[Congressional Record: September 27, 2006 (Senate)]
[Page S10243-S10274]
MILITARY COMMISSIONS ACT OF 2006
The PRESIDING OFFICER. The clerk will report the bill by title.
The assistant legislative clerk read as follows:
A bill (S. 3930) to authorize trial by military commission
for violations of the law of war, and for other purposes.
The amendment (No. 5085) was agreed to.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
The PRESIDING OFFICER. The majority leader is recognized.
Mr. FRIST. Mr. President, for 5 years we have been a nation at war.
It is a war unlike any we have ever before fought. It is an ideological
war against radicals and zealots. We are fighting a different kind of
enemy--an enemy who seeks to destroy our values, to destroy our
freedom, and to destroy our way of life, people who will kill and who
will actually stop at nothing to bring America to its knees. It is a
war against an enemy who won't back down, ever, telling interrogators:
I will never forget your face. I will kill you. I will kill your
brothers, your mother, your sisters. It is a war against an enemy who
undertakes years of psychological training to consciously resist
interrogation and to withhold information that could be critical to
thwarting future threats, future attacks. But it is also a physical
war. On the field of battle, it is a war that demands quick thinking
and creativity. It demands tactics that entice the enemy to reveal his
weaknesses.
As we learned 5 years ago, safety and security aren't static states;
they are dynamic, constantly shifting, constantly moving. We
consistently and repeatedly have to be able to adjust and take stock
and reassess and, when necessary, implement changes in response.
In the past 5 years alone, in this body we have passed more than 70
laws and other bills related to the war on terror, but they haven't
been enough. They haven't kept pace with the ever-changing field of
battle. There is more we can do and, indeed, we must do. That is why
over the last month we have focused the Senate agenda on security, and
that is why today we address our Nation's security by debating one of
the most serious and most urgent security issues currently facing the
Nation: the detainment, questioning, and prosecution of enemy
combatants--terrorists captured on the battlefield.
A few weeks ago, I traveled with several of my colleagues to
Guantanamo Bay. That is where the mastermind of 9/11 currently
resides--Khalid Shaikh Mohammed. This man, the man the 9/11 Commission
calls the principal architect behind the 9/11 attacks, didn't stop with
9/11. Not 1 month after 9/11, he was busy again plotting and planning,
orchestrating, scheming, and conspiring to strike us again while we
were still down. His next plot targeted the tallest buildings on the
west coast with hijacked planes, buildings that house businesses and
organizations absolutely critical to our economic and our financial
stability, including the Library Tower in Los Angeles, CA. But this
time, we were ready. We thwarted that plot, and Khalid Shaikh Mohammed
now resides at Guantanamo. But he wouldn't reside there and we wouldn't
have stymied his evil designs at that Library Tower if not for the
ability to question detainees.
Soon after 9/11, we detained an al-Qaida operative known as Abu
Zubaydah. Under questioning, he yielded several operational leads. He
revealed Shaikh Mohammed's role in the 9/11 attacks. Coupled with other
sources, the information he gave up led to Shaikh Mohammed's capture
and detainment. Khalid Shaikh Mohammed currently awaits prosecution.
That prosecution cannot happen until we act. Our great Nation will know
no justice--and his victims' families will know no justice--until
Congress acts by passing legislation to establish these military
commissions.
Before we recess this week, we will complete this bill. We could
complete it possibly today but if not, in the morning. The bill itself
provides a legislative framework to detain, question, and prosecute
terrorists. It reflects the agreement reached last week: Republicans
united around the common goal of bringing terrorists to justice. It
preserves our intelligence programs--intelligence programs that have
disrupted terrorist plots and saved countless American lives.
When we capture terrorists on the battlefield, we have a right to
prosecute them for war crimes. This bill establishes a system that
protects our national security while ensuring a full and fair trial for
detainees. The bill formally establishes terrorist tribunals to
prosecute terrorists engaged in hostilities against the United States
for war crimes. Terrorist detainees will be tried by a 5- or 12-member
military commission overseen by a military judge. They will have the
right to be presumed innocent until proven guilty, the right to
military and civilian counsel, the right to present exculpatory
evidence, the right to exclude evidence obtained through torture, and
the right to appeal.
The bill also protects classified information--our critical sources
and methods--from terrorists who could exploit it to plan another
terrorist attack. It provides a national security privilege that can be
asserted at trial to prevent the introduction of classified evidence.
But the accused can be provided a declassified summary of that
evidence.
Moreover, the bill provides legal clarity for our treaty obligations
under the Geneva Conventions. It establishes a specific list of crimes
that are considered grave breaches of the Geneva Conventions.
Ultimately, these procedures recognize that because we are at war, we
should not try terrorists in the same way as our uniformed military or
common civilian criminals. We must remember that we are fighting a
different kind of enemy in a different kind of war. We are fighting an
enemy who seeks to destroy our values, our freedoms, and our very way
of life.
To win this war, we must provide our military, intelligence, and law
enforcement communities the tools they need to keep us safe. By
formally establishing terrorist tribunals, the bill provides another
critical tool in fighting the war on terror, and it provides a measure
of justice to the victims of 9/11.
Until Congress passes this legislation, terrorists such as Khalid
Shaikh Mohammed cannot be tried for war crimes, and the United States
risks fighting a blind war without adequate intelligence to keep us
safe. That is simply unacceptable, and that is why this bill must be
passed.
I look forward over the next few hours to an open and civilized
debate in the best traditions of the Senate. I urge my colleagues--
Republican, Democrat, and Independent alike--to work together to pass
this bill. The American people can't afford to wait. Even though we are
in the midst of an election year, this issue--the safety and security
of the American people--should transcend partisan politics. The time to
act is now.
Mr. President, I yield the floor.
Mr. LEVIN. Mr. President, I yield myself 15 minutes off the bill
itself.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Mr. President, first let me begin by commending our
colleagues on the Armed Services Committee, Senator Warner, Senator
McCain, and Senator Graham, for their effort earlier this month to
produce a military commissions bill that will protect our troops,
withstand judicial review, and be consistent with American values. The
administration of their own party had prepared a bill that would
authorize violations of our obligations under international law, permit
the abusive treatment of prisoners, and allow criminal convictions
based on secret evidence. The three Senators drafted a different bill,
in consultation with our senior military lawyers. When the
administration objected to this bill, Senator Warner scheduled a markup
in the Senate Armed Services Committee anyway, and we reported that
bill out with a bipartisan vote of 15 to 9.
Unlike the administration bill, the committee bill would not have
allowed convictions based on secret testimony that is never revealed to
the accused. The committee bill would not have allowed testimony
obtained through cruel or inhuman treatment. The committee bill would
not have allowed the use of hearsay where a better source of evidence
is readily available. The committee bill would not have attempted to
reinterpret our obligations under international law to permit the abuse
of detainees in U.S. custody.
[[Page S10244]]
While the committee bill was not perfect--in particular, it included
a very problematic provision on the writ of habeas corpus--the military
commissions it established would have met the test of the Supreme
Court's decision in the Hamdan case and provided for the trial of
detainees for war crimes in a manner that is consistent with American
values and the American system of justice. It provided standards we
would be able to live with if other countries were to apply similar
standards to our troops if our troops were captured. And, of course,
the committee bill provided for the interrogation, for the detention,
and for criminal trials of detainees.
Unfortunately, the committee bill was not brought to the Senate.
Instead, the three Republican Senators entered into negotiations with
an administration that has been relentless in its determination to
legitimize the abuse of detainees and to distort military commission
procedures to ensure criminal convictions. The bill before us now is
the product of these negotiations. I will be offering the committee-
approved bill as a substitute a little later today. The bipartisan
committee bill, which came from our committee just about a week ago on
a vote of 15 to 9, will be offered by me as a substitute to the bill
which is now before us.
The bill before us does make a few significant improvements over the
administration bill. I want to begin by outlining what those
improvements are.
First, while the bill before us is not as clear as the committee bill
in committing us to a standard that will protect our troops by
conforming to our obligations under the Geneva Conventions, it is far
preferable to the administration bill in this regard. In particular,
the bill before us does not reinterpret U.S. obligations for the
treatment of detainees under Common Article 3 of the Geneva
Conventions. It does not place a congressional stamp of approval on an
executive branch reinterpretation of those obligations. All it does in
this regard is to state the obvious: that the President is responsible
for administering the laws and that this gives him the authority to
adopt regulations interpreting the meaning and application of the
Geneva Conventions in the same manner and to the same extent as he can
issue such regulations interpreting other laws.
Common Article 3 of the Geneva Conventions, the Detainee Treatment
Act, and the new Army Field Manual all prohibit such interrogation
abuses as forcing a detainee to be naked, to perform sexual acts or
pose in a sexual manner; prevent such abuses as sensory deprivation,
placing hoods or sacks over the head of a detainee, applying beatings,
electric shock, burns, or other forms of physical pain; waterboarding,
using military working dogs, inducing hypothermia or heat injury,
conducting mock executions, or depriving the detainee of necessary
food, water, or medical care. Nothing in this bill would change any of
the standards of the Geneva Conventions, the Detainee Treatment Act, or
the Army Field Manual. Nothing in this bill would authorize the
President to do so.
Second, the bill does not permit the use of secret evidence that is
not revealed to the defendant. Instead, the bill clarifies that
information about sources, methods, or activities by which the United
States obtained evidence may be redacted before the evidence is
provided to the defendant and introduced at trial. Any material
redacted from the evidence provided to the defendant cannot be
introduced at trial. The defendant would have the right to be present
for all proceedings and to examine and respond to all evidence
considered by the military commission.
This approach is consistent with the approach taken to classified
information in the Manual for Courts Martial, and it ensures that a
defendant could not be convicted on the basis of secret evidence,
evidence that is not known to him.
Those are two positive changes from the approach which the
administration has argued for and demanded, in these two cases without
success.
Unfortunately, at the insistence of the administration, the bill
before us contains a great many ill-advised changes from the approved
bill of the Armed Services Committee. For example, on coerced
testimony, the committee-approved bill prohibited the admission of
statements obtained through cruel, inhuman, or degrading treatment. The
bill before us prohibits the admission of statements obtained after
December 30, 2005, through ``cruel, inhuman or degrading treatment,''
but, inexplicably, contains no such prohibition for statements that
were obtained before September 30, 2005. As a result, military
tribunals would be free to admit, for the first time in U.S. legal
history, statements that were extracted through abusive practices.
On the question of hearsay, the committee bill permitted the
admission of hearsay evidence not admissible at trials by court-
martial, if direct evidence, which is inherently more probative, could
be procured ``through reasonable efforts, taking into consideration the
unique circumstances of the conduct of military and intelligence
operations during hostilities.''
The bill before us makes hearsay evidence admissible unless the
defendant can demonstrate that it is unreliable or lacking in probative
value. Hearsay evidence is not only inherently less reliable, its use
also deprives the accused of the ability to confront witnesses against
him. The approach taken by this bill not only relieves the Government
of any obligation to seek direct testimony from its witnesses, it also
appears to shift the burden to the accused by presuming that hearsay
evidence is reliable unless the accused can demonstrate otherwise.
On the question of search warrants, the committee bill, the bill
which I will be offering as a substitute later on today--the committee
bill provided that evidence seized outside the United States shall not
be excluded from trial by military commission on the grounds that the
evidence was not seized pursuant to a search warrant. The bill before
us deletes the limitation so that it no longer applies to evidence
seized outside the United States. As a result, the bill authorizes the
use of evidence that is seized inside the United States without a
search warrant. This provision is not limited to evidence seized from
enemy combatants; it does not even preclude the seizure of evidence
without a warrant from U.S. citizens. As a result, this provision
appears to authorize the use of evidence that is obtained without a
warrant, in violation of the U.S. Constitution.
