[Congressional Record: September 28, 2006 (Senate)]
[Page S10354-S10431]
MILITARY COMMISSIONS ACT OF 2006
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 3930, which the clerk will report.
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.
Pending:
Specter amendment No. 5087, to strike the provision
regarding habeas review.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, just for purposes of advising
colleagues, there remains on the Specter amendment 16 minutes under the
control of the Senator from Virginia. I desire to allocate about 4
minutes to Senator Kyl, 2 to 3 minutes to Senator Sessions, and to wrap
it up, 2 to 3 minutes to Senator Graham. But we will alternate or do as
the Senator from Michigan--you have 33 minutes, I believe, under the
control of Senator Specter and those in support of his amendment.
Mr. LEVIN. Madam President, parliamentary inquiry: How much time is
remaining to Members on this side, including on the bill?
The PRESIDING OFFICER. Senator Specter's side controls 33 minutes.
Mr. LEVIN. On the Democratic side?
The PRESIDING OFFICER. Senator Warner controls 16 minutes, and the
proponent of the amendment controls 33.
Mr. LEVIN. And on the bill itself, is there time left?
The PRESIDING OFFICER. Senator Reid has allocated the remainder of
the debate time on the bill itself.
Mr. LEVIN. All time is allocated?
The PRESIDING OFFICER. Correct.
Mr. LEVIN. Madam President, I ask unanimous consent that I be allowed
to proceed for 30 seconds.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. LEVIN. Madam President, I wish to thank the Senator from
Connecticut for one of the most passionate statements I have ever heard
on this floor--heartfelt, right on target. The distinctions made in
this bill which will allow statements to be admitted into evidence that
were produced by cruel treatment is unconscionable. It is said that,
well, statements made after December 30 of 2005 won't be allowed, but
those that are produced by cruel and inhuman treatment prior to
December 30 of 2005 are OK. It is unconscionable. It is unheard of. It
is untenable, and the Senator from Connecticut has pointed it out very
accurately, brilliantly. I thank him for his statement.
Mr. WARNER. Madam President, we will proceed on Specter's amendment.
In due course, I will find the time to comment on my colleague's 30
seconds. I want to keep this thing in an orderly progression. I would
like to add the Senator from Texas, Mr. Cornyn, in the unanimous
consent agreement to be recognized as one of the wrap-up speakers on
those in opposition to the amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. KYL. Madam President, yesterday Senator Specter argued that one
sentence in the Hamdi opinion that refers to habeas corpus rights as
applying to all ``individuals'' inside the United States indicates that
alien enemy combatants have constitutional habeas rights when they are
held inside this country. I believe that Senator Specter is incorrect,
for the following reasons: (1) The Hamdi plurality repeatedly makes
clear that ``the threshold question before us is whether the Executive
has the authority to detain citizens who qualify as `enemy
combatants.''' The plurality expressly frames the issue before it in
terms of the rights of citizens no fewer than eight times. It is clear
that it is only the rights of citizens that the Hamdi plurality studied
and ruled on. (2) Elsewhere the Hamdi plurality criticized a rule that
would make the government's right to hold someone as an enemy combatant
turn on whether they are held inside or outside of the United States.
The plurality characterized such a rule as creating ``perverse
incentives,'' noted that it would simply encourage the military to hold
detainees abroad, and concluded that it should not create a
``determinative constitutional difference.'' The same effect would, of
course, be felt if enemy soldiers' habeas rights were made turn on
whether they were held inside or outside of the United States. The fact
that the Hamdi plurality rejected this type of geographical
gamesmanship in one context casts doubt on the theory that it endorsed
it in a closely related context. (3) Had Hamdi extended habeas rights
to alien enemy combatants held inside the United States, that would
have been a major ruling of tremendous consequence. Because courts
typically do not hide elephants in mouseholes, cf. Whitman v. ATA, it
is fair to conclude that no such groundbreaking ruling is squirreled
away in one ambiguous sentence in the Hamdi plurality opinion on the
floor Wednesday evening, I presented the argument that the
constitutional writ of habeas corpus does not extend to alien enemy
soldiers held during wartime. Senator Specter responded by quoting from
a passage in Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld,
542 U.S. 507 (2004), that he believes establishes that alien combatants
are entitled to habeas rights if they are held within the United
States. That statement, towards the beginning of section III.A of the
court's opinion, is a part of a statement of general principles noting
that ``[a]ll agree'' that, absent suspension, habeas corpus remains
available to every ``individual'' within the United States. Senator
[[Page S10355]]
Specter reads this statement, unadorned by any qualification as to
whether the individual in question is a U.S. citizen, an illegal
immigrant, or an alien enemy combatant, to stand for the proposition
that even the latter has a constitutional right to habeas corpus when
held within the United States.
I would suggest that this single, ambiguous statement cannot be
construed to bear that much weight, for three reasons.
Elsewhere in its opinion, the Hamdi plurality repeatedly makes clear
that the only issue it is actually considering is whether a U.S.
citizen has habeas and due process rights as an enemy combatant. The
plurality's emphasis on citizenship is repeatedly made clear throughout
Justice O'Connor's opinion. For example, on page 509, in its first
sentence, the plurality opinion says: ``we are called upon to consider
the legality of the detention of a United States citizen on United
States soil as an `enemy combatant' and to address the process that is
constitutionally owed to one who seeks to challenge his detention as
such.'' On page 516, the plurality again notes: ``The threshold
question before us is whether the Executive has the authority to detain
citizens who qualify as `enemy combatants.' '' On page 524, the
plurality once again emphasizes: ``there remains the question of what
process is constitutionally due to a citizen who disputes his enemy-
combatant status.'' On page 531: ``We reaffirm today the fundamental
nature of a citizen's right to be free from involuntary confinement by
his own government without due process of law.'' On page 532: ``neither
the process proposed by the Government nor the process apparently
envisioned by the District Court below strikes the proper
constitutional balance when a United States citizen is detained in the
United States as an enemy combatant.'' On page 533: ``We therefore hold
that a citizen-detainee seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government's
factual assertion before a neutral decisionmaker.'' On page 535:
military needs ``are not so weighty as to trump a citizen's core rights
to challenge meaningfully the Government's case and to be heard by an
impartial adjudicator.'' And on page 536-37: ``it would turn our system
of checks and balances on its head to suggest that a citizen could not
make his way to court with a challenge to the factual basis for his
detention by his government.''
Whatever loose language may have been used in the plurality's
statement of general principles at the outset of its analysis, it is
apparent that the only issue that the plurality actually studied and
intended to address is the constitutional rights of the U.S. citizen.
Another thing that augurs against interpreting the Hamdi plurality
opinion to extend constitutional habeas rights to alien enemy
combatants whenever they are held inside the United States is that,
elsewhere in its opinion, the plurality is quite critical of a
geographically-based approach to enemy combatant's rights. At page 524,
the plurality responds to a passage in Justice Scalia's dissent that it
reads as arguing that the government's ability to hold someone as an
enemy combatant turns on whether they are held inside or outside of the
United States. The plurality opinion states that making the ability to
hold someone as an enemy combatant turn on whether they are held in or
out of the United States:
creates a perverse incentive. Military authorities faced with
the stark choice of submitting to the full-blown criminal
process or releasing a suspected enemy combatant captured on
the battlefield will simply keep citizen-detainees abroad.
Indeed, the Government transferred Hamdi from Guantanamo Bay
to the United States naval brig only after it learned that he
might be an American citizen. It is not at all clear why that
should make a determinative constitutional difference.
It is doubtful that this same plurality--one that sees ``perverse''
effects in rules that would encourage the government to hold enemy
combatants outside of the United States in order to avoid burdensome
litigation--also intended to rule that full constitutional habeas
rights attach to alien enemy combatants as soon as they enter U.S.
airspace.
Finally, Senator Specter's argument that the ambiguous reference to
``individuals'' on page 525 of Hamdi extends habeas rights to foreign
enemy combatants held inside U.S. territory is inconsistent with the
common sense interpretive rule that one does not ``hide elephants in
mouseholes.'' Whitman v. American Trucking Association, 531 U.S. 457,
468 (2001). Although this rule of construction typically is applied by
the court to our enactments, I see no reason why its logic would not
operate when applied in reverse, by members of this body to the court's
opinions.
For the Hamdi court to have extended constitutional habeas rights to
alien enemy soldiers held inside the United States would have been a
major decision of enormous consequence to our nation's warmaking
ability. As the Hamdi plurality itself noted, ``detention to prevent a
combatant's return to the battlefield is a fundamental incident of
waging war.'' As I noted yesterday, during World War II the United
States detained over 425,000 enemy war prisoners inside the United
States. Yet as Rear Admiral Hutson--no supporter of section 7 of the
MCA--noted in his testimony at Monday's Judiciary Committee hearing,
aside from one petition filed by an American of Italian descent, no
habeas petitions challenging detention were filed by any of these World
War II enemy combatants. It is simply inconceivable that all of the
425,000 enemy combatants held inside the United States during this
period could have been allowed to sue our government in our courts to
challenge their detention. And were their right to do so made to turn
on whether they were held inside or outside of the United States, our
Armed Forces inevitably would have been forced to find some
accommodations for them in foreign territory. And since holding enemy
combatants near the war zone is neither practical nor safe, our
nation's whole ability to fight a war would be made to turn on whether
we could find some third country where we could hold enemy war
prisoners. I would submit that this elephant of a result simply will
not fit in the small space for it created by the one ambiguous passage
in the Hamdi plurality opinion.
For these three reasons, I believe that Senator Specter is incorrect
to interpret the Hamdi plurality opinion to extend constitutional
habeas corpus rights to alien enemy combatants held inside the United
States.
Just to conclude by summarizing the point as follows: On eight
separate times, the plurality opinion in Hamdi refers to the rights of
citizens. That is the question before the court. This is what it rules
on. This is our holding. At no point does it extend it to citizens.
There is one sentence rather loosely framed that refers to individuals.
Had the courts in that decision intended to apply the habeas right to
all individuals in the United States rather than citizens, it would
most assuredly have said so.
I don't think, with all due respect to my great friend, the chairman
of the committee, that relying on that one loose word in one sentence
of the opinion overrides all of the other reasoning, all of the other
clear statements, and the obvious intent of the opinion to relate it to
citizens only. With all due respect, I disagree with the reading of the
case and conclude that there is nothing wrong with this legislation
before us limiting the rights of habeas to those who are citizens and
not extending it to alien enemy combatants.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Madam President, by way of brief reply to the comments
of the Senator from Arizona, he argues that the Hamdi decision does not
apply to aliens but only to citizens, trying to draw some inferences.
But that does not stand up in the face of explicit language by Justice
O'Connor to this effect:
All agree that absent suspension the writ of habeas corpus
remains available to every individual detained in the United
States.
The Senator from Arizona can argue all he wants about inferences, but
that hardly stands up to an explicit statement on individuals. And
Justice O'Connor knows the difference between referring to an
individual or referring to a citizen or referring to an alien. And
``individuals'' covers both citizens and aliens.
Following the reference to individuals is the citation of the
constitutional provision that you can't suspend
[[Page S10356]]
habeas corpus except in time of rebellion or invasion.
Buttressing my argument is the Rasul v. Bush case where it applied
specifically to aliens; and it is true that the consideration was under
the statute section 2241. There the Court says that section 2241
``draws no distinction between Americans and aliens held in Federal
custody.''
That again buttresses the argument I have made in two respects.
First, Rasul specifically grants habeas corpus, albeit statutory, to
aliens and says there is no distinction. So on the face of the explicit
language of the Supreme Court of the United States there is a
constitutional requirement, and it is fundamental that Congress cannot
legislate in contradiction to a constitutional interpretation of the
Supreme Court. That requires a constitutional amendment--not
legislation.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Vermont.
Mr. LEAHY. Madam President, will the Senator from Pennsylvania yield?
Mr. SPECTER. Madam President, how much time remains under my control?
The PRESIDING OFFICER. Thirty minutes.
Mr. SPECTER. Madam President, I yield 10 minutes to the distinguished
Senator from Vermont.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Thank you, Madam President. If I require further time
beyond 10 minutes I will take time from that reserved to the Senator
from Vermont.
