘‘(a) APPOINTMENT.—The Secretary of De- date of enactment of this chapter, relating after the date of the order or ruling. fense shall, by regulation, establish proce- to the prosecution, trial, or judgment of a

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Definitions; construction of certain more of the victims, by death or such other military commission under this chapter only offenses; common cir- punishment as a military commission under if the offense is committed in the context of cumstances. this chapter may direct, and, if death does and associated with armed conflict. ‘‘950bb. Principals. not result to any of the victims, by such pun- ‘‘950cc. Accessory after the fact. ‘‘§ 950bb. Principals ishment, other than death, as a military ‘‘950dd. Conviction of lesser offenses. ‘‘Any person punishable under this chapter commission under this chapter may direct. ‘‘950ee. Attempts. who— ‘‘§ 950jj. Attacking civilian objects ‘‘950ff. Conspiracy. ‘‘(1) commits an offense punishable by this ‘‘Any person subject to this chapter who ‘‘950gg. Solicitation. chapter, or aids, abets, counsels, commands, intentionally engages in an attack upon a ci- ‘‘950hh. Murder of protected persons. or procures its commission; or vilian object that is not a military objective ‘‘950ii. Attacking civilians. ‘‘(2) causes an act to be done which if di- shall be punished as a military commission ‘‘950jj. Attacking civilian objects. rectly performed by him would be punishable under this chapter may direct. ‘‘950kk. Attacking protected property. by this chapter, ‘‘950ll. Pillaging. ‘‘§ 950kk. Attacking protected property is a principal. ‘‘950mm. Denying quarter. ‘‘Any person subject to this chapter who ‘‘950nn. Taking hostages. ‘‘§ 950cc. Accessory after the fact intentionally engages in an attack upon pro- ‘‘950oo. Employing poison or similar weap- ‘‘Any person subject to this chapter who, tected property shall be punished as a mili- ons. knowing that an offense punishable by this tary commission under this chapter may di- ‘‘950pp. Using protected persons as a shield. chapter has been committed, receives, com- rect. ‘‘950qq. Using protected property as a shield. forts, or assists the offender in order to ‘‘§ 950ll. Pillaging ‘‘950rr. Torture. hinder or prevent his apprehension, trial, or ‘‘Any person subject to this chapter who ‘‘950ss. Cruel, unusual, or inhumane treat- punishment shall be punished as a military intentionally and in the absence of military ment or punishment. commission under this chapter may direct. necessity appropriates or seizes property for ‘‘950tt. Intentionally causing serious bodily ‘‘§ 950dd. Conviction of lesser offenses private or personal use, without the consent injury. ‘‘An accused may be found guilty of an of- of a person with authority to permit such ap- ‘‘950uu. Mutilating or maiming. fense necessarily included in the offense propriation or seizure, shall be punished as a ‘‘950vv. Murder in violation of the law of war. charged or of an attempt to commit either military commission under this chapter may ‘‘950ww. Destruction of property in violation the offense charged or an attempt to commit direct. of the law of war. ‘‘950xx. Using treachery or perfidy. either the offense charged or an offense nec- ‘‘§ 950mm. Denying quarter ‘‘950yy. Improperly using a flag of truce. essarily included therein. ‘‘Any person subject to this chapter who, ‘‘950zz. Improperly using a distinctive em- ‘‘§ 950ee. Attempts with effective command or control over sub- blem. ‘‘(a) IN GENERAL.—Any person subject to ordinate groups, declares, orders, or other- ‘‘950aaa. Intentionally mistreating a dead this chapter who attempts to commit any of- wise indicates to those groups that there body. fense punishable by this chapter shall be shall be no survivors or surrender accepted, ‘‘950bbb. Rape. punished as a military commission under with the intent to threaten an adversary or ‘‘950ccc. Hijacking or hazarding a vessel or this chapter may direct. to conduct hostilities such that there would aircraft. ‘‘(b) SCOPE OF OFFENSE.—An act, done with be no survivors or surrender accepted, shall ‘‘950ddd. Terrorism. specific intent to commit an offense under be punished as a military commission under ‘‘950eee. Providing material support for ter- this chapter, amounting to more than mere this chapter may direct. rorism. preparation and tending, even though fail- ‘‘§ 950nn. Taking hostages ‘‘950fff. Wrongfully aiding the enemy. ing, to effect its commission, is an attempt ‘‘Any person subject to this chapter who, ‘‘950ggg. Spying. to commit that offense. having knowingly seized or detained one or ‘‘950hhh. Contempt. ‘‘(c) EFFECT OF CONSUMMATION.—Any per- more persons, threatens to kill, injure, or ‘‘950iii. Perjury and obstruction of justice. son subject to this chapter may be convicted continue to detain such person or persons of an attempt to commit an offense although ‘‘§ 950aa. Definitions; construction of certain with the intent of compelling any nation, it appears on the trial that the offense was offenses; common circumstances person other than the hostage, or group of consummated. ‘‘(a) DEFINITIONS.—In this subchapter: persons to act or refrain from acting as an ‘‘(1) The term ‘military objective’ means ‘‘§ 950ff. Conspiracy explicit or implicit condition for the safety combatants and those objects during an ‘‘Any person subject to this chapter who or release of such person or persons, shall be armed conflict which, by their nature, loca- conspires to commit one or more substantive punished, if death results to one or more of tion, purpose, or use, effectively contribute offenses triable by military commission the victims, by death or such other punish- to the war-fighting or war-sustaining capa- under this subchapter, and who knowingly ment as a military commission under this bility of an opposing force and whose total or does any overt act to effect the object of the chapter may direct, and, if death does not re- partial destruction, capture, or neutraliza- conspiracy, shall be punished, if death re- sult to any of the victims, by such punish- tion would constitute a definite military ad- sults to one or more of the victims, by death ment, other than death, as a military com- vantage to the attacker under the cir- or such other punishment as a military com- mission under this chapter may direct. cumstances at the time of an attack. mission under this chapter may direct, and, ‘‘§ 950oo. Employing poison or similar weap- ‘‘(2) The term ‘protected person’ means any if death does not result to any of the vic- ons person entitled to protection under one or tims, by such punishment, other than death, ‘‘Any person subject to this chapter who more of the Geneva Conventions, including as a military commission under this chapter intentionally, as a method of warfare, em- civilians not taking an active part in hos- may direct. ploys a substance or weapon that releases a tilities, military personnel placed out of ‘‘§ 950gg. Solicitation substance that causes death or serious and combat by sickness, wounds, or detention, ‘‘Any person subject to this chapter who lasting damage to health in the ordinary and military medical or religious personnel. solicits or advises another or others to com- course of events, through its asphyxiating, ‘‘(3) The term ‘protected property’ means mit one or more substantive offenses triable bacteriological, or toxic properties, shall be any property specifically protected by the by military commission under this chapter punished, if death results to one or more of law of war, including buildings dedicated to shall, if the offense solicited or advised is at- the victims, by death or such other punish- religion, education, art, science, or chari- tempted or committed, be punished with the ment as a military commission under this table purposes, historic monuments, hos- punishment provided for the commission of chapter may direct, and, if death does not re- pitals, and places where the sick and wound- the offense, but, if the offense solicited or sult to any of the victims, by such punish- ed are collected, but only if and to the extent advised is not committed or attempted, he ment, other than death, as a military com- such property is not being used for military shall be punished as a military commission mission under this chapter may direct. purposes or is not otherwise a military ob- under this chapter may direct. jective. The term includes objects properly ‘‘§ 950pp. Using protected persons as a shield identified by one of the distinctive emblems ‘‘§ 950hh. Murder of protected persons ‘‘Any person subject to this chapter who of the Geneva Conventions, but does not in- ‘‘Any person subject to this chapter who positions, or otherwise takes advantage of, a clude civilian property that is a military ob- intentionally kills one or more protected protected person with the intent to shield a jective. persons shall be punished by death or such military objective from attack. or to shield, ‘‘(b) CONSTRUCTION OF CERTAIN OFFENSES.— other punishment as a military commission favor, or impede military operations, shall The intent required for offenses under sec- under this chapter may direct. be punished, if death results to one or more

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Using protected property as a shield chapter may direct. against government conduct, shall be pun- ished, if death results to one or more of the ‘‘Any person subject to this chapter who ‘‘§ 950vv. Murder in violation of the law of victims, by death or such other punishment positions, or otherwise takes advantage of war as a military commission under this chapter the location of, protected property with the ‘‘Any person subject to this chapter who intentionally kills one or more persons, in- may direct, and, if death does not result to intent to shield a military objective from at- any of the victims, by such punishment, tack, or to shield, favor, or impede military cluding lawful combatants, in violation of the law of war shall be punished by death or other than death, as a military commission operations, shall be punished as a military under this chapter may direct. commission under this chapter may direct. such other punishment as a military com- mission under this chapter may direct. ‘‘§ 950eee. Providing material support for ter- ‘‘§ 950rr. Torture ‘‘§ 950ww. Destruction of property in viola- rorism ‘‘(a) OFFENSE.—Any person subject to this tion of the law of war ‘‘(a) OFFENSE.—Any person subject to this chapter who commits an act specifically in- ‘‘Any person subject to this chapter who chapter who provides material support or re- tended to inflict severe physical or mental intentionally destroys property belonging to sources, knowing or intending that they are pain or suffering (other than pain or suf- another person in violation of the law of war to be used in preparation for, or in carrying fering incidental to lawful sanctions) upon shall punished as a military commission out, an act of terrorism (as set forth in sec- another person within his custody or phys- under this chapter may direct. tion 950ddd of this title), or who inten- ical control for the purpose of obtaining in- ‘‘§ 950xx. Using treachery or perfidy tionally provides material support or re- formation or a confession, punishment, in- sources to an international terrorist organi- ‘‘Any person subject to this chapter who, timidation, coercion, or any reason based on zation engaged in hostilities against the after inviting the confidence or belief of one discrimination of any kind, shall be pun- United States, knowing that such organiza- or more persons that they were entitled to, ished, if death results to one or more of the tion has engaged or engages in terrorism (as or obliged to accord, protection under the victims, by death or such other punishment law of war, intentionally makes use of that so set forth), shall be punished as a military as a military commission under this chapter confidence or belief in killing, injuring, or commission under this chapter may direct. may direct, and, if death does not result to ‘‘(b) MATERIAL SUPPORT OR RESOURCES DE- capturing such person or persons shall be any of the victims, by such punishment, FINED.