On the definition of unlawful combatant, the committee bill defined
the term ``unlawful combatant'' in accordance with the traditional law
of war. The bill before us, however, changes the definition to add a
presumption that any person who is ``part of'' the ``associated
forces'' of a terrorist organization is an unlawful combatant,
regardless of whether that person actually meets the test of engaging
in hostilities against the United States or purposefully and materially
is supporting such hostilities.
The bill also adds a new provision which makes the determination of a
Combatant Status Review Tribunal, or CSRT, that a person is an unlawful
enemy combatant--it makes that determination dispositive for the
purpose of the jurisdiction of a military commission, even though the
CSRT determinations may be based on evidence that would be excluded as
unreliable by a military commission.
On the issue of procedures and rules of evidence, the committee bill
provided that the procedures and rules of evidence applicable in trials
by general courts martial would apply in trials by military commission,
subject to such exceptions as the Secretary of Defense determines to be
``required by the unique circumstances of the conduct of military and
intelligence operations during hostilities or by other practical
need.'' That approach, in our committee bill, was consistent with the
ruling of the Supreme Court in the Hamdan case, but built in
flexibility to address unique circumstances arising out of military and
intelligence operations. The bill before us reverses the presumption.
Instead of starting with the rules applicable in trials by courts
martial and establishing exceptions, the Secretary of Defense is
required to make trials by commission consistent with those rules only
when he considers it practicable to do so. As one observer has pointed
out, this provision is now so vaguely worded that it could even be read
to authorize the administration to abandon the presumption of
[[Page S10245]]
innocence in trials by military commission.
On the issue of habeas corpus, the habeas corpus provision in the
committee bill stripped alien detainees of habeas corpus rights, even
if they had no other legal recourse to demonstrate that they were
improperly detained. It also stripped those detainees of any other
recourse to the U.S. courts for legal actions regarding their detention
or treatment in U.S. custody. If the committee bill had been brought to
the floor, I would have joined in offering an amendment to address the
obvious problems with this provision. But at least the court-stripping
provision in the committee bill was limited to aliens who were detained
outside of the United States. The bill before us expands that provision
to eliminate habeas corpus rights and all other legal rights for
aliens, including lawful permanent residents detained inside or outside
the United States who have been determined by the United States to be
the enemy. The only requirement is that the United States determine
that the alien detainee is an enemy combatant--but the bill provides no
standard for this determination and offers the detainee no ability to
challenge it in those cases which I have identified.
Consequently, even aliens who have been released from U.S. custody,
such as the detainee that the Canadian Government recently found was
detained without any basis and was subjected to torture, would be
denied any legal recourse as long as the United States continues to
claim that they were properly held.
I yield myself an additional 3 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. In other words, a determination by the United States could
not be contested, even if there is overwhelming evidence that the claim
was incorrect.
These changes in the committee bill, a bill which was approved on a
bipartisan basis in our committee, the changes that appear in the bill
which is now before us, taken together, will put our own troops at risk
if other countries decide to apply similar standards to our troops if
they are captured and detained. These changes in the bill before us
from the committee bill are likely to result in the reversal of
convictions on appeal, and that means that efforts to convict these
people of crimes can be readily reversed on appeal because of the
changes that were made in the committee bill and the fact, which seems
to me to be quite clear, that they do not comply in many instances with
the requirements set forth in Hamdan, and the changes in the bill
before us from the committee bill are inconsistent with American
values.
I particularly again highlight the search and seizure requirements of
our fourth amendment and the way that seems to be abandoned in the bill
before us.
I close by applauding, again, Senators Warner, McCain, and Graham for
their willingness to stand up to the administration and at least at the
Armed Services Committee produce a bill that we were able to approve in
the Armed Services Committee on a strong bipartisan vote.
However, the administration has been even more relentless in their
effort to legitimize the mistreatment of detainees and to undermine
some of the cornerstone principles of our legal system. While the bill
before us is a modest improvement over the language originally proposed
by the administration, it has adopted far too many provisions from the
administration's bill. The substitute which we will be offering later
on today is the committee-approved bill. That will do a much better
job, if we adopt it, of protecting our troops who might become
detainees in the future and does a much better job of upholding our
values as a nation.
I yield the floor.
The PRESIDING OFFICER. Who yields time? If no one yields time, time
will be charged to both sides.
The Senator from Michigan.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I ask unanimous consent that of the time
under the control of the Democratic leader, Senator Reid, that 45
minutes be allocated to Senator Leahy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I suggest the absence of a quorum and ask that the time be
charged equally to both sides.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Parliamentary inquiry: At this time the Senate is now
proceeding on the Hamdi bill; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. WARNER. Mr. President, I rise to speak in support of the Military
Commissions Act of 2006 which would authorize military commissions for
the trial of an alien enemy unlawful combatant.
I take a moment to say my colleagues and others with whom I have
served in the Senate the last 28 years stand at a moment of critical
importance in the history of our Nation. What we do today will impact
how we conduct the war on terror for as long as it lasts. In the
estimate of this humble Senator, that could be for decades. It will
fundamentally impact our relationships with our allies. It will
fundamentally impact the image of the United States of America in the
eyes of the world. It is crucial to our ability to keep America safe.
It will speak most loudly about the core values, the principles of this
great Republic known as the United States of America.
From the outset, I make it clear I respect the views of all
participants in this dialog, from the President and his team, to those
particularly in the Congress, but elsewhere in the Congress, on both
sides of the aisle. I have certain core principles I share with several
of my colleagues. I have endeavored to see this particular bill
reflects those principles to the best of my ability, as have they.
Nevertheless, I respect the views of others who may differ.
The goal of this legislation, from my point of view, and I think it
is shared by others, is first and foremost to meet the challenge for
withstanding review by the Supreme Court. Out of respect for that
Court, the Hamdi decision, which was quite an interesting decision in
many of its findings, divided by different panels within that Court, it
is quite likely in one or more instances, if this becomes law, the bill
now presently before the Senate, that will likewise be taken to the
Supreme Court. That is the way we do things in the United States of
America.
We hope we who have labored to craft this, and the 100 Senators who
will finally cast their votes, together with the other body, will give
to the President a bill that will effectively enable him to do those
things to keep America free, to fight the war on terrorism and, at the
same time, pass the Federal court review--whether it is the district,
appellate, or the Supreme Court--such as likely will take place.
In late June, the Supreme Court struck down the President's initial
plan to try detainees by military commissions. In its opinion, Hamdi v.
Rumsfeld, the Court held by a fractured five-Justice panel that the
present system for trials by military commission violated both the
Uniform Code of Military Justice and particularly Common Article 3 of
the 1949 Geneva Conventions. There were some four conventions put
together in 1949. In particular, the Common Article 3 was common to all
four of those conventions.
That historic moment in world history was a culmination from the
learning experience of what took place all across our globe during
World War II in an effort to see that certain injustices, in terms of
the basic core values of the free world, would never occur again.
It is my fervent hope and conviction that whatever the Congress does,
the
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legislation we produce must be able to withstand further security
review and scrutiny of the Federal court system, particularly the
Supreme Court.
From my own personal perspective, it would be a very serious blow to
the credibility of the United States--and I have said this a number of
times in connection with the debate--not only in the international
community but also at home, if the legislation as prepared by the
Congress now and enacted by the President failed to meet another series
of Federal court reviews.
To meet the mandate of the Court in its decision, Hamdi v. Rumsfeld,
this legislation provides for a military commission that, in the words
of Common Article 3, affords ``all the judicial guarantees which are
recognized as indispensable by civilized peoples.''
That is what we are striving to obtain. The Military Commissions Act
of 2006 provides these essential guarantees in the following ways. The
bill generally follows the current military rule on the use of
classified information at trial. That has been an area of concern
probably to each and every Senator but most particularly to this
Senator and others who worked closely in our group. We have, to the
satisfaction of all interested parties, resolved that.
That is a very fundamental thing we must maintain; that is, the
ability of our continued gathering of evidence, the protection of
source and methods--nevertheless, to provide, on a real-time basis
intelligence for our fighting men and women and, indeed, intelligence
to protect us here at home.
However, our bill goes further by creating a privilege that protects
classified information at all stages of a trial and prohibits
disclosure of classified information, including sensitive intelligence
sources and methods, to an alleged terrorist accused.
As a fundamental matter--and one we feel is crucial for this bill to
survive judicial review--the bill would not allow an accused, however,
to be tried and sentenced--perhaps even being given the death penalty--
on evidence that the accused has never been allowed to see. That, in my
judgment, and I think in the judgment of many, would be establishing a
precedent that is without foundation in American jurisprudence or,
indeed, the jurisprudence of the vast majority of nations in the world.
Further, the bill would prohibit the use of evidence that was
allegedly obtained through the use of torture. A statement obtained
before the date of enactment of the Detainee Treatment Act of 2005--
December 30, 2005--in which the degree of coercion is in dispute could
be used only--and I repeat--only at trial if the military judge finds
that it is reliable and tends to prove the point for which it was
offered.
A statement obtained after the date of enactment of the Detainee
Treatment Act of 2005, in which the degree of coercion is in dispute,
may only be admitted in evidence if the military judge finds that the
first two tests are met and finds that the interrogation methods used
to obtain the statement do not amount to cruel, inhuman, or degrading
treatment prohibited by the Detainee Treatment Act of 2005.
The bill would generally follow the rules of evidence that apply to
courts-martial. However, the Secretary of Defense, in consultation with
the Attorney General, would be authorized to make substantial
exceptions due to the unique circumstances presented by the conduct of
military and intelligence activities so long as those exceptions are
not inconsistent with the statutory provisions provided by this new
law.
Most importantly, this bill achieves the President's benchmark
objective by clearly defining those grave breaches of Common Article 3
of the Geneva Conventions that would be a criminal offense under the
U.S. domestic law in the War Crimes Act.
That term, ``grave breaches,'' is set forth in that Convention of
1949. And in conjunction with working on this, we extensively examined
the legislative history. Doing so allows our military and intelligence
interrogators to know what conduct is prohibited under U.S. law.
Moreover, this bill provides that no foreign sources of law may be used
to define or interpret U.S. domestic criminal law implementing Common
Article 3.
This bill does not provide as a matter of law that this legislation
fully satisfies Common Article 3 of the Geneva Conventions. My
colleagues and I feel that to make such a statement a matter of statute
would amount to a reinterpretation of our obligations under the Geneva
Conventions some 57 years after the United States signed those
treaties. Such an action could open the door to statutory
reinterpretation by a host of other nations with less regard for human
rights than the United States, and would result in possibly our U.S.
troops being put at greater risk should they become captives in a
future conflict.
However, in addition to clearly defining grave breaches of Common
Article 3 that are war crimes under the War Crimes Act, this bill
acknowledges the President's authority under the Constitution to
interpret the meaning and application of the Geneva Conventions, and to
promulgate administrative regulations for violations of our broader
treaty obligations which are not grave breaches of the Geneva
Conventions. To ensure transparency, such interpretations are required
to be published in the Federal Register and are subject to
congressional and judicial oversight.
We have had a robust discussion of these issues among Members and
with administration officials for some several months, most
particularly the last few weeks. I strongly believe this bill achieves
the best balance for our country. It will allow terrorists to be
brought to justice in accordance with the founding principles and
values that have made our Nation the greatest democracy in the world.
This bill will also provide the clarity needed to allow our essential
intelligence activities to go forward--I repeat: go forward--under the
law. And this bill is consistent with the Geneva Conventions, which
have helped protect our own forces in conflicts over the past 57 years.
I thank my colleagues for their support. I wish at this time to thank
the many staff members who have worked on this thing tirelessly. And I
might add, in my 28 years here I have never known the legislative
counsel's office to literally work 24 hours around the clock. Perhaps
they have, but certainly they did in this instance. I want to give a
special recognition and thanks to that office for assisting the Senate
in preparing this bill.
Now, Mr. President, my understanding is the Senator from Michigan may
well have an amendment he would like to bring forward.
The PRESIDING OFFICER. The Senator from Michigan.
