National Defense Authorization Act for Fiscal Year 2008

Floor Speech

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

BREAK IN TRANSCRIPT

Mr. SESSIONS. Madam President, will the Senator yield for a question?

Mr. KYL. I will yield, yes.

Mr. SESSIONS. I had the distinct pleasure of visiting Carrollton, AL, in Pickens County, where they have a museum to maintain the history of a large German prisoner of war camp in the United States. The Senator mentioned that certain legal rights were accorded 50 or so prisoners. But those were prisoners tried in Nuremberg after the war--after the war--for war crimes.

Now, is the Senator aware of any instance in either the German camps or other prisoners who may have been held in the United States during wartime being provided habeas rights?

Mr. KYL. Madam President, that is a great question, and the answer is that there have never been, in the history of the world, habeas rights granted to enemy detainees or prisoners of war in order to challenge the fact of their detention by either the United States or by the other country from which the great writ came--England. They have never been granted. So the answer is there is no precedent whatsoever. That is why, when colleagues say we want to restore habeas rights, that is an incorrect characterization. Enemy combatants and POWs have never had habeas rights to challenge their detention as a matter of being provided by our Constitution. Never has our Constitution been interpreted as requiring those rights.

I yield the floor.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SESSIONS. Madam President, I wish to thank Senator Kyl for his hard work on these important issues. He is a superb lawyer who is a senior member of the Judiciary Committee, on which I serve, and he has been a member of the Intelligence Committee. He understands these issues and, thanklessly, he devotes hours of his time to try to research and study Supreme Court cases to try to make sure we do the right thing here.

The most important thing for us to remember is this, and Senator Kyl just said it, that the refrain we are hearing about restoring habeas rights to prisoners of war, even unlawful combatant detainees, is not so. We have not done that, and it is a matter that is quite clear.

The origin of the great writ--the writ of habeas corpus--can be traced back to the Magna Carta in the 13th century. It is truly a great writ. It is truly a powerful tool for any person who is being detained to demand that someone, somewhere come forward and tell the world why they are being detained. That is what totalitarian and Communist governments do all the time. These kinds of dictators and Communists and Nazis go out and grab people and put them in jail and never charge them, never announce where they are, even. So that is not what we want to do here. However, never in the history of the writ's existence has an English or American court granted habeas to enemy combatants held during a time of war. As early as 1793, the American courts--1793--recognized that foreign prisoners held by the military during armed conflict have no inherent right to judicial review of their detention. They have no inherent right to that. You do have an inherent right by writ of habeas corpus if you qualify and meet the criteria.

So that year, in 1793, a district court in Pennsylvania said:

Courts will not grant a habeas corpus in the case of a prisoner of war because such a decision on this question is in another place being a part of the rights of sovereignty.

In other words, national power.

The Supreme Court of the United States reaffirmed that position in 1950 in a case called Johnson v. Eisentrager. In that case, the Supreme Court made expressly clear that U.S. constitutional protections do not apply to aliens who are detained outside the borders. It was the first case to deal with a habeas petition of enemy combatants detained outside the borders of the United States since the statute was originally enacted as part or the Judiciary Act of 1789. It is now codified as 28 U.S.C. Section 2241.

In that case, German nationals living in China during World War II, having never lived in the United States, were accused of violating the laws of war. They were tried by a U.S. military tribunal in China, convicted, and sent to Landsberg Prison in Germany, then an occupied sector of Germany, to serve their sentences. Some of the convicts, including Eisentrager, questioned the legality of their trials and filed for a writ of habeas corpus to the United States District Court for the District of Columbia, right here in DC, stating that the military's actions violated their rights as guaranteed by several portions of the U.S. Constitution, including article III of the fifth amendment. In denying habeas to these German nationals, the court expressly rejected the argument that enemy combatants detained overseas have a constitutional right to petition U.S. courts for habeas relief, noting that:

Nothing in the text of our constitution extends such a right.

It rejected the view that the U.S. Constitution applies to enemy war prisoners held abroad. The court claimed:

No decision of this court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.

Where do we keep coming up with this idea that habeas is applicable to prisoners of war? I am baffled. The Court explained emphatically that such a constitutional entitlement would hamper the war effort and bring aid and comfort to the enemy.

Habeas proceedings would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is 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.

That is a pretty clear statement. How could it be otherwise? Congress authorizes a state of hostilities. We fund it. The President, as the Commander in Chief, the military commanders execute it, and now we have it in our heads somehow that the persons our commanders are charged with reducing to submission have a right to sue us.

