Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2005

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 2005 -- (House of Representatives - July 08, 2004)

The SPEAKER pro tempore. Pursuant to House Resolution 701 and rule XVIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the further consideration of the bill, H.R. 4754.

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Mr. BUYER. Mr. Chairman, I think this is an area we have to be pretty careful about. This is a very serious question, and, in fact, it raises grave constitutional questions that are unsettled, the principles of separation of power.

But with that aside, it also gets kind of confusing. So let us go back to not only our own Constitution, but also the Geneva Conventions. The Geneva Conventions under Article 5 say if one captures an individual and they know who they are, then they are automatically by the capturing power given POW status. If there is any doubt with regard to their status, under the Geneva Conventions, the capturing power then is to conduct what are called Article 5 tribunals.

What has happened here is when there is no doubt of the status of the individual, the executive branch has made the decision, then obviously they are not a POW; so they are not afforded the protections of the Geneva Conventions. And if they are not afforded in a tribunal Article 5 because their status is not in doubt, there is a term of art that has been used. They are called an enemy combatant, but they also can be called security detainees, unprivileged belligerents, unlawful combatants.

This is a very dangerous area what this amendment tries to do. It tries to dance into the area of the executive branch and say we cannot classify individuals as to these types of things.

Mr. Chairman, we are in a very unsettled part of the law. I have made a couple of notes with regard to the speakers who spoke before me who said that we need to rein in the doctrine. That is false because this is a doctrine that has been used very sparingly. In the 3 years for which we have had the war on terrorism, there is only one United States citizen that has been classified as an enemy combatant and has been detained, and if we were to only use the "criminal process," what we then do is jeopardize our intelligence. And we are operating a war predominantly in the dark world. It is an intelligence war against a secret enemy, and for us to jeopardize that by going to the public domain is foolish on our part.

Doing this on an appropriations bill, number one, using the word "foolish," that is foolish. We should not be doing that.
The gentleman would like to entertain greater discussions on this. Let us take it through the authorizing committees, and let us, in fact, do that.

The other said that it is unchecked executive authority. That is false. It is not unchecked because we have the checks and balances, and that is why this case was taken to the Supreme Court.

I also would like to note that there is nothing, nothing, in current law requires resorting solely to criminal prosecutions.
In the recent Hamdi decision, the United States Supreme Court did not directly address the Padilla scenario, but a majority of the Justices clearly agreed that "there is no bar to this Nation's holding one of its own citizens as an enemy combatant."