Amendment No. 5086
(Purpose: In the nature of a substitute)
Mr. LEVIN. Mr. President, I now call up amendment No. 5086, which is
an amendment in the nature of a substitute.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Michigan [Mr. Levin] proposes an amendment
numbered 5086.
Mr. LEVIN. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. LEVIN. Mr. President, the amendment which I have just called up
would substitute a bill which was adopted by the Senate Armed Services
Committee on a bipartisan vote of 15 to 9 for the pending language.
Before I outline the differences between the bill which the committee
adopted and the bill before us, I want to thank my good friend from
Virginia for the work he and a number of other colleagues on the
Republican side put into the committee bill to make it possible for
that bill to be adopted.
In my earlier statement, when the Senator was not on the floor, I
commended him and Senator McCain and Senator Graham for their effort
earlier this month to produce a military commissions bill that would
protect our troops in the event they were captured at some point down
the road that would withstand judicial review and be consistent with
our values.
They produced this bill in the committee, despite huge administration
opposition. The chairman of the committee actually scheduled a markup,
as I indicated in my prior statement, despite the opposition of the
administration. The administration did then and
[[Page S10247]]
continues to want to permit the treatment of prisoners which is
abusive. They did then and they still want to allow criminal
convictions to be based on secret evidence.
But what the chairman and a number of other Republican Senators were
able to do was to make some accomplishments in those two areas: in the
area of secret evidence, and in the area, to an extent, of coercive
statements, statements that were obtained by coercion, depending on
when the statement was obtained. I will get into that in greater detail
because there is a distinction in the bill that is on the floor now as
to whether the statement was obtained before or after December 30,
2005, as to whether certain types of coercive treatment would be
allowed and that statement, nonetheless, be admitted into evidence. I
think that distinction between a statement obtained by coercion before
or after December 30, 2005, is a distinction which is totally
unsustainable. But I will get into that again in a moment.
But before I begin, because my friend, Senator Graham, who is also on
the floor now, and my friend from Virginia were not on the floor
before--before I list a number of major differences with the pending
bill that I and a number of others have with the pending bill--I want
to again compliment my good friend from Virginia, Senator McCain, and
Senator Graham because they had to withstand a huge amount of
administration pressure to get the bill out of committee. It is a far
better bill than the one which is now before us. That is why I am going
to attempt to substitute it for the bill that is now before us. But,
nonetheless, their effort has produced some significant gains over the
administration language. I acknowledge that and I thank them for that
effort before I proceed to offer the committee bill that is a
substitute.
Mr. WARNER. Mr. President, will the Senator kindly yield for me to
address his comments?
Mr. LEVIN. I am happy to.
The PRESIDING OFFICER. Without objection.
Mr. WARNER. Mr. President, the Senator has recited that our committee
had a markup on a bill. That was after receiving from the
administration its own bill. So in a sense, the Senate had before it
two bills. Perhaps the formalities I will not go into. But the Senate
had the administration's bill and the draft of the committee bill at
the time we went into the markup.
The Senator referred to the administration's huge pressure, but those
are matters we can go into at another time. But I want you to know the
group I was working with, and other Senators, were working with the
administration right up until the hours before the markup started.
As the Senator proceeds with his amendment, I am going to ask that
the Senator from South Carolina, at the conclusion of your remarks on
the amendment, be recognized for the purpose of giving his statement
which, indeed, addresses the current bill in the context of the bill
that was drafted by the committee, as I understand it from the Senator
from South Carolina. And then we will proceed further with discussion
on your bill.
We have 3 hours to consider matters here. But I point out, we have
your substitute bill, which is basically a 60-minute proposition; the
Rockefeller congressional oversight, which is 60 minutes; the Kennedy
interrogation, which is 60 minutes; the Byrd sunset which is 60
minutes; and the Specter-Leahy habeas corpus--and I expect you might be
a part of that habeas corpus amendment--which is 120 minutes.
Mr. LEVIN. If the Senator will yield?
Mr. WARNER. Yes.
Mr. LEVIN. Without losing his right to--
The PRESIDING OFFICER. Without objection.
Mr. LEVIN. The time limit on the substitute amendment is also 120
minutes.
The PRESIDING OFFICER. Correct.
Mr. WARNER. Yes, correct. I don't know if I stated that, but it
should be here as a part of it.
Mr. LEAHY. Will the Senator yield, without losing his right to the
floor?
Mr. WARNER. Yes.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. My understanding is the Senator from Vermont has an hour
reserved on the bill, with up to 45 minutes of that on the Specter-
Leahy habeas amendment.
Mr. WARNER. Mr. President, I would have to inquire of the Chair if
the Chair has knowledge of that.
The PRESIDING OFFICER. That is not part of the agreement.
Mr. WARNER. Does the Senator from Michigan wish to address that
request?
Mr. LEVIN. I know that I did ask unanimous consent to protect the
Senator from Vermont for 45 minutes on the habeas amendment.
The PRESIDING OFFICER. The Senator from Michigan is correct. Under
the consent agreement, 45 minutes has been reserved to the Senator from
Vermont out of the leadership time.
Mr. LEVIN. That is on the bill itself. And on the habeas amendment,
that would be up to you and Senator Specter--right?--to control.
Mr. LEAHY. No. Mr. President, I am confused by this. It was my
understanding the Senator from Vermont had up to 45 minutes
specifically reserved, not from anybody else's time, but from his own
time, on the Specter-Leahy, et al., amendment, and a total--out of
which the 45 minutes would have to come--of 1 hour on the bill. Is that
incorrect?
Mr. WARNER. Mr. President, I would suggest the following to work our
way through this: I call on the Chair to inform the Senate as to the
time agreement which I understand has been agreed upon by our leaders.
The PRESIDING OFFICER. Under the previous order, there is to be 2
hours equally divided for the Levin amendment, 2 hours equally divided
for the Specter amendment on habeas, 1 hour equally divided on the
Rockefeller, Kennedy, Byrd amendments each; general debate is 3 hours
equally divided, 90 minutes on each side, of which 45 minutes on the
minority side had been allocated to the Senator from Vermont.
Mr. WARNER. At this time, I advise my colleagues that I would oppose
any change to that unanimous consent and ask any Members who so desire
to address the UC to do so to their respective leadership.
Mr. LEAHY. Will the Senator yield for a question?
Mr. WARNER. Yes.
Mr. LEAHY. The senior Senator from Virginia has an absolute right to
object to anything further. This is not what I understood had been
agreed to. It is the unanimous consent that the Chair has so stated. I
will not seek to change it. I don't suggest that it is the fault of the
Senator from Virginia. This is not what I understood the agreement to
be.
I ask unanimous consent that the senior Senator from Connecticut, Mr.
Dodd, be added as an original cosponsor to the Specter-Leahy habeas
amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Virginia controls the floor.
Mr. WARNER. Do I see another Senator wishing to speak?
Mr. DORGAN. Mr. President, I ask unanimous consent to be added as an
original cosponsor to the Specter-Leahy-Dodd amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I will yield the floor, and the Senator
from Michigan will regain his right to the floor.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Mr. President, on September 14, the Senate Armed Services
Committee favorably reported S. 3901, the Military Commissions Act of
2006, to the Senate floor with a bipartisan vote of 15 to 9. Supporters
of the committee bill on both sides of the aisle emphasized that the
bill met two critical tests:
First, that we would be able to live with the procedures we
established if the tables are turned and our own troops were subject to
similar procedures.
Second, that the bill was consistent with our American system of
justice and would stand up to scrutiny on judicial review.
On the first point, the committee bill did not authorize departure
from the requirements of the Geneva Conventions, did not authorize the
abuse of prisoners in U.S. custody, did not authorize the use of
testimony obtained
[[Page S10248]]
through abusive practices, because the standards for detention,
interrogation, and trial in the bill were consistent with international
norms. The bill contained no procedures that we could not live with if
they were applied to our own troops who might be captured at some
future time.
On the second point, the committee bill established legal procedures
consistent with basic principles of the American system of justice,
such as the right to examine and respond to all evidence presented, and
the exclusion of unreliable categories of evidence, such as coerced
statements. Because the bill took the approach outlined by the Supreme
Court in the Hamdan case, a trial process based on rules and procedures
applicable in trials by courts martial, subject to such exceptions as
might be required by the unique circumstances of military and
intelligence operations in an ongoing conflict, committee members could
have confidence that these provisions would be upheld by the courts on
appeal.
The committee bill was not brought to the Senate floor. Indeed, the
majority leader reacted to the action of the Armed Services Committee
by telling the press he would filibuster the bill if the Senate Armed
Services Committee bill was brought to the Senate floor. Consequently,
the three Republican Senators who had drafted the committee bill,
Senators Warner, McCain, and Graham, entered into negotiations with an
administration that has been unrelenting in its determination to
legitimize the abuse of detainees and to distort military commission
procedures to ensure convictions.
The bill before us, which is the product of those negotiations, has
been changed from the committee bill in so many ways that the bill is a
very different bill from the one that was adopted by the Armed Services
Committee. It is the Armed Services Committee bipartisan bill that I
have now offered as a substitute to this new version that is being
offered today.
Let me give you some examples of the differences between the
committee-adopted bill and the bill that is before us. On coerced
testimony, the committee bill prohibited the admission of statements
obtained through cruel, inhuman, or degrading treatment. The bill
before us prohibits the admission of statements obtained after December
30, 2005, through ``cruel, inhuman, or degrading treatment'' but
inexplicably contained no such prohibition for such statements that
were obtained before December 30, 2005.
As a result, military tribunals would presumably be free to admit,
for the first time in U.S. legal history, statements that were
extracted through cruel or inhuman practices.
By the way, on that issue, if anybody wants to read the actual
difference in the way in which the December 30, 2005, date was provided
in this bill as a dividing line between statements that could be
admitted into evidence, although they were obtained through cruel and
inhuman treatment, they can refer to sections 948(R)(c), on a statement
obtained before December 30, 2005, the date of the enactment of the
Detainee Treatment Act of 2005, which says:
The degree of coercion in dispute may be admitted if the
military judge finds the following: Totality of the
circumstances renders the statement reliable in possessing
sufficient probative value; and, 2, the interest of justice
would best be served by the admission of the statement into
evidence.
But subsection (d) reads:
If the statement is obtained after December 30, 2005, the
date of the enactment of the Detainee Treatment Act of 2005,
the degree of coercion may be disputed and may be admitted
under those same two circumstances.
It then adds a third finding that is required:
That the interrogation methods used to obtain the statement
do not amount to cruel, inhuman, or degrading treatment,
prohibited by section 1003.
So if the statement is obtained after December 30, 2005, then if it
is obtained through cruel and inhuman treatment, it is not allowable
into evidence. But because that requirement is missing relative to
statements obtained prior to December 30, 2005, presumably, even though
a statement is obtained through cruel and inhuman treatment, it is
nonetheless admissible into evidence if it meets the other two tests
provided. That is an unsustainable provision. It would be the first
time in American legal history that we would, in effect, be authorizing
statements that were obtained through that type of coercion--cruel
treatment, inhuman treatment--to be admitted into evidence. That is
something we should not accept.
On the issue of hearsay, the committee bill permitted the admission
of hearsay not admissible at trials by court-martial if direct
evidence, which is inherently more probative, could be procured
``through reasonable efforts,'' taking into consideration the unique
circumstances of the conduct of military and intelligence operations
during hostilities.
The bill before us, unlike the committee bill, makes hearsay evidence
admissible, unless the defendant can demonstrate that it is unreliable
or lacking in probative value. Well, hearsay evidence is not only
inherently unreliable, it is used to deprive the accused of the ability
to confront the witnesses against him.
The approach taken by this bill not only relieves the Government of
any obligation to seek direct testimony from its witnesses, it also
appears to shift the burden to the accused by presuming that hearsay
evidence is reliable, unless the accused can demonstrate otherwise.