The Court further held--this is in 1950--that the fifth amendment is inapplicable to aliens abroad and, in reasoning fully applicable to the suspension clause, explained ``extraterritorial application of organic law'' to aliens would be inconceivable.

Writing for the majority, Justice Jackson, who was referred to by Senator Dodd and Senator Kyl--a great Justice on the Court--stated:

The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

That is pretty plain language, wouldn't you say? I think that is the plain language of the Constitution. It does not give them immunity from military trial.

Even if, as opponents mistakenly argue, this amendment restores a statutory right to habeas, the Supreme Court has also held that Congress may freely repeal habeas jurisdiction if it affords an adequate and effective substitute or remedy. Essentially, if legislation strips habeas, according to the Supreme Court, the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention, does not constitute a suspension of the right of habeas corpus. In other words, if they provide some fair procedure for even prisoners of war that we decide is consistent with our military efforts and consistent with our sense of fairness, that does not confer and give a guaranteed right to a habeas corpus review.

The Military Commission Act of 2006 was drafted with these important Supreme Court precedents in mind. After careful negotiation among our Members and careful analysis of the Supreme Court's decision in Hamdan v. Rumsfeld, Congress went above and beyond what was required by the Constitution and the Geneva Conventions to ensure detainees, even terrorists, at Guantanamo Bay, had an adequate and effective substitute method to test the legality of their detention.

So we did that. We did not fail to respond. We did that. The MCA provides alien enemy combatants far more legal process than has ever been afforded by any country in the history of armed conflict.

I am not aware of a single country in the history of armed conflict that has provided more rights than our procedures that we have established under the Military Act that we passed and the President signed into law last October.

The Combatant Status Review Tribunal for detainees is more robust than those to which lawful combatants, honorable soldiers in organized militaries of a foreign nation, are entitled to under the Geneva Conventions.

Let me repeat that and drive home the importance of that concept. The Geneva Conventions were decided upon by a group of nations that came together and thought that during the course of military conflicts, too many things happened that are not justified and are not necessary and are damaging to people in ways that could not be justified. We wrote the conventions, the nations did, to try to ameliorate some of the problems in warfare. We said that if you have a lawful combatant, as part of the Geneva Conventions, a person who has signed up for his or her country, fighting for the country, who wears a uniform, who carries his weapons openly and does not act in a surreptitious manner, does not act in a terroristic manner but fight battles according to the laws of war--if captured, must be treated and afforded the protections of the Geneva Conventions.

That is a good standard of review and protection. Congress passed a law to provide for the people at Guantanamo, who are not lawful combatants but are unlawful enemy combatants and who have not historically been considered to have been covered by the Geneva Convention. We afforded them privileges that are not required even under the Geneva Conventions on how you handle detainees.

Let's talk about our present conflict, the war on terrorism. Former Attorney General John Ashcroft has made this point. If you think about it, it is worthy of our consideration. John Ashcroft is a great believer in American liberty, the rights of liberty, a key characteristic of the American people. But he points out we ought not to think about restraints that occur as some sort of a balancing test between liberty and control and domination. He says, when you engage in an action that is designed to protect us, the test should be not a balancing test, but the test should be: Does it improve liberty? In other words, if you go to the airport and have to go through one of those checking stations as I did today, the question is: Do you feel more free to fly, having had that inspection occur? Is your liberty to travel, is your liberty to fly safely and securely in an aircraft in America, enhanced because you take a couple of minutes to go through that line? Or not?

If it is, then that is a protection of liberty.

We are indeed in a different world than we used to be, when threats fundamentally came from foreign nations. Now, even a few people with dedicated, malicious intent, with modern weapons of mass destruction and death can have tremendous impact on us. So what we are trying to do is execute lawful actions that improve our liberty, not deny liberty but to enhance liberty for all peace-loving and law-abiding American citizens.

I want to talk about Hamdi v. Rumsfeld. As part of the Judiciary Act of 1789, Congress conferred on the Federal courts jurisdiction to hear petitions for habeas corpus. Though the language has gone through minor changes since 1789, current law, now codified at 28 U.S.C. section 2241, is essentially the same grant of habeas corpus as originally enacted. The statutory language has never referred specifically to enemy combatants because such a grant was understood not to apply to those individuals detained during a time of war. Congress understood that detention of enemy combatants during time of war is strictly a military decision, since we do not allow enemy combatants to continue their war against us through the judiciary, through litigation.

