National Defense Authorization Act for Fiscal Year 2008

Floor Speech

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

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Mr. KYL. Mr. President, let me respond to some of the arguments that have been made in support of this amendment and urge my colleagues, as they have done in the past, to reject it. The first thing that must be clarified is that the writ of habeas corpus is not being restored. It can't be restored because it has never existed to question detention. POWs and enemy combatants, detainees, have never, in the history of English common law or American jurisprudence, had the constitutional writ of habeas corpus to challenge their detention--never. So it is a mistake for those who support this amendment to claim that somehow we need to restore the right. It has never existed for this purpose; no case in the history of English or American jurisprudence or anywhere else in the world, for that matter.

Yesterday our distinguished friend and colleague Senator Dodd praised and upheld the honor and wisdom of those like his father who participated in the Nuremberg tribunals after World War II. It is well that he should. Along with his father, Thomas Dodd, is, of course, Robert H. Jackson, who became a Justice of the U.S. Supreme Court in 1941 and who returned to the Court after serving as chief counsel at the Nuremberg tribunals from 1945 to 1946. The heroes of American justice and the lions of Nuremberg did not become evil men or ignorant in the law in the period between 1946 and 1950, the year that Johnson v. Eisentrager was decided by the U.S. Supreme Court. It is a case in which Justice Jackson delivered the opinion of the court that enemy combatants have no constitutional right to habeas corpus. That was the holding in the case by the very jurist who presided over the Nuremberg trials. He knew what he was talking about. That precedent remains the law of the United States to this day.

My colleague from South Carolina quoted Justice Jackson in that decision in which he said he could think of nothing that would fetter our commanders more than granting to enemy POWs a right to contest their detention, a constitutional habeas corpus right to question their detention in American courts. He said the very act of war is to subdue your opponent and for that opponent to have the right to require you to go into the courts of your land to defend your capturing of that enemy would be, from the commander's standpoint, an impossible burden to bear. He was right. It is the wisdom and correctness of that decision and all of the precedents that we defend today.

So, first, this is not about restoration of a right. With respect to questioning detention, that right has never existed. The reasons why should be evident to us all.

Secondly, to the extent there needs to be a process for determining whether an individual should be detained, this Congress has gone further than ever in the history of our country and granted an unprecedented process and procedure for that issue to be resolved. After the military tribunals sort out the people who have been captured and they determine, based upon the evidence they have, whether to detain these individuals, what we have granted to these detainees is a right never before granted. It is unprecedented in the history not just of the United States; no other country has done this. We allow that detainee to appeal that detention to a court in the United States, a Federal court, and not just any Federal court, the U.S. Circuit Court for the District of Columbia, the U.S. Court of Appeals for the District of Columbia, which many view as the court directly below the U.S. Supreme Court. And from a decision of that DC Circuit Court, the losing side can petition for writ of certiorari to the U.S. Supreme Court. Never has such an unprecedented legal right been granted to a POW or a detainee. So we should not be suffering under the illusion that by not granting habeas, they don't have any rights. They have more rights than they have ever had.

I would briefly respond to my good friend and colleague Senator Specter, who cited an affidavit of an individual who said, from his perspective, the evidence of the Government was inadequate in a case or in a series of cases, there are three remedies for that. The first is that the tribunal says the evidence is inadequate. The detainee gets to go. The second is for the court to ask for more evidence and say this isn't sufficient; do you have anything else you can provide. Of course, it is usually a question of classified information that the Government is loathe to release because frequently it is from a source to which a commitment has been made that the source would not be revealed or that the intelligence wouldn't be revealed, or sometimes it is from another country that we have gotten the information from and we have also made agreements with those countries not to air intelligence they provided to us. So there is always a tension between how much evidence the United States wants to reveal of a classified nature in order to keep this person in detention. But that is the second remedy.

The third remedy is if the court nonetheless decides that there is sufficient evidence, the individual is detained, he can appeal that detention to the circuit court. The circuit court can make all of those same inquiries. So you have one of the most prestigious courts in the country making the final decision about whether the evidence is sufficient. That is certainly adequate process.

The Congress has ratified that twice through our decisions in dealing with the statutory right of habeas. Remember, there is the constitutional right and a statutory right of habeas. What Congress did 2 years ago, in consideration of the Detainee Treatment Act, was to develop a compromise that provided this procedure and make it clear, we thought, that the statutory right of habeas did not apply to these detainees.

