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Military Commissions Act of 2006

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Date:
Location: Washington, DC


MILITARY COMMISSIONS ACT OF 2006 -- (House of Representatives - September 29, 2006)

BREAK IN TRANSCRIPT

Mr. UDALL of Colorado. Mr. Speaker, the Senate-passed bill before us today is identical to H.R. 6166. I could not support that bill when the House considered it earlier this week, and nothing that has happened since then has caused me to change my view that it should not be enacted. So, I must continue to oppose it.

As I said earlier, I agree that Congress should establish clear statutory authority for detaining unlawful enemy combatants and using military tribunals to try them. In fact, I thought this should have been done long age because I took seriously the warnings of legal experts who said the system established by President Bush's unilateral Executive Order lacked departed too far from America's fundamental legal traditions to be immune from serious legal challenges.

That is why for several years I have cosponsored bills to replace that Executive Order with a sound statute that would allow prosecutions to proceed without the same vulnerability to challenge.

Unfortunately, until recently neither the president nor the Republican leadership thought there was a need for Congress to act--the president preferred to insist on unilateral assertions of executive authority, and the leadership was content with an indolent abdication of Congressional authority and responsibility.

Then, earlier this year, the Supreme Court put an end to that approach with its decision in the case of Hamdan v. Rumsfeld, which struck down the system established by the Executive Order--just what many of us had seen coming, and which we had sought to avoid through legislation.

So, we are voting on this bill only because the Supreme Court has forced the Administration to do what it should have done much sooner--come to Congress for legislation. And the voting is occurring this week, under rushed procedures that do not permit consideration of any changes, because, above all, the Republicans have decided they need to claim a legislative victory when they go home to campaign, to help take voters' minds off the Administration's missteps and their own failures.

But I think it is less important to get the job done before the election than to do it right. And, regrettably, I remain convinced that this bill fails that test.

I remain concerned about the bill's specific provisions. But just as serious are my concerns about what the bill does not say. In particular, I am concerned about the lack of any provisions to prevent indefinite detentions of American citizens who have never left the United States.

I cannot support any legislation intended to give the president--any president, of any party authority to throw an American citizen into prison without what the Supreme Court has described as ``a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.''

As I said when the House first debated this legislation, I prefer to err on the side of caution when I must vote on a measure that is not more clear on this point. And since that earlier debate, my concern--and my unwillingness to vote for this legislation--has been heightened by analyses of experts such as Professor Bruce Akerman of the Yale Law School.

In an analysis published after the earlier vote here in the House--which I am attaching for the benefit of our colleagues--Professor Akerman says: ``The legislation ..... authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights. ..... This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison. ..... What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.''

And, as Professor Akerman notes: ``We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an ``enemy combatant'' upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent. .....

``But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorize this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.''

I do not have the legal expertise to say that Professor Akerman is completely right in this analysis. But I cannot in good conscience vote for this bill on the mere hope that he is wrong.

And, as I said when the House first considered this bill, it is clear that several of its provisions raise enough legal questions that military lawyers say there is a good chance the Supreme Court will rule it unconstitutional.

They may or may not be right about that, but their views deserve to be taken seriously--not only because we in Congress have sworn to uphold the Constitution but also because if our goal truly is to avoid unnecessary delays in bringing terrorists to justice, we need to take care to craft legislation that can and will operate soon, not only after prolonged legal challenges.

Finally, I remain concerned that the bill gives the president the authority to ``interpret the meaning and application'' of U.S. obligations under the Geneva Conventions. Instead of clearly banning abuse and torture, the bill leaves in question whether or not we are authorizing the Executive Branch to carry out some of the very things the Geneva Conventions seek to ban.

I cannot forget or discount the words of RADM Bruce MacDonald, the Navy's Judge Advocate General, who told the Armed Services Committee ``I go back to the reciprocity issue that we raised earlier, that I would be very concerned about other nations looking in on the United States and making a determination that, if it's good enough for the United States, it's good

enough for us, and perhaps doing a lot of damage and harm internationally if one of our service men or women were taken and held as a detainee.''

I share that concern, and could not in good conscience support legislation that could put our men and women in uniform at risk.

Mr. Speaker, as I said earlier, establishing a system of military tribunals to bring to trial some of the worst terrorists in the world shouldn't be a partisan matter. It also should not be handled in a rush, without adequate care to get it right. Unfortunately, that has been the process used to develop this legislation and the result is a measure that I think has too many flaws to deserve enactment as it stands.

So, as I said earlier, I cannot support it.

* [End Insert]

[From the Los Angeles Times, Sept. 28, 2006]

The White House Warden
(By Bruce Ackerman)

Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops ``during an armed conflict,'' it also allows him to seize anybody who has ``purposefully and materially supported hostilities against the United States.'' This grants the president enormous power over citizens and legal

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residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an ``enemy combatant'' upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.

The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorize this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.

This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case--upholding the military detention of tens of thousands of Japanese Americans during World War II--has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.

http://thomas.loc.gov/

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