Let's understand exactly what we are talking about here. There are
approximately 12 million lawful permanent residents in the United
States today. Some came here initially the way my grandparents did or
my wife's parents did. These are people who work for American firms,
they raise American kids, they pay American taxes.
Section 7 of the bill before us represents a choice about how to
treat them. This bill could have been restricted to traditional notions
of enemy combatants--foreign fighters captured on the battlefield--but
the drafters of this bill chose not to do so.
Let's be very clear. Once we get past all of the sloganeering, all
the fundraising letters, all the sound bites, all the short headlines
in the paper, let's be clear about the choice the bill makes. Let's be
absolutely clear about what it says to lawful permanent residents of
the United States. Then let's decide if it is the right message to send
them and if it is really the face of America that we want to show.
Take an example. Imagine you are a law-abiding, lawful, permanent
resident, and in your spare time you do charitable fundraising for
international relief agencies to lend a helping hand in disasters. You
send money abroad to those in need. You are selective in the charities
you support, but you do not discriminate on the grounds of religion.
Then one day there is a knock on your door. The Government thinks that
the Muslim charity you sent money to may be funneling money to
terrorists and thinks you may be involved. And perhaps an overzealous
neighbor who saw a group of Muslims come to your House has reported
``suspicious behavior.'' You are brought in for questioning.
Initially, you are not very worried. After all, this is America. You
are innocent, and you have faith in American justice. You know your
rights, and you say: I would like to talk to a lawyer. But no lawyer
comes. Once again, since you know your rights, you refuse to answer any
further questions. Then the interrogators get angry. Then comes
solitary confinement, then fierce dogs, then freezing cold that induces
hypothermia, then waterboarding, then threats of being sent to a
country where you know you will be tortured, then Guantanamo. And then
nothing, for years, for decades, for the rest of your life.
That may sound like an experience from some oppressive and
authoritarian regime, something that may have happened under the
Taliban, something that Saddam Hussein might have ordered or something
out of Kafka. There is a reason why that does not and cannot happen in
America. It is because we have a protection called habeas corpus, or if
you do not like the Latin phrase by which it has been known throughout
our history, call it access to the independent Federal courts to review
the authority and the legality by which the Government has taken and is
holding someone in custody. It is a fundamental protection. It is woven
into the fabric of our Nation.
Habeas corpus provides a remedy against arbitrary detentions and
constitutional violations. It guarantees an opportunity to go to court,
with the aid of a lawyer, to prove that, yes, you are innocent.
As Justice Scalia stated in the Hamdi case:
The very core of liberty secured by the Anglo-Saxon system
of separated powers has been freedom from indefinite
imprisonment at the will of the Executive.
Of course, the remedy that secures that most basic freedom is habeas
corpus.
Habeas corpus does not give you any new rights, it just guarantees
you have a chance to ask for your basic freedom.
If we pass this bill today, that will be gone for the 12 million
lawful, permanent residents who live and work among us, to say nothing
of the millions of other legal immigrants and visitors who we welcome
to our shores each year. That will be gone for another estimated 11
million immigrants the Senate has been working to bring out of the
shadows with comprehensive immigration reform.
The bill before the Senate would not merely suspend the great writ,
the great writ of habeas corpus, it would eliminate it permanently. We
do not have to worry about nuances, such as how long it will be
suspended. It is gone. Gone.
Over 200 years of jurisprudence in this country, and following an
hour of debate, we get rid of it. My God, have any Members of this
Senate gone back and read their oath of office upholding the
Constitution? This cuts off all habeas petitions, not just those
founded on relatively technical claims but those founded on claims of
complete innocence.
We hundred Members in the Senate, we privileged men and women, are
supposed to be the conscience of the Nation. We are about to put the
darkest blot possible on this Nation's conscience. It would not be
limited to enemy combatants in the traditional sense of foreign
fighters captured in the battlefield, but it would apply to any alien
picked up anywhere in the world and suspected of possibly supporting
enemies of the United States.
We do not need this bill for those truly captured on the battlefield
who have taken up arms against the United States. That is why the
definition of enemy combatant has been so expansively redefined behind
closed doors in the dark of night.
This bill is designed instead to sweep others into the net. It would
not even require an administrative determination that the Government's
suspicions have a reasonable basis in fact. By its plain language, it
would deny all access to the courts to any alien awaiting--what a
bureaucratic term, to determine your basic human rights, ``any alien
awaiting''--a Government determination as to whether the alien is an
enemy combatant. The Government would be free to delay as long as it
liked--for years, for decades, for the length of the conflict which is
so undefined and may last for generations.
One need only look at Guantanamo. Even our own Government says a
number of people are in there by mistake, but we will not get around to
making that determination. Maybe in 5 years, maybe 10, maybe 20, maybe
30. And we wonder why some of our closest allies ask us, what in
heaven's name has happened to the conscience and moral compass of this
great Nation? Are we so terrified of some terrorists around this
country that we will run scared and hide? Is that what we will do, tear
down all the structures of liberty in this country because we are so
frightened?
It brings to mind that famous passage in ``A Man for All Seasons.''
Thomas More is talking to his protege, William Roper, and says
something to the effect that England is planted thick like a forest
with laws. He said, Would you cut down those laws to get after the
devil? And Roper said, of course I would cut down all the laws in
England to get the devil. And then More said, Oh, and when the last law
was down and the devil turned on you, what will protect you?
[[Page S10357]]
This legislation is cutting down laws that protect all 100 of us, and
now almost 300 million Americans. It is amazing the Senate would be
talking about doing something such as this, especially after the
example of Guantanamo. We can pick up people intentionally or by
mistake and hold them forever.
How many speeches have I heard in my 32 years in the Senate during
the cold war and after, criticizing totalitarian governments that do
things such as that? And we can stand here proudly and say it would
never happen in America; this would never happen in America because we
have rights, we have habeas corpus, and people are protected.
I am not here speculating about what the bill says. This is not a
critic's characterization of the bill. It is what the bill plainly
says, on its face. It is what the Bush-Cheney administration is
demanding. It is what any Member who votes against the Specter-Leahy
amendment and for the bill today is going to be endorsing.
The habeas stripping provisions in the bill go far beyond what
Congress did in the Detainee Treatment Act in three respects. First, as
the Supreme Court pointed out in Hamdan, the DTA removed habeas
jurisdiction only prospectively, for future cases. This new bill strips
habeas jurisdiction retroactively, even for pending cases. This is an
extraordinary action that runs counter to long-held U.S. policies
disfavoring retroactive legislation.
Second, the DTA applied only to detainees at Guantanamo. This new
legislation goes far beyond Guantanamo and strips the right to habeas
of any alien living in the United States if the alien has been
determined an enemy combatant, or even if he is awaiting a
determination--and that wait can take years and years and years. Then,
20 years later, you can say: We made a mistake. Tough. It allows
holding an alien, any alien, forever, without the right of habeas
corpus, while the Government makes up its mind as to whether he is an
enemy combatant.
And third, the impact of those provisions is extended by the new
definition of enemy combatant proposed in the current bill. The bill
extends the definition to include persons who supported hostilities
against the United States, even if they did not engage in armed
conflict against the United States or its allies. That, again, is an
extraordinary extension of existing laws.
If we vote today to abolish rights of access to the justice system to
any alien detainee who is suspected--not determined, not even charged;
these people are not even charged, just suspected--of assisting
terrorists, that will do by the back door what cannot be done up front.
That will remove the checks in our legal system that provide against
arbitrarily detaining people for life without charge. It will remove
the mechanism the Constitution provides to stop the Government from
overreaching and lawlessness.
This is so wrong. It grieves me, after three decades in this Senate,
to stand here knowing we are thinking of doing this. It is so wrong. It
is unconstitutional. It is un-American. It is designed to ensure the
Bush-Cheney administration will never again be embarrassed by a U.S.
Supreme Court decision reviewing its unlawful abuses of power. The
Supreme Court said, you abused your power. And they said, we will fix
that. We have a rubberstamp Congress that will set that aside and give
us power that nobody--no king or anyone else setting foot in this
land--had ever thought of having.
In fact, the irony is this conservative Supreme Court--seven out of
nine members are Republicans--has been the only check on the Bush-
Cheney administration because Congress has not had the courage to do
that. Congress has not had the courage to uphold its own oath of
office.
With this bill, the Congress will have completed the job of
eviscerating its role as a check and balance on the administration. The
Senate has turned its back on the Warner-Levin bill, a bipartisan bill
reported by the Committee on Armed Services, so it can jam through the
Bush-Cheney bill. This bill gives up the ghost. It is not a check on
the administration but a voucher for future wrongdoing.
Abolishing habeas corpus for anyone the Government thinks might have
assisted enemies of the United States is unnecessary and morally wrong,
a betrayal of the most basic values of freedom for which America
stands. It makes a mockery of the Bush-Cheney administration's lofty
rhetoric about exporting freedom across the globe. We can export
freedom across the globe, but we will cut it out in our own country.
What hypocrisy.
I read yesterday from former Secretary of State Colin Powell's letter
in which he voiced concern about our moral authority in the war against
terrorism. The general and former head of the Joint Chiefs of Staff and
former Secretary of State was right.
Admiral John Hutson testified before the Judiciary Committee that
stripping the courts of habeas corpus jurisdiction was inconsistent
with our history and our tradition. The admiral concluded:
We don't need to do this. America is too strong.
When we do this, America will not be a stronger nation. America will
be a weaker nation. We will be weaker because we turned our back on our
Constitution. We turned our back on our rights. We turned our back on
our history.
I ask unanimous consent to have printed in the Record a letter from
more than 60 law school deans and professors who state that the
Congress would gravely disserve our global reputation by doing this.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 27, 2006.
To United States Senators and Members of Congress.
Dear Senators and Representatives: We, the undersigned law
deans and professors, write in our individual capacity to
express our deep concern about two bills that are rapidly
moving through Congress. These bills, the Military
Commissions Act and the National Security Surveillance Act,
would make the indefinite detention of those labeled enemy
combatants and the executive's program of domestic
surveillance effectively unreviewable by any independent
judge sitting in public session. While different in
character, both bills unwisely contract the jurisdiction of
courts and deprive them of the ability to decide critical
issues that must be subject to judicial review in any free
and democratic society.
Although the Military Commissions Act of 2006 (S. 3929/S.
3930) was drafted to improve and codify military commission
procedures following the Supreme Court's June 2006 decision
in Hamdan v. Rumsfeld, it summarily eliminates the right of
habeas corpus for those detained by the U.S. government who
have been or may be deemed to be enemy combatants: Detainees
will have no ability to challenge the conditions of their
detention in court unless and until the administration
decides to try them before a military commission. Those who
are not tried will have no recourse to any independent court
at any time. Enacting this provision into law would be a
grievous error. As several witnesses testified before the
Senate Judiciary Committee on Monday, Article I, Section 9 of
the Constitution specifies that ``[t]he Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it,''
conditions that are plainly not satisfied here.
Similarly, the National Security Surveillance Act of 2006
(S. 3876) would strip courts of jurisdiction over pending
cases challenging the legality of the administration's
domestic spying program and would transfer these cases to the
court established by the Foreign Intelligence Surveillance
Act of 1978 (FISA). The transfer of these cases to a secret
court that issues secret decisions would shield the
administration's electronic surveillance program from
effective and transparent judicial scrutiny.
These bills exhibit a profound and unwarranted distrust of
the judiciary. The historic role of the courts is to ensure
that the legislature promulgates and the executive faithfully
executes the law of the land with due respect for the rights
of even the most despised. Any protections embodied in these
bills would be rendered worthless unless the courts can hold
the executive accountable to enacted law. Moreover, the bills
ignore a central teaching of the Supreme Court's decision in
Hamdan v. Rumsfeld: the importance of shared institutional
powers and checks and balances in crafting lawful and
sustainable responses to the war on terror. Absent effective
judicial review, there will be no way to enforce any of the
limitations in either bill that Congress is currently seeking
to place upon the executive's claimed power.
