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National Defense Authorization Act for Fiscal Year 2006--Continued

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Date:
Location: Washington, DC


NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--Continued

BREAK IN TRANSCRIPT

AMENDMENT NO. 2515

Mr. GRAHAM. Mr. President, I call up amendment No. 2515 which is at the desk.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from South Carolina [Mr. Graham], for himself, Mr. Kyl, and Mr. Chambliss, proposes an amendment numbered 2515.

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:
(Purpose: Relating to the review of the status of detainees of the United States Government)

At the end of subtitle G of title X, add the following:

SEC. __. REVIEW OF STATUS OF DETAINEES.

(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees, and to the Committees on the Judiciary of the Senate and the House of Representatives, a report setting forth the procedures of the Combatant Status Review Tribunals and the noticed Administrative Review Boards in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay.

(b) Procedures.--The procedures submitted to Congress pursuant to subsection (a) shall, with respect to proceedings beginning after the date of the submittal of such procedures under that subsection, ensure that--

(1) in making a determination of status of any detainee under such procedures, a Combatant Status Review Tribunal or Administrative Review Board may not consider statements derived from persons that, as determined by such Tribunal or Board, by the preponderance of the evidence, were obtained with undue coercion; and

(2) 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 advice and consent of the Senate.

(c) Report on Modification of Procedures.--The Secretary of Defense shall submit to the committees of Congress referred to in subsection (a) a report on any modification of the procedures submitted under subsection (a) not later than 30 days before the date on which such modifications go into effect.

(d) Judicial Review of Detention of Enemy Combatants.--

(1) IN GENERAL.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

``(e) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.''.

(2) CERTAIN DECISIONS.--

(A) IN GENERAL.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision of a Designated Civilian Official described in subsection (b)(2) that an alien is properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the procedures and standards specified by the Secretary of Defense for Combatant Status Review Tribunals.

(D) TERMINATION ON RELEASE FROM CUSTODY.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) EFFECTIVE DATE.--The amendment made by paragraph (1) shall apply to any application or other action that is pending on or after the date of the enactment of this Act. Paragraph (2) shall apply with respect to any claim regarding a decision covered by that paragraph that is pending on or after such date.

Mr. GRAHAM. Mr. President, will you notify me when I have used 15 minutes of the time?

The PRESIDING OFFICER. The Chair will so notify the Senator.

Mr. GRAHAM. Mr. President, this whole debate we are having now with Senator Kerry, what we did with Senator McCain's amendment earlier, and what I am trying to do, is a healthy debate about where we are going as a nation, how we prosecute the war on terror, and what kind of value set we are going to adopt.

One thing we need to understand as a nation and we need to understand in the Senate, in my opinion, is that the attack of 9/11 was an act of war. It was not a criminal enterprise. That is an important statement to make. Every Senator needs to understand in their own mind: Was 9/11 and were those who planned it and those who blew up the people in Jordan yesterday common criminals or are these people engaged in acts of terrorism and war? Let it be said clearly, in my opinion, that the United States is at war with al-Qaida and associate groups, and we have been since 9/11.

When a country such as the United States is at war, we have a rich tradition of following the law of armed conflict, of living up to the Geneva Conventions and all other international treaties that regulate the conduct of war. We have a moral imperative as a nation not to lose our way in fighting this war. Using tactics of one's enemy is no excuse in defeating one's enemy.

It is clear to me from Abu Ghraib backward, forward, and other things we know about that at times we have lost our way in fighting this war. What we are trying to do in a series of amendments is recapture the moral high ground and provide guidance to our troops. That is why Senator McCain's amendment, which I cosponsored, is so important, and it passed by voice vote.

The McCain amendment requires standardization of interrogation techniques when it comes to people in our charge, not as criminal defendants but as enemy combatants, people detained on the battlefield, POWs. It requires the Army Field Manual, not the United States Code, to be changed in a way to give our troops the guidance they need as to what is in bounds and out of bounds when it comes to interrogating prisoners. It is important that we get good information. It is equally important that we not lose our value set in obtaining that information.

Senator McCain has two things in his amendment that we desperately need. It standardizes interrogation techniques for the military, dealing with people who are part of this war, our enemies, and it also makes a statement to every other agency in the Government that you are going to treat people humanely if they are captured under your charge as part of fighting this war.