Though the Supreme Court has repeatedly held that habeas corpus does not extend to alien enemy combatants detained outside the United States, some argue that Justice O'Connor's plurality decision in Hamdi v. Rumsfeld changed this precedent. In that decision, Justice O'Connor said:

All agree that, absent suspension, habeas corpus remains available to every individual within the United States.

Proponents of this amendment that we are debating cite this statement by Justice O'Connor as proof that habeas relief is available to all those detained within the United States, regardless of whether they are an alien enemy combatant. Let me note that during World War II, there were 425,000 enemy combatants held within the United States, none of who were allowed relief through habeas petitions. Furthermore, reliance on that statement by Justice O'Connor is wrong, since the question in Hamdi was whether the executive had the authority to detain a U.S. citizen as an enemy combatant and whether that citizen detainee had habeas rights. Focusing on that narrow issue, the plurality referred specifically to the rights, in their opinion, the plurality opinion, of citizens, eight times in the opinion; and in the holding of the case--and the holding of the case is limited to the circumstances of the cases itself--Hamdi was, after all, a U.S. citizen.

Regardless, some advocates maintain that Justice O'Connor's otherwise inconsequential statement, too tenuous to constitute dicta, reversed years of settled precedent and for the first time granted habeas rights to illegal enemy combatants detained overseas. That proposition flies in the face of the commonsense interpretive rule that one does not hide elephants in mouseholes. Had the Hamdi Court intended to extend habeas rights to all individuals in the United States, not just citizens, including suspected foreign terrorists detained outside U.S. territory, it most assuredly would have articulated such a consequential ruling with more clarity. But Hamdi did not present that question and the Court did not resolve it. Moreover, as the Court aptly noted, quoting Eisentrager:

Such extraterritorial application of organic law would have been so significant an innovation in the practice of government that, if intended or apprehended, it could scarcely have failed to excite contemporary comment.

Accordingly, had such a consequential holding been made in Eisentrager, it would have been met with prolific commentary from the legal community, from other Justices. It would have been an event, but that event did not occur--because it had no such meaning, of course, as evidenced by the lack of contemporary discussion. No decision subsequent to Eisentrager has reversed its holding that alien enemy combatants have no right to habeas protections guaranteed to American citizens by the U.S. Constitution.

Therefore, its holding remains governing law. Moreover, the issue now, if it ever could have been considered ambiguous, has been definitively resolved by the same judge who earlier granted Salim Ahmed Hamdan's habeas petition. Judge James Robertson, of the U.S. District Court for the District of Columbia, issued an opinion on December 13 in which he relied, in large part, on Eisentrager to justify his ruling that enemy alien combatants have no constitutional right to habeas corpus.

Judge Robertson, appointed to the bench by President Clinton, dismissed Hamdan's petition for habeas relief on the grounds that the MCA effectively denied his court's jurisdiction to hear the case; recognizing that Congress had removed Hamdan's statutory right to petition the D.C. Circuit Court for habeas relief.

Judge Robertson also held:

Hamdan's connection to the United States lacked the geographical and volitional predicates necessary to claim a Constitutional right to habeas corpus.

Well, then, the Rasul case came along. Proponents of this amendment argue that they seek only to restore the right to habeas corpus as found by the Supreme Court in the 2004 case of Rasul v. Bush. Rasul took great pains to emphasize that its extension of habeas to Guantanamo Bay was based not on the Constitution, which clearly is a historic right we talked about on habeas, but it was based on some statute passed by Congress.

Some Justices may have wanted to make Rasul a constitutional holding, but there clearly was no majority for such a position. Supreme Court cases such as Eisentrager are still the governing law on the constitutional reach of habeas and the Congress's ability to limit its statutory application.

These precedents hold that aliens who are either held abroad or held here but who have no substantial connection to this country are not entitled to invoke the U.S. Constitution.

Rasul was an unprecedented decision which effectively and truthfully seemed to fly in the face of all previous Supreme Court and English case law. Several Justices in this case engaged in what I would submit to my colleagues is activism.

The Court extended the reach of the Federal habeas statute to Guantanamo Bay detainees. To my knowledge, this decision was the first time in recorded history that any court of any nation at war held that those whom its military had determined to be enemies had a right of access to its domestic courts and could sue the Commander in Chief to challenge their detention.