We recognize the need to prevent and punish crimes of
terrorism and to investigate and prosecute such crimes. But
depriving our courts of jurisdiction to determine whether the
executive has acted properly when it detains individuals in
this effort would endanger the rights of our own soldiers and
nationals abroad, by limiting our ability to demand
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that they be provided the protections that we deny to others.
Eliminating effective judicial review of executive acts as
significant as detention and domestic surveillance cannot be
squared with the principles of transparency and rule of law
on which our constitutional democracy rests.
The Congress would gravely disserve our global reputation
as a law-abiding country by enacting bills that seek to
combat terrorism by stripping judicial review. We
respectfully urge you to amend the judicial review provisions
of the Military Commissions Act and the National Security
Surveillance Act to ensure that the rights granted by those
bills will be enforceable and reviewable in a court of law.
Sincerely,
James J. Alfini, President and Dean, South Texas College of
Law.
Michelle J. Anderson, Dean, CUNY School of Law.
Katharine T. Bartlett, Dean and A. Kenneth Pye Professor of
Law, Duke Law School.
Molly K. Beutz, Yale Law School.
Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe
Smith Professor of International Law, Yale Law School.
Harold J. Krent, Dean & Professor, Chicago-Kent College of
Law.
Lydia Pallas Loren, Interim Dean and Professor of Law,
Lewis & Clark Law School.
Dennis Lynch, Dean, University of Miami School of Law.
John Charles Boger, Dean, School of Law, University of
North Carolina at Chapel Hill.
Jeffrey S. Brand, Dean, Professor and Chairman, Center for
Law & Global Justice, University of San Francisco Law School.
Katherine S. Broderick, Dean and Professor, University of
the District of Columbia, David A. Clarke School of Law.
Brian Bromberger, Dean and Professor, Loyola Law School.
Robert Butkin, Dean and Professor of Law, University of
Tulsa College of Law.
Evan Caminker, Dean and Professor of Law, University of
Michigan Law School.
Judge John L. Carroll, Dean and Ethel P. Malugen Professor
of Law, Cumberland School of Law, Samford University.
Neil H. Cogan, Vice President and Dean, Whittier Law
School.
Mary Crossley, Dean and Professor of Law, University of
Pittsburgh School of Law,
Mary C. Daly, Dean & John V. Brennan Professor Law and
Ethics, St. John's University School of Law.
Richard A. Matasar, President and Dean, New York Law
School.
Philip J. McConnaughay, Dean and Donald J. Farage Professor
of Law, The Pennsylvania State University, Dickinson School
of Law.
Richard J. Morgan, Dean William S. Boyd School of Law,
University of Nevada, Las Vegas.
Fred L. Morrison, Popham Haik Schnobrich/Lindquist & Vennum
Professor of Law and Interim Co-Dean, University of Minnesota
Law School,
Kenneth M. Murchison, James E. & Betty M. Phillips
Professor of Law, Louisiana State University, Paul M. Hebert
Law Center.
Cynthia Nance, Dean and Professor, University of Arkansas,
School of Law.
Nell Jessup Newton, William B. Lockhart Professor of Law,
Chancellor and Dean, University of California at Hastings
College of Law,
Maureen A. O'Rourke, Dean and Professor of Law, Michaels
Faculty Research Scholar, Boston University School of Law.
Margaret L. Paris, Dean, Elmer Sahlstrom Senior Fellow,
University of Oregon School of Law.
Stuart L. Deutsch, Dean and Professor of Law, Rutgers
School of Law-Newark.
Stephen Dycus, Professor, Vermont Law School.
Allen K. Easley, President and Dean, William Mitchell
College of Law.
Christopher Edley, Jr., Dean and Professor, Boalt Hall
School of Law, UC Berkeley.
Cynthia L. Fountaine, Interim Dean and Professor of Law,
Texas Wesleyan University School of Law.
Stephen J. Friedman, Dean, Pace University School of Law.
Dean Bryant G. Garth, Southwestern Law School, Los Angeles,
California.
Charles W. Goldner, Jr., Dean and Professor of Law, William
H. Bowen School of Law, University of Arkansas at Little
Rock.
Mark C. Gordon, Dean and Professor of Law, University of
Detroit Mercy School of Law.
Thomas F. Guernsey, President and Dean, Albany Law School.
Don Guter, Dean, Duquesne University School of Law.
Jack A. Guttenberg Dean and Professor of Law.
LeRoy Pernell, Dean and Professor, Northern Illinois
University College of Law.
Rex R. Perschbacher, Dean and Professor of Law, University
of California at Davis School of Law.
Raymond C. Pierce, Dean and Professor of Law, North
Carolina Central University School of Law.
Peter Pitegoff Dean and Professor of Law, University of
Maine School of Law.
Efren Rivera Ramos, Dean, School of Law, University of
Puerto Rico.
William J. Rich, Interim Dean and Professor of Law,
Washburn University School of Law.
James V. Rowan, Associate Dean, Northeastern University
School of Law, Boston, Massachusetts.
Edward Rubin, Dean and John Wade-Kent Syverud Professor of
Law, Vanderbilt University.
David Rudenstine, Dean, Cardozo School of Law.
Lawrence G. Sager, Dean, University of Texas School of Law,
Alice Jane Drysdale Sheffield Regents Chair in Law, Capital
University Law School.
Joseph D. Harbaugh, Dean and Professor, Shepard Broad Law
Center, Nova Southeastern University.
Lawrence K. Hellman, Dean and Professor of Law, Oklahoma
City University School of Law.
Patrick E. Hobbs, Dean and Professor of Law, Seton Hall
University School of Law.
Jose Roberto Juarez, Jr., Dean and Professor of Law,
University of Denver Sturm College of Law.
W. H. Knight, Jr., Dean and Professor, University of
Washington School of Law, Seattle, Washington.
Brad Saxton, Dean & Professor of Law, Quinnipiac University
School of Law.
Stewart J. Schwab, the Allan R. Tessler Dean & Professor of
Law, Cornell Law School.
Geoffrey B. Shields, President and Dean and Professor of
Law, Vermont Law School.
Aviam Soifer, Dean and Professor, William S. Richardson
School of Law, University of Hawai'i.
Emily A. Spieler, Dean, Edwin Hadley Professor of Law,
Northeastern University School of Law.
Kurt A. Strasser, Interim Dean and Phillip I. Blumberg
Professor, University of Connecticut Law School.
Leonard P. Strickman, Dean, Florida International
University, College of Law.
Steven L. Willborn, Dean & Schmoker Professor of Law,
University of Nebraska College of Law.
Frank H. Wu, Dean, Wayne State University Law School.
David Yellen, Dean and Professor, Loyola University Chicago
School of Law.
Mr. LEAHY. Kenneth Starr, the former independent counsel and
Solicitor General for the first President Bush, wrote that the
Constitution's conditions for suspending habeas corpus have not been
met and that doing it would be problematic.
The post-9/11 world requires us to make adjustments. In the original
PATRIOT Act five years ago, we made adjustments to accommodate the
needs of the Executive, and more recently, we sought to fine-tune those
adjustments. I think some of those adjustments sacrificed civil
liberties unnecessarily, but I also believe that many provisions in the
PATRIOT Act were appropriate. I wrote many of the provisions of the
PATRIOT Act, and I voted for it.
This bill is of an entirely different nature. The PATRIOT Act took a
cautious approach to civil liberties and while it may have gone too far
in some areas, this bill goes so much further than that. It takes an
entirely dismissive and cavalier approach to basic human rights and to
our Constitution.
In the aftermath of 9/11, Congress provided in section 412 of the
PATRIOT Act that an alien may be held without charge if, and only if,
the Attorney General certifies that he is a terrorist or that he is
engaged in activity that endangers the national security. He may be
held for seven days, after which he must be placed in removal
proceedings, charged with a crime, or released. There is judicial
review through habeas corpus proceedings, with appeal to the D.C.
Circuit.
Compare that to section 7 of the current bill. The current bill does
not provide for judicial review. It would preclude it. It does not
require a certification by the Attorney General that the alien is a
terrorist. It would apply if the alien was ``awaiting'' a Government
determination whether the alien is an ``enemy combatant.'' And it is
not limited to seven days. It would enable the Government to detain an
alien for life without any recourse whatsoever to justice.
What has changed in the past 5 years that justifies not merely
suspending but abolishing the writ of habeas corpus for a broad
category of people who have not been found guilty, who have not even
been charged with any crime? What has turned us? What has made us so
frightened as a nation that now the United States will say, we can pick
up somebody on suspicion, hold them forever, they have no right to even
ask why they are being held, and besides that, we will not even charge
them with anything, we will just hold them? What has changed in the
last 5 years?
Is our Government is so weak or so inept and our people so terrified
that we have to do what no bomb or attack could ever do, and that is
take away
[[Page S10359]]
the very freedoms that define America? We fought two world wars, we
fought a civil war, we fought a revolutionary war, all these wars to
protect those rights.
And now, think of those people who have given their lives, who fought
so hard to protect those rights. What do we do? We sit here, privileged
people of the Senate, and we turn our backs on that. We throw away
those rights.
Why would we allow the terrorists to win by doing to ourselves what
they could never do and abandoning the principles for which so many
Americans today and throughout our history have fought and sacrificed?
What has happened that the Senate is willing to turn America from a
bastion of freedom into a cauldron of suspicion, ruled by a government
of unchecked power?
Under the Constitution, a suspension of the writ may only be
justified during an invasion or a rebellion, when the public safety
demands it. Six weeks after the deadliest attack on American soil in
our history, the Congress that passed the PATRIOT Act rightly concluded
that a suspension of the writ would not be justified.
But now, 6 weeks before a midterm election, as the fundraising
letters are running around, the Bush-Cheney administration and its
supplicants in Congress deem a complete abolition of the writ the
highest priority, a priority so urgent that we are allowed no time to
properly review, debate, and amend a bill we first saw in its current
bill less than 72 hours ago. There must be a lot of fundraising letters
going out.
Notwithstanding the harm the administration has done to national
security--first by missing their chance to stop September 11 and then
with their mismanaged misadventures in Iraq--there is no new national
security crisis. Apparently, there is only a Republican political
crisis. And that, as we know, is why this un-American, unconstitutional
legislation is before us today.
We have a profoundly important and dangerous choice to make today.
The danger is not that we adopt a pre-9/11 mentality. We adopted a
post-9/11 mentality in the PATRIOT Act when we declined to suspend the
writ, and we can do so again today.
The danger, as Senator Feingold has stated in a different context, is
that we adopt a pre-1776 mentality, one that dismisses the Constitution
on which our American freedoms are founded.
Actually, it is worse than that. Habeas corpus was the most basic
protection of freedom that Englishmen secured from their King in the
Magna Carta. The mentality adopted by this bill, in abolishing habeas
corpus for a broad swath of people, is not a pre-9/11 mentality, it is
a pre-1215--that is the year, 1215--mentality, a mentality we did away
with in the Magna Carta and our own Constitution.
Every one of us has sworn an oath to uphold the Constitution. In
order to uphold that oath, I believe we have a duty to vote for this
amendment--
the Specter-Leahy amendment--and against this irresponsible and
flagrantly unconstitutional bill. That is what I will do.
The Senator from Vermont answers to the Constitution and to his
conscience. I do not answer to political pressure.
Madam President, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
The Senator from Virginia.
Mr. WARNER. Madam President, we have colleagues on this side who are
ready to proceed. Now, there is a great deal of time left on the other
side, but in order of preference, I say to Senator Sessions, if you are
ready to proceed.
Mr. SESSIONS. Madam President, I will be pleased to do so.
Mr. WARNER. Madam President, might I inquire of the amount of time
under my control for those in opposition to the amendment?
The PRESIDING OFFICER. Senator Warner controls 11 minutes.
Mr. WARNER. Eleven minutes.
The PRESIDING OFFICER. Senator Specter controls 20 minutes.
Mr. SESSIONS. Madam President, if the chairman would approve, I would
ask for 3 minutes.
