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 against an enemy who won’t back by passing legislation to establish the best traditions of the Senate. I 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 sist interrogation and to withhold in­ and prosecute terrorists. It reflects the curity of the American people—should transcend partisan politics. The time formation that could be critical to agreement reached last week: Repub­ thwarting future threats, future at­ to act is now. 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 about a week ago on a vote of 15 to 9, has argued for and demanded, in these 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

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.054 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10248 CONGRESSIONAL RECORD — SENATE September 27, 2006 through abusive practices, because the could be admitted into evidence, al­ military commission on the grounds standards for detention, interrogation, though they were obtained through that the evidence was not seized pursu­ and trial in the bill were consistent cruel and inhuman treatment, they can ant to a search warrant. The bill before with international norms. The bill con­ refer to sections 948(R)(c), on a state­ us deletes the limitation to evidence tained no procedures that we could not ment obtained before December 30, seized outside of the United States. 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

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.055 S27SEPT1 hmoore on PROD1PC68 with HMSENATE September 27, 2006 CONGRESSIONAL RECORD — SENATE S10249 intelligence operations. 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

VerDate Aug 31 2005 04:11 Sep 28, 2006 Jkt 049060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G27SE6.057 S27SEPT1 hmoore on PROD1PC68 with HMSENATE S10250 CONGRESSIONAL RECORD — SENATE September 27, 2006 would make evidence obtained through it allows for prosecution, and it allows are not following any code of laws or coercion, other than torture, admis­ for conviction. conduct that has overseen much of sible, at least in the case of evidence The issue isn’t whether we interro­ warfare in the history of the world. obtained prior to December 30, 2005. gate or detain people. We are going to They are not affiliated with any state. Given that the Supreme Court has al­ do it. We need to do it. 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 mands we pass immediately. Five years no mistakes. A rubberstamp Congress 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 certainly should not eliminate, the this year in the Detainee Treatment States. If they are in our hands as detainees great writ of habeas corpus. I agree Act. But we would at least not make with hundreds of law professors who one bad mistake even worse. By not to­ or in any capacity, we have an obliga­ 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 admission of statements obtained after ligence operations during hostilities or dividuals. POWs are treated at a much 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 consistent with the way the Senator 190–8. And my question to Senator DC Circuit Court of Appeals to make 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