The Court based its analysis on the phrase, ``within their respective jurisdictions,'' as used in the Federal habeas statute and various decisions construing that particular provision.

Moreover, the Court expressly distinguished between the statutory and suspension clause holdings of Eisentrager and limited its analysis to only the statutory grant of habeas. The Court determined that the measure of the Guantanamo lease agreement between the United States and Cuba allows for the jurisdiction of habeas claims since the United States exercises plenary and exclusive jurisdiction over the land on which the naval base is situated, although it does not have ``ultimate authority.''

Furthermore, the majority, I think and others think, mischaracterized the congressional statute as meaning that the writ of habeas corpus could be issued if ``the custodian can be reached by service of process'' and not the detainee.

As Justice Scalia accurately pointed out in his dissent, the majority:

springs a trap on the executive, subjecting Guantanamo Bay to the oversight of the Federal courts even though it has never before been thought to be within their jurisdictions and thus making it a foolish place to have housed alien wartime detainees.''

Furthermore, the decision opens a veritable Pandora's Box since it ``permits an alien captured in a foreign theater of active combat to bring a section 2241 petition against the Secretary of Defense.''

This case was a clear-cut example of, I believe, Supreme Court overreach. They seemed determined to do something about this. They wanted to do something about it. Apparently, they did not like it. So in straining to grant U.S. courts jurisdiction over terrorists held outside the United States, the Supreme Court determined, for the first time in history, that a simple lease agreement brought Guantanamo Bay within the jurisdiction of the court.

Read broadly, the majority opinion could be used to bring U.S. military bases and detention facilities across the world within the jurisdiction of the U.S. courts. Fortunately, in that opinion, Justice Kennedy did limit the application of the holding to Guantanamo Bay, Cuba.

Congress, however, addressed the issue because, remember, this was based on the Supreme Court's interpretation of a statute Congress passed and which Congress changed, not on the Constitution ratified by the American people.

So less than a year ago, Congress addressed the issue when it passed the Military Commissions Act, which precluded detainees from challenging their detention through habeas petitions.

Now, if the Court relied on the statute as we wrote it before, we can change that statute, and we did. In doing so, Congress adhered to Supreme Court precedent and created an effective and adequate substitute in the form of a Combatant Status Review Tribunals and allowing detainees an opportunity to challenge the determinations made by the tribunals, even in the district court in the District of Columbia.

So it set up a Combatant Status Review Tribunal so they can bring and make their argument, and if they do not like the military's determination on that, they can get to a Federal court. That is not habeas, but it is a pretty good procedure, more than

ever has been given before to prisoners of war. So it seems we finally worked this thing out.

On February 20 of this year, the DC Circuit Court dismissed all pending habeas cases from the Guantanamo Bay detainees for lack of jurisdiction. Furthermore, on April 2 of this year, the Supreme Court denied a certiorari petition from the petitioners in Boumediene v. Bush and Al Odah v. United States, refusing to review their claims that the Military Commissions Act--that last year we passed--does not deprive courts of jurisdiction to hear their habeas corpus claims and that it would be unconstitutional to do so, for Congress to pass it. They rejected that.

The Court did not find it was unconstitutional, what Congress passed, and, in fact, found that Congress did what Congress intended to do, creating a substitute appellate process so prisoners could have a review of their detention but not give them the full panoply of habeas corpus rights provided to American citizens.

The Supreme Court, however, reversed itself on June 29 of this year and agreed to review both the Boumediene and Al Odah cases. This review could very well address the constitutionality of the habeas bars in the Military Commissions Act, and, much like this amendment, further undermine the executive's constitutional authority to detain enemy combatants in a time of war.

I hope the Supreme Court will not do that, but they have agreed to hear that case and give it one more final review. Certainly, as of this date, the case authority is clear, that the Constitution does not provide habeas protection to noncitizen enemy combatants on foreign territory not part of the United States.

I say that because people have come in on several points along the way and accused President Bush or the Attorney General or others of taking improper positions.

In most instances, the courts have ruled in favor of the executive in these cases, on a few cases they found those procedures not to be statutory or pass muster. But what I will say to you is, in these cases, in almost each instance they have reversed previous law. So the executive branch and our military was operating under what they had every right to consider to be the settled law of the land.

So the Court comes in and changes that law. I do not believe our military should be condemned or criticized for taking action they felt, and had every right to believe, was legitimate when they took it.

