NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--Continued
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The Senator from South Carolina [Mr. GRAHAM], for himself, and Mr. McCain, proposes an amendment numbered 1505, as modified.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of subtitle G of title X, add the following:
SEC. 1073. AUTHORITY TO UTILIZE COMBATANT STATUS REVIEW TRIBUNALS AND ANNUAL REVIEW BOARD TO DETERMINE STATUS OF DETAINEES AT GUANTANAMO BAY, CUBA.
(a) Authority.--The President is authorized to utilize the Combatant Status Review Tribunals and a noticed Annual Review Board, and the procedures thereof as specified in subsection (b), currently in operation at Guantanamo Bay, Cuba, in order to determine the status of the detainees held at Guantanamo Bay, including whether any such detainee is a lawful enemy combatant or an unlawful enemy combatant.
(1) IN GENERAL.--Except as provided in paragraph (2), the procedures specified in this subsection are those that were in effect in the Department of Defense for the conduct of the Combatant Status Review Tribunal and the Annual Review Board on July 1, 2005.
(2) EXCEPTION.--The exceptions provided in this paragraph for the procedures specified in paragraph (1) are as follows:
(A) To the extent practicable, the Combatant Status Review Tribunal shall determine, by a preponderance of the evidence, whether statements derived from persons held in foreign custody were obtained without undue coercion.
(B) The Designated Civilian Official shall be an officer of the United States Government whose appointment to office was made by the President, by and with the advise and consent of the Senate.
(3) MODIFICATION OF PROCEDURES.--The President may modify the procedures and requirements set forth under paragraphs (1) and (2). Any modification of such procedures or requirements may not go into effect until 30 days after the date on which the President notifies the congressional defense committees of the modification.
(c) Definitions.--In this section:
(1) The term ``lawful enemy combatant'' means person engaging in war or other armed conflict against the United States or its allies on behalf of a state party to the Geneva Convention Relative to the Treatment of Prisoners of War, dated August 12, 1949, who meets the criteria of a prisoner of war under Article 4 of that Convention.
(2) The term ``unlawful enemy combatant'', with respect to noncitizens of the United States, means a person (other than a person described in paragraph (1)) engaging in war, other armed conflict, or hostile acts against the United States or its allies, or knowingly supporting others so engaged, regardless of location.
Mr. GRAHAM. Very quickly, I appreciate the patience of the Senator from Florida and Chairman Warner.
Mr. President, this amendment deals with the concept called unlawful enemy combatant, a concept being used to detain about 500 people at Guantanamo Bay who have been captured throughout the world, many of them on battlefields. It is a concept that goes back to World War II where the Supreme Court, during World War II, coined the phrase ``enemy combatant'' to deal with some German saboteurs who were caught coming into America in civilian clothes, with a plan to disrupt American life in the war operations.
These individuals--I think there were seven of them--were tried by military tribunals. A couple of them were put to death. Some were given lengthy prison sentences. Then the Court recognized the concept of enemy combatant.
Fast forward 60 years. What do we find? We find ourselves in a war with a group of people who are not part of a state or a nation. They do not wear uniforms. They are terrorists. They hide among civilians. They cheat. They do anything one can imagine to have their way. They do not abide by any international regimes.
When we capture these people, we have made a decision as a nation to house them at Guantanamo Bay, a place run by the military. It has three functions: To interrogate foreign terrorists to get good information to make sure that we are safer as a nation. Senator McCain has an amendment to standardize the interrogation techniques. I think the country would be well served to have everything dealing with unlawful and lawful combatants in separate categories.
We want the Geneva Conventions to apply to people who are under it. We do not want the Geneva Conventions to apply to terrorists. We want to do it right. We want our troops to not be confused. Senator McCain has an amendment that would basically allow the Army Field Manual to be the one source of law to deal with both categories, which would be a great benefit to the military and the country at large, in my opinion.
I have an amendment that gets Congress involved for the first time. In a general way, the Congress authorized the President to go to war after 9/11. A lot has happened since then, some good, some bad. I think it is now time for the Congress to weigh in on the issues that affect this Nation in the war on terror. My amendment allows Congress to define ``unlawful enemy combatant'' in a very flexible way similar to what is being used at Guantanamo Bay now. It incorporates the procedures that are used to classify and review enemy combatant status.
The way it works now, if the military or appropriate authority sends someone to Guantanamo Bay, the first thing that happens is there is a review process where a determination will be made as to whether that person fits the definition of ``unlawful enemy combatant.'' We are codifying that procedure. We are accepting most of it. We are tweaking the definition in line with Supreme Court cases that have reviewed this whole subject matter.
That is another point I would like to make. There are about five cases in Federal court now dealing with issues like enemy combatant status, military commissions to try noncitizen foreign terrorists. The Government has won on most of these cases. But enemy combatant status needs to be defined, in my opinion, by the Congress working in conjunction with the administration because courts will defer to a statute much quicker than it will defer to anything else.
