BREAK IN TRANSCRIPT

Mr. GRAHAM. Madam President, I rise today to state for the record that Congress has spoken on the major issues and concerns that have been raised about the Military Commissions Act of 2006. As one of the principal authors, I worked closely with the Chairman and Ranking Member to amend the language of the Military Commissions Act to address the concerns of the new administration, the judiciary, and other respected groups who have voiced concerns about military commissions. I would like to thank Chairman Levin and Ranking Member McCain and their respective staffs for their hard work and many hours they dedicated to this bill. A common understanding for all as we move forward is that our country is at war and we are fighting a vicious, dedicated enemy who preys upon civilians and has no respect for the rule of law and human life. There are three key areas in which Congress has clarified the law, and I would like to briefly address these.

First, this legislation raises the bar to provide an even higher level of protection and process than enemy combatants--or enemy belligerents--have ever had in the history of war, much less since the Geneva Conventions were adopted. Common Article 3 of the Geneva Conventions prohibits the passing of sentences and the carrying out of executions without judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. The detainees who are subject to MCA jurisdiction are not qualified for the privileged status of Prisoner of War. However, because we have such deep respect for due process in this country, Congress constituted a court under the MCA of 2006, in accordance with our Constitution, to provide appropriate due process to those who conducted themselves outside the law of armed conflict. In the current legislation, we now add additional due process within this court.

Second, in the legal history of these commissions there has always been robust debate about how to handle sensitive classified information. The commissions by definition discuss the most sensitive elements of our national security and process cases against the most dangerous and committed enemies of our country. In the current legislation we have carefully drafted new protections to ensure our Nation's intelligence is protected, while also allowing the defendants to see the information presented against them. These procedures were modeled on the Classified Information Procedures Act and will therefore allow the judiciary to look to the developed case law of our Federal courts when issues arise that may not be entirely answered by the plain text of the statute. We intend that this case law be instructive but not necessarily binding on the military commissions. We have also included language to clarify that the national security privilege may be invoked by the government at any time in order to protect our national security.

Thirdly, the MCA of 2009 offers even more protections for the defendants. The new administration came to office voicing a number of concerns about the MCA of 2006. With their party also in control of both houses of Congress, there has been ample discussion and opportunity to draft new text addressing those concerns. During hearings before our committees, administration officials expressed both their official and personal concerns with respect to various aspects of the commissions. As an equal branch of government, Congress considered all those issues and addressed them in this new legislation. Among those concerns was the question of whether Congress had created an ex post facto issue in the MCA of 2006. Congress has modified the language on this issue in the current legislation, but has not changed its position. As the branch of government empowered to write the laws under our Constitution, Congress has codified offenses which have traditionally been tried by military commissions under customary international law. There is no need to go into a detailed history of military commissions and war crimes trials here, but it should be noted that Congress clearly states in this act that those who aid unlawful combatants are subject to the Commission's jurisdiction to the same extent as those who directly commit the crimes. Further, we understand that there will always be a debate about when the war with al-Qaida and violent extremists first began. Osama bin Laden formally declared war against the United States in a fatwa in 1996, but, of course, the first World Trade Center bombing was in February of 1993. Understanding the ambiguity of this issue, Congress has deliberately stated that the military commissions may exercise jurisdiction over offenses that occurred before the date of enactment.

In closing, I would like to note that in passing these reforms to the MCA of 2006, Congress has once again affirmed the legitimacy of the commissions, their sufficiency of due process, and their rightful place in our juris prudence. Our country is at war with an enemy that has clearly stated they will continue to disregard the law of war and commit war crimes. The military commissions are the most appropriate judicial forum in which to try those individuals.

BREAK IN TRANSCRIPT