Mr. WARNER. Yes. And following that, Senator Cornyn for such time as
he may need.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, habeas corpus--the right to have your
complaints heard while in custody--is a part of our Constitution. But
we have to remember habeas corpus did not mean everything in the whole
world when it was adopted. So what did ``habeas'' mean? What does it
mean today and at the time it was adopted? It was never, ever, ever,
ever intended or imagined that during the War of 1812, if British
soldiers were captured burning the Capitol of the United States--as
they did--that they would have been given habeas corpus rights. It was
never thought to be. Habeas corpus was applied to citizens, really, at
that time. I believe that is so plain as to be without dispute.
So to say: Habeas corpus, what does it mean? What did those words
mean when the people ratified it? They did not intend to provide it to
those who were attacking the United States of America. We provide
special protections for prisoners of war who lawfully conduct a war
that might be against the United States. We give them great
protections. But unlawful combatants, the kind we are dealing with
today, have never been given the full protections of the Geneva
Conventions.
Second, my time is limited, and I have been so impressed with the
debate that has gone on with Senators Kyl and Cornyn and Graham, and I
associate myself generally with those remarks, but I want to recall
that in a spate of an effort to appease critics and those who had
``vague concerns,'' not too many years ago, this Congress passed
legislation that said that CIA-gathered information could not be shared
with the FBI. We passed a law in this Congress to appease the left in
America, the critics of our efforts against communism, primarily. And
we have put a wall between the CIA and FBI.
So that was politically good. Everybody must have been happy about
that. I was not in the Senate then. Then they complained that the CIA
was out talking with people who had criminal records who may have been
involved in violence, and this was somehow making our CIA complicitous
in dealing with dangerous people, and we banned that. We passed a
statute that eliminated that. And everybody felt real good that we had
done something special.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SESSIONS. Madam President, I ask unanimous consent for an
additional minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. After 9/11, we realized both of those were errors of
the heart perhaps, but of the brain. And so what happened? We reversed
both of them. We reversed them both. And we need to be sure that the
legislation we are dealing with today does not create a long-term
battle with the courts over everybody who is being detained. That is a
function of the military and the executive branch to conduct a war.
Madam President, I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I understand I have 6 minutes on the
bill in general.
The PRESIDING OFFICER. The Senator is correct.
Mr. FEINGOLD. Madam President, I oppose the Military Commissions Act.
Let me be clear: I welcomed efforts to bring terrorists to justice.
Actually, it is about time. This administration has too long been
distracted by the war in Iraq from the fight against al-Qaida. We need
a renewed focus on the terrorist networks that present the greatest
threat to this country.
We would not be where we are today, 5 years after September 11, with
not a single Guantanamo Bay detainee having been brought to trial, if
the President had come to Congress in the first place, rather than
unilaterally creating military commissions that did not comply with the
law. The Hamdan decision was a historic rebuke to an administration
that has acted for years as if it is above the law.
I have hoped that we would take this opportunity to pass legislation
that allows us to proceed in accordance with our laws and our values.
That is what separates America from our enemies. These trials,
conducted appropriately, have the potential to demonstrate to
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the world that our democratic constitutional system of government is
our greatest strength in fighting those who attack us.
That is why I am saddened I must oppose this legislation because the
trials conducted under this legislation may send a very different
signal to the world, one that I fear will put our troops and personnel
in jeopardy both now and in future conflicts. To take just a few
examples, this legislation would permit an individual to be convicted
on the basis of coerced testimony and hearsay, would not allow full
judicial review of the conviction, and yet would allow someone
convicted under these rules to be put to death. That is just simply
unacceptable.
Not only that, this legislation would deny detainees at Guantanamo
Bay and elsewhere--people who have been held for years but have not
been tried or even charged with any crime--the ability to challenge
their detention in court. The legislation before us is better than that
originally proposed by the President, which would have largely codified
the procedures the Supreme Court has already rejected. And that is
thanks to the efforts of some of my Republican colleagues, for whom I
have great respect and admiration. But this bill remains deeply flawed,
and I cannot support it.
One of the most disturbing provisions of this bill eliminates the
right of habeas corpus for those detained as enemy combatants. I
support an amendment by Senator Specter to strike that provision from
the bill.
Habeas corpus is a fundamental recognition that in America the
Government does not have the power to detain people indefinitely and
arbitrarily. And in America, the courts must have the power to review
the legality of executive detention decisions.
This bill would fundamentally alter that historical equation. Faced
with an executive branch that has detained hundreds of people without
trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the
executive branch alone, could be picked up, even in the United States,
and held indefinitely without trial and without any access whatsoever
to the courts. They would not be able to call upon the laws of our
great Nation to challenge their detention because they would have been
put outside the reach of the law.
Some have suggested that terrorists who take up arms against this
country should not be allowed to challenge their detention in court.
But that argument is circular. The writ of habeas allows those who
might be mistakenly detained to challenge their detention in court
before a neutral decisionmaker. The alternative is to allow people to
be detained indefinitely with no ability to argue that they are not, in
fact--that they are not, in fact--enemy combatants.
There is another reason we must not deprive detainees of habeas
corpus, and that is the fact that the American system of government is
supposed to set an example for the world as a beacon of democracy.
A group of retired diplomats sent a very moving letter to explain
their concerns about this habeas-stripping provision. Here is what they
said:
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.
Many dedicated patriotic Americans share these grave reservations
about this particular provision of this bill. Unfortunately, the
suspension of the Great Writ is not the only problem with this
legislation. Unfortunately, I do not have time to discuss them all.
But the bill also appears to permit individuals to be convicted, and
even sentenced to death, on the basis of coerced testimony. According
to the legislation, statements obtained through cruel, inhuman, or
degrading treatment, as long as it was obtained prior to December 2005,
when the McCain amendment became law, would apparently be admissible in
many instances in these military commissions.
Now, it is true that the bill would require the commission to find
these statements have sufficient and probative value. But why would we
go down this road of trying to convict people based on statements
obtained through cruel, inhuman, or degrading interrogation techniques?
Either we are a nation that stands against this type of cruelty and for
the rule of law or we are not. We cannot have it both ways.
In closing, let me do something I do not do very often, and that is
quote my former colleague, John Ashcroft. According to the New York
Times, in a private meeting of high-level officials in 2003 about the
military commission structure, then-Attorney General Ashcroft
reportedly said:
Timothy McVeigh was one of the worst killers in U.S.
history. But at least we had fair procedures for him.
How sad that this Congress would seek to pass legislation about which
the same cannot be said.
Mr. President, I strongly support Senator Specter's amendment to
strike the habeas provision from this bill.
At its most fundamental, the writ of habeas corpus protects against
abuse of government power. It ensures that individuals detained by the
government without trial have a method to challenge their detention.
Habeas corpus is a fundamental recognition that in America, the
government does not have the power to detain people indefinitely and
arbitrarily. And that in America, the courts must have the power to
review the legality of executive detention decisions.
It goes without saying that this is not a new concept. Habeas corpus
is a longstanding vital part of our American tradition, and is
enshrined in the U.S. Constitution, article 1, section 9, where it
states:
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
The Founders recognized the importance of this right. Alexander
Hamilton in Federalist Paper No. 84 explained the importance of habeas
corpus, and its centrality to the American system of government and the
concept of personal liberty. He quoted William Blackstone, who warned
against the ``dangerous engine of arbitrary government'' that could
result from unchallengeable confinement, and the ``bulwark'' of habeas
corpus against this abuse of government power.
As a group of retired judges wrote to Congress, habeas corpus
``safeguards the most hallowed judicial role in our constitutional
democracy--ensuring that no man is imprisoned unlawfully.''
This bill would fundamentally alter that historical equation. Faced
with an administration that has detained hundreds of people without
trial for years now, it would eliminate the right of habeas corpus for
anyone the executive branch labels an alien ``enemy combatant.''
That's right. It would eliminate the right of habeas corpus for any
alien detained by the United States, anywhere in the world, and
designated by the government as an enemy combatant. And it would do so
in the face of years of abuses of power that--thus far--have been
reined in primarily through habeas corpus challenges in our Federal
courts.
Let me be clear about what it does. Under this legislation, some
individuals, at the designation of the executive branch alone, could be
picked up, even in the United States, and held indefinitely without
trial and without any access whatsoever to the courts. They would not
be able to call upon the laws of our great Nation to challenge their
detention because they would have been put outside the reach of the
law.
That is unacceptable, and it almost surely violates our Constitution.
The rule of law is something deeper and more profound than the
collection of laws that we have on paper. It is a principle that
undergirds our entire society, and that has been central to our nation
since its very founding. As Thomas Paine explained at the time of our
country's birth in 1776, the rule of law is that principle, that
paramount commitment, ``that in America, the law is king. . . . and
there ought to be no other.'' The rule of law tells us that no man is
above the law--and as an extension of that principle--that no executive
will be able to act unchecked by our legal system.
Yet by stripping the habeas corpus rights of any individual who the
executive branch decides to designate as an enemy combatant, that is
precisely
[[Page S10361]]
where we end up--with an executive branch subject to no external check
whatsoever. With an executive branch that is king.
Now, it may well be that this provision will be found
unconstitutional as an illegal suspension of the writ of habeas corpus.
But that determination will take years of protracted litigation. And
for what? The President has been urging Congress to pass legislation so
that Khalid Sheikh Mohammed, the alleged mastermind of 9-11, and other
``high value'' al-Qaida detainees can be tried. This bill is supposed
to create a framework for prosecuting unlawful enemy combatants for war
crimes that the Supreme Court can accept following the decision this
summer in the Hamdan case. There is absolutely no reason why we need to
restrict judicial review of the detention of individuals who have not
been charged with any crime.
That raises another point. People who are actually subject to trial
by military commission will at least be able to argue their innocence
before some tribunal, even if I have grave concerns about how those
military commissions would proceed under this legislation. But people
who have not been charged with any crime will have no guaranteed venue
in which to proclaim and prove their innocence. As three retired
generals and admirals explained in a letter to Congress:
The effect would be to give greater protections to the
likes of Khalid Sheikh Mohammed than to the vast majority of
the Guantanamo detainees.
How does this make any sense? Why would we turn our back on hundreds
of years of history and our Nation's commitment to liberty?
We have already, in the Detainee Treatment Act, said that no new
habeas challenges can be brought by detainees at Guantanamo Bay. The
Supreme Court found in Hamdan v. Rumsfeld that the Detainee Treatment
Act did not apply to Hamdan's pending habeas petition, and went forward
with considering his argument that the President's military commission
structure was illegal. And I would think that we should all be pleased
that it did so, because otherwise we would have had to wait for several
more years for Hamdan's trial to be completed before he would have had
any chance to challenge the President's military commission system in
court. The Supreme Court's decision striking down those commissions
would have occurred several years later. And we would be right back
where we are now, but with several more years of delay.
There is another reason why we must not deprive detainees of habeas
corpus, and that is the fact that the American system of government is
supposed to set an example for the world, as a beacon of democracy. And
this provision will only serve to harm others' perception of our system
of government.
A group of retired diplomats sent a very moving letter explaining
their concerns about this habeas-stripping provision. Here is what they
said:
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.
They went on to explain further:
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.
That is a direct quote.
Let's not go down this road. Let's remove this provision from the
bill.
As is already clear, I'm not the only one who has serious concerns
about this provision. There is bipartisan support for this amendment.
And Congress has received numerous letters objecting to the habeas
provision, including from Kenneth Starr; a group of former diplomats;
two different groups of law professors; a group of retired judges; and
a group of retired generals. Many, many dedicated patriotic Americans
have grave reservations about this particular provision of the bill.
They have reservations not because they sympathize with suspected
terrorists. Not because they are soft on national security. Not because
they don't understand the threat we face. No. They, and we in the
Senate who support this amendment, are concerned about this provision
because we care about the Constitution, because we care about the image
that America presents to the world as we fight the terrorists. Because
we know that the writ of habeas corpus provides one of the most
significant protections of human freedom against arbitrary government
action ever created. If we sacrifice it here, we will head down a road
that history will judge harshly and our descendants will regret.
Let me close with something that this group of retired judges said.
For two hundred years, the federal judiciary has maintained
Chief Justice Marshall's solemn admonition that ours is a
government of laws, and not of men. The proposed legislation
imperils this proud history by abandoning the Great Writ. . .
.