In one of these opinions, Justice Scalia has been telling us that Congress has been AWOL. Congress needs to get involved. So this amendment allows the procedures in place at Guantanamo Bay to make the initial determination, if one is an enemy combatant, to be authorized to be utilized by the President. Every year, a review is made of each person's case. Every year the Government has to come and show that the enemy combatant status is still justified, that the person who is being detained is not dangerous to us or our allies, or they no longer have any intelligence capability or intelligence value. At that point, they can be released. Two hundred and something have been released. What we are trying to do with this amendment is to get Congress involved in that process so that the courts will understand that Congress agrees with the concept of unlawful enemy combatant and that the review process in place is a good process. I have made two changes.
One, I have addressed the issue of using statements that are derived from foreign interrogations. I do not think anybody in this country wants our Nation to be using evidence that may be tainted by torture or undue coercion. So I have a provision in there that says if a statement or information is used that comes from a foreign detention or a foreign interrogation, we have to simply prove, where practical, that it is reliable, that it is not as a result of coercion. The courts will appreciate that, and I think the American public would appreciate that.
Second, we have a provision that the releasing authority, the person who decides if someone can be released, should be confirmed by the Senate. Under Secretary England performs that function right now, but I think it would be a good relationship to have the Senate involved in picking that person who has the ultimate authority to determine to let these people go because 12 of them have gone back to the fight. Some people who have been released have gone back to the war. Some people who have been picked have probably been misidentified.
We are trying to get a procedure that the courts will accept, that will be good for the country, that will keep terrorists off the battlefield, that would withstand legal scrutiny and live up to the ideals of who we are.
If Congress will get involved and legitimize unlawful enemy combatant status, it will pay great dividends to the operation at Guantanamo Bay because we will have the administration and the Congress on the same sheet of music and the courts will soon follow.
My goal is to strengthen Guantanamo Bay, make sure that abuses in the past never occur again, have standardization of interrogation techniques so our troops will not get in trouble so that we can get good, reliable information. The military commissions are on track to be approved by the Supreme Court. We need a place to try these terrorists for their crimes. If they are not being tried, they need to be kept off the battlefield. Enemy combatant status does that. We need due process rights. We are a nation of laws. This amendment incorporates the due process that already exists with some improvement.
If we will do these things, Guantanamo Bay will be more effective in the future. It will be a forward-looking, reform-type process. We will not be captured by the mistakes of the past, and we will be a safer nation.
I appreciate Senator Warner's support and leadership on this issue. We are trying in concert to make sure that we are stronger as a nation, not weaker. We learn from our problems. We clean up some of the problems we have had in the past and Congress finally gets involved. I think the courts will appreciate that. I know the American public will.
With that, I will yield to Senator Warner.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, this is another very important step forward, drawing on the very profound remarks made earlier today by our distinguished colleague from Arizona. The three of us have worked together.
I want to clarify one aspect because when I looked at the Senator's earlier draft, it appeared to me that a military judge being given to an unlawful combatant appearing before an administrative review board would give that individual more due process than accorded a lawful combatant, a POW. My understanding is the Senator's modification now embraces that concern, and I want to make that clear to our colleagues.
Mr. GRAHAM. That is correct.
Mr. WARNER. Why does the Senator not state it in his own words?
Mr. GRAHAM. That is a very good point. Under the procedure in place now, a military representative is provided to the enemy combatant initially. When the determination is made whether someone is an enemy combatant, our own rules provide a military representative. In an annual review, a military representative is given to the enemy combatant to make their case that they are no longer a danger. What I wanted to do at the annual review is make that person a military lawyer because the potential of keeping these people there for a long period of time is great because unlike other wars dealing with traditional POWs, there is nobody to sign surrender documents.
I can understand the Senator's concerns. We can deal with that issue later. So we will go back to the old way of doing business. The lawyer requirement will be taken out and we will go back to the procedures that are in place now.
Right now, every unlawful enemy combatant has a military representative to help them make their case about their status. We will not make that person a military judge advocate. I think it would help us in court, but I do not believe it is that important. It will pass muster with the courts in its current form, so that has been changed.
Mr. WARNER. Clearly, the unlawful has no advantages over, as we might say, the lawful. They are on equal status, so to speak?
Mr. GRAHAM. The Geneva Convention would govern how we treat the lawful combatant. That is something we all understand and have been working with for 60 years. The unlawful enemy combatant can now be detained for an indeterminate period of time, once that determination has been made, with an annual review required to see if they should be kept based on danger to our country that the person presents, and any intelligence data that they present.
So this legitimizes what the courts have been telling us to do. The courts have said that an unlawful enemy combatant status determination is an appropriate legal concept as long as the person is given notice and the right to challenge. So what we are doing in this statute is taking the court's directive and we are giving them notice and we are giving them a right to challenge. A lawful combatant already has that under the Geneva Conventions.
Mr. WARNER. Mr. President, I thank my colleague. I ask that I now be a cosponsor, with that modification.
Mr. GRAHAM. The Senator has made my day.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, the three of us, together with others who have talked with us, I think, have made a very valuable contribution because all eyes are on America as to how we conduct these difficult situations.