Relative to search warrants, the committee bill provided that
evidence seized outside of the United States shall not be excluded from
trial by military commission on the grounds that the evidence was not
seized pursuant to a search warrant. The bill before us deletes the
limitation to evidence seized outside of the United States. As a
result, the bill authorizes the use of evidence that is seized inside
the United States without a search warrant. I note that the chairman of
the Judiciary Committee is on the floor. I particularly point out this
provision to him--that because the words ``outside of the United
States'' were deleted, the bill before us would allow into evidence,
for the first time in history, I believe--it authorizes the use of
evidence seized inside the United States without a search warrant. It
is not limited to evidence seized from enemy combatants. It does not
even preclude the seizure of evidence without a warrant from U.S.
citizens. That is a major departure from the committee-adopted bill. It
would appear to authorize the use of evidence obtained without a
warrant, in violation of the United States Constitution.
The next problem I want to address is the definition of ``unlawful
combatant.'' The committee bill defines the term ``unlawful combatant''
in accordance with the traditional law of war. The bill before us
changes the definition to add a presumption that any person who is
``part of'' the associated forces of a terrorist organization is an
unlawful combatant, regardless of whether that person actually meets
the test of engaging in hostilities against the United States or
purposefully and materially supporting such hostility.
In addition, the bill also adds a new provision which makes the
determination of a Combatant Status Review Tribunal, CSRT, that a
person is an unlawful enemy combatant, dispositive for the purpose of
the jurisdiction of a military commission, even though CSRT
determinations may be based on evidence that would be excluded as
unreliable by a military commission.
We should not make those findings dispositive, particularly where the
CSRT findings can be based on such very unreliable evidence.
Next is procedures and rules of evidence. The committee bill provided
that the procedures and rules of evidence applicable in trials by
general courts-martial would apply in trials by military commissions,
subject to such exceptions as the Secretary of Defense determines to be
``required by the unique circumstances of the conduct of military and
intelligence operations during hostilities or by other practical
need.''
So the committee bill starts with the courts-martial, the manual, and
then says that the Secretary of Defense may make such exceptions as he
determines are ``required by the unique circumstances of the conduct of
military and intelligence operations or by practical need.''
This approach is consistent with the ruling in Hamdan. It builds in
some flexibility to address unique circumstances arising out of
military and
[[Page S10249]]
intelligence operations. The bill before us reverses the presumption,
and instead of starting with the rules applicable in trials by court-
martial and establishing exceptions, the Secretary of Defense is
required to make trials by commission consistent with those rules only
when he considers it practicable to do so. As one observer has pointed
out, this provision is now so vaguely worded that it could even be read
to authorize the administration to abandon the presumption of innocence
in trials by military commission.
On the issue of habeas corpus, the habeas corpus provision in the
committee bill stripped alien detainees of habeas corpus rights, even
if they have no other legal recourse to demonstrate that they were
improperly detained. It also stripped those detainees of any other
recourse to U.S. courts for legal actions regarding their detention or
treatment in U.S. custody.
If the substitute amendment we are offering is approved, a further
amendment will be necessary to address the obvious problems with the
committee habeas corpus amendment. That habeas corpus amendment is
going to be offered in either event, whether or not the bill before us
remains or whether or not the committee bill is substituted for it. But
at least in the committee bill, the court-stripping provision was
limited to aliens who were detained outside the United States. The bill
before us expands that provision to eliminate habeas corpus rights and
all other legal rights of redress for wrongs committed by aliens,
including lawful permanent residents detained inside or outside the
United States who have been determined by the United States to be
enemies.
The only requirement under the bill before us is that the Government
determines that the alien detainee is an enemy combatant, but the bill
provides no standard for this determination and offers the detainee no
ability to challenge it. Consequently, even aliens who have been
released from U.S. custody, such as the detainee that the Canadian
Government recently found was detained without any basis and subjected
to torture, even those kinds of aliens, such as that Canadian citizen,
would be denied any legal recourse as long as the United States
continues to claim in a way which cannot be contested that they were
properly held.
No matter how overwhelming the evidence, there is no way to contest
it, and there is no legal recourse under the bill before us. That was
not true of the committee bill.
The committee bill had lots of problems, in my judgment, on habeas
corpus, but the bill before us, for the reasons I just outlined, goes
way beyond what the committee bill provided.
As a result of these changes, the bill that is before us does not
meet either of the two tests used by the majority of members at the
Armed Services Committee markup. The two tests that are not met: The
bill before us places our own troops at risk if others apply similar
standards, and it is likely to result in convictions by military
commissions that are overturned on appeal.
For example, the provision in the bill addressing coerced testimony
would prohibit the use of statements that are obtained through cruel
and inhuman treatment if those statements were obtained after December
30, 2005, but again, it inexplicably contains no such prohibition on
statements obtained through those same methods prior to this date. This
provision, in other words, expressly authorizes military commissions to
consider evidence that was obtained through cruel and inhuman treatment
of defendants and other witnesses.
By expressly omitting the principle that statements obtained through
cruel and inhuman treatment of detainees should be precluded from
evidence--even if they were obtained before December 30, 2005--this
provision would set an absolutely unacceptable and frightening standard
if the rest of the world adopts this same standard. This is a standard
under which our own troops could be subjected to abuse and mistreatment
of all kinds in order to force them to sign statements that would then
be used to convict them of war crimes.
The provision also sets a standard which will be used by our
terrorist enemies as evidence of U.S. hypocrisy when it comes to
proclamations of human rights. Our failure to conclusively exclude
statements obtained through cruel and inhuman methods are all too
likely to be seen through much of the world as a confirmation of
negative views of Americans and what we stand for and that have been
shaped by their views of what happened at Abu Ghraib and Guantanamo.
The administration and its supporters have argued that our military
judges can be counted on to exclude statements that are based on
extreme forms of abuse. That may be; that may be. We have many fine
military judges, and I share the hope that these judges will be willing
to stand up for the humane treatment of detainees, even where Congress
has failed to do so and even when the administration is unwilling to do
so.
Indeed, our top military lawyers have told us that evidence obtained
through coercive techniques is inherently unreliable. The Army Deputy
Chief of Staff for Intelligence, LTG John Kimmons, said the same thing
when he released the new Army Field Manual on interrogation procedures.
He stated:
No good intelligence is going to come from abusive
practice. I think history tells us that. I think the
empirical evidence of the last five years, hard years, tell
us that. And moreover, any piece of intelligence which is
obtained under duress . . . through the use of abusive
techniques would be of questionable credibility.
I am hopeful that our military judges will likewise reject testimony
that is obtained through abusive techniques as inherently unreliable
and of questionable credibility.
However, our military judges cannot protect our troops in future
conflicts. If an American soldier, sailor, airman, or marine is put on
trial by a hostile power, he or she will not have an American military
judge to stand up for his or her rights. Our troops will face foreign
judges, and if the standard applied by those judges is similar to the
one proposed in this bill for statements obtained prior to December 30,
2005, they are a lot less likely to get either fair treatment or fair
trials.
If statements obtained through cruel and inhuman treatment of
detainees are allowed into evidence, as this provision provides, any
resulting convictions are unlikely to withstand scrutiny on judicial
review in our own courts.
The Supreme Court specifically addressed this issue in the Hamdan
case earlier this year. In that case, the Court pointed out that Common
Article 3 of the Geneva Conventions prohibits the passing of sentences
``without previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.''
The Supreme Court concluded that ``[t]he regular military courts in
our system are the courts-martial established by congressional
statutes'' and ``can be `regularly constituted' by the standards of our
military justice system only if some practical need explains deviations
from court-martial practice''; and the language requiring ``judicial
guarantees which are recognized as indispensable by civilized peoples''
must require, at a minimum, that any deviation from procedures
governing courts-martial be justified by ``evident practical need.''
The rules of evidence reviewed by the Supreme Court in the Hamdan
case, such as the rules we are considering today, would have permitted
the admission of statements obtained through coercion--other than
torture--into evidence if a military commission determines the
statements to be probative and reliable. The plurality opinion of the
Court notes that under these procedures, ``evidence obtained through
coercion [is] fully admissible.'' Similarly, Justice Kennedy's
concurring opinion observes that the procedures in place ``make no
provision for exclusion of coerced declarations save those `established
to have been made as a result of torture.' ''
The Supreme Court expressly rejected those procedures. The procedures
established by the President, according to the Supreme Court, ``deviate
from those governing courts-martial in ways not justified by any
`evident practical need,' and for that reason, at least, fail to afford
the requisite guarantees'' that are recognized as indispensable by
civilized peoples.
Like the procedures previously rejected by the Supreme Court, this
bill
[[Page S10250]]
would make evidence obtained through coercion, other than torture,
admissible, at least in the case of evidence obtained prior to December
30, 2005. Given that the Supreme Court has already struck down
procedures that similarly failed to preclude coerced testimony once, it
is surely likely that the Court will strike them down again. Whatever
minimal due process may be required in the case of an alien enemy
combatant, it certainly cannot be met by procedures that, as a majority
of the Supreme Court has already determined, fail to provide the
``judicial guarantees which are recognized as indispensable by
civilized people.''
We should also reject this provision because it is inconsistent with
American values and what we stand for as a nation. During the
Revolutionary War, the British mistreated many American prisoners. But
as described by David Hackett Fischer in his book ``Washington's
Crossing,'' General Washington ``ordered that . . . the captives would
be treated as human beings with the same rights of humanity for which
Americans were striving,'' and those ``moral choices in the War of
Independence enlarged the meaning of the American Revolution.''
We have always believed that we hold ourselves to a higher standard
than many other nations. Others may abuse prisoners; we do not. Others
may engage in cruel and inhuman practices; we do not. Others may
believe that the ends justify the means; we do not. It is contrary to
what we stand for as a nation.
Former Navy general counsel Alberto Mora bravely fought against
efforts by others in this administration to approve cruel and inhuman
interrogation techniques. Mr. Mora explained his stand when he was
awarded the 2006 John F. Kennedy Profile in Courage Award on May 22. He
said:
We need to be clear. Cruelty disfigures our national
character. It is incompatible with our constitutional order,
with our laws, and with our most prized values. Cruelty can
be as effective as torture in destroying human dignity,
and there is no moral distinction between one and the
other. To adopt and apply a policy of cruelty anywhere
within this world is to say that our forefathers were
wrong about their belief in the rights of man because
there is no more fundamental right than to be safe from
cruel and inhuman treatment. Where cruelty exists, law
does not.
If we enact this provision into law, giving a congressional stamp of
approval to the use of cruel and inhuman methods to extract testimony
from detainees, we will diminish ourselves as a people and, as Colin
Powell stated in a recent letter to Senator McCain, add to the world's
doubts about the moral basis of our fight against terrorism.
The bill, as reported by the Armed Services Committee, will protect
our troops, will be more likely to result in convictions that are
upheld on appeal, and will be more in keeping with our values as a
nation. That bill allows for interrogation, it allows for detention, it
allows for prosecution, and it allows for conviction.
The issue isn't whether we interrogate or detain people. We are going
to do it. We need to do it. The question is whether we do it in a way
which is in keeping with our values, which is in keeping with rules we
have established in the Army manual, for instance, for the treatment of
people who are captured by our Army. It is whether we do it in a way
that is in keeping with what we would insist others follow if they
capture our people, what we insist upon in the committee substitute--
that committee bill which we adopted on a bipartisan basis--our
standards and rules for which we will argue if our people are captured
or detained by others.
We cannot make the distinction this bill before us makes--that cruel
and inhuman treatment which leads to a statement or confession is not
going to be the basis for excluding a statement if that statement is
made before December 30, 2005. Only after December 30, 2005, are
statements excluded where they are the product of cruel and inhuman
treatment. But before December 30, 2005, according to the bill in front
of us now, those statements are not excluded unless they meet two other
tests. We have to be very clear on this issue. After December 30, 2005,
any of three tests, if met, will result in the exclusion of those
statements but not before December 30, 2005, when we know as a fact
that so much of the abuse took place.