Guantanamo Bay is a place we have designated to take people off the battlefield and hold them, and the determinations that go on at Guantanamo Bay fall into two categories. Some can be prosecuted for violations of the law of war, not criminal violations in terms of domestic criminal law but violations in terms of the law of war. Enemy combatants are being held at Guantanamo Bay like POWs were held in the past. What we have done at Guantanamo Bay is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant.

The Geneva Conventions in article V state that if there is a doubt about one's status, the host country, the person who is in charge of the person, the suspected enemy person, that host country will have a competent tribunal to determine the status.

What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O'Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is ``Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.'' We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant.

The McCain amendment says if you are an enemy combatant, we will treat you humanely, even though you may be part of the most inhuman group the world has ever known. Senator McCain is right. How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct.

I want to make sure we follow the law of armed conflict, that we comply with the spirit of the Geneva Conventions, that we do it right because we are a country that believes in doing it right. I believe the Congress needs to get involved. We have been AWOL.

I have enjoyed working with Senator Levin and my Democratic colleagues, Senator Warner, Senator McCain, and others to get the Congress involved. Here is what we have done. The Congress is now setting interrogation standards that have long been overdue and neglected. The Congress is now setting a humane treatment standard that will serve us well in the international community. The Congress, through my amendment, is now getting involved in the enemy combatant detention process.

People worry about taking folks to Guantanamo Bay and never hearing from them again. I can assure you they can be heard from. They are being heard from. They are being inspected in terms of their treatment by the International Red Cross. I have been to Guantanamo Bay twice. If you worry about what is going on at Guantanamo Bay, go down there yourself. The press has access to Guantanamo Bay. The International Red Cross has access to Guantanamo Bay. My amendment gets Congress in the ball game.

My amendment requires that Combat Status Review Tribunal regulations have to come to the Senate and the House for our review. Congress now is looking over the shoulder of what is going on there.

My amendment requires that the person sitting at the top of the pyramid who makes the decision to release or detain has to be confirmed by the Senate so they will be accountable to us.

My amendment prohibits the use of undue coerced statements to detain somebody as an enemy combatant.

If you are a POW in a war, you are there until the war is over. An enemy combatant falls into that same category, and we are going to make sure they get due process accorded under international law and then some, and the Congress is going to watch what happens. The Congress is going to be involved, and we are going to take a stand. We are going to help straighten out this legal mess we are in.

But there is another problem. For those who want to treat people in our charge humanely, sign me up. For those who want to get Congress involved in making sure we have standardized interrogation techniques so our own troops won't get into trouble, sign me up. For those who want to give enemy combatants due process in accordance with the Geneva Conventions, and then some, sign me up. For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out. Never in the history of the law of armed conflict has an enemy combatant, irregular combatant, or POW been given access to civilian court systems to question military authority and control, except here.

What has happened at Guantanamo Bay that we need to fix? I know what we need to fix in terms of the way we have treated prisoners. We are doing it. We are getting it right. We are making up for our past sins. My request to this body is, let's not go too far and create problems that will come back to haunt us. We are at war; we are not fighting the Mafia. We are fighting an enemy desirous of taking us down as a nation.

The Supreme Court decided that the Guantanamo Bay activity was part of the United States, not in its territory so much as under its control. The Supreme Court has been shouting to us in Congress: Get involved.

Habeas corpus rights have been given to Guantanamo Bay detainees because the location is under control of the United States, and Congress has been silent on how to treat these people. The Supreme Court has looked at section 2241, the habeas statute, and they are saying to us: Since you haven't spoken, we are going to confer habeas rights until you act.

Justice O'Connor said that we will under habeas give due process to enemy combatants, but if you were smart, you would have a process like Army regulation 190-8, and that would be more than enough. Well, we are smart.

Here is what has happened. If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security because the habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States. Three hundred of them have lawyers in Federal court and more to follow. We cannot run the place.

They are not entitled to this status. They are not criminal defendants. And here is what they are doing in our courtrooms:

A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison.

Another example. A Kuwaiti detainee sought a court order that would provide dictionaries in contradiction of Gitmo'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.