—In this section, the term ‘material punished, if death results to one or more of support or resources’ has the meaning given other than death, as a military commission the victims, by death or such other punish- that term in section 2339A(b) of title 18. under this chapter may direct. ment as a military commission under this ‘‘(b) SEVERE MENTAL PAIN OR SUFFERING chapter may direct, and, if death does not re- ‘‘§ 950fff. Wrongfully aiding the enemy DEFINED.—In this section, the term ‘severe sult to any of the victims, by such punish- ‘‘Any person subject to this chapter who, mental pain or suffering’ has the meaning ment, other than death, as a military com- in breach of an allegiance or duty to the given that term in section 2340(2) of title 18. mission under this chapter may direct. United States, knowingly and intentionally ‘‘§ 950ss. Cruel, unusual, or inhumane treat- ‘‘§ 950yy. Improperly using a flag of truce aids an enemy of the United States, or one of ment or punishment ‘‘Any person subject to this chapter who the co-belligerents of the enemy, shall be ‘‘Any person subject to this chapter who uses a flag of truce to feign an intention to punished as a military commission under subjects another person in their custody or negotiate, surrender, or otherwise suspend this chapter may direct. under their physical control, regardless of hostilities when there is no such intention ‘‘§ 950ggg. Spying nationality or physical location, to cruel, shall be punished as a military commission ‘‘Any person subject to this chapter who, unusual, or inhumane treatment or punish- under this chapter may direct. in violation of the law of war and with intent ment prohibited by the Fifth, Eighth, and ‘‘§ 950zz. Improperly using a distinctive em- or reason to believe that it is to be used to 14th Amendments to the Constitution of the blem the injury of the United States or to the ad- United States shall be punished, if death re- ‘‘Any person subject to this chapter who vantage of a foreign power, collects or at- sults to the victim, by death or such other intentionally uses a distinctive emblem rec- tempts to collect information by clandestine punishment as a military commission under ognized by the law of war for combatant pur- means or while acting under false pretenses, this chapter may direct, and, if death does poses in a manner prohibited by the law of for the purpose of conveying such informa- not result to the victim, by such punish- war shall be punished as a military commis- tion to an enemy of the United States, or ment, other than death, as a military com- sion under this chapter may direct. one of the co-belligerents of the enemy, shall mission under this chapter may direct. ‘‘§ 950aaa. Intentionally mistreating a dead be punished by death or such other punish- ‘‘§ 950tt. Intentionally causing serious bodily body ment as a military commission under this chapter may direct. injury ‘‘Any person subject to this chapter who ‘‘(a) OFFENSE.—Any person subject to this intentionally mistreats the body of a dead ‘‘§ 950hhh. Contempt chapter who intentionally causes serious person, without justification by legitimate ‘‘A military commission under this chapter bodily injury to one or more persons, includ- military necessary, shall be punished as a may punish for contempt any person who ing lawful combatants, in violation of the military commission under this chapter may uses any menacing word, sign, or gesture in law of war shall be punished, if death results direct. its presence, or who disturbs its proceedings to one or more of the victims, by death or ‘‘§ 950bbb. Rape by any riot or disorder. such other punishment as a military com- ‘‘Any person subject to this chapter who ‘‘§ 950iii. Perjury and obstruction of justice mission under this chapter may direct, and, forcibly or with coercion or threat of force ‘‘A military commission under this chapter if death does not result to any of the vic- wrongfully invades the body of a person by may try offenses and impose such punish- tims, by such punishment, other than death, penetrating, however slightly, the anal or ment as the military commission may direct as a military commission under this chapter genital opening of the victim with any part for perjury, false testimony, or obstruction may direct. of the body of the accused, or with any for- of justice related to the military commis- ‘‘(b) SERIOUS BODILY INJURY DEFINED.—In eign object, shall be punished as a military sion.’’. this section, the term ‘serious bodily injury’ commission under this chapter may direct. (2) TABLES OF CHAPTERS AMENDMENTS.—The means bodily injury which involves— ‘‘§ 950ccc. Hijacking or hazarding a vessel or tables of chapters at the beginning of sub- ‘‘(1) a substantial risk of death; aircraft title A and part II of subtitle A of title 10, ‘‘(2) extreme physical pain; ‘‘Any person subject to this chapter who United States Code, are each amended by in- ‘‘(3) protracted and obvious disfigurement; intentionally seizes, exercises unauthorized serting after the item relating to chapter 47 or control over, or endangers the safe naviga- the following new item: ‘‘(4) protracted loss or impairment of the tion of a vessel or aircraft that is not a le- ‘‘Chapter 47A. Military Commissions 948a’’. function of a bodily member, organ, or men- gitimate military objective shall be pun- (b) SUBMITTAL OF PROCEDURES TO CON- tal faculty. ished, if death results to one or more of the GRESS.— ‘‘§ 950uu. Mutilating or maiming victims, by death or such other punishment (1) SUBMITTAL OF PROCEDURES.—Not later ‘‘Any person subject to this chapter who as a military commission under this chapter than 90 days after the date of the enactment intentionally injures one or more protected may direct, and, if death does not result to of this Act, the Secretary of Defense shall persons by disfiguring the person or persons any of the victims, by such punishment, submit to the Committees on Armed Serv- by any mutilation of the person or persons, other than death, as a military commission ices of the Senate and the House of Rep- or by permanently disabling any member, under this chapter may direct. resentatives a report setting forth the proce- limb, or organ of the body of the person or ‘‘§ 950ddd. Terrorism dures for military commissions prescribed persons, without any legitimate medical or ‘‘Any person subject to this chapter who under chapter 47A of title 10, United States dental purpose, shall be punished, if death intentionally kills or inflicts great bodily Code (as added by subsection (a)).

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(2) SUBMITTAL OF MODIFICATIONS.—Not later ‘‘(ii) GRANT OF REVIEW.—Review under this (2) the Convention for the Amelioration of than 60 days before the date on which any paragraph shall be as of right.’’; the Condition of the Wounded, Sick, and proposed modification of the procedures de- (iii) in subparagraph (C)— Shipwrecked Members of the Armed Forces scribed in paragraph (1) shall go into effect, (I) in clause (i)— at Sea, done at Geneva August 12, 1949 (6 the Secretary shall submit to the commit- (aa) by striking ‘‘pursuant to the military UST 3217); tees of Congress referred to in that para- order’’ and inserting ‘‘by a military commis- (3) the Convention Relative to the Treat- graph a report describing such modification. sion’’; and ment of Prisoners of War, done at Geneva SEC. 5. AMENDMENTS TO OTHER LAWS. (bb) by striking ‘‘at Guantanamo Bay, August 12, 1949 (6 UST 3316); and (a) DETAINEE TREATMENT ACT OF 2005.— Cuba’’; and (4) the Convention Relative to the Protec- Section 1004(b) of the Detainee Treatment (II) in clause (ii), by striking ‘‘pursuant to tion of Civilian Persons in Time of War, done Act of 2005 (title X of Public Law 109–148; 119 such military order’’ and inserting ‘‘by the at Geneva August 12, 1949 (6 UST 3516). Stat. 2740; 42 U.S.C. 200dd–1(b)) is amended— military commission’’; and SEC. 8. REVISION TO WAR CRIMES OFFENSE (1) by striking ‘‘may provide’’ and insert- (iv) in subparagraph (D)(i), by striking UNDER FEDERAL CRIMINAL CODE. (a) IN GENERAL.—Section 2441 of title 18, ing ‘‘shall provide’’; ‘‘specified in the military order’’ and insert- United States Code, is amended— (2) by inserting ‘‘or investigation’’ after ing ‘‘specified for a military commission’’. (1) in subsection (c), by striking paragraph ‘‘criminal prosecution’’; and SEC. 6. HABEAS CORPUS MATTERS. (3) and inserting the following new para- (3) by inserting ‘‘whether before United (a) IN GENERAL.—Section 2241 of title 28, graph (3): States courts or agencies, foreign courts or United States Code, is amended— ‘‘(3) which constitutes a grave breach of agencies, or international courts or agen- (1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109–148 (119 common Article 3 (as defined in subsection cies,’’ after ‘‘described in that subsection,’’. (d)) when committed in the context of and in (b) UNIFORM CODE OF MILITARY JUSTICE.— Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public association with an armed conflict not of an Chapter 47 of title, 10, United States Code international character; or’’; and (the Uniform Code of Military Justice), is Law 109–163 (119 Stat. 3477)); and (2) by adding at the end the following new (2) by adding at the end the following new amended as follows: subsection: (1) Section 802 (article 2 of the Uniform subsection: ‘‘(e)(1) No court, justice, or judge shall ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.— Code of Military Justice) is amended by add- ‘‘(1) GRAVE BREACH OF COMMON ARTICLE 3.— ing at the end the following new paragraph: have jurisdiction to hear or consider an ap- plication for a writ of habeas corpus filed by In subsection (c)(3), the term ‘grave breach ‘‘(13) Lawful enemy combatants (as that of common Article 3’ means any conduct term is defined in section 948a(3) of this title) or on behalf of an alien detained outside of the United States who— (such conduct constituting a grave breach of who violate the law of war.’’. common Article 3 of the international con- (2) Section 821 (article 21 of the Uniform ‘‘(A) is currently in United States custody; or ventions done at Geneva August 12, 1949), as Code of Military Justice) is amended by follows: ‘‘(B) has been determined by the United striking ‘‘by statute or law of war’’. ‘‘(A) TORTURE.—The act of a person who States to have been properly detained as an (3) Section 836(a) (article 36(a) of the Uni- commits, or conspires or attempts to com- form Code of Military Justice) is amended by enemy combatant. ‘‘(2) Except as provided in paragraphs (2) mit, an act specifically intended to inflict inserting ‘‘(other than military commissions and (3) of section 1005(e) of the Detainee severe physical or mental pain or suffering under chapter 47A of this title)’’ after ‘‘other Treatment Act of 2005 (10 U.S.C. 801 note), no (other than pain or suffering incidental to military tribunals’’. court, justice, or judge shall have jurisdic- lawful sanctions) upon another person within (c) PUNITIVE ARTICLE OF CONSPIRACY.