Now, it is important to remember that the detainees at Guantanamo Bay are the most dangerous people who we have captured on the battlefield pursuant to executive war-making power. They have been determined to be ``alien enemy combatants'' and the courts have absolutely no role to play, in my view, in trying to second-guess the wartime decisions made by the executive branch, especially where Congress has given their stamp of approval to the process. It is not the Supreme Court's role to micromanage this war by making decisions that fall outside the scope of congressional authority.

The decisions made by the Supreme Court have long-lasting effect and are not easily undone. If we are unhappy with present foreign policy, Congress can cut off funds for the war or people can vote the President out of office. I would note President Bush was reelected on a promise to continue to pursue with vigor the war against terrorism and the war in Iraq.

Supreme Court Justices are appointed for life and are supposed to adjudicate the constitutionality of laws passed by Congress, not to legislate from the bench or to set foreign policy. This setting of foreign policy and conducting military operations are powers squarely within the purview of the executive branch not nine individuals with lifetime appointments sitting on a Court with black robes.

It is not within the court's jurisdiction to decide on war-making decisions but simply the constitutional power. It is important to note the Justices lack the knowledge, in many cases, to address the matter, or have any experience to make these decisions. Have any of them ever served on the frontlines during war, or if they have, have they ever served in a war on terrorism or been a JAG officer or been a company commander, someone who captured enemy prisoners?

A Court's opinion or personal views about this are not a matter that is impressive to me. We expect them to rule and to find Congress's statutes--we expect them to enforce the Constitution. But just to flip-flop around and try to decide that they do not like the way something is done at Guantanamo, and to issue an opinion, would be troubling to me. Hopefully, we will not get to that.

It has to be clear, as I have shown, that if we apprehend enemy combatants in the theater of war, it is within the executive branch's power to detain them until the hostilities are over. This is a separation of powers issue, and the courts should recognize that. Congress has already addressed what should be done with those detained at Guantanamo Bay. Last October, we granted those detainees unprecedented rights that have never before been provided to prisoners detained during war.

Under the current system that we have provided them, detainees have essentially five layers of protection when challenging detention or determinations made by the Government. All of this is already covered by current law. It was never the intent of Congress, however, to endow the statutory guarantee of habeas corpus to alien enemy combatants held during a time of war.

So if we proceed with the amendment that is before us, we are not restoring the right of habeas corpus; we are effectively overturning 800 years of legal authority and precedent in this area. To quote the distinguished ranking member of the Judiciary Committee, I submit that 800 years of American and English court history certainly constitutes ``super duper'' precedent.

Allowing terrorists to challenge their detention through habeas petitions filed in the DC Circuit courts would undermine military decisions made by the Executive and essentially put wartime decisions regarding the detention of those apprehended while engaged in hostilities toward this country in the hands of judges who are not qualified to make the decisions. They are not empowered to make the decisions. This is exactly why the Founders vested the Executive with this type of decisionmaking authority--decisiveness and ability to act quickly--and to undermine this power would be to trample on the Constitution we are sworn to defend.

Voting in favor of this amendment would be undermining the Executive authority in times of war by making it virtually impossible for the military to detain dangerous terrorists affiliated with al-Qaida and with the Taliban during the war on terror and allowing Federal judges to force the release of detainees whom the military have determined to be extremely dangerous. It is just that simple.

I am disappointed the Senate is proceeding forward with this amendment. I do not believe it is the right thing. It would result in an unprecedented grant of constitutional protection to those suspected of being terrorists.

This further indicates to me that our Congress is not in full comprehension of the seriousness of the war we are engaged in and the determination of those who are determined to kill us. It shows this body is, frankly, often unable to execute a military operation. We cannot get 535 people to execute a military operation and decide who ought to be detained and who ought not to.

The military could go out and conduct a raid, and a firefight could break out, and eight people be killed and eight people captured. Thirty seconds before, they could have killed all 16. Now, if we detain them, we have to bring soldiers from the war field, present evidence of some kind, gather evidence to try to justify the detention. We all know quite a large number of those who have been released from Guantanamo have reappeared and been captured again on the battlefield trying to kill us. That is a fact. We are not making that up.

I wish these people in Guantanamo were the kind of people who would not go back to the battle. I wish they were all wrongly held so we could let them go home. But what if their determination is to continue to attack American soldiers, and it is your son out there, your daughter out there on the battlefield, and somebody says in the U.S. Congress, ``We don't think you have enough evidence to hold them''? What do we know about what happened?