This is one of my favorites. There was a motion by a high-level al-Qaida detainee complaining about base security procedures, speed of mail delivery, and he is seeking an order that he be transferred to the least onerous conditions at Gitmo and asking the court to order that Gitmo 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, and worship.

Can you imagine Nazi prisoners suing us about their reading material?

Two medical malpractice claims have come out of this.

Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

Where does this stop? It is never going to stop.

Let me tell you what it is doing. Here is a quote from one of the lawyers representing these detainees in Federal court:

We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder for the U.S. military to do what they're doing. You can't run an interrogation ..... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

Know what. The people at Gitmo are asking that same question: What are we going to do? It is impossible to interrogate people with this much court intervention. We are undermining the role Gitmo plays in helping our own national security. No POW enemy combatant in the history of the world has been given Federal court unlimited access as an American citizen.

Here is what I propose we do: that we take the procedures that are in place far beyond what the Geneva Conventions require, that we make the reforms my amendment suggests where Congress is now involved in oversight, and we do one other thing, we allow a detainee to go to Federal court, not anywhere and everywhere, but to one place, the Circuit Court of Appeals for the District of Columbia where they can challenge what the military has done to them in terms of their status.

That is a right beyond what any enemy combatant POW has ever had in history. That will make sure two things happen: My amendment will make sure Congress will supervise what goes on and will be notified about what happens at Gitmo. They will be able to hold people off the battlefield as enemy combatants; they will have a process recognized by the Geneva Conventions and then some; and they will also have a right to go to Federal court to challenge their status to make sure we did it right.

If we will do these things together, then we can be proud as a nation. They all need to be done together. We need to make sure standardized interrogation techniques exist for the benefit of our own troops in the Army Field Manual to create clarity out of chaos. We need to make a statement as a nation that no matter who you are or where you are, if you are in our charge, you are going to be treated humanely.

Shaikh Mohammed, the mastermind of 9/11, is somewhere in our care. He is not a criminal defendant. He is a warrior, the planner of 9/11. It is not a decision we should have to make to try him or let him go. We keep him off the battlefield as we have kept every other POW and enemy combatant off the battlefield. We get good intelligence from him and we treat him humanely. Let us not turn this war into a crime. It would be a crime to do so.

I think I have presented what I believe to be as balanced an approach as I know how without giving up our right to defend ourselves. To the human rights activists out there, God bless you. You have helped us in many ways. We are going to make the statements you want us to make about treating people humanely. We are going to have standardized interrogation techniques. Congress is going to provide oversight and we are going to let the courts provide oversight. But in the name of human rights, we are not going to let this jail run amok. We are not going to create a status in international military law that has never been granted before. Of all the people in the world who should enjoy the rights of an American citizen in Federal court, the people at Guantanamo Bay are the last we should confer that status on. We did not do it for the Nazis. We should not do it for these people.

I reserve the remainder of my time.

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Mr. GRAHAM. Twelve and a half minutes.

Mr. President, one thing I have not done in this whole process is be willy-nilly about this amendment or about this issue. I am deeply concerned as a Senator that we have lost the moral high ground in the war, that we have confused our own troops, that our interrogation techniques have been out of bounds. That is why I support Senator McCain and other Members of this body--90 to 9--to get it right, because we have to maintain the moral high ground.

We did not have hearings about that because we do not need hearings. We know that our interrogation techniques have been confusing and sometimes unacceptable. We know it is time for America to say to the world that no matter what agency is involved or where the person is, they are going to be treated humanely. We know that.

I have been dealing with this for a year. I have worked with Senator Specter. I have been trying to find some way to get a grip on the legal aspects of this war, as well as the moral aspects of this war. And before I got here--I am still an active member of the Reserves. I have been a judge advocate in the Air Force most of my adult life.

Senator Leahy mentioned something: Let's be a nation of the rule of law. I applaud that. The question is, What is the law here? What is the rule of law when you are at war? The rule of law when you are at war is the law of armed conflict. When we were attacked on 9/11, we went to war, ladies and gentlemen. We are not fighting a criminal enterprise. The rule of law in the law of armed conflict says that POWs and enemy combatants and irregular combatants will be detained within the guidelines of the Geneva Conventions. An enemy combatant is not entitled to Geneva Conventions protection because they do not wear a uniform, they do not fight for a nation. But an enemy combatant is entitled to certain things. We as Americans say you are entitled to be treated humanely, interrogated humanely, and you are entitled to due process to be kept off the battlefield. But you are what you are. You are someone who took up arms against our country. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care, for their exercise programs, or for their reading materials.