So I urge our colleagues to support the substitute amendment. Again,
I wish to make clear that this substitute amendment is the Senate Armed
Services Committee bill which the chairman and others labored so hard
to produce. It is a bill which avoids many of the pitfalls of the bill
that is before us. I hope our colleagues will vote to substitute that
bill for the pending language.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER (Mr. Martinez). Twenty-four minutes 10 seconds.
Mr. LEVIN. I thank the Chair, and I yield the floor.
Mr. WARNER. Mr. President, I was particularly taken by Senator
Levin's reference to General Washington and what General Washington
said with regard to prisoners. But we must be mindful that General
Washington was facing the King's Army. Those were uniformed
individuals. Those were individuals acting on behalf of the Crown. That
is totally different--totally different--from what we as a nation and
many other nations today are facing with these terrorists.
Consequently, as a part of the evolution of this extraordinary
proliferation of terrorism across the world has come the definitions
and terms relating to the unlawful enemy combatant--I repeat,
unlawful--because those individuals are not wearing uniforms, they are
not following any code of laws or conduct that has overseen much of
warfare in the history of the world. They are not affiliated with any
state. They are driven, in my judgment, by convictions, much of it
religious convictions which are totally antithetical to their own
religion, and willing to sacrifice their own lives to foster their
ambitions and goals.
We expanded this definition of ``unlawful enemy combatant'' when we
went from the committee bill to a bill that was worked on by, again,
Senator McCain, Senator Graham, and myself, and in conjunction with the
White House and our leadership and other colleagues.
It was pointed out to us that perhaps our bill is drawn so narrowly
that we would not be able to get evidence and support convictions from
those who are involved in hiding in the safe houses, wherever they are
in the world, including here in the United States.
It is wrong to say that this provision captures any U.S. citizens. It
does not. It is only directed at aliens--aliens, not U.S. citizens--
bomb-makers, wherever they are in the world; those who provide the
money to carry out the terrorism, wherever they are--again, only aliens
and those who are preparing and using so many false documents.
There were a lot of categories which we, with the best of intentions,
perhaps did not fully comprehend when we were working through that
markup session. So at this time, I yield the floor because I see my
distinguished colleague from South Carolina. I thank the Senator. He is
recognized for his knowledge as an officer in the U.S. Air Force, a
colonel who has practiced and studied military law for many years, and
we are fortunate to have had his services and continue to have them in
addressing this legislation.
I would also point out to my colleagues that Senator McCain, who
worked with us throughout this process, is away attending a funeral of
a very dear and valued colleague, and he will be returning later this
afternoon and will be fully engaged from that point on.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, I yield such time as he may consume to the
Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to return the compliment that
Senator Levin gave to myself, Senator McCain, and Senator Warner. I
have found Senator Levin and his staff to be very good to work with.
Sometimes we reach agreement and sometimes we don't, but all the time
we try. As to my staff, I appreciate the tons of time they have spent
trying to give us the best product we can get in the legislative
process that will adhere to our values and allow the war effort to move
forward in an effective way.
As to the difference between the committee bill, which we wrote and
supported, and the compromise we reached
[[Page S10251]]
with the White House, which we wrote and support, there are some
differences. I think some of them we have addressed with Senator
Levin's staff. They were very helpful. He found some language which was
dropped inadvertently which made the bill stronger.
I would just like to suggest that whatever military experience I have
had pales in comparison to the men and women who are in charge of
today's military legal system. I am a reservist. I come in and out of
military law. I spent 6\1/2\ years on active duty, and I really enjoyed
my time. I dealt a lot in the court-martial process as a prosecutor and
a defense attorney. But as a reservist and Guard member, it has been a
part-time job. But those who do this full time supported the
administration's proposal when it came to the admission of evidence by
the military judge. I will, at an appropriate time, introduce that into
the Record.
I believe the JAGs are a good source of advice. That doesn't mean
they are the only source of advice. That doesn't mean that because the
Judge Advocate Generals of all four branches say so, we need to do what
they say. It would be wise to just listen, and I have tried to listen.
Sometimes I agree; sometimes I don't. But they have said unanimously,
it is my understanding, that the evidentiary standards in terms of
admission of evidence, where the judge will determine whether the
evidence is reliable and probative using the totality of circumstances
to create justice, was a sufficient legal standard, and they were
supportive of that standard. So this idea that we are going to allow
coerced evidence into a trial purposely, that we made a conscious
decision from the committee bill to the compromise to change course and
take everything we had said before and just throw it over in a ditch,
quite honestly, makes no sense.
Whatever motives you would like to attribute to the effort here, I
can assure my colleagues I want to create a process that would be
acceptable if our troops found themselves subject to it. And every
military Judge Advocate, every admiral, and every general, believes the
evidentiary standard in this committee bill is legally acceptable and
appropriate.
Why the difference between December 30, 2005, and before? The reason
we have a two-tiered system is because in 2005, due to the hard work of
Senator McCain and Senator Levin--who was a champion in trying to bring
this about on the Democratic side--we were able to make a policy
statement of the United States that says: Cruel and inhumane and
degrading treatment as a policy will be forbidden. And we referenced
the 5th, 8th, and 14th amendments standard called ``shock the
conscience'' that existed in the convention on torture. All bills have
excluded evidence that violates the torture statute. It is a per se
exclusion. If the military judge, in their discretion, believes that
the conduct in front of the court amounts to torture, in violation of
the torture statute, it does not come into evidence.
The committee bill had a per se exclusion for a violation of the
Detainee Treatment Act, and it has been changed, and here is why: The
Detainee Treatment Act is a policy statement, not an evidentiary
standard. The Detainee Treatment Act says that the Government and its
agents and agencies will not engage in cruel, inhumane, and degrading
treatment. I would argue that to exclude evidence in a military
commission that may run afoul of degrading treatment would create a
higher standard for a terrorist than our own military members have in
their own courts-martial. So I think the policy statement ``cruel and
inhumane and degrading'' should not be an evidentiary standard, and it
is not.
But what we did do to bolster that policy statement is we took the
5th, 8th, and 14th amendment ``shock the conscience test'' and said:
From the date of the Detainee Treatment Act forward, that will be an
area that the judge has to make an inquiry into regarding the admission
of evidence. The reason we didn't want to go backward is because before
the Detainee Treatment Act passed in 2005, no one had recognized the
5th, 8th, and 14th amendment concepts applying to enemy combatants. So
what we are trying to do is start over after Hamdan and incorporate
into the military commission model as many protections as we can that
also protect America. So going forward, from the Detainee Treatment Act
forward, any evidence gathered after the Detainee Treatment Act will
have to comply with the 5th, 8th, and 14th amendments requirements that
make up the heart and soul of the Detainee Treatment Act. To make it
retroactive and exclude statements where that concept was not known,
was not part of our legal system regarding enemy combatants, in my
opinion, was unwise.
So we are going forward, reinforcing the Detainee Treatment Act, and
the standard of admission of evidence of reliable and probative meets
the standards of justice and totality of the circumstances test, stays
in place, covers all statements before and after. Our Judge Advocate
Generals, to a person, have said that if you take the Detainee
Treatment Act out of the equation, what is left still is acceptable.
And the courts will make that decision.
I am confident that the standard that we had, the administration had
when it came to the admission of evidence, was acceptable, and the
judge advocates who have objected to many things did not object to
that.
So the idea that we made a conscious decision to allow cruel and
inhumane treatment to become a player defies what we did in totality.
The title 18, War Crimes Act, was rewritten. One of the crimes that
we put in title 18 that would constitute a grave breach of the Geneva
Conventions, a felony under our own law, is cruel or inhumane
treatment: The act of a person who commits or conspires or attempts to
commit an act intended to inflict severe or serious physical or mental
pain or suffering, other than pain or suffering incidental to lawful
sanctions, including serious physical abuse upon another within his
custody or control. And we defined those terms. It is a felony in U.S.
law to engage in cruel or inhumane treatment, not just torture. It is a
felony in U.S. law to mutilate or maim.
What we did--intentionally causing serious bodily harm, rape, sexual
assault or abuse, taking hostages--what we did is we took what the
Geneva Conventions have defined as being a grave breach of the
conventions, we put it in title 18 of the War Crimes Act, and made it a
felony. So if you are a military member or CIA agent and you run afoul
of the title 18 War Crimes Act, you can be prosecuted. When it comes
time for the military judge to rule upon the admissibility of evidence
in a military commission, the standard that we will be using has been
blessed by every Judge Advocate General that we have, those in charge
of our military legal system.
So I think it is a good standard. I think the fact that we put the
DTA 5th, 8th and 14th amendment standard into the statute in a
perfective way enhances and emboldens what we are trying to do with the
DTA and will make us a better nation.
The other areas of concerns: enemy combatant definition. The enemy
combatant definition that is changed from the compromise and committee
bill allows us to, subject to military commission, try those people who
intentionally and knowingly aid terrorism; materially support
terrorism. To me, that makes sense. I want to prosecute the person who
sells the guns to al-Qaida as much as the people who use the weapons. I
want to go after the support network that supports terrorism. To me,
that makes perfect sense. I am glad we expanded the definition because
those who are assisting terrorists in a knowingly purposeful way should
be held accountable for their actions.
Under no circumstance can an American citizen be tried in a military
commission. The jurisdiction of military commissions does not allow for
the trial of American citizens or lawful combatants, and those who say
otherwise, quite frankly, have not read the legislation because there
is a prohibition to that happening.
The hearsay rules that are in the compromise very much mirror the
committee bill, but that we are allowing a burden shift, to me, makes
sense given the global nature of the war. I can spend a lot of time
explaining the differences between the two bills, but I will basically
summarize by saying that the purpose of the committee bill has been met
by the compromise. If it were not so, I would not vote for it. We are
not allowing into evidence coerced
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statements unless the judge makes the decision they are reliable,
probative, and in the totality of circumstances they meet the ends of
justice.
At the end of the day you are going to have a judge applying a legal
standard to a request to admit evidence. The administration, in my
opinion, in their first product, was trying to legislate a conviction.
In many ways they were trying to set up the rules when it came to the
military commission format that would allow evidence to go to the jury
never seen by the accused. That would make it very hard to defend
yourself.
We have changed that. Anything the jury gets to convict, the accused
can examine and rebut. To me, that was a huge accomplishment that put
the trials back on sound footing within our value system, and legally I
think they will pass muster now.
So at the end of the day, in my opinion we do not need to try to
legislate how the judge should rule. Everybody has their pet peeve
about where the administration has failed or succeeded, about how the
CIA has conducted its business. I have found an effort to tie the
judges' hands to the point that we have no flexibility when it comes to
admitting evidence. The judge is in the best place--better than anybody
here--to make a decision as to what should come into that trial. What
are we asking the judges to do? To use their experience, their
knowledge of the law, their sense of right or wrong to determine: Is
that statement reliable? Is it probative? Given everything around it,
would the interests of justice be met if it came into the trial?
That is an acceptable legal standard, not only to every Judge
Advocate General who serves today in our military, it should be a
standard that every American is proud of because I am proud of it.
I bet you dollars to doughnuts when the Supreme Court gets hold of
our work product they are going to approve it.
Finally, Hamdan is about applying the Geneva Conventions to the war
on terror. Everybody I know of in the administration believed that the
Geneva Conventions did not apply to these unlawful enemy combatants. I
shared that belief. We were wrong. The Supreme Court--whether I agree
or not--ruled. After their ruling, we had two things that we had to
accomplish to get this country back on track within the rule of law. We
had a challenge: to take the CIA interrogation program that existed and
will exist and make sure that it was Geneva Conventions compliant.
What do the Geneva Conventions require of every country that signs
the document? It requires that, domestically, that country will outlaw,
within its own domestic law, grave breaches of the treaty. Every
country has an affirmative duty to set out within their laws and
prosecute their own people for grave breaches of the Geneva
Conventions.