—Sec- tion to hear or consider any other action his custody or physical control for the pur- tion 881 of title 10, United States Code (arti- against the United States or its agents relat- pose of obtaining information or a confes- cle 81 of the Uniform Code of Military Jus- ing to any aspect of the detention, treat- sion, punishment, intimidation, coercion, or tice)), is amended— ment, or trial of an alien detained outside of any reason based on discrimination of any (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; kind. the United States who— and ‘‘(B) CRUEL, UNUSUAL, OR INHUMANE TREAT- ‘‘(A) is currently in United States custody; (2) by adding at the end the following new MENT OR PUNISHMENT.—The act of a person or subsection: who subjects another person in the custody ‘‘(B) has been determined by the United ‘‘(b) Any person subject to this chapter or or under the physical control of the United States to have been properly detained as an chapter 47A of this title who conspires with States Government, regardless of nationality enemy combatant. any other person to commit an offense under ‘‘(3) In this subsection, the term ‘United or physical location, to cruel, unusual, or in- the law of war, and who knowingly does an States’, when used in a geographic sense, has humane treatment or punishment prohibited overt act to effect the object of the con- the meaning given that term in section by the Fifth, Eighth, and 14th Amendments spiracy, shall be punished, if death results to 1005(g) of the Detainee Treatment Act of to the Constitution of the United States. one or more of the victims, by death or such 2005.’’. ‘‘(C) PERFORMING BIOLOGICAL EXPERI- other punishment as a court-martial or mili- (b) EFFECTIVE DATE.—The amendments MENTS.—The act of a person who subjects, or tary commission may direct, and, if death made by subsection (a) shall take effect on conspires or attempts to subject, one or does not result to any of the victims, by such the date of the enactment of this Act, and more persons within his custody or physical punishment, other than death, as a court- shall apply to all cases, without exception, control to biological experiments without a martial or military commission may di- pending on or after the date of the enact- legitimate medical or dental purpose and in rect.’’. ment of this Act which relate to any aspect so doing endangers the body or health of (d) REVIEW OF JUDGMENTS OF MILITARY of the detention, treatment, or trial of an such person or persons. COMMISSIONS.— alien detained outside the United States (as ‘‘(D) MURDER.—The act of a person who in- (1) REVIEW BY SUPREME COURT.—Section that term is defined in section 2241(e)(3) of tentionally kills, or conspires or attempts to 1259 of title 28, United States Code, is amend- title 28, United States Code (as added by sub- kill, or kills whether intentionally or unin- ed by adding at the end the following new section (a)) since September 11, 2001. tentionally in the course of committing any paragraph: SEC. 7. TREATY OBLIGATIONS NOT ESTAB- other offense under this section, one or more ‘‘(5) Cases tried by military commission LISHING GROUNDS FOR CERTAIN persons taking no active part in hostilities, and reviewed by the United States Court of CLAIMS. including those placed out of active combat Appeals for the Armed Forces under section (a) IN GENERAL.—No person may invoke by sickness, wounds, detention, or any other 950f of title 10.’’. the Geneva Conventions or any protocols cause. (2) DETAINEE TREATMENT ACT OF 2005.—Sec- thereto as an individually enforceable right ‘‘(E) MUTILATION OR MAIMING.—The act of a tion 1005(e) of the Detainee Treatment Act of in any civil action against an officer, em- person who intentionally injures, or con- 2005 (title X of Public Law 109–148; 119 Stat. ployee, member of the Armed Forces or an- spires or attempts to injure, or injures 2740; 10 U.S.C. 801 note) is amended— other agent of the United States Govern- whether intentionally or unintentionally in (A) in paragraphs (3) and (4), by striking ment, or against the United States, for the the course of committing any other offense ‘‘United States Court of Appeals for the Dis- purpose of any claim for damages for death, under this section, one or more persons tak- trict of Columbia Circuit’’ each place it ap- injury, or damage to property in any court of ing no active part in hostilities, including pears and inserting ‘‘United States Court of the United States or its States or territories. those placed out of active combat by sick- Appeals for the Armed Forces’’; and This subsection does not affect the obliga- ness, wounds, detention, or any other cause, (B) in paragraph (3)— tions of the United States under the Geneva by disfiguring such person or persons by any (i) in subparagraph (A), by striking ‘‘pursu- Conventions. mutilation thereof or by permanently dis- ant to Military Commission Order No. 1. (b) GENEVA CONVENTIONS DEFINED.—In this abling any member, limb, or organ of the dated August 31, 2005 (or any successor mili- section, the term ‘‘Geneva conventions’’ body of such person or persons, without any tary order)’’ and inserting ‘‘by a military means— legitimate medical or dental purpose. commission under chapter 47A of title 10, (1) the Convention for the Amelioration of ‘‘(F) INTENTIONALLY CAUSING SERIOUS BOD- United States Code’’; the Condition of the Wounded and Sick in ILY INJURY.—The act of a person who inten- (ii) by striking subparagraph (B) and in- Armed Forces in the Field, done at Geneva tionally causes, or conspires or attempts to serting the following new subparagraph (B): August 12, 1949 (6 UST 3114); cause, serious bodily injury to one or more

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00118 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.089 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10341 persons, including lawful combatants, in vio- subsection (a) by reason of subsection (c)(3) son; using dogs on the person; inducing hypo- lation of the law of war. with respect to actions occurring between thermia or heat injury in the person; con- ‘‘(G) RAPE.—The act of a person who forc- September 11, 2001, and December 30, 2005.’’. ducting a mock execution of the person; and ibly or with coercion or threat of force SEC. 9. DETENTION COVERED BY REVIEW OF DE- depriving the person of necessary food, wrongfully invades, or conspires or attempts CISIONS OF COMBATANT STATUS RE- water, or medical care. to invade, the body of a person by pene- VIEW TRIBUNALS OF PROPRIETY OF trating, however slightly, the anal or genital DETENTION. SA 5089. Mr. MARTINEZ submitted opening of the victim with any part of the Section 1005(e)(2)(B)(i) of the Detainee an amendment intended to be proposed body of the accused, or with any foreign ob- Treatment Act of 2005 (title X of Public Law to amendment SA 5066 submitted by ject. 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is Mrs. HUTCHISON (for herself and Mr. amended by striking ‘‘the Department of De- ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act KYL) and intended to be proposed to of person who forcibly or with coercion or fense at Guantanamo Bay, Cuba’’ and insert- ing ‘‘the United States’’. the bill H.R. 6061, to establish oper- threat of force engages, or conspires or at- ational control over the international tempts to engage, in sexual contact with one SEC. 10. SEVERABILITY. or more persons, or causes, or conspires or If any provision of this Act or amendment land and maritime borders of the attempts to cause, one or more persons to made by a provision of this Act, or the appli- United States; which was ordered to lie engage in sexual contact. cation of such provision or amendment to on the table; as follows: ‘‘(I) TAKING HOSTAGES.—The act of a person any person or circumstance, is held to be un- On page 1, between lines 2 and 3, insert the who, having knowingly seized or detained constitutional, the remainder of this Act and following: one or more persons, threatens to kill, in- the amendments made by this Act, and the (d) OPERATIONAL CONTROL DEFINED.—Not- jure, or continue to detain such person or application of such provisions and amend- withstanding subsection (b), for purposes of persons with the intent of compelling any ments to any other person or circumstance, this section the term ‘‘operational control’’ nation, person other than the hostage, or shall not be affected thereby. means effective prevention of unlawful en- group of persons to act or refrain from act- tries into the United States, including en- ing as an explicit or implicit condition for SA 5087. Mr. SPECTER (for himself, tries by terrorists, other unlawful aliens, in- struments of terrorism, narcotics, and other the safety or release of such person or per- Mr. LEAHY, Mr. DORGAN, Mr. DODD, Mr. sons. contraband, as determined by the Secretary DAYTON, Mr. FEINGOLD, Mrs. CLINTON, of Homeland Security. ‘‘(2) DEFINITIONS.—In the case of an offense and Mr. BINGAMAN) submitted an under subsection (a) by reason of subsection amendment intended to be proposed by SA 5090. Mr. BENNETT (for Mr. (c)(3)— FRIST) proposed an amendment to the ‘‘(A) the term ‘severe mental pain or suf- him to the bill S. 3930, to authorize fering’ shall be applied for purposes of para- trial by military commission for viola- bill S. 403, to amend title 18, United graph (1)(A) in accordance with the meaning tions of the law of war, and for other States Code, to prohibit taking minors given that term in section 2340(2) of this purposes; as follows: across State lines in circumvention of title; On page 93, strike line 9 and all that fol- laws requiring the involvement of par- ‘‘(B) the term ‘serious bodily injury’ shall lows through page 94, line 13. ents in abortion decisions; as follows: be applied for purposes of paragraph (1)(F) in On page 12, line 2, strike ‘‘45 days’’ and in- accordance with the meaning given that SA 5088. Mr. KENNEDY (for himself, sert ‘‘46 days’’. term in section 113(b)(2) of this title; and Mrs. FEINSTEIN, and Mrs. CLINTON) sub- ‘‘(C) the term ‘sexual contact’ shall be ap- mitted an amendment intended to be SA 5091. Mr. BENNETT (for Mr. plied for purposes of paragraph (1)(G) in ac- proposed by him to the bill S. 3930, to FRIST) proposed an amendment to cordance with the meaning given that term authorize trial by military commission amendment SA 5090 proposed by Mr. in section 2246(3) of this title. BENNETT (for Mr. FRIST) to the bill S. ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS for violations of the law of war, and for other purposes; which was ordered to 403, to amend title 18, United States WITH RESPECT TO COLLATERAL DAMAGE OR IN- Code, to prohibit taking minors across CIDENT OF LAWFUL ATTACK.—The intent speci- lie on the table; as follows: fied for the conduct stated in subparagraphs State lines in circumvention of laws re- On page 83, between lines 8 and 9, insert quiring the involvement of parents in (D), (E), and (F) of paragraph (1) precludes the following: abortion decisions; as follows: the applicability of those subparagraphs to (2) PROTECTION OF UNITED STATES PER- an offense under subsection (a) by reasons of SONS.—The Secretary of State shall notify Strike ‘‘46 days’’ and insert ‘‘44 days’’. subsection (c)(3) with respect to— other parties to the Geneva Conventions f ‘‘(A) collateral damage; or that— ‘‘(B) death, damage, or injury incident to a (A) the United States has historically in- AUTHORITY FOR COMMITTEES TO lawful attack. terpreted the law of war and the Geneva Con- MEET ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES ventions, including in particular common COMMITTEE ON BANKING, HOUSING, AND URBAN TO PRISONER EXCHANGE.