A subsequent court decision said: Well, you made that clear with respect to future cases, but for pending cases we think you have not made it clear. So we came back and made it clear that the statutory right applied to neither the existing cases nor future cases. Of course, Congress has the right to limit the statutory right of habeas corpus. So neither the statutory right nor the constitutional right has provided a remedy for these detainees.

There is an alternative remedy that is perfectly adequate. When the Military Commissions Act was marked up by the Armed Services Committee--the bill that is before us--it was adopted with an even more specific provision removing Federal court habeas jurisdiction over enemy combatants to clear up any remaining doubt after the Supreme Court's interpretation of the DTA in the Hamdan decision. That vote, last September, was 15 to 9, including all the committee's Democratic members. Were they all wrong about the Constitution at that time? After subsequent negotiations that did not change the habeas provisions in the bill, the MCA passed this body on a vote of 65 to 34.

We have acted on this matter. I urge my colleagues, when they vote in a few minutes, to refer to their previous vote. It was correct at that time. It remains correct today. If, by some reason, we are wrong, and the case the Supreme Court has before it decides that this fall, then there is no necessity for us to act in a statutory way now. It is not going to change what the Court decides. The Court will say that right exists, and nothing we do will affect that. It would be unnecessary in any event. But if the Court confirms we are right, then it would not only be unnecessary but wrong for us to change that law by supporting the habeas amendment in a few minutes.

The final point I wish to make is that the consequences of granting the habeas right would be horrendous. Justice Jackson referred to this in the Eisentrager decision. I can be more explicit. But as he said: No decision of this Court supports the view. None has ever even hinted that the right of habeas existed in this case.

What would the consequences of granting habeas be?

At least 30 detainees who have been released from the Guantanamo Bay facility have since returned to waging war against the United States and our allies. A dozen released detainees have been killed in battle by U.S. forces. They went right back to fighting us. Others have been recaptured. Two released detainees later became regional commanders for Taliban forces. One released Guantanamo detainee later attacked U.S. and allied soldiers in Afghanistan, killing three Afghan soldiers. Another former detainee killed an Afghan judge. One released detainee led a terrorist attack on a hotel in Pakistan and also led a kidnaping raid that resulted in the death of a Chinese civilian. This former detainee recently told Pakistani journalists he plans to fight America and its allies until the very end.

The point here is even detainees whom we have released, either because there was insufficient evidence to hold them or because we deemed they no longer posed a threat to us, have gone back to the battlefield and have fought us and fought our allies, have killed and been killed. These are dangerous killers.

This is not some law school exercise we are going through here. This is not the American criminal justice process. This is dealing with terrorists who are fighting us on the battlefield, and will continue to do so if they are released improperly. That is why dealing with something such as habeas is a very serious--very serious--matter.

I mentioned the problem of classified evidence. In a habeas trial, there clearly would be a right of the defendant or the detainee to both call witnesses--he would literally be able to call his captors, the people who captured him on the battlefield and require them to verify his identity and the reasons why he was held and why he needs to continue to be held--totally disrupting our operations--and classified evidence would probably be required in most of the cases because these are people on whom we have gotten good intelligence as to their intentions and their past activities. Much of this intelligence is highly sensitive as it comes from foreign sources and human sources to whom we have made commitments that we would not reveal the information they provided to us.

It is a Hobson's choice, then, if you treat this like an American trial, where you say either the Government has to come and make this classified evidence available--and then it becomes public--or you have to withhold the classified information and let the detainee go. That cannot be the case in the case of these detainees. That is another practical reason why you cannot have the habeas granted to allow them to contest detention.

Again, put this in the context. What we have is a process that allows them to contest their detention at several stages. It allows counsel to have access to at least some of the classified information. It allows the court--and, in fact, the court of appeals has said it has the right--to review this information, all of the information that is relevant to a particular detainee's case.

The process is not lacking. It is not as if you have to grant habeas in order for these individuals to have a fair determination of their detainee status. They have that today. What they do not have is the extra right that habeas accords American citizens, people here in the United States, to call the witnesses to the court who captured you, to call up all of the classified evidence that is used against you--for the detainee to have a right to that.

The judge who tried the 1993 World Trade Center bombing case and the Padilla case made the point that when information was granted to the lawyers of the detainees in that case, within 10 days the information that was supposed to remain classified--the lawyers were not supposed to reveal it to anyone because it was highly classified; it included the names of coconspirators--within 10 days that information was in Sudan and was in the hands of Osama bin Laden. He knew because his name was on the list that we were after him. He was named as a coconspirator in the case.