Title 18 is the War Crimes Act. Under title 18 we have listed nine
crimes that would be considered grave breaches of the Geneva
Conventions. To the CIA: Your program, whatever it may be in classified
form, must comply with the War Crimes Act. And the War Crimes Act runs
the gamut from torture to cruel, inhumane treatment, intentional
infliction of serious bodily injury, or mental pain.
We have taken nine well-defined felonies and told the CIA and every
other agency in the country: Whatever you do, if you violate these
statutes you will be subject to being prosecuted.
I want a CIA program to be classified when it comes to interrogating
high-value terrorist targets. I think it would be foolhardy to tell the
terrorist community everything that comes your way when you join al-
Qaida or some other terrorist organization. But it is important to tell
every American, every CIA agent, their family, and the international
community what we do will not only be within the Geneva Conventions, it
is going to be beyond what the Conventions require, and I think we have
accomplished that.
There are six specified events in article 129 and article 130 of the
Geneva Conventions that constitute grave breaches. We have adopted all
six, and we have added to that list. Whatever the CIA is doing and
wherever they do it, whatever the Department of Defense is doing and
wherever they do it, they now have the notice and the clarity that they
did not have before to do their job within the law.
This idea that we have rewritten the statute and given immunity to
people who have violated the statute is absurd. There is nothing in the
compromise or the committee bill that would give immunity or amnesty to
someone who violated the felony provisions. But what we did do, that I
am proud of, is that we took a 1997 War Crimes Act that was so ill-
defined that no one understood it and gave clarity and purpose to it so
those whom we are asking to defend us from the most vicious people in
the world will have a chance to know the law.
Abu Ghraib was about policies that cut legal corners, that migrated
from one side of the Government to the other, that got everybody
involved confused as to what you could and could not do. It was a
mixture of individual deviance and bad policy, poorly trained people,
not enough folks to do the job, and not trained well enough to
understand what the job was. It was a mess. For 2 years we have been
trying--and I have been as helpful as I know how to be--to create some
sense of balance to bring order out of chaos, and we are on the verge
of doing it.
This is a product, not only that I support, that I had but one that I
am proud of. Every military lawyer who sits on the top of our military
legal system has had input on every issue. They have had the guts to go
to the House and Senate and say some things about the President's
proposal are flat wrong. That took a lot of guts, and I am here to tell
you the final product took their input and what their concerns were and
has been changed.
But if you want a CIA program that is not classified, you lost. I
want the program to be classified. But I want it to run within the
obligations of the Geneva Conventions, and we have accomplished that.
Finally, what did we do in the compromise that we didn't do in the
committee bill? We said that every obligation under the Geneva
Conventions that our country has, outside of the War Crimes Act, will
be fulfilled by our President. Under our constitutional democracy, it
is the obligation of the executive branch to implement and interpret
treaties. This whole debate, what I have been working on for 2 weeks
and getting beat up on in every talk radio show in the country, was
about how can you comply with the Geneva Conventions in a way that will
be seen by the world as not getting out of the Conventions.
The proposal for the Congress to redefine the treaty terms, in my
opinion, would have created a precedent for every other country, in a
war that they are in the middle of, to change the treaty in the middle
of a war. The conventions have been closed for years. It would have
been wrong, ill-advised for the Congress to sit down with the President
and rewrite the treaty obligations for domestic purposes because
clearly then we would have been changing the treaty terms without
notifying the other parties.
What we did to avoid that is we, Congress, defined nine crimes that
would constitute grave breaches, honoring our commitment under the
Geneva Conventions, to outlaw grave breaches, felonies. We have done
our job, and we turned to the Executive and said in this legislation:
It is your job, Mr. President, consistent with our constitutional
democracy, to implement and fulfill the obligations of the treaty
outside of title 18. And when you make a decision, publish what you
have decided. And any decision you make cannot take power away from the
courts or the Congress that we have in the same arena.
Those people who want to overturn the election, who do not like
President Bush, are upset that we recognized he has a role to play. Let
me tell you, he does have a role to play. Any President has the same
role that we are going to give President Bush--to implement a treaty,
not change a treaty.
So I think we have done a very good job of putting into law our
obligations under the Geneva Conventions defining, constitutionally,
who has what responsibility so that no reasonable person could say the
United States has abandoned its longstanding obligations to the Geneva
Conventions because we have not. And that is what we have
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been sweating over for weeks. No reasonable person can say that this
compromise condones torture, cruel, or inhumane treatment because we
make it a felony. What we have done is given the military judge the
tools he or she will need to render justice. And I have tried to
embolden and strengthen the Detainee Treatment Act in a way that I
think makes sense.
The military court-martial system will be the model. The military
commission will deviate. And the authority given to the Secretary is
the same authority given to the President: to make differences between
the district courts and the military justice system as a whole. It is
compliant with article 36 of the Uniform Code of Military Justice. This
compromise is compliant with Hamdan. It is compliant with the values we
are fighting for. And it has the flexibility we need to fight an enemy
that knows no bounds.
The work product is the result of give and take, is the result of
being more than one branch of Government, is the result of having to
deal with a court decision that was new and novel. I can say from my
point of view that not only will I vote for the compromise, I am very
proud of it.
I yield the floor.
Mr. WARNER. Mr. President, my distinguished colleague from South
Carolina will be placing in today's Record the correspondence from the
judge advocate generals. I think that is very important. I think for
those following this debate, it would be of great interest to give an
example of how in response to the letter sent by the distinguished
Senator from Michigan to a judge advocate they respond. I ask unanimous
consent to have printed in the Record first at this juncture a letter
from Senator Levin to Bruce MacDonald, Judge Advocate General of the
Navy, on this point of what we call the two categories of evidence.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on Armed Services,
Washington, DC, September 25, 2006.
Rear Admiral Bruce MacDonald,
The Judge Advocate General, Department of the Navy,
Washington, DC.
Dear Admiral MacDonald: The Senate will soon begin
consideration of a bill entitled the Military Commissions Act
of 2006, which would add a new Chapter 47A to title 10,
United States Code, addressing trials by military commission.
Section 948r of the proposed new chapter would address the
issue of compulsory self-incrimination and statements
obtained by torture or other methods of coercion.
Under this provision, a copy of which is attached, a
statement obtained on or after December 30, 2005 through
coercion that is less than torture would be admissible if the
military judge finds that: (1) the totality of the
circumstances renders it reliable and possessing sufficient
probative value; (2) the interests of justice would best be
served by admission of the statement into evidence; and (3)
the interrogation methods used do not violate the cruel,
unusual, or inhumane treatment of punishment prohibited by
the 5th, 8th, and 14th Amendments to the United States
Constitution.
Under the same provision, a statement obtained before
December 30, 2005 would be subject to the first two
requirements, but not the third. Consequently, a statement
obtained before December 30, 2005 through cruel, unusual or
inhumane treatment prohibited by the U.S. Constitution would
be admissible into evidence, as long as the other conditions
in the provision are met.
I would appreciate if you would provide your personal views
and advice as a military officer on the merits of this
provision and the impact that it would have on our own
troops, should they be captured by hostile forces in the
future. Because this issue will be debated on the Senate
floor this week, I request that you provide your views by no
later than the close of business on Tuesday, September 26,
2006.
Thank you for your assistance in this matter.
Sincerely,
Carl Levin,
Ranking Member.
____
Department of the Navy, Office of the Judge Advocate
General
Washington, DC, September 26, 2006.
Hon. Carl Levin,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Levin: Thank you for your letter of September
25, 2006, requesting my personal views on the admissibility
of coerced statements at military commissions.
My consistent position before the Congress is and has been
that the presiding military judge should have the discretion
and authority to inquire into the underlying factual
circumstances and exclude any statement derived from unlawful
coercion, in order to protect the integrity of the
proceeding.
This approach is consistent with the practice of
international war crimes tribunals sanctioned by the United
States and United Nations and addresses the concern regarding
reciprocal treatment of U.S. armed forces personnel in
present or future conflicts.
Sincerely,
Bruce MacDonald,
Rear Admiral, JAGC, U.S. Navy.
Mr. WARNER. Mr. President, it is a clear indication by those who are
currently given the responsibility of defending the men and women of
the United States military how this provision in the bill now before
the Senate is consistent with their understanding of international and
domestic law.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. WARNER. Mr. President, I inquire of our distinguished colleague,
is he now drawing time on the Levin amendment?
The PRESIDING OFFICER. The Senator's time is from the Democratic
leader's time on the measure itself.
Mr. LEAHY. Mr. President, how much time is there to the Democratic
leader on this?
The PRESIDING OFFICER. The Senator from Vermont has 47 minutes; 45
minutes of the 57 minutes remaining to the Democratic leader.
Mr. LEAHY. Mr. President, as I said earlier, I understood that the
consent agreement was to give me 45 minutes on the Specter-Leahy-Dodd
amendment and 15 minutes on the bill. That seems to not have been the
agreement entered into by leadership. I ask that I take 10 minutes from
the Democratic leader's time and the remaining time from my own 45
minutes of time.
I see the concern by the Senator from Michigan. I will take it from
my 45 minutes. I also note that I will not consent to any other time
agreements on this bill insofar as the time agreement I understood I
had was not entered into. I will take the 45 minutes.
Mr. President, this administration has yet to come clean to the
Congress or the American people in connection with the secret legal
justifications it has generated and secret practices it has employed in
detaining and interrogating hundreds if not thousands of people in the
war on terror. Even they cannot dismiss the practices at Guantanamo as
the actions of a few ``bad apples.'' With Senate adoption of the anti-
torture amendment last year and the recent adoption of the Army Field
Manual, I had hoped that 5 years of administration resistance to the
rule of law and to the U.S. military abiding by its Geneva obligations
might be drawing to a close. Despite the resistance of the Vice
President and the administration, the new Army Field Manual appears to
outlaw several of what the administration euphemistically calls
``aggressive'' tactics and that much of the world regards as torture
and cruel and degrading treatment. Of course, the President in his
signing statement undermined enactment of the anti-torture law, and now
the administration is seeking still greater license to engage in harsh
techniques in connection with the military tribunal legislation before
us now.
What is being lost in this debate is any notion of accountability.
Where are the facts of what has been done in the name of the United
States? Where are the legal justifications and technicalities the
administration's lawyers have been seeking to exploit? Senator Levin's
amendment, which restores the bipartisan legislation passed by the
Senate Armed Services Committee, would maintain some accountability for
this administration's actions and some standards of justice and
decency. The Republican leadership's legislation which is before us now
strips away all accountability and erodes our most basic national
values.
If the administration had answered me when I asked over and over
about the Convention Against Torture and about rendition, we could have
come to grips with those matters before they degenerated, as they have,
into international embarrassment for the United States. As Secretary
Colin Powell wrote recently, ``The world is beginning to doubt the
moral basis of our fight against terrorism.'' It did not need to come
to that.
If FBI Director Mueller had been more forthcoming with me at or after
the May 2004 hearing in which I asked him about what the FBI had
observed at Guantanamo, we could have gotten to a detention and
interrogation policy
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befitting the U.S. years sooner than we have.
If the administration would have responded to my many inquiries over
the years regarding the rendition of Maher Arar, I would not have had
to send yet another demand for information to the Attorney General this
week, and we would not have been embarrassed by the Canadian commission
report about his being sent by U.S. authorities to Syria where he was
tortured. Mr. Arar is the Canadian citizen who was returning to Canada
through New York when he was arrested by American authorities at JFK
airport and held for 12 days without access to a Canadian consular
official or lawyer. He was then rendered, not to Canada, but to Syria,
without the knowledge or approval of Canadian officials, where he was
tortured. Last week, a Canadian commission inquiry determined that Mr.
Arar had no ties to terrorists, he was arrested on bad intelligence,
and his forced confessions in Syria reflected torture, not the truth.
Sadly, the administration is still seeking to avoid accountability by
hiding behind legal doctrines. The administration continues to thwart
every effort to get to the facts, to get to the truth and to be
accountable. I am worried that the legislation before us is one more
example of that trend.