Do you want to be the Senator who has changed 200 years of law? Do you want to be the Senator who is changing the law of armed conflict to say that an enemy combatant--someone caught on the battlefield, engaged in hostilities against this country--is not a person in a war but a criminal and given the same rights as every other American citizen? Do you want to be the Senator who changes 200 years of that? I do not want to be. This is not complicated. One thing is for sure, this is not complicated. No POW in the history of this country has ever been allowed to sue our own troops in Federal court. Does it matter? The habeas corpus writ that is being exercised does not come from the Constitution. This is not a constitutional right that an enemy combatant has under our law. This is an interpretation of a statute we passed, 2241.

The question is, 4 years after 9/11, do we want to change our law and give a terrorist, an al-Qaida member, the ability to sue our own troops in Federal court, all over the country, for anything and everything? I do not. I want to treat them humanely. I want to get good information. And I want to prosecute them within the rule of law. But I do not want to do something that is absurd and is going to hurt our national security; that is, allowing a terrorist the ability to go to Federal court and sue our own troops, who are fighting for our freedom, as if they were an American citizen.

Do you know why the Nazis did not get to do that when we had them in our charge? Because that is not the law. It has never been the law. We caught six German saboteurs sneaking into this country, trying to blow up part of America. They were tried. Where? In a military commission, a military tribunal, not in a civilian court. We had German POWs who tried to come into Federal court, and our court said: As a member of an armed force, organized against the United States, you are not entitled to a constitutional right of habeas corpus.

Do you want to give these terrorists habeas corpus rights just like an average, everyday American citizen or a common criminal to sue our own troops? Well, if you do, vote against my amendment. If you want to get back to where we have been for 200 years, then you need to support me.

This is not complicated. We need to do more than one thing at a time. We need to have interrogation techniques we can be proud of. We need the McCain amendment. We need to standardize interrogation techniques so we do not lose the moral high ground. We need to make a statement that we are going to treat everybody humanely. Enemy combatant, POW--no matter who you are--we are going to treat you humanely.

The Congress does not need to give the executive branch a blank check on how to run this war. My amendment requires the executive branch to report to us about what they are doing at Guantanamo Bay. It requires the Senate to confirm the person in charge of releasing or retaining these enemy combats. My amendment gives them every right the Geneva Conventions afford an enemy combatant, and then some. It gives them an adversarial proceeding at Guantanamo Bay, where they can challenge their status. We go further. It gives them a right to go to the District Court of Appeals of the District of Columbia--something never done in the history of warfare--because we want to let the world know we are going to go out of our way to get it right.

But, ladies and gentlemen, if we do not rein in prisoner abuse, we are going to lose the war. But if we do not rein in legal abuse by prisoners, we are going to undermine our ability to protect ourselves.

I am making one simple request of this body: Do not give the terrorists, the enemy combatants, the people who blow up folks at weddings, who fly airplanes into the Twin Towers, the ability to sue our own troops all over the country for any and everything. Give them due process. Treat them humanely. Try them under the rule of law. But let's not change 200 years of the law of armed conflict.

Your vote today matters. Your vote today matters. We are going to make history one way or the other.

Does the Senate, honestly to God, want to give terror suspects the same rights as American citizens based on a statute we pass? That is what is at stake here. Our troops are counting on us.

They are being taken all over the country, and here is what is going on according to some of the people involved in these habeas petitions:

We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder for the U.S. military to do what they're doing. You can't run an interrogation ..... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

Civilian judges cannot run this war. This is about the rule of law. The rule of law protects people in armed combat. This is about changing our law to give terror suspects rights of U.S. citizens.

Shame on us if we do that.

I reserve the remainder of my time.

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Given the language of the new amendment of the Senator from South Carolina, if one of these enemy combatants is sentenced to death, there would be no appeal; is that correct?

Mr. GRAHAM. No, sir. That is not correct.

Mr. LEVIN. Let me read the language of the Senator's amendment.

Mr. GRAHAM. The military commissions would be the sentencing body, not the CSRTs. I know this is a bit complicated, but the CSRT provision doesn't try people. It determines whether they are enemy combatants.