—Paragraph (1)(I) Article 3, to prohibit a wide variety of cruel, AFFAIRS does not apply to an offense under subsection inhuman, and degrading treatment of mem- Mr. LOTT. Mr. President, I ask unan- (a) by reason of subsection (c)(3) in the case bers of the United States Armed Forces and imous consent that the Committee on of a prisoner exchange during wartime.’’. United States citizens; (b) CONSTRUCTION.—Such section is further Banking, Housing, and Urban Affairs (B) during and following previous armed be authorized to meet during the ses- amended by adding at the end the following conflicts, the United States Government has new subsections: prosecuted persons for engaging in cruel, in- sion of the Senate on September 27, ‘‘(e) INAPPLICABILITY OF FOREIGN SOURCES human, and degrading treatment, including 2006, at 10 a.m., to conduct a hearing on OF LAW IN INTERPRETATION.—No foreign the use of waterboarding techniques, stress the nominations of Mr. Christopher A. source of law shall be considered in defining positions, including prolonged standing, the Padilla, of the District of Columbia, to or interpreting the obligations of the United use of extreme temperatures, beatings, sleep States under this title. be Assistant Secretary of the Depart- deprivation, and other similar acts; ‘‘(f) NATURE OF CRIMINAL SANCTIONS.—The ment of Commerce; and Mr. Bijan criminal sanctions in this section provide (C) this Act and the amendments made by Rafiekian, of California, to be a Mem- penal sanctions under the domestic law of this Act preserve the capacity of the United ber of the Board of Directors of the Ex- the United States for grave breaches of the States to prosecute nationals of enemy pow- port-Import Bank of the United States. international conventions done at Geneva ers for engaging in acts against members of The PRESIDING OFFICER. Without the United States Armed Forces and United August 12, 1949. Such criminal sanctions do objection, it is so ordered. not alter the obligations of the United States citizens that have been prosecuted by COMMITTEE ON COMMERCE, SCIENCE AND States under those international conven- the United States as war crimes in the past; TRANSPORTATION tions.’’. and (c) PROTECTION OF CERTAIN UNITED STATES (D) should any United States person to Mr. LOTT. Mr. President, I ask unan- GOVERNMENT PERSONNEL.—Such section is whom the Geneva Conventions apply be sub- imous consent that the Committee on further amended by adding at the end the jected to any of the following acts, the Commerce, Science, and Transpor- following new subsection: United States would consider such act to tation be authorized to hold a com- ‘‘(g) PROTECTION OF CERTAIN UNITED constitute a punishable offense under com- mittee markup on Wednesday, Sep- STATES GOVERNMENT PERSONNEL.—The provi- mon Article 3 and would act accordingly. tember 27, 2006 at 10 a.m. sions of section 1004 of the Detainee Treat- Such acts, each of which is prohibited by the The PRESIDING OFFICER. Without ment Act of 2005 (42 U.S.C. 2000dd–1) shall Army Field Manual include forcing the per- apply with respect to any criminal prosecu- son to be naked, perform sexual acts, or pose objection, it is so ordered. tion relating to the detention and interroga- in a sexual manner; applying beatings, elec- COMMITTEE ON FINANCE tion of individuals described in such provi- tric shocks, burns, or other forms of physical Mr. LOTT. Mr. President, I ask unan- sions that is grounded in an offense under pain to the person; waterboarding the per- imous consent that the Committee on

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00119 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.089 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10342 CONGRESSIONAL RECORD — SENATE September 27, 2006 Finance be authorized to meet during SUBCOMMITTEE ON BIOTERRORISM AND PUBLIC clean water, wilderness and scenic val- the session on Wednesday, September HEALTH PREPAREDNESS ues, and diverse habitat of Mount Hood 27, 2006, at a time and location to be de- Mr. LOTT. Mr. President, I ask unan- National Forest, Oregon, and for other termined, following a vote on the Sen- imous consent that the Subcommittee purposes. ate Floor, to consider favorably report- on bioterrorism and Public Health Pre- The PRESIDING OFFICER. Without ing the nominations of John K. paredness, be authorized to hold a objection, it is so ordered. Veroneau, to be Deputy United States hearing during the session of the Sen- SUBCOMMITTEE ON READINESS AND Trade Representative, with the Rank ate on Wednesday, September 27, 2006 MANAGEMENT SUPPORT of Ambassador, Executive Office of the at 2:30 p.m. in SD–430. Mr. LOTT. Mr. Speaker, I ask unani- President, and Robert K. Steel, to be The PRESIDING OFFICER. Without mous consent that the Subcommittee Under Secretary, U.S. Department of objection, it is so ordered. on Readiness and Management Support the Treasury. SUBCOMMITTEE ON IMMIGRATION AND BORDER be authorized to meet during the ses- The PRESIDING OFFICER. Without SECURITY sion of the Senate on September 27, objection, it is so ordered. Mr. LOTT. Mr. President, I ask unan- 2006, at 10 a.m., to receive testimony on imous consent that the Subcommittee COMMITTEE ON FOREIGN RELATIONS U.S. policy and practice with respect to on Immigration, Border Security and Mr. LOTT. Mr. President, I ask unan- the use of riot control agents by the Citizenship be authorized to meet to U.S. Armed forces. imous consent that the Committee on conduct a hearing on ‘‘Oversight Hear- Foreign Relations be authorized to The PRESIDING OFFICER. Without ing: U.S. Refugee Admissions and Pol- objection, it is so ordered. meet during the session of the Senate icy’’ on Wednesday, September 27, at 3 on Wednesday, September 27, 2006, at p.m. in SD–226. f 2:30 p.m. to hold a hearing on nomina- tions. Witness List PRIVILEGES OF THE FLOOR The PRESIDING OFFICER. Without Panel I: The Honorable Ellen Mr. WARNER. I ask unanimous con- objection, it is so ordered. Sauerbray, Assistant Secretary of sent a fellow from Senator GRAHAM’s COMMITTEE ON HOMELAND SECURITY AND State, Population, Refugees and Migra- staff, Adam Brake, have floor privi- GOVERNMENTAL AFFAIRS tion, Department of State, Wash- leges for the duration of the Military Mr. LOTT. Mr. President, I ask unan- ington, DC; Jonathan ‘‘Jock’’ Scharfen, Commissions Act of 2006. imous consent that the Committee on Deputy Director, U.S. Citizenship and The PRESIDING OFFICER. Without Homeland Security and Governmental Immigration Services, Department of objection, it is so ordered. Affairs be authorized to meet on Homeland Security, Washington, DC. Mr. LEVIN. Mr. President, I ask Panel II: Michael Horowitz, Director, Wednesday, September 27, 2006, at 10 unanimous consent that William John- a.m. for a hearing titled, ‘‘Development Project for Civil Justice Reform and son, a fellow in Senator KENNEDY’s of- Project for International Religious of an Artificial Pancreas: Will New fice, be granted floor privileges during Liberty, Hudson Institute, Washington, Technologies Improve Care for People the consideration of S. 3930. DC; Father Kenneth Gavin, S.J., Vice- With Diabetes and Reduce the Burden The PRESIDING OFFICER. Without Chair, Refugee Council U.S.A. and Na- on the Health Care System?’’ objection, it is so ordered. tional Director, Jesuit Refugee Serv- The PRESIDING OFFICER. Without Mr. CORNYN. Mr. President, I ask ice, U.S.A., Washington, DC. objection, it is so ordered. unanimous consent that two of my law The PRESIDING OFFICER. Without COMMITTEE ON HOMELAND SECURITY AND clerks, Natasha Solce and John objection, it is so ordered. GOVERNMENTAL AFFAIRS Huffman, be granted the privilege of Mr. LOTT. Mr. President, I ask unan- SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS the floor during the remainder of the imous consent that the Committee on Mr. LOTT. Mr. President, I ask unan- week. Homeland Security and Governmental imous consent that the Subcommittee The PRESIDING OFFICER. Without Affairs be authorized to meet on on Public Lands and Forests be author- objection, it is so ordered. Wednesday, September 27, 2006, at 10 ized to meet during the session of the Mr. BENNETT. Mr. President, I ask a.m. for a hearing titled, ‘‘The Poten- Senate on Wednesday, September 27 at unanimous consent that the order for tial of an Artificial Pancreas: Improv- 10 a.m. the quorum call be dispensed with. ing Care for People With Diabetes.’’ The purpose of the hearing is to re- The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without ceive testimony on the following bills: objection, it is so ordered. objection, it is so ordered. S. 3000, a bill to grant rights-of-way for electric transmission lines over certain f COMMITTEE ON VETERANS’ AFFAIRS native allotments in the State of Alas- Mr. LOTT. Mr. President, I ask unan- ka; S. 3599, to establish the Prehistoric MEASURE READ THE FIRST imous consent that the Committee on Trackways National Monument in the TIME—H.R. 5132 Veterans’ Affairs be authorized to meet State of New Mexico; S. 3794, to provide Mr. BENNETT. Mr. President, I un- during the session of the Senate on for the implementation of the Owyhee Wednesday, September 27, 2006, to hold derstand there is a bill at the desk. I Initiative Agreement, and for other ask for its first reading. a meeting to mark up the nomination purposes; S. 3854, to designate certain of Robert T. Howard to be Assistant The PRESIDING OFFICER. The land in the State of Oregon as wilder- clerk will report the bill by title. Secretary for Information and Tech- ness, and for other purposes; H.R. 3603, nology, Department of Veterans’ Af- The assistant legislative clerk read to promote the economic development as follows: fairs. and recreational use of National Forest The meeting will take place in the A bill (H.R. 5132) to direct the Secretary of System lands and other public lands in Interior to conduct a special resource study Reception Room off the Senate Floor Central Idaho, to designate the Boul- in the Capitol following the first roll to determine the suitability and feasibility der-White Cloud Management Area to of including in the National Park System call vote of the day. ensure the continued management of certain sites in Monroe County, Michigan, The PRESIDING OFFICER. Without certain National Forest System lands relating to the battles of the River Raisin objection, it is so ordered. and Bureau of Land Management lands during the War of 1812. SELECT COMMITTEE ON INTELLIGENCE for recreational and grazing use and Mr. BENNETT. Mr. President, I now Mr. LOTT. Mr. President, I ask unan- conservation and resource protection, ask for its second reading, and in order imous consent that the Select Com- to add certain National Forest System to place the bill on the calendar under mittee on Intelligence be authorized to lands and Bureau of Land Management the provisions of rule XIV, I object to meet during the session of the Senate lands in Central Idaho to the National my own request. on September 27, 2006 at 2:30 p.m. to Wilderness Preservation System, and The PRESIDING OFFICER. Objec- hold a closed briefing. for other purposes; and H.R. 5025, to tion is heard. The bill will receive its The PRESIDING OFFICER. Without protect for future generations the rec- second reading on the next legislative objection, it is so ordered. reational opportunities, forest, timber, day.