Unfortunately, Senator Levin's amendment, like the Armed Services
Committee's bill, retains the extremely troubling habeas provision. I
will be submitting an amendment to strip that provision.
We are rushing through legislation that would have a devastating
effect on our security and on our values, and we need to step back and
think about what we are doing. The President recently said that ``time
is of the essence'' to pass legislation authorizing military
commissions. Time was of the essence when this administration took
control and did not act on the dire warnings of terrorist action. Time
was of the essence in August and early September 2001 when the 9/11
attacks could still have been prevented. This administration ignored
warnings of a coming attack and even proposed cutting the anti-terror
budget. It focused on Star Wars, not terrorism. Time was of the essence
when Osama bin Laden was trapped in Tora Bora.
After 5 years of unilateral actions by this administration that have
left us less safe, time is now of the essence to take real steps to
keep us safe from terrorism like those in the Real Security Act, S.
3875. Instead, the President and the Republican Senate leadership call
for rubberstamping more flawed White House proposals in the run up to
another election. I hope that this time the U.S. Senate will act as an
independent branch of the government and finally serve as a check on
this administration.
We need to pursue the war on terror with strength and intelligence,
but also to do so consistent with American values. The President says
he wants clarity as to the meaning of the Geneva Conventions and the
War Crimes Act. Of course, he did not want clarity when his
administration was using its twisted interpretation of the law to
authorize torture, cruel and inhumane treatment of detainees and spying
on Americans without warrants and keeping those rationales and programs
secret from Congress. The administration does not seem to want clarity
when it refuses even to tell Congress what its understanding of the law
is following the withdrawal of a memo that said the President could
authorize and immunize torture. That memo was withdrawn because it
could not stand up in the light of day.
It seems that the only clarity this administration wants is a clear
green light from Congress to do whatever it wants. That is not clarity;
it is immunity. That is what the current legislation would give to the
President on interrogation techniques and on military commissions.
Justice O'Connor reminded the nation before her retirement that even
war is not a ``blank check'' when it comes to the rights of Americans.
The Senate should not be a rubberstamp for policies that undercut
American values and make Americans around the world less safe.
In reality, we already have clarity. Senior military officers tell us
they know what the Geneva Conventions require, and the military trains
its personnel according to these standards. We have never had trouble
urging other countries around the world to accept and enforce the
provisions of the Geneva Conventions. There was enough clarity for
that. What the administration appears to want, instead, is to use new
legislative language to create loopholes and to narrow our obligations
not to engage in cruel, degrading, and inhuman treatment.
In fact, the new legislation muddies the waters. It saddles the War
Crimes Act with a definition of cruel or inhuman treatment so oblique
that it appears to permit all manner of cruel and extreme interrogation
techniques. Senator McCain said this weekend that some techniques like
waterboarding and induced hypothermia would be banned by the proposed
law. But Senator Frist and the White House disavowed his statements,
saying that they preferred not to say what techniques would or would
not be allowed. That is hardly clarity; it is deliberate confusion.
Into that breach, this legislation throws the administration's
solution to all problems: more Presidential power. It allows the
administration to promulgate regulations about what conduct would and
would not comport with the Geneva Conventions, though it does not
require the President to specify which particular techniques can and
cannot be used. This is a formula for still fewer checks and balances
and for more abuse, secrecy, and power-grabbing. It is a formula for
immunity for past and future abuses by the Executive.
I worked hard, along with many others of both parties, to pass the
current version of the War Crimes Act. I think the current law is a
good law, and the concerns that have been raised about it could best be
addressed with minor adjustments, rather than with sweeping changes.
In 1996, working with the Department of Defense, Congress passed the
War Crimes Act to provide criminal penalties for certain war crimes
committed by and against Americans. The next year, again with the
Pentagon's support, Congress extended the War Crimes Act to violations
of the baseline humanitarian protections afforded by Common Article 3
of the Geneva Conventions. Both measures were supported by a broad
bipartisan consensus, and I was proud to sponsor the 1997 amendments.
The legislation was uncontroversial for a good reason. As I explained
at the time, the purpose and effect of the War Crimes Act as amended
was to provide for the implementation of America's commitment to the
basic international standards we subscribed to when we ratified the
Geneva Conventions in 1955. Those standards are truly universal: They
condemn war criminals whoever and wherever they are.
That is a critically important aspect of the Geneva Conventions and
our own War Crimes Act. When we are dealing with fundamental norms that
define the commitments of the civilized world, we cannot have one rule
for us and one for them, however we define ``us'' and ``them.'' As
Justice Jackson said at the Nuremberg tribunals, ``We are not prepared
to lay down a rule of criminal conduct against others which we would
not be willing to have invoked against us.''
In that regard, I am disturbed that the legislation before us narrows
the scope of the War Crimes Act to exclude certain violations of the
Geneva Conventions and, perhaps more disturbingly, to retroactively
immunize past violations. Neither the Congress nor the Department of
Defense had any problem with the War Crimes Act as it now stands when
we were focused on using it to prosecute foreign perpetrators of war
crimes. I am concerned that this is yet another example of this
administration overreaching, disregarding the law and our international
obligations, and seeking to immunize others to break the law. It also
could well prevent us from prosecuting rogues who we all agree were out
of line, like the soldiers who mistreated prisoners at Abu Ghraib.
The President said on May 5, 2004 about prisoner mistreatment at Abu
Ghraib: ``I view those practices as abhorrent.'' He continued: ``But in
a democracy, as well, those mistakes will be investigated, and people
will be brought to justice.'' The Republican leader of the Senate said
on the same day: ``I rise to express my shock and
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condemnation of these despicable acts. The persons who carried them
must face justice.''
Many of the despicable tactics used in Abu Ghraib the use of dogs,
forced nudity, humiliation of various kinds do not appear to be covered
by the narrow definitions this legislation would graft into the War
Crimes Act; of course, despite the President's calls for clarity, the
new provisions are so purposefully ambiguous that we cannot know for
sure. If the Abu Ghraib abuses had come to light after the perpetrators
left the military, they might not have been able to be brought to
justice under the administration's formulation.
The President and the Congress should not be in the business of
immunizing people who have broken the law, making us less safe, turning
world opinion against us, and undercutting our treaty obligations in
ways that encourage others to ignore the protections those treaties
provide to Americans. We should be very careful about any changes we
make.
If we lower our standards of domestic law to allow outrageous
conduct, we can do nothing to stop other countries from doing the same.
This change in our law does not prevent other countries from
prosecuting our troops and personnel for violations of the Geneva
Convention if they choose; it only changes our domestic law. But it
could give other countries a green light to change their own law to
allow them to treat our personnel in cruel and inhuman ways.
Let me be clear. There is no problem facing us about overzealous use
of the War Crimes Act by prosecutors. In fact, as far as I can tell,
the Ashcroft Justice Department and the Gonzales Justice Department
have yet to file a single charge against anyone for violation of the
War Crimes Act. Not only have they never charged American personnel
under the act, they have never used it to charge terrorists either.
We can address any concerns about the War Crimes Act with reasonable
amendments, as the Warner-Levin bill did, without gutting the Act in a
way that undermines our moral authority and makes us less safe. Senator
Levin's amendment goes back to the Warner-Levin bill's formulation, and
I urge Senators of both parties to support it.
The proposed legislation would also allow the admission into military
commission proceedings of evidence obtained through cruel and inhuman
treatment. This provision would once again allow this administration to
avoid all accountability for its misguided policies which have
contributed to the rise of a new generation of terrorists who threaten
us. Not only would the military commission legislation before us
immunize those who violated international law and stomped on basic
American values, but it would allow them then to use the evidence
gotten in violation of basic principles of fairness and justice.
Allowing in this evidence would violate our basic standards of
fairness without increasing our security. Maher Arar, the Canadian
citizen sent by our government to Syria to be tortured, confessed to
attending terrorist training camps. A Canadian commission investigating
the case found that his confessions had no basis in fact. They merely
reflected that he was being tortured, and he told his torturers what
they wanted to hear. It is only one of many such documented cases of
bad information resulting from torture. We gain nothing from allowing
such information. The Armed Services Committee bill, which the Levin
amendment restores, would not allow the use of this tainted evidence.
The military commissions legislation departs in other unfortunate
ways from the Warner-Levin bill. Early this week, apparently at the
White House's request, Republican drafters added a breathtakingly broad
definition of ``unlawful enemy combatant'' which includes people--
citizens and non-citizens--alike--who have ``purposefully and
materially supported hostilities'' against the United States or its
allies. It also includes people determined to be ``unlawful enemy
combatant'' by any ``competent tribunal'' established by the President
or the Secretary of Defense. So the government can select any person,
including a U.S. citizen, whom it suspects of supporting hostilities--
whatever that means--and begin denying that person the rights and
processes guaranteed in our country. The implications are chilling. We
should go back to the reasonable definition the Senate Armed Services
Committee came up with. That is what the Levin amendment does.
I hope that we will take the opportunity before us to consider and
pass bipartisan legislation that will make us safer and help our fight
on terrorism, both by giving us the tools we need and by showing the
world the values we cherish and defend, the same values that make us a
target. We should amend the legislation before us to keep the War
Crimes Act strong and to require some accountability from the
administration. The Levin amendment does just that, and I urge all
senators to vote for it. Let us join together on behalf of real
security for Americans.
Mr. President, before we stand here congratulating ourselves too much
about all the wonderful things we did in these closed-door meetings and
these back-room meetings and the Bush-Cheney statements about what we
are allowed to do or not allowed to do in what has become an
increasingly rubberstamp Congress--the most rubberstamp Congress I have
ever seen in 32 years here--I want to talk about the habeas stripping
provisions, what I call un-American provisions, which are regrettably
in the bill before us and unfortunately contained in the committee
bill, and even included in the amendment before us now. The Specter-
Leahy-Dodd amendment will eliminate those provisions from the bill
pending before the Senate.
It will be interesting to see whether the Bush-Cheney administration
will allow Republican Senators to vote for it. Lord knows there have
not been many votes made here that have been by independent Senators.
As currently drafted, section 7 of the military commissions bill
would wrongfully, and in my view, unconstitutionally eliminate the writ
of habeas corpus for anyone detained by this administration on
suspicion of being what they call an ``enemy combatant,'' which is a
dangerous concept that is being expanded by a vague and ever-expanding
definition.
The President could basically say I think you are an enemy combatant,
and lock you up, and you can't even contest it.
I think of the hundreds of pages of statements made by Senators on
both sides of the aisle when other countries have done something this
arbitrary, or this vague, and locked up people inside their borders,
and we said how un-American it is. If we pass this, we can no longer
call it un-American. We can call it codified American law.
Important as the rules for military commissions are, they will apply
to only a few cases. In this war on terror, you may wonder how many
people have been brought to justice. We are holding about 500 people in
Guantanamo. We are so committed to this war that we have charged a
total of 10 people in the nearly 5 years that the President declared
his intention to use military commissions. That is two a year. They
just announced plans to charge an additional 14 men. At this rate, I
will be about 382 years old when they get around to charging all the
people they are detaining. But for the vast majority of the almost 500
prisoners at Guantanamo, and the thousands it has detained over the
last 5 years, the administration's position remains as stated by
Secretary of Defense Donald Rumsfeld 3 years ago: There is no interest
in trying them.
It is not just a question of we have no interest in trying those we
have determined to be enemy combatants. If we have dozens and dozens or
even hundreds of people who are picked up by mistake or turned over by
bounty hunters to get the bounty and not because they might have done
something, we are not going to try them either. Sorry, we are just
going to lock them up.
Perhaps the single most consequential provision of the so-called
military commissions bill can now be found buried nearly 100 pages in
to curtail judicial review and any meaningful accountability. This
provision would perpetuate the indefinite detention of hundreds of
individuals against whom the Government has brought no charges and
presented no evidence, without any recourse to justice whatsoever.