We have given that power to the executive branch to conduct the war. That is who is supposed to be making those decisions. That is who is required to preserve and protect the security of the American people. I do not think that makes sense. It is not a little matter. It will set a precedent for future times. We are eroding the ability of the leadership of this country to execute and carry out a military operation, which by its very nature involves death and destruction of an enemy.

So I have to say to my colleagues, we need to think this issue through. This may be a political deal now that we can use to beat up President Bush, but let me say to my colleagues, you had your victory in the last election, if not in 2004. We will have a new President soon. We need to get away from this personal and political perspective. We need to be thinking about the long-term history of the United States. We need to be thinking about other wars we may be involved in in the future. We need to be asking ourselves: Are we creating a circumstance in which a devious, skillful, malicious enemy can utilize our very laws to destroy us, place at risk our own soldiers, place at risk American citizens, place at risk our people serving in military bases around the world?

Let's be careful about that. We have provided them, by statute last year, a procedure to contest their detention. Large numbers of those who have been detained have already been released, and quite a number of those have been recaptured on the battlefield attempting to destroy America and what we stand for, attacking our own sons and daughters.

I urge my colleagues to be careful. To say we need to restore the right of habeas corpus is not correct. We have never provided habeas corpus to enemies of the United States, for heaven's sake. I share again the overall concept that we are in a difficult new world. The Constitution provides for reasonable searches and seizures and such things as that.

Our country is threatened, and our people's liberties are threatened. Liberty is important. Freedom is important. We in Congress do not need to be curtailing significantly liberty in America. We certainly do not need to be eroding constitutional protections that are provided to American citizens. We are not doing that. The Supreme Court has never held the Constitution provides protection in this fashion to enemy combatants. So we are not eroding the Constitution.

What we have come up with is a realistic process that will, in the end, provide more liberty, more freedom to American citizens than if we were subjected to a system by which we are releasing terrorists again and again who are out to kill and destroy us. That is all I would say on the fundamental question of liberty and freedom and law.

Let's get our thinking straight. Let's look at this issue carefully. Let's be sure we know that no country has ever provided such protections to enemy combatants. The fact that 50 out of 400,000 German prisoners who were tried after the war in Nuremberg had certain legal provisions and rights provided them in no way whatsoever should be construed to say we provided habeas rights to other prisoners during the course of a war. They were not provided to the 400,000 German prisoners held in the United States, that is for sure.

Mr. President, I thank the Chair and yield the floor.

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, I understand some effort is being made to pursue the amendment offered by Senator Specter, which is very troubling to me because if it were to pass, it would reverse the Military Commissions Act of 2006 that we passed last September on final passage, 65 to 34. Passage of this amendment would result in a veto of the Defense authorization bill by the President of the United States.

The first amendment we have up that is being pushed to a vote against the pleas of people on this side would result in a veto of the Defense authorization bill. The second amendment may well raise the same issue, I understand. Not only that, we have very controversial amendments that are being made filed to this bill and that have been offered for a vote on this bill which are very controversial and are not related to the defense of America--for example, the hate crimes amendment. People have differing views on that. They have offered an amendment on hate crimes on this bill. There is also the amendment on the DREAM Act, which is an immigration amendment that would provide citizenship to people who come here in our education system at a certain age, and even though they are illegally in the country, they would be provided in-state tuition and student loans subsidized by the Federal Government. That is a very controversial matter too. So that is all going to be put on this piece of legislation, apparently.

It raises questions in my mind whether there is any serious desire on the part of the Democratic leadership to see the Defense authorization bill passed. The bill came out of the Armed Services Committee, of which I am a member, and it didn't have the reversal of the Military Commissions Act of 2006 and the grant of habeas corpus to illegal enemy combatants, noncitizens on foreign soil. It didn't have that or hate crimes or the DREAM Act.

I just say to my colleagues that we need to do the right thing for our soldiers, sailors, airmen, marines, and guardsmen who are serving our Nation now. They are in the field this very moment. They are out walking the streets somewhere in Iraq--160,000 of them--executing this very complex and very important and, so far, effective counterinsurgency strategy that was devised by General Petraeus. They are living with Iraqi soldiers and Iraqi police and doing the things they were asked to do. This bill has a pay raise for them and wounded warrior language that provides additional care for those who are wounded while serving our country. We owe them every single benefit we have to give them. We have military construction to make sure we are able to carry through on the BRAC process. It has acquisition reform. We need to do a better job with the money we spend in acquiring new weapons systems and aircraft and ships and all the things that go with it.