So when the habeas right exists, and you have an even greater requirement to release this information, it is inevitable that highly sensitive information in fighting this war on terror will find its way into enemy hands. So the detainees can get back to the battlefield and the highly sensitive information will be very much jeopardized.

These are reasons not to grant, for the first time, a writ of habeas corpus. It is a reason to sustain what we have established for these detainees--a very fair procedure. I urge my colleagues not to grant the cloture

motion, to vote ``no'' on cloture, so we do not open up this can of worms, so we can continue to fight the war against these terrorists.

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Mr. KYL. Mr. President, I will be brief. I know there are others who wish to speak. I would like to reiterate what Senator McCain and Senator Warner have said with regard to the pending amendment. All of us have the utmost regard for the junior Senator from Virginia and his intentions with respect to this amendment, but it is also true that despite those best intentions, there would be very unfortunate consequences should his amendment be adopted. It has been well presented by a number of my colleagues as to what those consequences are. Secretary Gates himself has personally responded to the possibility of such an amendment being adopted by noting the adverse consequences for his ability and those of the military commanders to deal with the constraints that such an amendment would place on their ability to deal with individuals and units being deployed.

Part of the problem, as I understand it, is the amendment applies not just to the units of military combat but the individuals within those units because it relates to the specific amount of time those individuals spend back home either in training or at rest while they are not deployed. Part of the problem, as Secretary Gates personally related to me, is the fact that when you get ready to send a unit abroad into theater, especially for a combat mission, you want them to be not only trained together but prepared to do everything our military does in the middle of combat with a unit-cohesive approach to protecting their friends and carrying out their mission. They do this by training together and fighting together.

The concern expressed was that if you get into a situation where Congress imposes a law on the Executive, which is then binding on the military commanders about the exact amount of time that is permitted for troop rotation, that the individuals responsible for putting these units together are going to have to review each and every member within that battalion, for example, to determine whether the appropriate amount of time back home has been spent as opposed to in theater and, therefore, to the extent they do not meet the criteria, pull them out of the units so others then can be plugged in. This may be on the eve of deployment. It could be at any point. The result is you do not have the kind of unit cohesiveness you would otherwise. You have people who have been plugged into military units who should have been training with them all along, so when they go into combat, they fight as one. That could put forces at risk.

In addition to that, because you will have to draw people from other places, the concern is it could put greater strain on the Guard and on the Reserve, filling in for slots that are vacant from Active-Duty personnel. The Secretary has spoken to this, as I said. It has been well presented by Members on the floor as to what his concerns are.

The last point I would mention, and it is not a small point, is the attempt by Congress to dictate very specific terms of operational flow of individual members of our military, which is clearly not within the purview of Congress's jurisdiction. I know there has been an attempt to make an argument that the Constitution does not prohibit this. You have to stretch pretty far as a lawyer to make that argument. It is clear under the Constitution the Founders thought it would be best if the President, the Executive, be the Commander in Chief of the military forces. If anything should fall within his purview as Commander in Chief, and then within the chain of command to his military commanders, it should be the individual soldiers, sailors, airmen, and marines fighting in theater, it should be the individual--the decision of those commanders with respect to the deployment of those individuals. That is about as specific and personal as you can get with respect to a Commander in Chief's jurisdiction over these fine men and women who serve for us.

To suggest that Congress actually has the authority to override or to bind any future Commander in Chief in this regard I think is to stretch the Constitution way beyond what the Founders thought and way beyond what makes sense. Somebody has to be in charge. You can't have all of us, as smart as we are, as ``armchair generals'' deciding all of these details of deployments with respect to the members of our military. It does not make sense. As Secretary Gates said, it could put our folks at risk. Why would we want to do anything that might put them at risk? I know this isn't the intent of the author of the amendment, but it is very clear that one of the unfortunate consequences of this is the indirect--the backdoor--influence on the amount of time we can spend in this surge.

It is probably true that as a result, were this amendment to be adopted, the way the surge is carried out, the time within which troops could be redeployed home will be adversely affected. That is an unfortunate consequence of the amendment.

So for all these reasons, I hope my colleagues will be very careful about binding future Presidents, about getting very close to the line in terms of constitutional policy--I think going over the line--and intruding into an area that could put our forces at risk. Take the concerns of the Secretary of Defense--whom I think all of us have a great deal of confidence in--take those concerns into account. Don't dismiss them. They are very real. I think he has expressed them in a most serious way.

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