Mr. LEVIN. If I could read this, because I only have a few minutes, on page 3 of the amendment, Judicial Review:

United States Code is amended by saying no court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus filed by or on behalf of an alien outside the United States who is detained at Guantanamo Bay.

Is it not accurate to say that no court of the United States could review a conviction which even resulted in a death sentence for one of these people down at Guantanamo and that that is inconsistent with the decision of the Supreme Court in re Quirin?

Mr. GRAHAM. No, sir. That is not accurate. This says that no illegal, no foreign alien who is being detained as an enemy combatant can file a writ of habeas corpus. The reason for that being said is because that has been the law for 200 years. We didn't let German prisoners file writs. Under the Roosevelt administration, these six people were captured. They were tried. Four were executed. A writ of habeas corpus was not available to them. It should not have been available to them. The reason we have a military system and we have a civilian system is because we understand the military is a unique body. We don't try our own people in civilian court. We try them in military court. It has been the history of the law of armed conflict that when you have somebody tried for a violation of law of armed conflict, you don't go to Federal court. You go to a military commission or a military court. That is what happened in World War II. That is what will happen to these people, if they are tried.

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Mr. GRAHAM. To my good friend Senator Levin, we fundamentally disagree. There is a principle at stake here that is as old as war itself. Writs of habeas corpus have never been given to enemy combatants or POWs. They have never been allowed access to the Federal court to challenge their enemy combatant status tribunal which is new and different, beyond the Geneva Conventions. The German prisoners were tried by a military commission. Four of them were executed. They were not allowed to go into Federal court under writ of habeas corpus because the Constitution does not confer the right of a writ to a foreign alien involved in combat activities against the United States. The only reason we are talking about this is, the Court is inviting us: As the Senate, do you want al-Qaida members, under 2241, to have the writ of habeas corpus. The military commissions are set up to try these people. My amendment talks about the procedure of keeping them off the battlefield, allows them due process rights beyond Geneva Conventions article 5, allows them now to go to a district court and the Court of Appeals for the District of Columbia beyond what the Geneva Conventions ever envisioned. The military commissions are totally different. No one has been tried yet.

Here is the one thing I can tell you for sure as a military lawyer. A POW or an enemy combatant facing law of armed conflict charges has not been given the right of habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus. It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years.

If you want to give terrorists habeas corpus rights as if they were American citizens, that they are not part of an outfit trying to wage war on us, fine, vote against me. If you think they are common criminals like American citizens, vote against me. I will be the first to say that if these were criminals, we wouldn't treat them this way. These are not criminals. These are people caught on the battlefield as the Nazis were caught on the battlefield. They need to be held accountable. They need to be treated humanely. Does this body want to be the first Senate in the history of the United States to confer rights on a POW and an enemy combatant to sue the troops who are trying to protect us? There are 160 cases down there. There are going to be 300 cases. They are going to ruin the ability to get intelligence because we in the Senate haven't acted, and we need to act.

How are we going to act? Are we going to act in the best tradition of the United States in accordance with the rule of law, or are we going to give terrorist suspects, al-Qaida members, the right to sue our own troops in Federal court? If you want that, vote against me. If you think that is absurd, vote with me.

Mr. LEVIN. Does the Senator from South Carolina want to give those same terrorists due process, for heaven's sake? Of course, he does. He gets up on the floor and says he wants to provide due process. I say--

Mr. GRAHAM. May I respond?

Mr. LEVIN. I want an opportunity here. He is on the right track in doing it. The question is whether there will be an appeal. If there is a conviction of those alleged terrorists for committing a war crime, is there any appeal under this language in the amendment? I am afraid there is not. I don't think it is the intention of the amendment, because the Senator says, of course, there is going to be appeal. The trouble is, the language of the amendment, by its own specific terms, says: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by somebody at Guantanamo. That is the problem here. There would be no appeal.

Although the Senator makes a plea for due process for these same terrorists, he would eliminate the appeal of a conviction that led to a capital offense, the death penalty, for these same terrorists. I hope that is not his intent, but it would be the first time that that would ever happen, that we would purport, as the Senate, to strip the court of habeas corpus opportunity to review that kind of a conviction. Since ex parte Quirin, we have never done that.