Mr. President, we must not imperil our proud history. We must not
abandon the Great Writ. We must not jeopardize our Nation's proud
traditions and principles by suspending the writ of habeas corpus, and
permitting our government to pick people up off the street, even in
U.S. cities, and detain them indefinitely without court review. That is
not what America is about.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, I ask unanimous consent for 3 minutes
from our time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. First of all, Madam President, I would like to point out
there are many myths about this legislation. We need to get to the
facts and get to the truth so people can understand what the choices
are.
Our distinguished colleague from Wisconsin, in my view, also
perpetrated another myth by saying this war is all about Iraq, when, in
fact, the new leader of al-Qaida in Iraq, succeeding al-Zarqawi, just
reported in an Associated Press story that 4,000 al-Qaida foreign
fighters have been killed in Iraq due to the war effort there. But this
is a global war, and it requires a uniformed treatment of the
terrorists in a way that reflects our values but also the fact that we
are at war.
I think our colleagues need to be reminded of legislation which we
passed in December of 2005, known as the Detainee Treatment Act. When
people come here and suggest that we are stripping all legal rights
from terrorists who are detained at Guantanamo Bay, they are simply
flying in the face of the Detainee Treatment Act that we passed in
December 2005, which provides not only a review through a combatant
status review tribunal, with elaborate procedures to make sure there is
a fair hearing, but then a right to appeal to the District of Columbia
Circuit Court of Appeals, not only to make sure that the right
standards were applied--that is, whether the military applied the right
rules to the facts--but also to attack the constitutionality of the
system should they choose to do so. So those who claim we are simply
stripping habeas corpus rights are simply flying in the face of the
facts as laid out in the Detainee Treatment Act.
Now, the question may be: Are we going to provide what the law
requires? Are we going to provide additional rights and privileges that
some would like to confer upon these high-value detainees located at
Guantanamo Bay? But the fact is, to do what the proponents of this
amendment propose would be to divert our soldiers from the battlefield
and to tie their hands in ways with frivolous litigation and appeals.
And the last thing that I would think any of us would want to do would
be to provide an easy means for terrorists to sue U.S. troops in U.S.
courts, particularly when it is not required by the Constitution, laws
of the United States, not mandated by the Supreme Court, and we have
provided an adequate substitute remedy, which I believe is entirely
consistent with the U.S. Supreme Court's decisions in this area.
We have provided an avenue or a process by which these detainees can
have their rights protected, such rights as they have being unlawful
combatants attacking innocent civilians. America is conferring rights
upon them that we do not have to confer, but we are conferring them
because we believe there ought to be a fair process and we ought to be
consistent with our Constitution and with the decisions of the U.S.
Supreme Court.
[[Page S10362]]
The last thing I would think any of us would want to do would be to
tie the hands of our soldiers to permit terrorists to sue U.S. troops
in Federal court at will.
The PRESIDING OFFICER (Mr. Ensign). The Senator's time has expired.
The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I ask unanimous consent for 10 minutes from
Senator Warner's side on the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Mr. President, I appreciate the opportunity to talk
generally about the bill. I have already spoken about the importance of
not affording habeas corpus to the unlawful combatants when they have
more protections than international law requires, or than any other
country provides.
Speaking on the bill, for the last 5 years, our most important job
has been to protect our families from another terrorist attack.
Our children, our mothers, fathers, grandparents, and grandchildren--
none of them deserved to die in the 9/11 attacks; none deserve to die
in another terrorist attack. That is why we are doing everything we can
to protect our families by stopping terrorists, capturing them,
learning their secrets, foiling their plots, and bringing the
terrorists to justice.
Through our hard work, there has not been another direct attack on
U.S. soil since 9/11. We have worked hard to prevent and stop attacks
in the last 5 years and must continue to prevent future attacks. We
dramatically boosted airport and airline security. We hired new airport
screeners, implemented new checks, and even put armed agents on flights
where necessary.
We added thousands of new FBI agents, thousands of new intelligence
officers, and increased their budgets by billions to provide new armies
against terrorism.
We passed the PATRIOT Act to provide the tools needed to discover
terrorist plots and stop them. We reorganized our intelligence agencies
to bring a single focus and purpose against terrorism.
We tore down the walls between law enforcement and intelligence to
get terror planning and plot information to authorities as quick as
possible.
All of this is going on as I speak, as we sleep at night, as our
children go to school, we are fighting the war on terrorism.
The President recently highlighted some of the successes we have had
because of our terror fighting tools and efforts. He recounted how we
have captured terrorists, used new tools to learn their secrets,
captured additional terrorists, connected the dots of their
conspiracies, and foiled their terror attack plans.
But now some want to tie the hands of our terror fighters, they want
to take away the tools we use to fight terror--handcuff us, hamper us--
in our fight to protect our families.
It's not new, really. Partisans have slowed our efforts to fight
terror every step of the way.
Many on the other side voted against the PATRIOT Act.
Many blocked reauthorization of the PATRIOT Act for months. The
Democrat Leader actually boasted, ``We killed the PATRIOT Act.''
Thank Heavens that wasn't true. Now, I know that they all love our
country. They are not unpatriotic. They just don't understand the
terrorist enemies we face.
These critics are not willing to do what is necessary to protect
fully our families from terrorists.
You don't have to take my word for it, just look at their record over
the last 5 years. Whether or not you would say terror war critics have
a weak record on terror, they have certainly tried to block, slow down,
and take away our terror fighting tools.
Some congressional Democrats voted to cut and run from Iraq. Nothing
would embolden terrorists more than to see the U.S. turn tail and run
home.
Osama bin Laden cited America quitting Somalia, and failing to
respond to the U.S.S. Cole bombing, as signs of U.S. weakness and
vulnerability. We all know what happened later.
Democrats in the Senate have blocked the appointment of senior anti-
terror officials. The 9/11 commission report recommended better
coordination between law enforcement and intelligence officials. Only
last week did Democrats stop blocking the appointment of the senior
Justice Department official for National Security.
Partisans readily spread classified information leaked to the public
or the media. They call news conferences to highlight cherry-picked
intelligence information, or quote newspaper articles betraying our
Nation's secret terror fighting programs. Don't they think this
encourages the enemy or demoralizes our troops or allies?
Some propose to handcuff our ability to discover terrorist plots.
They propose to make it hard to listen in on a potential terrorist
calling from a foreign country, or to a foreign country to discuss
terror plans.
If al-Qaida calls in, we ought to be listening. That is authorized
under the Constitution. The Constitution clearly gives the President
the power to intercept phone calls under the foreign intelligence
exception in the amendment.
In my meetings with intelligence officials both abroad and here at
home I have heard repeatedly how the disclosure, not only of classified
information, but also of our interrogation techniques, are extremely
damaging.
Our personnel have encountered enemy combatants trained to resist
disclosed interrogation techniques thanks to leakers in our media.
If we lay out precisely the techniques that will be used and we print
them in the Federal Register, they will be in an al-Qaida training
manual within 48 hours.
I'm pleased that with the current Military Commissions legislation
moving forward, we have clarified our strict adherence to standards
that forbid torture in any way, shape or form and we are allowing our
CIA to move forward with a humane interrogation program whose
techniques will not be published in the Federal Register, or even
worse, in another newspaper disclosure.
Critics support trial procedures that would give terrorists secret
intelligence information.
Why on Earth would we hand over classified evidence and information
to terrorists so that information could be used against us in the
future?
Remember the 1993 World Trade Center bombing? The prosecution of
terror suspects there involved giving over 200 names of terror suspects
to the attorneys representing the terrorists. They gave them that in a
trial, and some months later, after an investigation of the bombings in
Africa, we captured the al-Qaida documents which had all of that
information that had been given to the attorneys. So once you give it
to a detainee or the detainee's attorney, you can count on it getting
out.
One other thing is important. Some would propose exposing our terror
fighters to legal liability. They oppose giving our terror fighters
certainty and clarity in how to go about their jobs. They leave them
vulnerable to prosecution and handcuff their efforts and leave the rest
of us vulnerable to terror plots that went undiscovered.
Right now, these people are worried and they are buying insurance.
People who are trying to carry out the very important intelligence
missions of the United States, if they ask any questions, or if they
don't give them four square meals a day and keep them in a comfortable
motel, they are afraid they are going to get sued. We need to give
protection to the people who are operating within the law as we are
laying it out to make sure they don't cross over the line.
The problem we have is that if the critics take away the valuable
tools we have in breaking apart terror plots, we are going to be
significantly less safe. As the President said, the CIA interrogation
program has already succeeded in breaking apart terror conspiracies and
preventing several terror attacks. Critics within the program are
preventing us from punishing terrorists and gaining valuable
information that could prevent future attacks.
One thing I, along with the President and my Republican colleagues,
share with the war critics is a strong opposition to torture. It is
abhorrent, evil, and has no place in the world. What I oppose is how
terror war critics would go soft on terror suspects, allowing them
comforts they surely don't deserve.
Critics are being tough on targets. Terrorists argue that we should
treat them like prisoners of war under the
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Geneva Conventions. Article 72 of the Geneva Conventions on treatment
of prisoners of war says POWs shall be allowed to receive parcels
containing foodstuffs. Is that what critics think the 9/11 Commission
conspirators deserve? Cookie care packages?
Article 71 says POWs shall be allowed to send and receive letters and
cards. Is that what opponents of the bill believe people who conspire
to cut off our heads deserve--letters from home? ``Mail call Ramzi bin
al-Shibh.''
Article 60 requires us to grant all POWs monthly advances of pay. It
even says how much: below sergeant, 8 Swiss francs; officers, 50 Swiss
francs; generals, 75 Swiss francs.
Do the critics think Khalid Sheik Mohammed deserves 50 Swiss francs
or 75?
Critics of being tough on terrorists say that we should adhere to
international standards of decency. Where was the decency when
international troops withdrew without a fight from Srebenica, Bosnia
allowing the genocide of its men and boys?
Where was the decency when the U.N. allowed Sudan, guilty of genocide
in Darfur, to serve on the Human Rights Commission, and allowed Cuba to
help monitor international human rights? This was neither moral nor
decent.
Some say that the tough treatment we are debating will lead to bad
treatment of America's soldiers in the future. That is a close cousin
to the argument that if we leave the terrorists alone they will stop
attacking us, or that America made them do it.
Do we need a reminder of how badly they are already treating us? The
Wall Street Journal reporter kidnapped by terrorists, Daniel Pearl, had
his head cut off long before the criminal acts of Abu Grahib or news of
the CIA prisons.
The charred bodies of our Special Forces dragged through the streets
of Mogadishu tell us what the vague standards of the Geneva Convention
got us.
As I said before, I support a torture ban. I also support provisions
that clearly ban cruel, inhuman treatment or intentionally causing
great suffering or serious injury. These are serious felonies, as they
should be. But what we cannot do is give up tough treatment short of
this that protects our families from attack.
What do critics think would happen if we went soft on terrorists?
Would they be satisfied with only name, rank and serial number? Would
they have us say to our terror suspects, ``Oh gosh darn, I was so
hoping you would willingly tell us your terror plots. Oh well, here's
your 50 Swiss franc advance pay, don't eat too much from your cookie
care package, we've scheduled a dentist appointment for you for
Tuesday.''
Of course not, that would be absurd to think that terrorists will
willingly tell us their plots. Terror war critics have been watching
too many Law and Order TV shows if they think some hokey good cop--bad
cop law enforcement approach will work on al-Qaida.
These people flew airplanes into buildings for heaven's sake, or
should I say for hell's sake.
America must fight with honor. We must fight from the moral high
ground.
But do not tell me we lack a moral basis for our fight against
terror. Show me someone who doubts America's moral basis in this fight
against terror and I will show you someone who has lost their own moral
compass.
The compass of America's future points to this bill. We live in an
age where we must fight terror. To win, we must fight tough in that
fight against terror. We must give our terror fighters the tools they
need and the protections they require to protect our families from
terror.
We cannot fall into the traps our terror war critics suggest:
handcuffing our law enforcement and intelligence agents, blocking our
terror fighting leadership, releasing and spreading our terror war
secrets, giving terror suspects our terror fighting methods and
techniques, granting terrorists overly-comfortable protections, going
soft on terrorists who hold the secrets of their plots, their attacks.