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00120 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.106 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10343 MEASURE PLACED ON THE master’s degree in 1939 and doctorate Mr. BENNETT. Mr. President, I ask CALENDAR—S. 3936 in 1942. unanimous consent that the bill be Mr. BENNETT. Mr. President, I un- In 1944 Dr. Borlaug accepted an ap- read a third time and passed, the mo- derstand there is a bill at the desk due pointment as a geneticist and plant pa- tion to reconsider be laid upon the for a second reading. thologist with the Cooperative Wheat table, and that any statements relating The PRESIDING OFFICER. The Research and Production Program in to the measure be printed in the clerk will report the bill by title. Mexico. This program was a joint un- RECORD. The assistant legislative clerk read dertaking by the Mexican Government The PRESIDING OFFICER. Without as follows: and the Rockefeller Foundation involv- objection, it is so ordered. ing research in plant genetics, plant The bill was ordered to be engrossed A bill (S. 3936) to invest in innovation and breeding, plant pathology, agronomy, education to improve the competitiveness of for a third reading, was read the third the United States in the global economy. soil science, and cereal technology. He time, and passed, as follows: spent two decades working with farm- Mr. BENNETT. Mr. President, in S. 2250 ers in Mexico to develop a new disease order to place the bill on the calendar Be it enacted by the Senate and House of Rep- resistant variety of wheat that could under the provisions of rule XIV, I ob- resentatives of the United States of America in triple its output in grain. This break- Congress assembled, ject to further proceedings. through achievement in plant breeding SECTION 1. SHORT TITLE. The PRESIDING OFFICER. Objec- enabled Mexico to become self-suffi- This Act may be cited as the ‘‘Congres- tion is heard. The bill will be placed on cient in wheat production while vastly sional Tribute to Dr. Norman E. Borlaug Act the calendar. improving the livelihood of many poor of 2006’’. f farmers. SEC. 2. FINDINGS. Congress finds as follows: STAR PRINT—S. 3867 The United Nations asked Dr. Borlaug to travel to India and Paki- (1) Dr. Norman E. Borlaug, was born in Iowa where he grew up on a family farm, and Mr. BENNETT. Mr. President, I ask stan in the 1960s to help the warring unanimous consent that S. 3867 be star received his primary and secondary edu- countries, which were threatened with cation. printed with the changes that are at an imminent pandemic famine. Work- the desk. (2) Dr. Borlaug attended the University of ing with scientists from both coun- Minnesota where he received his B.A. and The PRESIDING OFFICER. Without tries, Dr. Borlaug convinced India and Ph.D. degrees and was also a star NCAA objection, it is so ordered. Pakistan to adopt his new seeds and wrestler. f approach to agriculture to avert poten- (3) For the past 20 years, Dr. Borlaug has tial starvation and famine. In a short lived in Texas where he is a member of the CONGRESSIONAL TRIBUTE TO DR. faculty of Texas A&M University. NORMAN E. BORLAUG ACT OF 2006 time, both countries attained self-suffi- (4) Dr. Borlaug also serves as President of ciency in wheat production and mil- Mr. BENNETT. Mr. President, I ask the Sasakawa Africa Association. lions of people were saved from hunger, unanimous consent that the Com- (5) Dr. Borlaug’s accomplishments in terms famine and death. Dr. Borlaug contin- mittee on Banking, Housing and Urban of bringing radical change to world agri- ued his work in Southeast Asia, and culture and uplifting humanity are without Affairs be discharged from further con- the results were the same. parallel. sideration of S. 2250, and the Senate In 1970, Dr. Borlaug was awarded the (6) In the immediate aftermath of World proceed to its immediate consider- Nobel Peace Prize for his work in agri- War II, Dr. Borlaug spent 20 years working in ation. culture, reversing food shortages and the poorest areas of rural Mexico. It was there that Dr. Borlaug made his break- The PRESIDING OFFICER. Without saving millions of lives. Today, at the objection, it is so ordered. through achievement in developing a strand age of 92, Dr. Borlaug continues his of wheat that could exponentially increase The clerk will report the bill by title. tireless work to alleviate and prevent The legislative clerk read as follows: yields while actively resisting disease. hunger throughout the world. He is the (7) With the active support of the govern- A bill (S. 2250) to award a Congressional head of the Sasakawa Global 2000 pro- ments involved, Dr. Borlaug’s ‘‘green revolu- Gold Medal to Dr. Norman E. Borlaug. gram, which is working to bring the tion’’ uplifted hundreds of thousands of the There being no objection, the Senate Green Revolution to Africa and allevi- rural poor in Mexico and saved hundreds of proceeded to consider the bill. ate hunger and malnutrition in the millions from famine and outright starva- tion in India and Pakistan. Mr. HARKIN. Mr. President, today sub-Saharan region. He founded the the Senate pays tribute to a true (8) Dr. Borlaug’s approach to wheat pro- World Food Prize in 1986 as a means to duction next spread throughout the Middle American hero and fellow native Iowan recognize and inspire achievements in East. Soon thereafter his approach was in passing S. 2250, a bill to award Dr. increasing the quality, quantity and adapted to rice growing, increasing the num- Norman E. Borlaug the Congressional availability of food in the world. He ber of lives Dr. Borlaug has saved to more Gold Medal, which is the highest con- also continues his role as an educator than a billion people. gressional expression of national ap- at Texas A&M University while also (9) In 1970, Dr. Borlaug received the Nobel preciation for distinguished achieve- continuing research at the Inter- Prize, the only person working in agriculture to ever be so honored. Since then he has re- ment and contribution. This is a fitting national Center for the Improvement of honor to a man who is frequently cred- ceived numerous honors and awards includ- Wheat and Maize in Mexico. ing the Presidential Medal of Freedom, the ited with saving more lives than any- Dr. Borlaug has been awarded the Public Service Medal, the National Academy one who has ever lived. Presidential Medal of Freedom, the Na- of Sciences’ highest honor, and the Rotary Commonly known as ‘‘The Father of tional Academy of Science’s Public International Award for World Under- the Green Revolution,’’ Dr. Borlaug’s Service Medal and the Rotary Inter- standing and Peace. scientific and humanitarian efforts national Award for World Under- (10) At age 91, Dr. Borlaug continues to have saved countless people from star- standing and Peace. Today the Senate work to alleviate poverty and malnutrition. vation and hunger while raising stand- approves legislation to award Dr. He currently serves as president of Sasakawa ards of living throughout the world. Global 2000 Africa Project, which seeks to ex- Borlaug the Congressional Gold Medal. tend the benefits of agricultural develop- Dr. Borlaug was born in 1914 near Dr. Borlaug is a true American hero ment to the 800,000,000 people still mired in Cresco, IA. Like many Iowans at the and it is fitting that Congress honors poverty and malnutrition in sub-Saharan Af- time, he grew up on a small farm and this man who has done so much to al- rica. attended a one-room school house for leviate hunger and human suffering, (11) Dr. Borlaug continues to serve as his first 8 years of education. After improve the quality of life around the Chairman of the Council of Advisors of the graduating from high school, he at- globe and promote understanding and World Food Prize, an organization he created tended the University of Minnesota and peace among all of the world’s people. in 1986 to be the ‘‘Nobel Prize for Food and Agriculture’’ and which presents a $250,000 earned his bachelor of science in for- I would like to thank Senator GRASS- prize each October at a Ceremony in Des estry. Immediately after receiving his LEY and the many cosponsors of this Moines, Iowa, to the Laureate who has made degree in 1937, he worked for the U.S. bill for their support and work to an exceptional achievement similar to Dr. Forestry Service. He returned to the honor Dr. Borlaug with this high dis- Borlaug’s breakthrough 40 years ago. In the University of Minnesota to receive his tinction. almost 20 years of its existence, the World

VerDate Aug 31 2005 05:57 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00121 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.112 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10344 CONGRESSIONAL RECORD — SENATE September 27, 2006 Food Prize has honored Laureates from Ban- read the third time and passed, the mo- $1,500,000 in endowment funds to Abilene gladesh, India, China, Mexico, Denmark, Si- tion to reconsider be laid upon the Christian University in Abilene, Texas. erra Leone, Switzerland, the United King- table, and any statements relating to (17) Byron Nelson received the PGA Distin- dom, and the United States. guished Service Award in 1993. This award is the measure be printed in the RECORD. (12) Dr. Borlaug has saved more lives than The PRESIDING OFFICER. Without presented to an individual who has helped any other person who has ever lived, and perpetuate the ideals and values of the PGA. likely has saved more lives in the Islamic objection, it is so ordered. (18) Byron Nelson has served as an hon- world than any other human being in his- The bill (S. 2491) was ordered to be orary chairperson for the Metroport Meals tory. engrossed for a third reading, was read on Wheels since 1992. (13) Due to a lifetime of work that has led the third time, and passed, as follows: (19) In 1994, the Golf Course Superintend- to the saving and preservation of an untold S. 2491 ents Association of America presented Byron amount of lives, Dr. Norman E. Borlaug is Be it enacted by the Senate and House of Rep- Nelson with the Old Tom Morris Award for deserving of America’s highest civilian resentatives of the United States of America in outstanding contributions to the game. award: the congressional gold medal. Congress assembled, (20) Byron Nelson helped to develop the SEC. 3. CONGRESSIONAL GOLD MEDAL. SECTION 1. SHORT TITLE. Tournament Players Course (TPC) Four Sea- (a) PRESENTATION AUTHORIZED.—The Presi- This Act may be cited as the ‘‘Byron Nel- sons at Los Colinas, Texas, site of the EDS dent Pro Tempore of the Senate and the son Congressional Gold Medal Act’’. Byron Nelson Championship and the Byron Speaker of the House of Representatives are SEC. 2. FINDINGS. Nelson Golf School, into a world-class facil- authorized to make appropriate arrange- Congress finds as follows: ity. ments for the presentation, on behalf of Con- (1) Byron Nelson was a top player in the (21) The EDS Byron Nelson Championship gress, of a gold medal of appropriate design, sport of golf during the World War II era and is the only PGA tour event named in honor to Dr. Norman E. Borlaug, in recognition of his accomplishments as a player, a teacher, of a professional golfer and traditionally at- his enduring contributions to the United and commentator are renowned. tracts the strongest players in the sport. States and the world. (2) Byron Nelson won 54 career victories, (22) Since its inception, the EDS Byron (b) DESIGN AND STRIKING.—For the purpose including a record 11 in a row in 1945, during Nelson Championship has raised $88,000,000 of the presentation referred to in subsection his short 13-year career. for Salesmanship Club Youth and Family (a), the Secretary of the Treasury (in this (3) Byron Nelson won 5 majors, including 2 Centers, a nonprofit agency that provides Act referred to as the ‘‘Secretary’’) shall Masters (1937 and 1942), 2 Professional Golf education and mental health services for strike a gold medal with suitable emblems, Association (PGA) Championships (1940 and more than 2,700 children and their families in devices, and inscriptions, to be determined 1945) and the U.S. Open (1939). the greater Dallas area. by the Secretary. (4) Sports journalist Bill Nichols recently (23) In 2002, Byron Nelson received the SEC. 4. DUPLICATE MEDALS. ranked the greatest seasons on the PGA tour prestigious Donald Ross Award from the Under such regulations as the Secretary for The Dallas Morning News and picked Ro- American Society of Golf Course Architects may prescribe, the Secretary may strike and anoke, Texas-resident Byron Nelson’s 1945 (ASGCA) for his significant contribution to sell duplicates in bronze of the gold medal tour as the greatest season of golf in Amer- the game of golf and the profession of golf struck under section 3 at a price sufficient to ican history. course architecture. cover the cost thereof, including labor, mate- (5) In 1945, Byron Nelson accumulated 18 (24) The United States Golf Association rials, dies, use of machinery, and overhead total victories, 11 of which were consecutive, presented Byron Nelson the Ike Grainger expenses, and the cost of the gold medal. while averaging 68.33 strokes per round for 30 Award for volunteer service to the game of golf in 2002. SEC. 5. STATUS AS NATIONAL MEDALS. tournaments. (6) At the Seattle Open in 1945, Byron Nel- (25) In 2002, the National Golf Foundation (a) NATIONAL MEDAL.