Tomorrow we will have an opportunity to further go into this question about the use of the Army manual. My concern over that is that the current manual, in my judgment, does not quite strike the balance between detention and interrogation. I am hopeful that we can draw from the Department of Defense, as best we can, what the modification of the Army manual would be.
If I can be assured that is going to be balanced and take into consideration the need to address this unlawful category of these individuals who are not acting on behalf of a State-sponsored conflict--am I not correct?
Mr. GRAHAM. I say to the chairman, he is absolutely correct. It is a very simple concept we are trying to achieve. There are two problems, there are two groups of people we worry about for two different reasons. One group I worry about is the Americans in charge of these detainees because we have all kinds of laws that we have adopted, for 60 years, directing our people in how to treat folks who are captured--whether they are lawful or unlawful. We have had policy statements and directives that are at best inconsistent, that are all over the board, floating out there in legal cyberspace. We are trying to put into one document, the Army Field Manual, the rules of the road for both groups, lawful combatants and unlawful combatants.
We are not writing the field manual, we are not telling the experts what to put in the manual, how to write it, we are saying, for the sake of our own troops, you have one document you can go to now. And we are saying to the world we are going to standardize our techniques. We are not going to have inconsistent messages. The JAG memos we were talking about a while ago that were 2 years old now are telling us if you get too far afield from what we have been doing for 60 years, you are going to get yourself in trouble. So the Army Field Manual will be one-stop shopping for all those responsible for detainees in both categories, and it will standardize procedures that will allow us to get good information, be aggressive, without losing who we are as a people. That is why we need this, in my opinion.
Mr. WARNER. Mr. President, I do need to make certain that this modification will treat the subject of how a person is detained with equal specificity as to how they are to be interrogated.
As you know from your experience of 20 years in the JAG--as a matter of fact, you and I went to Guantanamo a week or so ago. It is important that detention be conducted in a way that it doesn't somehow influence how the interrogation might go. I will not draw the picture here as to what could be done.
Mr. GRAHAM. Absolutely.
Mr. WARNER. I yield the floor.
Mr. DURBIN. Will the Senator yield for a question?
Mr. GRAHAM. Absolutely.
Mr. DURBIN. I ask the Senator from South Carolina, the amendments which you have offered and were cosponsoring with Senator McCain, Senator Warner, and others, do they make it clear that the policy of the United States is not to engage in cruel, inhuman, and degrading treatment of any prisoner in our control?
Mr. GRAHAM. It becomes a statute----
Mr. WARNER. Mr. President, I can answer that. If you look at the second McCain amendment, basically that amendment is directed at that question. That is my understanding.
Mr. GRAHAM. That is absolutely right. It uses the terms the Senator has just uttered and makes it a statutory prohibition to engage in that conduct. It takes what the President said, we are going to treat people humanely, gets the Congress involved, and we are putting parameters around what we do with foreign terrorists, noncitizens. We can interrogate them, but we are not going to change who we are as a people, and the interrogators tell us that the Army Field Manual--as we were down there a week ago--gives them all the tools they need to aggressively pursue the interrogations. You really don't get things out of torture. They do not believe it is good practice, to begin with, so you are absolutely right. There will be a prohibition in law as well as rhetoric.
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Mr. LEVIN. If I can go back and make inquiry of my good friend from South Carolina, I think he has focused, along with the cosponsors, on something which is critically important, and that is reliance on the Army manual so everybody knows the roadmap, as he puts it.
Is it the Senator's understanding of the Army manual that abusive and degrading treatment would be prohibited?
Mr. GRAHAM. It is not only my understanding, it is also part of the Uniform Code of Military Justice. There is a specific section that makes it a crime to abuse a detainee or a prisoner.
Mr. LEVIN. The reason this comes up is those words have now been utilized by a witness, by somebody who has made investigation. So I want to be as precise as I can, in my question, about whether it would be the belief of the Senator from South Carolina that abusive and degrading treatment would be a violation of the manual?
Mr. GRAHAM. It is my understanding that the Army Field Manual, as written--and it is being revised--rejects that concept in interrogation of abusive and degrading behavior. I am not an expert on the terms of it. But the whole point of these amendments also is to make sure that we have standardized interrogation techniques that get good information without having to be abusive and degrading. But you can be forceful. You can be stressful. You can be psychologically and physically stressful under the Army Field Manual without crossing the line that we are all concerned about.
That is exactly what we did. We had confusing messages--if I may continue for a second--to our troops. We had a DOJ memo that was a basic departure from the way we have lived as a nation for 60 years. Understandably, after 9/11 we wanted to be aggressive. But the JAGs in question told us: Don't go down this road too far because we have trained people for 60 years to do it one way. It works that way. And you are going to confuse our own troops.
Lo and behold, that's exactly what happened. So we are trying to get it back to where we have been.
We fought World War II, Hitler--a pretty bad guy--using these concepts. We can fight these terrorists using these concepts.
My goal, and I am sure it is your goal, is to kill them if we have to, capture them, interrogate them, detain them and prosecute them and do all that without giving up who we are as a nation.
We can do that. This is a step in that direction.