Maybe some of them are guilty.
[[Page S10256]]
If they are, try them. But we have to understand that there may be
people in there who have no reason to be there and there are no charges
and no evidence. This is un-American, it is unconstitutional, and it is
contrary to American interests. This is not what a great and wonderful
nation should be doing.
Going forward, the bill departs even more radically from our most
fundamental values. I am proud to be an American, and I am proud to be
a Senator. But mostly I am proud of what has been in the past our
American values. Provisions that were profoundly troubling a week ago
when the Armed Services Committee marked up the bill have gotten much
worse in the course of the closed-door revisions over the past 5 days,
including the last round of revisions, which were put in behind closed
doors and sent around late yesterday, and that the majority now demands
we pass immediately. Five years they sit, doing nothing, and then all
of sudden, whoops, the polls look bad this fall for the election:
Quick, pass anything, no matter how unconstitutional it might be.
For example, the bill has been amended to eliminate habeas corpus
review even for people inside the United States, and even for people
who have not been determined to be enemy combatants. Quick, pass it;
quick, do it now; quick, pass it out of here so we can rubberstamp it
in a signing ceremony before anybody reads the fine print.
We have done this in the past. As a witness said before our committee
this week, we did this in the past. We did it with the Tonkin Gulf
Resolution. We did it with the internment of Japanese Americans. Now we
are about to do it again.
As the bill now stands, it would permit the President to detain
indefinitely--even for life--any alien, whether in the United States or
abroad, whether a foreign resident or a lawful permanent resident,
without any meaningful opportunity for that person to challenge his
detention. The administration would not even need to assert, much less
prove, that the alien was an enemy combatant; it would suffice to say
that the alien was awaiting a determination on that issue, even though
they may wait 20, 30, 40 years and wait until the grave gives them
their escape.
In other words, the bill would send a message to the millions of
legal immigrants living in America, participating in American families,
working for American businesses, and paying American taxes. Its message
would be that our Government may at any minute pick them up and detain
them indefinitely without charge and without any access to the courts
or even to military tribunals unless and until the Government
determines that they are not enemy combatants--even though they have no
ability to help in that determination themselves. In turn, the bill now
defines the term enemy combatants in a tortured and unprecedented broad
manner.
Detained indefinitely, and unaccountably, until they are proven
innocent; even though they have no right to stand up and offer proof.
It is like the Canadian citizen Maher Arar, shipped off to a torture
cell in Syria by the Bush-Cheney administration, despite what the
Canadian Government recently concluded, that there is no evidence that
he ever committed a crime or posed a threat to either the United States
or Canadian security. Pick him up. He looks bad. Ship him to Syria.
Torture him. Maybe he will confess to something and prove we were
right.
Now it has been documented the Bush-Cheney administration did the
wrong thing to the wrong man. When asked about it, what do they do? As
usual, they evade all accountability. This is an administration that
makes no mistakes. A rubberstamp Congress will never ask them what they
did, they make no mistakes, and they hide behind a purported State
secrets privilege.
The administration's defenders would like to believe Mr. Arar's case
is an isolated blunder, but it is not. We have numerous press accounts
that have quoted administration officials themselves who believe a
significant percentage of those detained at Guantanamo Bay have no
connection to terrorism. They have been held by the Bush-Cheney
administration for several years and the administration intends to hold
them indefinitely without trial or any recourse to justice, even though
a substantial number of them are innocent people who were turned in by
anonymous bounty hunters or picked up by mistake in the fog of war.
The most important purpose of habeas corpus is not to give people
extra rights. No one is asking to give people special rights. Habeas
corpus does not do that. Habeas corpus is intended to correct errors
such as this to protect the innocent. It is precisely to prevent such
abuses that the Constitution prohibits the suspension of the writ of
habeas corpus ``unless when in cases of rebellion or invasion public
safety may require it.''
I would assume the Bush-Cheney administration is not saying we are
handling this question of terrorists so poorly that we are under
invasion now. And I have no doubt this bill, which will permanently
eliminate the writ of habeas corpus for all aliens within and outside
the United States whenever the Government says they might be enemy
combatants, violates that prohibition. I believe even the present
Supreme Court, seven of the nine members now Republican, would hold it
unconstitutional.
When former Secretary of State Colin Powell wrote of his concerns
with the administration's bill, he wrote: ``The world is beginning to
doubt the moral basis of our fight against terrorism.''
Talk to anyone who travels around the world anywhere, even among some
of our closest allies, our best friends. We are asked, What are you
doing? Have you lost your moral compass? And these are countries that
faced terrorist attacks long before we did.
General Powell, former head of the Joint Chiefs of Staff, was right.
We have heard from current and former diplomats, military lawyers,
Federal judges, law professors, law school deans, and even a former
Solicitor General under the first President Bush, Kenneth Starr, that
they have grave concerns with the habeas corpus stripping provisions of
this bill. I have letters that come from across the political and legal
spectrum saying this is wrong.
I ask unanimous consent that some of these letters be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 25, 2006.
To United States Senators and Members of Congress.
Dear Madams/Sirs: This letter is written in the name of the
former members of the diplomatic service of the United States
listed below.
We urge that the Congress, as it considers the pending
detainee legislation, not eliminate the jurisdiction of the
courts to entertain habeas corpus petitions filed on behalf
of those detainees.
There is no more central principle of democracy than that
an officer of the executive branch of government may restrain
no one except at sufferance of the judiciary. The one branch
is vital to insure the legitimacy of the actions of the
other. Habeas corpus is the ``Great Writ.'' It is by habeas
corpus that a person--any person--can insure that the
legality of his or her restraint is confirmed by a court
independent of the branch responsible for the restraint.
Elimination of judicial review by this route would undermine
the foundations of our democratic system.
Weare told that the central purpose of our engagement in
that ``vast external realm'' today is the promotion of
democracy for others. All nations, we urge, should embrace
the principles and practices of freedom and governance that
we have embraced. But to eliminate habeas corpus in the
United States as an avenue of relief for the citizens of
other countries who have fallen into our hands cannot but
make a mockery of this pretension in the eyes of the rest of
the world. The perception of hypocrisy on our part--a sense
that we demand of others a behavioral ethic we ourselves may
advocate but fail to observe--is an acid which can overwhelm
our diplomacy, no matter how well intended and generous.
Pretensions are one thing; behavior another, and quite the
more powerful message. To proclaim democratic government to
the rest of the world as the supreme form of government at
the very moment we eliminate the most important avenue of
relief from arbitrary governmental detention will not serve
our interests in the larger world.
This is the first and primary reason for rejecting the
proposal. But the second is almost as important, and that is
its potential for a reciprocal effect. Pragmatic
considerations, in short, are in this instance at one with
considerations of principle. Judicial relief from arbitrary
detention should be preserved here else our personnel serving
abroad
[[Page S10257]]
will suffer the consequences. To deny habeas corpus to our
detainees can be seen as prescription for how the captured
members of our own military, diplomatic and NGO personnel
stationed abroad may be treated.
As former officials in the diplomatic service of our
nation, this consideration weighs particularly heavily for
us. The United States now has a vast army of young Foreign
Service officers abroad. Many are in acute and immediate
danger. Over a hundred, for example, are serving in
Afghanistan. Foreign service in a high-risk post is
voluntary. These officers are there willingly. The Congress
has every duty to insure their protection, and to avoid
anything which will be taken as justification, even by the
most disturbed minds, that arbitrary arrest is the acceptable
norm of the day in the relations between nations, and that
judicial inquiry is an antique, trivial and dispensable
luxury.
We urge that the proposal to curtail the reach of the Great
Writ be rejected.
Respectfully submitted,
William D. Rogers, former Under Secretary of State;
Ambassador J. Brian Atwood; Ambassador Harry Barnes;
Ambassador Richard E. Benedick; Ambassador A Peter
Burleigh; Ambassador Herman J. Cohen; Ambassador Edwin
G. Corr; Ambassador John Gunther Dean; Ambassador
Theodore L. Eliot, Jr.; Ambassador Chas W. Freeman,
Jr.; Ambassador Robert S. Gelbard.
Ambassador Lincoln Gordon; Ambassador William C. Harrop;
Ambassador Ulric Haynes, Jr.; Ambassador Robert E.
Hunter; Ambassador L. Craig Johnstone; Ambassador
Robert V. Keeley; Ambassador Bruce P. Laingen; Anthony
Lake, former National Security Advisor; Ambassador
Princeton N. Lyman; Ambassador Donald McHenry;
Ambassador George Moore.
Ambassador George Moose; Ambassador Thomas M. T. Niles;
Ambassador Robert Oakley; Ambassador Robert H.
Pelletreau; Ambassador Pete Peterson; Ambassador Thomas
R. Pickering; Ambassador Anthony Quainton; Helmut
Sonnenfeldt, former Counselor of the Department of
State; Ambassador Roscoe S. Suddarth; Ambassador
Phillips Talbot; Ambassador William Vanden Heuvel;
Ambassador Alexander F. Watson.
____
To Members of Congress: The undersigned retired federal
judges write to express our deep concern about the lawfulness
of Section 6 of the proposed Military Commissions Act of 2006
(``MCA''). The MCA threatens to strip the federal courts of
jurisdiction to test the lawfulness of Executive detention at
the Guantanamo Bay Naval Station and elsewhere outside the
United States. Section 6 applies ``to all cases, without
exception, pending on or after the date of the enactment of
[the MCA] which relate to any aspect of the detention,
treatment, or trial of an alien detained outside of the
United States . . . since September 11, 2001.''
We applaud Congress for taking action establishing
procedures to try individuals for war crimes and, in
particular, Senator Warner, Senator Graham, and others for
ensuring that those procedures prohibit the use of secret
evidence and evidence gained by coercion. Revoking habeas
corpus, however, creates the perverse incentive of allowing
individuals to be detained indefinitely on that very basis by
stripping the federal courts of their historic inquiry into
the lawfulness of a prisoner's confinement.
More than two years ago, the United States Supreme Court
ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees
at Guantanamo have the right to challenge their detention in
federal court by habeas corpus. Last December, Congress
passed the Detainee Treatment Act, eliminating jurisdiction
over future habeas petitions filed by prisoners at
Guantanamo, but expressly preserving existing jurisdiction
over pending cases. In June, the Supreme Court affirmed in
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal
courts have the power to hear those pending cases. These
cases should be heard by the federal courts for the reasons
that follow.
The habeas petitions ask whether there is a sufficient
factual and legal basis for a prisoner's detention. This
inquiry is at once simple and momentous. Simple because it is
an easy matter for judges to make this determination--federal
judges have been doing this every day, in every courtroom in
the country, since this Nation's founding. Momentous because
it safeguards the most hallowed judicial role in our
constitutional democracy--ensuring that no man is imprisoned
unlawfully. Without habeas, federal courts will lose the
power to conduct this inquiry.
We are told this legislation is important to the ineffable
demands of national security, and that permitting the courts
to play their traditional role will somehow undermine the
military's effort in fighting terrorism. But this concern is
simply misplaced. For decades, federal courts have
successfully managed both civil and criminal cases involving
classified and top secret information. Invariably, those
cases were resolved fairly and expeditiously, without
compromising the interests of this country. The habeas
statute and rules provide federal judges ample tools for
controlling and safeguarding the flow of information in
court, and we are confident that Guantanamo detainee cases
can be handled under existing procedures.
Furthermore, depriving the courts of habeas jurisdiction
will jeopardize the Judiciary's ability to ensure that
Executive detentions are not grounded on torture or other
abuse. Senator John McCain and others have rightly insisted
that the proposed military commissions established to try
terror suspects of war crimes must not be permitted to rely
on evidence secured by unlawful coercion. But stripping
district courts of habeas jurisdiction would undermine this
goal by permitting the Executive to detain without trial
based on the same coerced evidence.
Finally, eliminating habeas jurisdiction w