—The medal struck presented Byron Nelson with the Graffis under this Act is a national medal for pur- son shot a record 62 for 18 holes and the world record 259, 29 shots under par for 72 Award for outstanding lifelong contributions poses of chapter 51 of title 31, United States to the game of golf. Code. holes. SEC. 3. CONGRESSIONAL GOLD MEDAL. (b) NUMISMATIC ITEMS.—For purposes of (7) Byron Nelson is one of only 2 golfers to section 5134 of title 31, United States Code, be named ‘‘Male Athlete of the Year’’ twice (a) PRESENTATION AUTHORIZED.—The Presi- all duplicate medals struck under this Act by the Associated Press: in 1944, when he won dent pro tempore of the Senate and the shall be considered to be numismatic items. 7 tournaments and averaged 69.67 strokes for Speaker of the House of Representatives 85 rounds, and again after his 1945 season. shall make appropriate arrangements for the SEC. 6. AUTHORITY TO USE FUND AMOUNTS; presentation, on behalf of the Congress, of a PROCEEDS OF SALE. (8) The World Golf Hall of Fame honored Byron Nelson in 2004 by featuring an exhibit gold medal of appropriate design to Byron (a) AUTHORITY TO USE FUND AMOUNTS.— Nelson in recognition of his significant con- There are authorized to be charged against entitled ‘‘Byron Nelson: A Champion . . . A tributions to the game of golf as a player, a the United States Mint Public Enterprise Gentleman’’. teacher, and a commentator. Fund, such sums as may be necessary to pay (9) Byron Nelson was selected for the (b) DESIGN AND STRIKING.—For purposes of for the cost of the medals struck under this Ryder Cup 4 times—in 1937, 1939, 1947 and 1965, and on that last occasion he led the the presentation referred to in subsection Act. (a), the Secretary of the Treasury (hereafter (b) PROCEEDS OF SALE.—Amounts received United States Ryder Cup team as team cap- in this Act referred to as the ‘‘Secretary’’) from the sale of duplicate bronze medals tain to victory over Great Britain. shall strike a gold medal with suitable em- under section 4 shall be deposited in the (10) Byron Nelson was also a pioneer in the blems, devices, and inscriptions, to be deter- United States Mint Public Enterprise Fund. golf business, helping to develop the golf shoes and umbrellas used today. mined by the Secretary. f (11) In 1966, True Temper created the ‘‘Iron SEC. 4. DUPLICATE MEDALS. BYRON NELSON CONGRESSIONAL Byron’’ robot to replicate Byron Nelson’s The Secretary may strike and sell dupli- GOLD MEDAL ACT swing in order to test the company’s equip- cates in bronze of the gold medal struck pur- ment, but the robot was eventually used for suant to section 3 under such regulations as Mr. BENNETT. Mr. President, I ask club and ball testing by the United States the Secretary may prescribe, at a price suffi- unanimous consent the Committee on Golf Association (USGA) and many other cient to cover the cost thereof, including Banking, Housing and Urban Affairs be manufacturing companies. labor, materials, dies, use of machinery, and discharged from further consideration (12) Byron Nelson mentored many golf overhead expenses, and the cost of the gold of S. 2491 and that the Senate proceed hopefuls, including 1964 Player of the Year medal. to its immediate consideration. Ken Venturi and 6-time PGA Player of the SEC. 5. STATUS OF MEDALS. Year Tom Watson. The PRESIDING OFFICER. Without (a) NATIONAL MEDALS.—The medals struck (13) Byron Nelson was one of the first golf pursuant to this Act are national medals for objection, it is so ordered. The clerk analysts on network television where his un- purposes of chapter 51 of title 31, United will report the bill by title. derstanding of the game in general, and the States Code. The assistant legislative clerk read golf swing in particular, was demonstrably (b) NUMISMATIC ITEMS.—For purposes of as follows: profound. section 5134 of title 31, United States Code, A bill (S. 2491) to award a Congressional (14) Byron Nelson received the United all medals struck under this Act shall be Gold Medal to Byron Nelson in recognition States Golf Association’s Bob Jones Award considered to be numismatic items. of his significant contributions to the game for distinguished sportsmanship in golf in SEC. 6. AUTHORITY TO USE FUND AMOUNTS; of golf as a player, a teacher, and a commen- 1974. PROCEEDS OF SALE. tator. (15) In 1974, the Golf Writers Association of (a) AUTHORITY TO USE FUND AMOUNTS.— America presented Byron Nelson with the There is authorized to be charged against the There being no objection, the Senate Richardson Award for consistently out- United States Mint Public Enterprise Fund, proceeded to consider the bill. standing contributions to golf. such amounts as may be necessary to pay for Mr. BENNETT. Mr. President, I ask (16) Since 1983, the Byron and Louise Nel- the costs of the medals struck pursuant to unanimous consent that the bill be son Golf Endowment Fund has provided over this Act.

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(b) PROCEEDS OF SALE.—Amounts received ‘‘(b) EXCEPTIONS.— knowingly transports the minor across a State from the sale of duplicate bronze medals au- ‘‘(1) The prohibition of subsection (a) does not line with the intent that such minor obtain an thorized under section 4 shall be deposited apply if the abortion was necessary to save the abortion, shall be fined under this title or im- into the United States Mint Public Enter- life of the minor because her life was endan- prisoned not more than one year, or both. For prise Fund. gered by a physical disorder, physical injury, or the purposes of this section, the terms ‘State’, Mr. BENNETT. Mr. President, I sug- physical illness, including a life endangering ‘minor’, and ‘abortion’ have, respectively, the gest the absence of a quorum. physical condition caused by or arising from the definitions given those terms in section 2435.’’. The PRESIDING OFFICER. The pregnancy itself. SEC. 3. CHILD INTERSTATE ABORTION NOTIFICA- ‘‘(2) A minor transported in violation of this TION. clerk will call the roll. section, and any parent of that minor, may not Title 18, United States Code, is amended by in- The assistant legislative clerk pro- be prosecuted or sued for a violation of this sec- serting after chapter 117A the following: ceeded to call the roll. tion, a conspiracy to violate this section, or an ‘‘CHAPTER 117B—CHILD INTERSTATE Mr. BENNETT. Mr. President, I ask offense under section 2 or 3 based on a violation ABORTION NOTIFICATION unanimous consent that the order for of this section. ‘‘Sec the quorum call be rescinded. ‘‘(c) AFFIRMATIVE DEFENSE.—It is an affirma- ‘‘2435. Child interstate abortion notification tive defense to a prosecution for an offense, or The PRESIDING OFFICER. Without ‘‘§ 2435. Child interstate abortion notification objection, it is so ordered. to a civil action, based on a violation of this sec- tion that the defendant— ‘‘(a) OFFENSE.— f ‘‘(1) reasonably believed, based on information ‘‘(1) GENERALLY.—A physician who know- CHILD INTERSTATE ABORTION the defendant obtained directly from a parent of ingly performs or induces an abortion on a minor in violation of the requirements of this NOTIFICATION ACT the minor, that before the minor obtained the abortion, the parental consent or notification section shall be fined under this title or impris- Mr. BENNETT. Mr. President, I ask took place that would have been required by the oned not more than one year, or both. that the Chair lay before the Senate a law requiring parental involvement in a minor’s ‘‘(2) PARENTAL NOTIFICATION.—A physician message from the House of Representa- abortion decision, had the abortion been per- who performs or induces an abortion on a minor tives on the bill (S. 403) to amend title formed in the State where the minor resides; or who is a resident of a State other than the State ‘‘(2) was presented with documentation show- in which the abortion is performed must pro- 18, United States Code, to prohibit tak- vide, or cause his or her agent to provide, at ing minors across State lines in cir- ing with a reasonable degree of certainty that a court in the minor’s State of residence waived least 24 hours actual notice to a parent of the cumvention of laws requiring the in- any parental notification required by the laws minor before performing the abortion. If actual volvement of parents in abortion deci- of that State, or otherwise authorized that the notice to such parent is not possible after a rea- sions. minor be allowed to procure an abortion. sonable effort has been made, 24 hours construc- The PRESIDING OFFICER laid be- ‘‘(d) CIVIL ACTION.—Any parent who suffers tive notice must be given to a parent. fore the Senate the following message harm from a violation of subsection (a) may ob- ‘‘(b) EXCEPTIONS.—The notification require- tain appropriate relief in a civil action unless ment of subsection (a)(2) does not apply if— from the House of Representatives: ‘‘(1) the abortion is performed or induced in a S. 403 the parent has committed an act of incest with the minor subject to subsection (a). State that has, in force, a law requiring paren- Resolved, That the bill from the Senate (S. ‘‘(e) DEFINITIONS.—For the purposes of this tal involvement in a minor’s abortion decision 403) entitled ‘‘An Act to amend title 18, section— and the physician complies with the require- United States Code, to prohibit taking mi- ‘‘(1) the term ‘abortion’ means the use or pre- ments of that law; nors across State lines in circumvention of scription of any instrument, medicine, drug, or ‘‘(2) the physician is presented with docu- laws requiring the involvement of parents in any other substance or device intentionally to mentation showing with a reasonable degree of abortion decisions’’, do pass with the fol- terminate the pregnancy of a female known to certainty that a court in the minor’s State of lowing amendment: be pregnant, with an intention other than to in- residence has waived any parental notification Strike out all after the enacting clause and crease the probability of a live birth, to preserve required by the laws of that State, or has other- insert: the life or health of the child after live birth, to wise authorized that the minor be allowed to SECTION 1. SHORT TITLE. terminate an ectopic pregnancy, or to remove a procure an abortion; ‘‘(3) the minor declares in a signed written This Act may be cited as the ‘‘Child Interstate dead unborn child who died as the result of a statement that she is the victim of sexual abuse, Abortion Notification Act’’. spontaneous abortion, accidental trauma or a neglect, or physical abuse by a parent, and, be- SEC. 2. TRANSPORTATION OF MINORS IN CIR- criminal assault on the pregnant female or her fore an abortion is performed on the minor, the CUMVENTION OF CERTAIN LAWS RE- unborn child; LATING TO ABORTION. ‘‘(2) the term a ‘law requiring parental in- physician notifies the authorities specified to re- Title 18, United States Code, is amended by in- volvement in a minor’s abortion decision’ means ceive reports of child abuse or neglect by the law serting after chapter 117 the following: a law— of the State in which the minor resides of the ‘‘CHAPTER 117A—TRANSPORTATION OF ‘‘(A) requiring, before an abortion is per- known or suspected abuse or neglect; ‘‘(4) the abortion is necessary to save the life MINORS IN CIRCUMVENTION OF CER- formed on a minor, either— of the minor because her life was endangered by TAIN LAWS RELATING TO ABORTION ‘‘(i) the notification to, or consent of, a parent a physical disorder, physical injury, or physical of that minor; or ‘‘Sec illness, including a life endangering physical ‘‘2431. Transportation of minors in circumven- ‘‘(ii) proceedings in a State court; and condition caused by or arising from the preg- tion of certain laws relating to ‘‘(B) that does not provide as an alternative to nancy itself, or because in the reasonable med- abortion. the requirements described in subparagraph (A) ical judgment of the minor’s attending physi- ‘‘2432. Transportation of minors in circumven- notification to or consent of any person or enti- cian, the delay in performing an abortion occa- tion of certain laws relating to ty who is not described in that subparagraph; sioned by fulfilling the prior notification re- abortion. ‘‘(3) the term ‘minor’ means an individual who quirement of subsection (a)(2) would cause a ‘‘§ 2431. Transportation of minors in cir- is not older than the maximum age requiring pa- rental notification or consent, or proceedings in substantial and irreversible impairment of a cumvention of certain laws relating to abor- major bodily function of the minor arising from tion a State court, under the law requiring parental involvement in a minor’s abortion decision; continued pregnancy, not including psycho- ‘‘(a) OFFENSE.