Mr. GRAHAM. May I answer that? I say to the Senator, with all due respect, that is dead wrong. Military commissions that will be trying the people designated by the President, subject to be tried at Guantanamo Bay for violation of the law of armed conflict, do get appeals. They get more appeal rights than the people who were tried as German saboteurs under military commissions. They get a lawyer. They get the right to confront witnesses against them. They get the right to call witnesses. The military commissions are different than the CSRTs. There is a process in the military commissions for people to have every right under the Geneva Conventions and then some, to have more rights than the German saboteurs. The German saboteurs did not have habeas corpus rights. They had an appeal right within the military commission system, as the al-Qaida members do. To say that you can be tried at Guantanamo Bay for a war crime and not have an appeal is not true. It is like we did with the saboteurs. To say that people at Guantanamo Bay should have habeas corpus rights is doing something no one has ever had in the law of armed conflict, Nazi or otherwise.

Mr. LEVIN. My final question, to what court would the conviction of a detainee at Guantanamo for a capital offense subject to death, to what court would that appeal lie, if this language of the Senator is adopted? It is a very specific question, to what court?

Mr. GRAHAM. Under the military commission model, there is an appeal to a three-judge panel of civilians appointed to hear appeals. In the military commission model, under World War II, they didn't get that. There is an appeal process for civilian review of the trial of enemy combatants detained at Guantanamo Bay. My amendment doesn't affect that. It doesn't change that at all. My amendment prevents the use of habeas rights for POWs and enemy combatants, something we have never given in the history of the law of armed conflict to people in the military system because we don't want civilian judges coming in here and running the war. I am trying to get us back where we have always been. This is not complicated, but it is very important.

The PRESIDING OFFICER. The time of the Senator from South Carolina has expired.

Mr. LEVIN. If we are getting back to where we have always been, we don't need this amendment. The Senator just answered my question by not answering it. I asked him what court would an appeal of a death sentence be appealed to? His answer was, a three-judge panel. That three-judge panel is appointed by the Secretary of Defense. I asked specifically to what court would a death sentence be appealed, if this language is adopted. I read the language as to how broad it is. It eliminates explicitly any appeal: No court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus, and that is the way an appeal goes to a court from one of these people. It is eliminated. We strip courts of the right to hear a habeas corpus petition on a death sentence.

I agree with what the Senator started out to do with his amendment. He was on the right track. But this language goes way beyond it. That is why the chairman of the Judiciary Committee, Senator Specter, and the ranking member of the Judiciary Committee, Senator Leahy, oppose this amendment.

Mr. GRAHAM. Mr. President, I want to end with this thought. Never in the history of military commissions where we have tried enemy combatants and spies have they appealed those convictions to Federal court. Never.

BREAK IN TRANSCRIPT

AMENDMENT NO. 2516

The PRESIDING OFFICER. The next amendment to be considered is the Graham amendment.

Mr. GRAHAM. Mr. President, I call up my amendment which is at the desk.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from South Carolina [Mr. Graham], for himself, Mr. Kyl, and Mr. Chambliss proposes an amendment numbered 2516.

Mr. GRAHAM. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:
(Purpose: Relating to the review of the status of detainees of the United States Government)

BREAK IN TRANSCRIPT

Mr. GRAHAM. Mr. President, we need to standardize our interrogation techniques because we have lost our way. We need to make a statement we are not going to treat people poorly during our charge. For 200 years in the law of armed conflict, no nation has given an enemy combatant, a terrorist, al-Qaida member the ability to go into every Federal court in the United States and sue the people who are fighting the war for us. There are 160 habeas corpus petitions being filed against Guantanamo Bay detention.

Let me read what one of them is saying, a motion by a high-level al-Qaida detainee complaining about basic security procedures: Speed of mail delivery, medical treatment, seek an order to be transferred to the least onerous condition at Gitmo, and asking the court to order Gitmo to allow him to keep any books and reading material sent to him, and report to the court on his opportunities for exercise, communication, recreation, and worship.

The Nazis couldn't go to a Federal court when we had them in our charge as prisoners of war. Never in the history of armed conflict has this been allowed.

Let us stand up for our troops in a reasonable way, protect them from abuses, and protect them from the court suits filed by the people they are fighting.

http://thomas.loc.gov/

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