Our agents deserve better, our soldiers deserve better, our families
deserve better.
To start where I began, this is what all our efforts are about.
Protecting our vulnerable families. Protecting our children, protecting
our mothers and fathers, protecting grandparents and grandchildren.
None of the vulnerable it protects deserved to die in the 9/11 attacks,
and none deserve to die again in another terrorist attack.
I urge my colleagues to support this legislation.
Mr. WARNER. Mr. President, we are anxious to move to a vote on the
Specter amendment to accommodate a number of colleagues. Therefore, I
urge that the remaining time on the Specter amendment under the control
of Senator Specter, and the time in opposition under my control, be now
utilized by colleagues, such that we can move to that vote.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. That is not a unanimous consent request, is it?
Mr. WARNER. No.
Mr. LEVIN. We have three Senators who have been allocated time
specifically, and that time may be used relative to the amendment or in
general debate on the bill. I will not agree to any restriction on the
use of time that the Senator has been allocated.
Mr. WARNER. I recognize that. It is in our mutual interests to the
move ahead on the bill. There will be time after the vote for Senators
to speak. You have 18 minutes on the bill. I have 47 under my control
on general debate.
The PRESIDING OFFICER. The Senator from California is recognized.
Mr. WARNER. Mr. President, the time for the Senator from California
is under which category?
The PRESIDING OFFICER. General debate time.
Mrs. FEINSTEIN. Mr. President, I strongly believe the true test of a
nation comes when we face hard decisions and hard times. It is really
not the easy decisions that test our character and our commitment to
fundamental principles and values. It is when the easy answer is not
the right answer, but is politically expedient.
We face one of those times right now. The war against terror has
challenged our country to fight a nontraditional enemy--one that is not
part of any State or military. The enemy does not wear a uniform, it
has no code of ethics, and it relishes in the killing of innocents. It
strikes in cowardly ways. They have also challenged us as to whether we
can continue during this period in fighting this enemy to abide by the
bedrock of our justice system, the Constitution.
Before us on the floor of the Senate is a bill to address how our
country will interpret the Geneva Conventions, and how we will treat
those we apprehend and detain in this nontraditional, asymmetric war.
I truly believe that how we answer these challenges will not only
test our commitment to our Constitution, but it will also test our very
foundation of justice. It sends a message, also, to other countries--a
message that will ultimately dictate how our soldiers and personnel are
treated should they be captured by others.
Earlier this month, a bipartisan group of Senators worked together to
develop a solution to these complex issues, and the Armed Services
Committee reported a compromise military commissions bill to the Senate
by a vote of 15 to 9.
Unfortunately, that is not the bill that is before this body today.
Instead, House and Senate Republicans met with the White House and made
changes that significantly altered the impact of this legislation and
changed the bill in such a manner that I cannot at present support its
passage without substantial amendment.
I do not believe the bill before us is constitutional. It is being
rushed through a month before a major election in which the leadership
of this very body is challenged.
The first of my concerns is the issue of habeas corpus. I very much
support the amendment offered by the chairman of the Judiciary
Committee. The bill before us eliminates a basic right of the American
justice system, and that is the right of habeas corpus review. It is
constitutionally provided to ensure that innocent people are not held
captive or held indefinitely.
Habeas corpus has been a cornerstone of our legal system. It goes
back, as it has been said, to the days of the Magna Carta. Our Founding
Fathers enshrined this right in the Constitution because they
understood mistakes happen and there is need for someone to appeal a
mistake or a wrong conviction.
Just a few weeks ago, a man named Abu Bakker-Qassim, who was held at
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Guantanamo, described how he was held for years, even though he had
never been a terrorist or a soldier. He was never even on a
battlefield. He had been sold by Pakistani bounty hunters to the United
States military for $5,000. Qassim said it was only because of the
availability of habeas corpus that this mistake was able to be
corrected. That is why Senator Specter's amendment is right.
If innocent people are at Guantanamo--and they presumably are and
have been--or if abuses are taking place--and its likely some have--
there must be an avenue to address these problems. Eliminating habeas
corpus rights is a serious mistake and it will open the door to other
efforts to remove habeas corpus.
Next, I am very concerned about the ability to use coerced testimony.
This will be the first time in modern history that United States
military tribunals will be free to admit evidence that was obtained
through abusive tactics so long as the judge determines it is reliable
and relevant or so long as it was obtained before December 30, 2005.
We have heard from countless witnesses that coerced testimony is
inherently unreliable. We don't want to send the message that coercion
is an acceptable tactic to use on Americans as well.
The fact is we had testimony in the Judiciary Committee from the head
of all of the Judge Advocate Corps who said they did not believe
torture worked.
I am very concerned about the definition of torture and the lack of
clarity on cruel and inhumane treatment--especially combined with
giving the President discretion to decide what he believes
interrogation methods are permissible.
We have already seen through press reports that this administration
pushes the boundaries on allowable interrogation techniques and these
abuses cannot continue.
Finally, I am concerned about the rules for what evidence may be used
to convict someone and then their limited ability to have a court
review their case.
If one is not allowed to know what the basis of conviction was and
then is only given limited judicial review of their conviction, how can
we be confident that we are not holding innocent people who were caught
in the wrong place at the wrong time--such an outcome severely harms
our standing in the global community.
I believe these issues are too important for us to rush through a
bill of this magnitude.
These are difficult times and difficult issues. However, I do not
believe the expediency of the moment or the political winds of an
impending election should lead us to abandon our core values as a
Nation.
The Founding Fathers created specific constitutional limitations. And
since that time the United States has been at the forefront of
demanding humane treatment of all people. We must not turn our back on
these fundamental principles.
I am disappointed to be voting against this bill. I had hoped a real
bipartisan compromise could be reached.
The PRESIDING OFFICER. The Senator's time has expired. Who yields
time?
Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished
Senator from Oregon.
The PRESIDING OFFICER. The distinguished Senator is recognized for 10
minutes.
Mr. SMITH. Mr. President, this is a most difficult issue we are
engaged in. We are arguing about what I believe is a cornerstone
principle of the rule of law, and that is the issue of habeas corpus.
I know this is an unusual war, and I don't know its duration. No one
fully does. But I do know if we are going to be true to our
Constitution and to the rule of law, we have to be true to that law.
I have traveled as a Senator all over this globe and have spoken with
great pride about our rule of law and the superiority of democracy to
other means of government. While I support this bill in providing due
process for these detainees, I rise because I am concerned about the
provisions relating to habeas corpus.
I am reminded of the words of Thomas Jefferson who once said:
The habeas corpus secures every man here, alien or citizen,
against everything which is not law, whatever shape it may
assume.
On another occasion he said:
I would rather be exposed to the inconveniences attending
too much liberty than to those attending too small a degree
of it.
What we are talking about is section 7 of this bill, which will
further strip the Federal courts of jurisdiction to hear pending Gitmo
cases as it applies to all pending and future cases. Had this proposal
been law earlier this year, the Supreme Court may not have had
jurisdiction to hear the Hamdan case, which is what brings us here
today.
At the heart of the habeas issue is whether the President should have
the sole authority to indefinitely detain unlawful enemy combatants
without any judicial restraints. Congress will provide the President
with this unilateral authority by enacting legal restrictions aimed at
stripping courts of jurisdiction to hear habeas claims. In doing so,
the President does not have to show any cause for detaining an
individual labeled an ``unlawful enemy combatant.''
Stripped of jurisdiction by recent legislation, U.S. courts will not
have the ability to hear an individual's request to learn why he is
even being detained. Providing detainees with the right to ask a court
to evaluate the legality of their detention I believe would not cost
U.S. lives. However, it will test American laws.
Claims have been made that providing detainees the right to hear why
they are being detained necessitates providing them with classified
information. I do not believe this to be true. Similar to the military
commission legislation, it would only allow a judge or an attorney with
security clearance to see the evidence against the defendant to
evaluate its reliability and probative value.
Permanent detention of foreigners without reason damages our moral
integrity regarding international rule of law issues. To quote:
``History shows that in the wrong hands, the power to jail people
without showing cause is a tool of despotism.'' A responsibility this
Nation has always assumed is to ensure that no one is held prisoner
unjustly.
Stripping courts of their authority to hear habeas claims is a
frontal attack on our judiciary and its institutions, as well as our
civil rights laws. Habeas corpus is a cornerstone of our constitutional
order, and a suspension of that right, whether for U.S. citizens or
foreigners under U.S. control, ought to trouble us all. It certainly
gives me pause.
The right to judicial appeal is enshrined in our Constitution. It is
part and parcel of the rule of law. The Supreme Court has described the
writ of habeas corpus as ``the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless State action.''
Some of the darkest hours in our Nation's history have resulted from
the suspension of habeas corpus, notably the internment of Japanese
Americans during World War II.
Obviously, I am not here to question the wisdom of Abraham Lincoln.
We have had no wiser President. But one of the most controversial
decisions of his administration was the suspension of habeas corpus for
all military-related cases, ignoring the ruling of a U.S. circuit court
against this order. He, in fact, I believe, if my memory of history
serves me, imprisoned the entire Maryland Legislature because of their
attempts to secede from the Union. He did it. It happened. It is not
necessarily the proudest moment of his administration. But it is
something that has been raging with controversy ever since.
Habeas petitions are not clogging the courts and are not frivolous.
The administration claims that the approximately 200 pending habeas
claims are clogging our courts and are for the most part frivolous.
These petitions are not an undue administrative burden. Judges always
have the discretion to dismiss frivolous claims, and indefinite
detainment of a foreigner without showing cause, Mr. President, is not
frivolous.
I suppose what brings me to the floor today is my memory of my study
of the law. While I was in law school, I was particularly taken with
the study of the Nuremberg trials. The words of
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Justice Robert H. Jackson inspired me then and inspire me still. He was
our chief counsel for the allied powers. What he said on that occasion
in his closing address to the international military tribunal is an
inspiration. Said he:
That four great nations, flushed with victory and stung
with injury stay the hand of vengeance and voluntarily submit
their captive enemies to the judgment of the law is one of
the most significant tributes that Power has ever paid to
Reason.
On the fairness of the Nuremberg proceedings, he said in his closing
statement:
Of one thing we may be sure. The future will never have to
ask with misgiving, what could the Nazis have said in their
favor. History will know that whatever could be said, they
were allowed to say. They have been given the kind of a Trial
which they, in the days of their pomp and power, never gave
to any man. But fairness is not weakness. The extraordinary
fairness of these hearings is an attribute to our strength.
I simply feel this particular provision in this bill ought to be
taken out. We ought not to suspend the writ of habeas corpus. We should
go the extra mile, not as a sign of weakness, but as evidence of our
strength.
I intend to vote for the underlying bill and ultimately will leave
the judgment of its constitutionality without habeas to the judgment of
the judiciary, but I believe we are called upon to go the extra mile to
show our strength and not our weakness, and ultimately our Nation will
be stronger if we stand by the rule of law.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I thank the distinguished Senator from
Oregon for those very cogent remarks, especially in the context of
additional Republican support, stated bluntly, and in light of more
moderate Republican support.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, the Democratic leader has yielded 2 minutes
of his leadership time to me. I ask unanimous consent that I be allowed
to proceed on that basis.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I support the Specter-Leahy amendment on
the writ of habeas corpus. The habeas corpus language in this bill is
as legally abusive of the rights guaranteed in the U.S. Constitution as
the actions at Abu Ghraib, Guantanamo, and the CIA's secret prisons
were physically abusive of the detainees themselves.
The Supreme Court has long held that all persons inside the United
States, including lawful permanent residents and other aliens, have a
constitutional right to the writ of habeas corpus. Yet, this provision
purports to apply even to aliens who are detained inside the United
States, including lawful permanent residents.
Unlike the provision that was included in the Detainee Treatment Act
last year, this court-stripping provision would apply on a world-wide
basis, not just at Guantanamo. It would apply to detainees of all
Federal agencies, not just the Department of Defense. It would attempt
to expressly strip the courts of jurisdiction over all pending cases.