— ‘‘(4) the term ‘parent’ means— logical or emotional conditions, but an exception ‘‘(1) GENERALLY.—Except as provided in sub- ‘‘(A) a parent or guardian; under this paragraph does not apply unless the section (b), whoever knowingly transports a ‘‘(B) a legal custodian; or attending physician or an agent of such physi- minor across a State line, with the intent that ‘‘(C) a person standing in loco parentis who cian, within 24 hours after completion of the such minor obtain an abortion, and thereby in has care and control of the minor, and with abortion, notifies a parent in writing that an fact abridges the right of a parent under a law whom the minor regularly resides, who is des- abortion was performed on the minor and of the requiring parental involvement in a minor’s ignated by the law requiring parental involve- circumstances that warranted invocation of this abortion decision, in force in the State where ment in the minor’s abortion decision as a per- paragraph; or the minor resides, shall be fined under this title son to whom notification, or from whom con- ‘‘(5) the minor is physically accompanied by a or imprisoned not more than one year, or both. sent, is required; and person who presents the physician or his agent ‘‘(2) DEFINITION.—For the purposes of this ‘‘(5) the term ‘State’ includes the District of with documentation showing with a reasonable subsection, an abridgement of the right of a par- Columbia and any commonwealth, possession, degree of certainty that he or she is in fact the ent occurs if an abortion is performed or in- or other territory of the United States, and any parent of that minor. duced on the minor, in a State or a foreign na- ‘‘(c) CIVIL ACTION.—Any parent who suffers Indian tribe or reservation. tion other than the State where the minor re- harm from a violation of subsection (a) may ob- sides, without the parental consent or notifica- ‘‘§ 2432. Transportation of minors in cir- tain appropriate relief in a civil action unless tion, or the judicial authorization, that would cumvention of certain laws relating to abor- the parent has committed an act of incest with have been required by that law had the abortion tion the minor subject to subsection (a). been performed in the State where the minor re- ‘‘Notwithstanding section 2431(b)(2), whoever ‘‘(d) DEFINITIONS.—For the purposes of this sides. has committed an act of incest with a minor and section—

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00123 Fmt 4624 Sfmt 6333 E:\CR\FM\A27SE6.035 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10346 CONGRESSIONAL RECORD — SENATE September 27, 2006 ‘‘(1) the term ‘abortion’ means the use or pre- The Senator from Utah [Mr. BENNETT], for ate completes its business today, it scription of any instrument, medicine, drug, or Mr. FRIST, proposes an amendment num- stand in adjournment until 9:30 a.m. on any other substance or device intentionally to bered 5090 to the House amendment. Thursday, September 28. I further ask terminate the pregnancy of a female known to Mr. BENNETT. I ask that the reading consent that following the prayer and be pregnant, with an intention other than to in- of the amendment be dispensed with. crease the probability of a live birth, to preserve pledge, the morning hour be deemed the life or health of the child after live birth, to The PRESIDING OFFICER. Without expired, the Journal of proceedings be terminate an ectopic pregnancy, or to remove a objection, it is so ordered. approved to date, the time for the two dead unborn child who died as the result of a The amendment is as follows: leaders be reserved, and the Senate spontaneous abortion, accidental trauma, or a On page 12, line 2, strike ‘‘45 days’’ and in- proceed to a period of morning business criminal assault on the pregnant female or her sert ‘‘46 days’’ for up to 30 minutes, with the first 15 unborn child; Mr. BENNETT. I ask for the yeas and minutes under the control of the ma- ‘‘(2) the term ‘actual notice’ means the giving nays. jority leader or his designee, and the of written notice directly, in person, by the phy- sician or any agent of the physician; The PRESIDING OFFICER. Is there a final 15 minutes under the control of ‘‘(3) the term ‘constructive notice’ means no- sufficient second? the Democratic leader or his designee; tice that is given by certified mail, return receipt There is a sufficient second. further, that following morning busi- requested, restricted delivery to the last known The yeas and nays were ordered. ness, the Senate resume consideration address of the person being notified, with deliv- AMENDMENT NO. 5091 TO AMENDMENT NO. 5090 of S. 3930, as under the previous order. ery deemed to have occurred 48 hours following Mr. BENNETT. Mr. President, on be- The PRESIDING OFFICER. Without noon on the next day subsequent to mailing on half of the majority leader, I send a objection, it is so ordered. which regular mail delivery takes place, days on which mail is not delivered excluded; second-degree amendment to the desk. f ‘‘(4) the term a ‘law requiring parental in- The PRESIDING OFFICER. The volvement in a minor’s abortion decision’ means clerk will report. PROGRAM a law— The assistant legislative clerk read Mr. BENNETT. Mr. President, today ‘‘(A) requiring, before an abortion is per- as follows: we were able to reach an agreement on formed on a minor, either— The Senator from Utah [Mr. BENNETT], for the military tribunal legislation. We ‘‘(i) the notification to, or consent of, a parent Mr. FRIST, proposes an amendment num- have disposed of one amendment today. of that minor; or bered 5091 to amendment No. 5090. ‘‘(ii) proceedings in a State court; The Levin substitute amendment was ‘‘(B) that does not provide as an alternative to Mr. BENNETT. Mr. President, I ask defeated this afternoon. The Specter the requirements described in subparagraph (A) unanimous consent that reading of the amendment is pending, and there will notification to or consent of any person or enti- amendment be dispensed with. be some additional debate time on that ty who is not described in that subparagraph; The PRESIDING OFFICER. Without tomorrow. Under the agreement, we ‘‘(5) the term ‘minor’ means an individual who objection, it is so ordered. have three other amendments to con- is not older than 18 years and who is not eman- The amendment is as follows: sider and then final passage of the bill. cipated under State law; ‘‘(6) the term ‘parent’ means— Strike ‘‘46 days’’ and insert ‘‘44 days’’. Therefore, Senators can expect rollcall ‘‘(A) a parent or guardian; CLOTURE MOTION votes throughout tomorrow’s session. ‘‘(B) a legal custodian; or Mr. BENNETT. Mr. President, on be- As a reminder, the majority leader ‘‘(C) a person standing in loco parentis who half of the leader, I send a cloture mo- has outlined a number of items that we has care and control of the minor, and with tion to the desk. need to complete before we leave for whom the minor regularly resides; The PRESIDING OFFICER. Without the recess. We will be here until we can as determined by State law; get these items finished. ‘‘(7) the term ‘physician’ means a doctor of objection, the cloture motion having medicine legally authorized to practice medicine been presented under rule XXII, the f by the State in which such doctor practices med- Chair directs the clerk to read the mo- ORDER FOR ADJOURNMENT icine, or any other person legally empowered tion. under State law to perform an abortion; and The assistant legislative clerk read Mr. BENNETT. Mr. President, if ‘‘(8) the term ‘State’ includes the District of as follows: there is no further business to come be- Columbia and any commonwealth, possession, CLOTURE MOTION fore the Senate, I ask unanimous con- or other territory of the United States, and any sent that the Senate stand in adjourn- Indian tribe or reservation.’’. We the undersigned Senators, in ac- cordance with the provisions of rule ment under the previous order, fol- SEC. 4. CLERICAL AMENDMENT. lowing the remarks made by the Sen- The table of chapters at the beginning of part XXII of the Standing Rules of the Sen- I of title 18, United States Code, is amended by ate, do hereby move to bring to a close ator from Illinois for up to 10 minutes. inserting after the item relating to chapter 117 debate on the motion to concur in the The PRESIDING OFFICER. Without the following new items: House amendment to S. 403: a bill to objection, it is so ordered. ‘‘117A. Transportation of minors in amend title 18, United States Code, to Mr. BENNETT. Mr. President, does circumvention of certain laws re- prohibit taking minors across State the Senator from Illinois require more lating to abortion ...... 2431 lines in circumvention of laws requir- than 10 minutes? ‘‘117B. Child interstate abortion noti- ing the involvement of parents in abor- Mr. OBAMA. If I could, I do not think ...... ’’. fication 2435 tion decisions. I will need more than 15 minutes. It SEC. 5. SEVERABILITY AND EFFECTIVE DATE. Bill Frist, John Ensign, Tom Coburn, may be a little more than 10 minutes. (a) The provisions of this Act shall be sever- Craig Thomas, Jim DeMint, Wayne Al- Mr. BENNETT. Mr. President, I able. If any provision of this Act, or any appli- lard, Mitch McConnell, Trent Lott, Jim amend my request that the Senate cation thereof, is found unconstitutional, that Bunning, Conrad Burns, Ted Stevens, stand in adjournment under the pre- finding shall not affect any provision or appli- Johnny Isakson, John Cornyn, Jeff Ses- cation of the Act not so adjudicated. vious order following the remarks of sions, Larry Craig, Mike Crapo, John the Senator from Illinois for up to 20 (b) This Act and the amendments made by this Thune. Act shall take effect 45 days after the date of minutes. enactment of this Act. f The PRESIDING OFFICER. Without AMENDMENT NO. 5090 MORNING BUSINESS objection, it is so ordered. Mr. BENNETT. Mr. President, on be- Mr. BENNETT. Mr. President, I ask The Senator from Illinois is recog- half of the majority leader, I move to unanimous consent we now return to nized. concur in the amendment of the House morning business. Mr. OBAMA. Mr. President, thank and send an amendment to the desk The PRESIDING OFFICER. Without you very much. And I thank my dear and ask for its immediate consider- objection, it is so ordered. friend from Utah. ation. f f The PRESIDING OFFICER. Without objection, the motion is agreed to. ORDERS FOR THURSDAY, HABEAS CORPUS—AMENDMENT The clerk will report. SEPTEMBER 28, 2006 NO. 5087 The assistant legislative clerk read Mr. BENNETT. Mr. President, I ask Mr. OBAMA. Mr. President, I would as follows: unanimous consent that when the Sen- like to address the habeas corpus