I just say to my colleagues, let's remember now that everything is not required to be placed on this bill. If we pass this amendment to provide habeas corpus protection to illegal enemy combatants, not citizens, not on American soil, not required by the Constitution of the United States, according to decided case authority of Federal courts, that is going to result in a Presidential veto even if it passes. Hopefully, we won't pass that. Why do we want to do that? We need to be spending our time thinking about how we can help those whom we have sent into harm's way to execute a policy that has been decided upon by the Congress of the United States. That is what we need to be doing--not creating more and more lawsuits, not engaging in more and more political flapdoodle and emotional arguments about restoring habeas corpus, when we have never provided habeas to prisoners of war in the history of the Republic, nor has any other advanced nation provided those kinds of rights.

I urge my colleagues to push back from this brink. Let's don't take action that could result in the failure of a defense authorization bill. It would be the first time we have failed to pass a defense authorization bill since 1961, 46 years ago. Let's don't break that record while we have soldiers in harm's way serving our national interests, attempting to execute the policies and assignments we have given to them. Let's don't do that. Let's don't pass a bill that is going to come back like a ball off of the wall because it will be vetoed by the President. What good is that? Why are we obsessed with this? It wasn't passed in the Armed Services Committee, and it doesn't need to be pushed now.

I urge my colleagues to become fully aware of the dangerous territory which we are entering. We are entering a circumstance in which, if we continue to pursue issues unrelated to the core responsibilities of the Congress to deal with the war we are confronting, we will have failed in our responsibilities and actually fail to pass this important legislation.

In addition, we need to finish up with the Defense bill and go on to the Defense appropriations bill. The fiscal year ends September 30. We need to pass the Defense authorization bill so that we can get to the Defense appropriations bill by next week.

That needs to move. We do not need to still be arguing over the DREAM Act, arguing over hate crimes, arguing over providing habeas corpus rights to illegal enemy combatants held somewhere around the world by the American military, a privilege that has never been provided by any nation to people it captures on the battlefield. That is not the right way for us to go. This Congress, if it is a responsible Congress, should move forward this week on the authorization bill and do the appropriations bill next week.

What are the core issues? We have some core issues we ought to debate about the defense of America and our military. Let's stay on those issues, not on extraneous issues.

There is no doubt that we have heard the report of GEN Jimmy Jones's commission, the Government Accountability Office report the week before last, and then last week we heard from General Petraeus and Ambassador Crocker. We need to have time to discuss seriously--and this side has certainly agreed to that and it is contemplated that we will have a generous time to discuss our commitment in Iraq, what it is, what our goals are, how we can achieve those goals, what the troop levels should be, how they are going to be drawn down, are they being drawn down fast enough, and what other issues are relevant. Those are legitimate issues on which we should spend time.

I am very concerned these other issues will be distracting us from those issues, that we will be utilizing time that ought to be on the core issues of defense of this country, and I hope those leaders, particularly our Democratic leadership, are not going to put us in a position where we will not meet our responsibilities.

For the past 46 years, we have passed a Defense authorization bill. At the rate we are headed, even if we pass it, it is going to be vetoed because of amendments wholly unrelated to the Defense of this country. We need to pass a Defense appropriations bill, and we need to get on that quickly because the fiscal year is ending. For my colleagues' information, we are going to have to do something to continue to fund defense because if we do not pass a Defense authorization bill, the fact is that no money can be spent in the whole Department of Defense unless we are being attacked. It is very troubling, and it could have tremendous disruptive impacts throughout the entirety of our defense establishment.

Under the Antideficiency Act, if Congress does not appropriate money, the executive branch cannot spend it. It cannot spend what has not been appropriated. That is the Constitution, and that is what the Antideficiency Act says. The budget and last year's appropriations end September 30. We need to pass a new bill so we can go forward into next year.

We have a pretty good bill that came out of committee. There will be some disagreement here, there, and on a few other matters. We will bring those up, and good people will disagree. I certainly understand that point. We need to be working on those issues, not being distracted on matters unrelated to the core of defending America in this time of terrorism.

I share those thoughts and hopefully our colleagues in the leadership can continue to work and some way we can avoid the end toward which it appears we are heading.

I yield the floor and suggest the absence of a quorum.

BREAK IN TRANSCRIPT

Source