This provision goes beyond stripping the courts of habeas corpus
jurisdiction. It also prohibits the U.S. courts from hearing or
considering ``any other action against the United States or its agents
relating to any aspect of the detention, treatment, or trial'' of an
alien detainee. As a result, this provision would leave many detainees
without any alternative legal remedy at all, even after released, even
if there is every reason to believe that the detention was in error,
and even if the detainee was tortured or abused while in U.S. custody.
For example, the Canadian Government recently concluded, after a
comprehensive review, that one of its citizens had been handed over by
U.S. authorities to a foreign country which subjected him to torture
and cruel and inhuman treatment, without any evidence that he was an
enemy combatant or that he supported any terrorist group. Under this
habeas corpus court-stripping provision, this individual would have no
legal remedy in the U.S. courts even after he was finally released from
illegal detention, unless the United States acknowledges that it made a
mistake when it determined that he was an enemy combatant.
The fundamental premise of last year's Detainee Treatment Act, DTA,
was that we could restrict future habeas corpus suits, because we were
providing an alternative course of access to the courts.
The language in the bill before us would deprive many detainees of
the right to file a writ of habeas corpus without providing any
alternative form of relief. For example: The provision applies on a
worldwide basis, not just at Guantanamo. DOD detainees outside
Guantanamo do not have access to Combatant Status Review Tribunals--
CSRTs--so they can't get to court to review CSRTs. Because this bill
would deprive them of the writ of habeas corpus or any other legal
remedy, they would have no access to the courts at all.
The provision applies to detainees of all Federal agencies, not just
DOD. Detainees of other Federal agencies do not get CSRTs, so they
can't get to court to review CSRTs. Because this bill would deprive
them of the writ of habeas corpus or any other legal remedy, they would
have no access to the courts at all.
The provision even applies to lawful resident aliens who are detained
and held inside the United States. Because this bill would deprive them
of the writ of habeas corpus or any other legal remedy, they would have
no access to the courts at all.
Even in cases where DOD regulations provide detainees a right to
Combatant Status Review Tribunals--CSRTs--such tribunals may not be an
adequate substitute for judicial review under a writ of habeas corpus.
CSRTs are permitted to use coerced testimony, hearsay evidence, and
evidence that is never disclosed to the accused. Detainees before those
status review tribunals are denied access to witnesses and documents
needed to rebut allegations made by the government. Courts reviewing
CSRT determinations are not authorized to make an independent
determination whether there is a lawful basis for the detention.
The court stripping provision in the bill does more than just
eliminate habeas corpus rights for detainees. It also prohibits the
U.S. courts from hearing or considering ``any other action against the
United States or its agents relating to any aspect of the detention,
treatment, or trial'' of an alien detainee.
A separate provision in the bill adds that no person--whether
properly held as an alien detainee or not--may invoke the Geneva
Conventions as a source of rights in any court of the United States.
Other provisions establish new defenses for individuals who may be
accused of violating standards for the treatment of detainees under
U.S. and international law.
Taken together, these provisions do not just deprive detainees of the
ability to challenge the basis on which they have been detained--they
are an effort to insulate the United States from any judicial review of
our treatment detainees, an effort to ensure that there will be no
accountability for actions that violate the laws and the standards of
the United States.
Last year, this Congress took an important stand for the rule of law
by enacting the Detainee Treatment Act, which prohibits the cruel,
inhuman or degrading treatment of detainees in the custody of any U.S.
agency anywhere in the world. That landmark provision is at risk of
being rendered meaningless, if we establish rules ensuring that it can
never be enforced.
Earlier this month, we received a letter from three retired Judge
Advocates General, who urged us not to strip the courts of habeas
corpus jurisdiction. That letter, signed by Admiral Hutson, Admiral
Guter, and General Brahms, stated:
We urge you to oppose any further erosion of the proper
authority of our courts and to reject any provision that
would strip the courts of habeas jurisdiction.
As Alexander Hamilton and James Madison emphasized in the
Federalist Papers, the writ of habeas corpus embodies
principles fundamental to our nation. It is the essence of
the rule of law, ensuring that neither king nor executive may
deprive a person of liberty without some independent review
to ensure that the detention has a reasonable basis in law
and fact. That right must be preserved. Fair hearings do not
jeopardize our security. They are what our country stands
for.
We have received similar letters from nine distinguished retired
Federal
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judges, from hundreds of law professors from around the United States,
and from many others.
If we don't strike this court-stripping language in the bill before
us, if instead of Congress being a check on excessive executive power,
Congress attempts to write a blank check to the executive branch, our
expectation is that the courts will find this provision to be a
legislative excess and strike it down as unconstitutional. We have a
chance to do the right thing and not just to rely on the courts. This
body is the body of last resort legislatively when it comes to
protecting that great writ of habeas corpus which is in the
Constitution. I hope we live up to that responsibility today.
Mr. BYRD. Mr. President, the military commissions bill before us
would strip from the U.S. Constitution of one of its most precious
protections: the writ of habeas corpus. The Great Writ. The bill would
deny those who are detained indefinitely--even those who may be
innocent--the opportunity to challenge their detention in court.
Habeas corpus is a procedure whereby a Federal court may review
whether an individual is being improperly detained. The concept of
habeas corpus is deeply rooted in the English common law and was
specifically referenced in the Magna Carta of 1215, which stated:
No Freeman shall be taken, or imprisoned, or be disseised
of his Freehold, or Liberties, or free Customs, or be
outlawed, or exiled, or any otherwise destroyed; nor will we
pass upon him, nor condemn him, but by lawful Judgment of his
Peers, or by the Law of the Land.
The legal procedure for issuing writs of habeas corpus was codified
by the English Parliament in response to concerns by the British people
that no monarch should be permitted to hold innocent people against
their will without due process of law.
It is precisely because the Founders of the United States feared
elimination of the writ that, when they enumerated the powers of the
Congress in the very first article of the U.S. Constitution, they
included specific reference to the writ of habeas corpus and sought to
protect it. The language they included in article I, section 9, clause
2 of the Constitution, also known as the ``Suspension Clause,'' reads
as follows. It states:
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
I wonder whether those who drafted the provision in this bill to
eliminate habeas corpus have read this clause of the Constitution.
Inconceivably, the U.S. Senate is being asked to abolish a fundamental
right that has been central to democratic societies, including our own,
for centuries. The outrageous provision we debate today could imprison
indefinitely, without access to the courts, not just suspects picked up
overseas but even those taken into custody on U.S. soil.
Some persons detained at Guantanamo may be terrorists guilty of
plotting against the people and the Government of these United States.
Of course terrorists must be properly detained and prosecuted for their
evil deeds. But some detainees may be innocent. Some may be persons
simply swept up because they were in the wrong place at the wrong time.
How can we know which truly deserve to be held and tried as enemy
combatants if we abolish the legal right of the incarcerated to fairly
challenge their detention in court?
The provision in the bill before us deprives Federal courts of
jurisdiction over matters of law that are clearly entrusted to them by
the Constitution of the United States. The Constitution is clear on
this point: The only two instances in which habeas corpus may be
suspended are in the case of a rebellion or an invasion. We are not in
the midst of a rebellion, and there is no invasion. It is notable that
those who drafted the Constitution deliberately used the word
``suspended.'' They did not say that habeas corpus could be forever
denied, abolished, revoked, or eliminated. They said that, in only two
instances, it could be ``suspended,'' meaning temporarily. Not forever.
Not like in this bill.
How can we, the U.S. Senate, in this bill abolish habeas corpus by
approving a provision that so clearly contravenes the text of the
Constitution? Where is our respect for the checks and balances that
were built into our system by the Framers? They included an explicit
prohibition against blanket suspension of the writ of habeas corpus
precisely to protect innocent persons from being subject to arbitrary
and unfair action by the state.
This flagrant attempt to deny a fundamental right protected by the
Constitution reveals how White House and Pentagon advisers continue to
chip away at the separation of powers. They relentlessly pursue their
dangerous goal of consolidating power in the hands of the Executive at
the expense of the Congress, the judiciary, and, sadly, the People. How
can we even contemplate such an irresponsible and dangerous course as
this de facto canceling of the writ of habeas corpus.
The Constitution of the United States is a time-tested contract
between our people and their Government, for which thousands of
American military men and women have died. Why would we seek to violate
its terms? Aren't we fighting the terrorists precisely to preserve
individual liberties and the rule of law? If we as a people jettison
the very democratic ideals that have made our Nation great and we
become, instead, exactly like those whom we seek to imprison--standing
for nothing and capable of anything--then what are we fighting for? And
if we indefinitely and illegally detain innocent parties of other
nations, with what credibility can we request that they release our
own?
Mr. President, I ask my colleagues to join me in support of the
amendment that has been offered to preserve the writ of habeas corpus.
Mr. REID. Mr. President, I have received a letter from over 100 law
professors and other distinguished citizens expressing their opposition
to the habeas corpus provisions in the military tribunal bill. They
urge support for the Specter-Leahy amendment to remedy that flaw. I ask
unanimous consent that the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Hon. Bill Frist,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Dennis Hastert,
Speaker, House of Representatives, Washington, DC.
Hon. Harry Reid,
Democratic Leader, U.S. Senate, Washington, DC.
Hon. Nancy Pelosi,
Democratic Leader, House of Representatives, Washington, DC.
Dear Senator Frist, Senator Reid, Speaker Hastert and Rep.
Pelosi: We agree with the views set forth in the undated
letter sent this month to Members of Congress from Judge John
J. Gibbons, Judge Shirley M. Hufstedler, Judge Nathaniel R.
Jones, Judge Timothy K. Lewis, Judge William A. Norris, Judge
George C. Pratt, Judge H. Lee Sarokin, Judge William S.
Sessions, and Judge Patricia M. Wald.
These nine distinguished, retired federal judges expressed
deep concern about the lawfulness of a provision in the
Military Commissions Act of 2006 stripping the courts of
jurisdiction to test the lawfulness of Executive detention
outside the United States.
This matter is even more urgent now. The provision would
eliminate habeas for all alleged alien enemy combatants,
whether lawful or unlawful, even if they are detained in the
United States.
We concur with the request made by the judges that Congress
remove the provision stripping habeas jurisdiction from the
proposed Military Commissions Act.
Respectfully, (100 Signatures)
The PRESIDING OFFICER. Who yields time?
Mr. GRAHAM. Mr. President, how much time is remaining?
The PRESIDING OFFICER. On which side?
Mr. GRAHAM. On the Warner side.
The PRESIDING OFFICER. Senator Warner has 4 minutes in opposition to
the Specter amendment.
Mr. WARNER. Mr. President, I yield that to the Senator from South
Carolina.
The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
Mr. GRAHAM. Mr. President, this has been a very spirited debate and I
am going to give you a spirited answer to what I am proposing with my
vote. No. 1, my moral compass is very much intact, and when people
mention moral compasses and the conscience of the Senate, I am going to
sleep very good casting my vote. I think I have a decent moral compass
about what we should be doing to people: What is humane, what is not;
what is right, what is wrong. I have tried to balance the interests of
our troops and the interests
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of our country when it comes to dealing with people who find themselves
in our capture.
Why not habeas for noncitizen, enemy combatant terrorists housed at
Gitmo? No. 1, the whole Congress has agreed prospectively habeas is not
available; the Detainee Treatment Act will be available. The only
reason we are here is because of the Hamdan decision. The Hamdan
decision did not apply to the Detainee Treatment Act retroactively, so
we have about 200 and some habeas cases left unattended and we are
going to attend to them now.
Why do we--I and others--want to take habeas off the table and
replace it with something else? I don't believe judges should be making
military decisions in a time of war. There is a reason the Germans and
the Japanese and every other prisoner held by America have never gone
to Federal court and asked the judge to determine their status. That is
not a role the judiciary should be playing. They are not trained to
make those decisions.
Under the Geneva Conventions article 5, the combatant tribunal
requirement is a military decision. So I believe very vehemently that
the military of our country is better qualified to determine who an
enemy combatant is over a Federal judge. That is the way it has been,
that is the way it should be and, with my vote, that is the way it is
going to be.
What is the problem? Why am I worried about having Federal judges
turning every enemy combatant decision into a trial? In 1950 the
Supreme Court, denying habeas rights to German and Japanese prisoners,
said:
Such trials would hamper the war effort and bring aid and
comfort to the enemy.