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00124 Fmt 4624 Sfmt 0634 E:\CR\FM\A27SE6.050 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10347 amendment that is on the floor and mechanism to introduce that evidence these mistakes. By giving suspects a that we just heard a lengthy debate into the hearing. chance—even one chance—to challenge about between Senator SPECTER and Now, the vast majority of the folks the terms of their detention in court, Senator WARNER. in Guantanamo, I suspect, are there for to have a judge confirm that the Gov- A few years ago, I gave a speech in a reason. There are a lot of dangerous ernment has detained the right person Boston that people talk about from people. Particularly dangerous are peo- for the right suspicions, we could solve time to time. In that speech, I spoke ple like Khalid Shaikh Mohammed. this problem without harming our ef- about why I love this country, why I Ironically, those are the guys who are forts in the war on terror one bit. love America, and what I believe sets going to get real military procedures Let me respond to a couple of points this country apart from so many other because they are going to be charged that have been made on the other side. nations in so many areas. I said: by the Government. But detainees who You will hear opponents of this amend- That is the true genius of America—a faith have not committed war crimes—or ment say it will give all kinds of rights in simple dreams, an insistence on small where the Government’s case is not to terrorist masterminds, such as miracles; that we can tuck in our children at strong—may not have any recourse Khalid Shaikh Mohammed. But that is night and know that they are fed and clothed whatsoever. not true. The irony of the underlying and safe from harm; that we can say what we The bottom line is this: Current pro- bill as it is written is that someone think, write what we think, without hearing cedures under the CSRT are such that like Khalid Shaikh Mohammed is going a sudden knock on the door. . . . a perfectly innocent individual could to get basically a full military trial, Without hearing a sudden knock on be held and could not rebut the Gov- with all of the bells and whistles. He the door. I bring this up because what ernment’s case and has no way of prov- will have counsel, he will be able to is at stake in this bill, and in the ing his innocence. present evidence, and he will be able to I would like somebody in this Cham- amendment that is currently being de- rebut the Government’s case. The feel- ber, somebody in this Government, to bated, is the right, in some sense, for ing is that he is guilty of a war crime tell me why this is necessary. I do not people who hear that knock on the and to do otherwise might violate some want to hear that this is a new world door and are placed in detention be- of our agreements under the Geneva and we face a new kind of enemy. I cause the Government suspects them of Conventions. I think that is good, that know that. I know that every time I terrorist activity to effectively chal- we are going to provide him with some think about my two little girls and lenge their detention by our Govern- procedure and process. I think we will ment. worry for their safety—when I wonder if I really can tuck them in at night convict him, and I think he will be Now, under the existing rules of the brought to justice. I think justice will Detainee Treatment Act, court review and know that they are safe from harm. I have as big of a stake as any- be carried out in his case. of anyone’s detention is severely re- But that won’t be true for the detain- body on the other side of the aisle and stricted. Fortunately, the Supreme ees who are never charged with a ter- anybody in this administration in cap- Court in Hamdan ensured that some rorist crime, who have not committed turing terrorists and incapacitating meaningful review would take place. a war crime. Under this bill, people them. I would gladly take up arms my- But in the absence of Senator SPEC- self against any terrorist threat to who may have been simply at the TER’s amendment that is currently wrong place at the wrong time—and pending, we will essentially be going make sure my family is protected. But as a parent, I can also imagine there may be just a few—will never get back to the same situation as if the Su- the terror I would feel if one of my a chance to appeal their detention. So, preme Court had never ruled in family members were rounded up in the essentially, the weaker the Govern- Hamdan, a situation in which detainees middle of the night and sent to Guan- ment’s case is against you, the fewer effectively have no access to anything tanamo without even getting one rights you have. Senator SPECTER’s other than the Combatant Status Re- chance to ask why they were being amendment would fix that, while still view Tribunal, or the CSRT. held and being able to prove their inno- ensuring that terrorists like Moham- Now, I think it is important for all of cence. med are swiftly brought to justice. us to understand exactly the proce- This is not just an entirely fictional You are also going to hear a lot dures that are currently provided for scenario, by the way. We have already about how lawyers are going to file all under the CSRT. I have actually read a had reports by the CIA and various kinds of frivolous lawsuits on behalf of few of the transcripts of proceedings generals over the last few years saying detainees if habeas corpus is in place. under the CSRT. And I can tell you that many of the detainees at Guanta- This is a cynical argument because I that oftentimes they provide detainees namo should not have been there. As think we could get overwhelming sup- no meaningful recourse if the Govern- one U.S. commander of Guantanamo port in this Chamber right now for a ment has the wrong guy. told the Wall Street Journal: measure that would restrict habeas to Essentially, reading these tran- Sometimes, we just didn’t get the right a one-shot appeal that would be limited scripts, they proceed as follows: The folks. solely to whether someone was legally Government says: You are a member of We all know about the recent case of detained or not. I am not interested in the Taliban. And the detainee will say: the Canadian man who was suspected allowing folks at Guantanamo to com- No, I’m not. And then the Government of terrorist connections, detained in plain about whether their cell is too will not ask for proof from the detainee New York, sent to Syria—through a small or whether the food they get is that he is not. There is no evidence rendition agreement—tortured, only to sufficiently edible or to their tastes. that the detainee can offer to rebut the find out later it was all a case of mis- That is not what this is about. We can Government’s charge. taken identity and poor information. craft a habeas bill that says the only The Government then moves on and In this war, where terrorists can plot question before the court is whether says: And on such and such a date, you undetected from within our borders, it there is sufficient evidence to find that perpetrated such and such terrorist is absolutely vital that our law en- this person is truly an unlawful enemy crime. And the detainee says: No, I forcement agencies are able to detain combatant and belongs in this deten- didn’t. You have the wrong guy. But and interrogate whoever they believe tion center. We can restrict it to that. again, he has no capacity to place into to be a suspect, and so it is understand- And although I have seen some of those evidence anything that would rebut the able that mistakes will be made and amendments floating around, those Government’s charge. And there is no identities will be confused. I don’t were not amendments that were admit- effort to find out whether or not what blame the Government for that. This is ted during this debate. It is a problem he is saying is true. an extraordinarily difficult war we are that is easily addressed. It is not a rea- And it proceeds like that until effec- prosecuting against terrorists. There son for us to wholesale eliminate ha- tively the Government says, OK, that are going to be situations in which we beas corpus. is the end of the tribunal, and he goes cast too wide a net and capture the Finally, you will hear some Senators back to detention. Even if there is evi- wrong person. argue that if habeas is allowed, it ren- dence that he was not involved in any But what is avoidable is refusing to ders the CSRT process irrelevant be- terrorist activity, he may not have any ever allow our legal system to correct cause the courts will embark on de

VerDate Aug 31 2005 04:42 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00125 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.120 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10348 CONGRESSIONAL RECORD — SENATE September 27, 2006 novo review, meaning they will com- name—so that the Government can de- rights of habeas corpus from this bill, pletely retry these cases, take new evi- feat terrorism wherever it may exist. It saying: dence. So whatever findings were made is a tough balance to strike. I think we To deny habeas corpus to our detainees can in the CSRT are not really relevant be- have to acknowledge that whoever was be seen as a prescription for how the cap- cause the court is essentially going to in power right now, whoever was in the tured members of our own military, diplo- start all over again. White House, whichever party was in matic, and NGO personnel stationed abroad I actually think some of these Sen- control, that we would have to do some may be treated. . . . The Congress has every ators are right on this point. I believe balancing between civil liberties and duty to insure their protection, and to avoid we could actually set up a system in anything which will be taken as a justifica- our need for security and to get tough tion, even by the most disturbed minds, that which a military tribunal is sufficient on those who would do us harm. arbitrary arrest is the acceptable norm of to make a determination as to whether Most of us have been willing to make the day in the relations between nations, and someone is an enemy combatant and some sacrifices because we know that, that judicial inquiry is an antique, trivial would not require the sort of tradi- in the end, it helps to make us safer. and dispensable luxury. tional habeas corpus that is called for But restricting somebody’s right to The world is watching what we do as a consequence of this amendment, challenge their imprisonment indefi- today in America. They will know where the court’s role is simply to see nitely is not going to make us safer. In what we do here today, and they will whether proper procedures were met. fact, recent evidence shows it is prob- treat all of us accordingly in the fu- The problem is that the way the CSRT ably making us less safe. ture—our soldiers, our diplomats, our is currently designed is so insufficient In Sunday’s New York Times, it was journalists, anybody who travels be- that we can anticipate the Supreme reported that previous drafts of the re- yond these borders. I hope we remem- Court overturning this underlying bill, cently released National Intelligence ber this as we go forward. I sincerely once again, in the absence of habeas Estimate, a report of 16 different Gov- hope we can protect what has been corpus review. called the ‘‘great writ’’—a writ that I have had conversations with some ernment intelligence agencies, de- has been in place in the Anglo-Amer- of the sponsors of the underlying bill scribe: ican legal system for over 700 years. who say they agree that we have to . . . actions by the United States Govern- Mr. President, this should not be a beef up the CSRT procedures. Well, if ment that were determined to have stoked difficult vote. I hope we pass this we are going to revisit the CSRT proce- the jihad movement, like the indefinite de- tention of prisoners at Guantanamo Bay. amendment because I think it is the dures to make them stronger and make ... sure they comport with basic due proc- only way to make sure this underlying ess, why not leave habeas corpus in This is not just unhelpful in our fight bill preserves all the great traditions of place until we have actually fixed it up against terror, it is unnecessary. We our legal system and our way of life. to our satisfaction? Why rush through don’t need to imprison innocent people I yield the floor. it 2 days before we are supposed to ad- to win this war. For people who are f journ? Because some on the other side guilty, we have the procedures in place of the aisle want to go campaign on the to lock them up. That is who we are as ADJOURNMENT UNTIL 9:30 A.M. issue of who is tougher on terrorism a people. We do things right, and we do TOMORROW and national security. things fair. The PRESIDING OFFICER. Under Since 9/11, Americans have been Two days ago, every Member of this the previous order, the Senate is ad- asked to give up certain conveniences body received a letter, signed by 35 journed until 9:30 a.m. and civil liberties—long waits in air- U.S. diplomats, many of whom served There being no objection, the Senate, port security lines, random questioning under Republican Presidents. They at 7:39 p.m., adjourned until Thursday, because of a foreign-sounding last urged us to reconsider eliminating the September 28, 2006, at 9:30 a.m.

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