I agree with that.
They would diminish the prestige of our commanders not only
with enemies, but wavering neutrals.
I agree with that.
It would be difficult to devise a more effective fettering
of a field commander than to allow the very enemies he has
ordered to reduce to submission to call him to account in his
own civil courts and divert his efforts and attention from
the military offensive abroad to the legal defensive at home.
I agree with that. That is why we shouldn't be doing habeas cases in
a time of war. Nor is it unlikely that the result of such enemy
litigiousness would be conflict between judicial and military opinion--
highly comforting to the enemies of the United States.
These trials impede the war effort. It allows a judge to take what
has historically been a military function.
What I am proposing for this body and our country is to allow the
military to do what they are best at doing: controlling the
battlefield. Let them define who an enemy combatant is under the Geneva
Conventions requirements, under the Combatant Status Review Tribunal
system, which is Geneva Conventions compliant, in my opinion, and let
the Federal courts come in after they made their decision to see if the
military applied the correct law, the procedures were followed, and the
evidence justifies the decision of the military.
To substitute a judge for the military in a time of war to determine
something as basic as who our enemy is is not only not necessary under
our Constitution, it impedes the war effort, it is irresponsible, it
needs to stop, and it should never have happened. I am confident
Congress has the ability, if we choose to redefine the rights of an
enemy combatant, noncitizen--what rights they have in a time of war and
what has happened.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRAHAM. Mr. President, I will ask unanimous consent to have
printed in the Record, if I may, examples of the habeas petitions filed
on behalf of detainees against our troops.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Examples of Habeas Petitions Filed of Behalf of Detainees
1. Canadian detainee who threw a grenade that killed an
Army medic in firefight and who comes from family with
longstanding al Qaeda ties moves for preliminary injunction
forbidding interrogation of him or engaging in ``cruel,
inhuman, or degrading'' treatment of him (n.b. this motion
was denied by Judge Bates).
2. ``Al Odah motion for dictionary internet security
forms''--Kuwaiti detainees seek court orders that they be
provided dictionaries in contravention of GTMO's force
protection policy and that their counsel be given high-speed
internet access at their lodging on the base and be allowed
to use classified DoD telecommunications facilities, all on
the theory that otherwise their ``right to counsel'' is
unduly burdened.
3. ``Alladeen--Motion for TRO re transfer''--Egyptian
detainee who Combatant Status Review Tribunal adjudicated as
no longer an enemy combatant, and who was therefore due to be
released by the United States, files motion to block his
repatriation to Egypt.
4. ``Paracha--Motion for PI re Conditions''--Motion by high
level al Qaeda detainee complaining about base security
procedures, speed of mail delivery, and medical treatment;
seeking an order that he be transferred to the ``least
onerous conditions'' at GTMO and asking the court to order
that GTMO allow him to keep any books and reading materials
sent to him and to ``report to the Court'' on ``his
opportunities for exercise, communication, recreation,
worship, etc.''
5. ``Motion for PI re Medical Records''--Motion by detainee
accusing military's health professionals of ``gross and
intentional medical malpractice'' in alleged violation of the
4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and
unspecified international agreements.
6. ``Abdah--Emergency Motion re DVDs''--``emergency''
motion seeking court order requiring GTMO to set aside its
normal security policies and show detainees DVDs that are
purported to be family videos.
7. ``Petitioners' Supp. Opposition''--Filing by detainee
requesting that, as a condition of a stay of litigation
pending related appeals, the Court involve itself in his
medical situation and set the stage for them to second-guess
the provision of medical care and other conditions of
confinement.
8. ``Al Odah Supplement to PI Motion''--Motion by Kuwaiti
detainees unsatisfied with the Koran they are provided as
standard issue by GTMO, seeking court order that they be
allowed to keep various other supplementary religious
materials, such as a ``tafsir'' or 4-volume Koran with
commentary, in their cells.
Mr. SPECTER. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. There is 12 minutes remaining.
Mr. SPECTER. Mr. President, I think it would be appropriate, if I may
have Senator Warner's concurrence, to tell our colleagues that this
will be the end of the time allocated for this amendment and we could
expect to vote at about 11:45 or 11:50?
Mr. WARNER. Mr. President, very definitely. As soon as all time on
this amendment is allocated or yielded back, my intention is to move to
a vote.
Mr. SPECTER. I thank my distinguished colleague.
Mr. President, I fully realize it is unpopular to speak for aliens,
unpopular to speak on what might be interpreted to be in favor of enemy
combatants, but that is not what this Senator is doing. What I am
trying to establish is a course of judicial procedure to determine
whether they are enemy combatants.
I submit that the materials produced on this floor and in the
hearings of the Judiciary Committee show conclusively that the
Combatant Status Review Tribunals do not have an adequate way of
determining whether these individuals are enemy combatants. What we are
doing is defending the jurisdiction of the Federal courts to maintain
the rule of law. If the Federal courts are not open, if the Federal
courts do not have jurisdiction to determine constitutionality, then
how are we to determine what is constitutional?
My own background is one of a reverence for the law, a reverence for
the independence of the judiciary, and a reverence for the rule of law
as interpreted by our Constitution. If it hadn't been for the Federal
courts, the Supreme Court of the United States, we would not have seen
the decision in Brown v. Board of Education in 1954. The legislative
branches were too mired in politics, the executive was too mired in
politics, and it was only the Supreme Court which could recognize the
injustice of segregation and it led to that decision.
Similarly, it was the Federal courts which changed the criminal
procedure in this country as a matter of basic fairness. Prior to the
decision of the case of Brown v. Mississippi in 1936, the Federal
courts did not establish standards for State criminal courts. It was
determined as a matter of States rights that States could establish
their own determinations. But in that case, the evidence was
overwhelming about a brutal, coerced confession and, for the first
time, the Supreme Court of the United States stepped in and said:
States may not take an individual,
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take him across State lines, have a feigned hanging, extract a
confession, and use that to convict him. That was done by the Federal
courts.
I had the occasion when I was in the Philadelphia district attorney's
office to witness firsthand on a daily basis a revolution in
constitutional criminal procedure. I was litigating the issues in the
criminal courts when Mapp v. Ohio came down, imposing the rule of
exclusion of evidence in State courts if obtained in violation of the
fourth amendment and, when Escobedo came down, limiting admissions and
confessions if not in conformity with rules. Then Miranda v. Ohio came
down. I found those decisions as a prosecutor very limiting and
impeding. But the course of time has demonstrated that those decisions
have improved the quality of justice in America. Chief Justice
Rehnquist, a recognized conservative, sought to eliminate or limit
Miranda when he came to the Supreme Court of the United States. Later
in his career, he said in Miranda that the protections of those
warnings were appropriate and were helpful in our society.
There are four fundamental, undeniable principles and facts involved
in the issue we are debating today. The first undeniable principle is
that a statute cannot overrule a Supreme Court decision on
constitutional grounds, and a statute cannot contradict an explicit
constitutional provision. That is point No. 1.
Point No. 2, the Constitution is explicit in the statement that
habeas corpus may be suspended only with rebellion or invasion.
Fact No. 3, uncontested. We do not have a rebellion or an invasion.
Fact and principle No. 4, the Supreme Court says that aliens are
covered by habeas corpus.
We have already had considerable exposition of the opinion by Justice
O'Connor that the constitutional right of habeas corpus applies to
individuals, which means citizens and aliens. The case of Rasul v.
Bush, which explicitly involved an alien, says this in the opinion of
Justice Stevens speaking for the Court:
Habeas corpus received explicit recognition in the
Constitution, which forbids the suspension of--
Then Justice Stevens cites the constitutional provision.
The privilege of the writ of habeas corpus cannot be suspended unless
in the cases of rebellion or invasion, and neither is present here. So
you have the express holding of the Supreme Court in Rasul v. Bush that
habeas corpus applies to aliens.
Justice Stevens went on to say that:
Executive imprisonment has been considered oppressive and
lawless since John, at Runnymede.
What this bill would do in striking habeas corpus would take our
civilized society back some 900 years to King John at Runnymede which
led to the adoption of the Magna Charta in 1215, which is the
antecedent for habeas corpus and was the basis for including in the
Constitution of the United States the principle that habeas corpus may
not be suspended.
I believe it is unthinkable, out of the question, to enact Federal
legislation today which denies the habeas corpus right which would take
us back some 900 years and deny the fundamental principle of the Magna
Charta imposed on King John at Runnymede.
Mr. President, how much time do I have?
The PRESIDING OFFICER. There is 3\1/2\ minutes remaining.
Mr. SPECTER. Mr. President, the argument has been made that there is
an alternative procedure which passes constitutional muster. But the
provisions of the statute which set up the Combatant Status Review
Tribunal are conclusively insufficient on their face. The statute
provides that the Combatant Status Review Tribunal may be reviewed by
the Court of Appeals for the District of Columbia only to the extent
that the ruling was consistent with the standards and procedures
specified by the Secretary of Defense.
Now, to comply with the standards of procedures determined by the
Secretary of Defense does not mean exclude on its face a factual
determination as to what happens to the detainees.
When the Senator from South Carolina argues that judges should not
make military decisions, I agree with him totally. But the converse of
that is that judges should make judicial decisions, to decide whether
due process is decided. The converse, that judges should not make
military decisions, is the principle that the Secretary of Defense
ought not to decide what the constitutional standards are. The
Secretary of Defense should not decide what the constitutional
standards are. That is up to the Supreme Court of the United States,
and the Supreme Court of the United States has decided that aliens are
entitled to the explicit constitutional protection of habeas corpus.
The argument is made that the Swain case allows for alternative
procedures. The Swain case involved a District of Columbia habeas
corpus proceeding which was virtually identical with habeas corpus
provided under Federal statute 2241, so of course it was satisfactory.
A number of straw men have been set up: One, that we could not apply
these principles to the 18,000 detainees in Iraq--nobody seeks to do
that; the straw man that we should not give search and seizure
protections of the fourth amendment--no one seeks to do that; or the
fifth amendment protection against the privilege of self-incrimination.
In essence and in conclusion, what this entire controversy boils down
to is whether Congress is going to legislate to deny a constitutional
right which is explicit in the document of the Constitution itself and
which has been applied to aliens by the Supreme Court of the United
States.
The distinguished chairman of the Armed Services Committee has said
that he does not want to have this matter come back to Congress. But
surely as we are standing here, if this bill is passed and habeas
corpus is stricken, we will be on this floor again rewriting the law.
The PRESIDING OFFICER. The time of the Senator has expired. All time
has expired.
Is there further debate on the amendment?
Mr. WARNER. Mr. President, may I inquire, the distinguished Senator
from Michigan seeks a little additional time on leader time, is that
correct?
Mr. LEVIN. I have already accomplished that. I thank my friend.
Mr. WARNER. At this time I would like to yield to the Senator from
South Carolina 3 minutes off of the time under my control on the bill.
The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
Mr. GRAHAM. What I am trying to stress to the body is that this is a
war we are fighting, not crime, and habeas corpus rights have not been
given to any other prisoners under U.S. control in the past, for very
good reason. It impedes the war effort.
Let me give you a flavor of what is coming out of Guantanamo Bay.
This is what is happening to the troops defending America by the people
who are incarcerated, determined by our military to be an enemy
combatant. A Canadian detainee, who threw a grenade that killed an Army
medic in a firefight and who comes from a family with longstanding al-
Qaida ties, moved for a preliminary injunction forbidding interrogation
of him or engaging in cruel, inhuman or degrading treatment. In other
words, he was going to ask the judge to take over running the jail and
his interrogation.
A Kuwaiti detainee sought a court order that would provide
dictionaries in contravention of Gitmo force protection policy and that
their counsel have high-speed Internet access.
Another one applied for a motion that would allow them to change the
base security procedures to allow speedy mail delivery medical
treatment. He sought an order transferring him to the least onerous
condition at Gitmo. He asked the court to allow him to keep any books
and reading materials sent to him and report to the court over his
opportunities for exercise, communication, recreation and worship.
We are not going to turn this war over to a series of court cases
