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National Defense Authorization Act for Fiscal Year 2006

Location: Washington, DC



Mr. KERRY. Mr. President, last week I voted against an amendment introduced by Senator Graham, No. 2515, which stripped the Federal courts of their historic jurisdiction to hear applications for writs of habeas corpus filed by or on behalf of detainees at Guantanamo Bay. I did so because the amendment would have eliminated virtually all judicial review of combatant detentions, including review of the decisions of military tribunals.

Today, I voted in favor of Senator Bingaman's amendment No. 2523, because it would have preserved judicial review in the most important areas while also preventing frivolous claims. When the Bingaman amendment failed, I voted for a second-degree amendment No. 2524, which reflected the hard work of Senator Levin to provide another means to preserve some form of judicial review of the proceedings at Guantanamo Bay. And, it is my understanding that, as Senator Levin stated on the floor of the Senate just yesterday, ``this amendment will not strip courts of jurisdiction over [pending] cases.''

The war on terror presents us with challenges unique in our Nation's history, requiring solutions that are sustainable over the long-term. We have little reason to trust the administration's record on this score. But with these provisions, the Senate declares it is our priority to prosecute the war on terror with every tool at the country's disposal including the rule of law. It remains my priority, and I know the priority of my colleagues, to win this war, to hunt down and destroy terrorists wherever they are, destroy their networks, and make our world safe.

Mr. DURBIN. Mr. President, I support the Bingaman second-degree amendment to the Graham detainee amendment.

The Senator from South Carolina has been a leader on the issue of detention and interrogation policies. I share his goal of setting clear rules for the detention of enemy combatants.

This amendment would do some positive things that I support. It would require the Defense Department to report to Congress on the procedures for determining the status of detainees held at Guantanamo Bay. It would prohibit the Defense Department from determining the status of a detainee based on evidence obtained from torture.

However, I am concerned that one section of the Graham amendment would have very dramatic unintended consequences.

However, subsection (d) of the amendment would eliminate habeas corpus for detainees at Guantanamo Bay. In so doing, it would overturn the Supreme Court's landmark decision in Rasul v. Bush. It would strip federal courts, including the U.S. Supreme Court, of the right to hear any challenge to any practice at Guantanamo Bay, other than a one-time appeal to the D.C. Circuit Court on the limited question of whether the Defense Department is complying with its own rules for classifying detainees. It applies retroactively, and therefore would also likely prevent the Supreme Court from ruling on the merits of the Hamdan case, a pending challenge to the legality of the administration's military commissions.

For these reasons, I am opposed to Senator Graham's amendment.

I will support Senator Bingaman's second degree amendment to the Graham amendment. It would preserve the positive elements of the Graham amendment and would strike subsection (d) of the amendment. It would replace subsection (d) with a streamlined judicial review system that would preserve habeas for Guantanamo detainees, consolidate habeas claims in the D.C. Circuit Court, allow claims challenging the legality of detention, and prohibit claims based on ``living conditions,'' e.g. the type of food a person is provided. These restrictions would not apply to people who have been charged by military commissions or who have been determined not to be enemy combatants by a Combatant Status Review Tribunal, CSRT.

The Graham-Levin substitute amendment would somewhat improve the underlying amendment by expanding the scope of review by the D.C. Circuit Court to include whether the CSRT's procedures are legal, but not whether a particular detainee's detention is legal. It would also allow for post-conviction review of military commission convictions. However, the amendment would still eliminate habeas review and overrule the Rasul case. As a result, I will oppose it.

No one questions the fact that the United States has the power to hold battlefield combatants for the duration of an armed conflict. That is a fundamental premise of the law of war.

However, over the objections of then-Secretary of State Colin Powell and military lawyers, the Bush administration has created a new detention policy that goes far beyond the traditional law of war.

The administration claims the right to seize anyone, including an American citizen, anywhere in the world, including in the United States, and to hold him until the end of the war on terrorism, whenever that may be.

They claim that a person detained in the war on terrorism has no legal rights. That means no right to a lawyer, no right to see the evidence against him, and no right to challenge his detention. In fact, the government has argued in court that detainees would have no right to challenge their detentions even if they claimed they were being tortured or summarily executed.

U.S. military lawyers have called this detention system ``a legal black hole.''

Under their new detention policy, people who never raised arms against the United States have reportedly been taken prisoner far from the battlefield, including in places like Bosnia and Thailand.

Defense Secretary Rumsfeld has described the detainees as ``the hardest of the hard core'' and ``among the most dangerous, best trained, vicious killers on the face of the Earth.'' However, the administration now acknowledges that innocent people are held at Guantanamo Bay. In late 2003, the Pentagon reportedly determined that 15 Chinese Muslims held at Guantanamo are not enemy combatants and were mistakenly detained. Almost 2 years later, those individuals remain in Guantanamo Bay.

Last year, in the Rasul decision, the Supreme Court rejected the administration's detention policy. The Court held that detainees at Guantanamo have the right to habeas corpus to challenge their detentions in federal court. The Court held that the detainees' claims that they were detained for years without charge and without access to counsel ``unquestionably describe custody in violation of the Constitution, or laws or treaties of the United States.''

The Graham amendment would protect the Bush administration's detention system from legal challenge. It would effectively overturn the Supreme Court's decision. It would prevent innocent detainees, like the Chinese Muslims, from challenging their detention.

Yesterday, I received a letter from Colonel Dwight Sullivan of the U.S. Marine Corps. Colonel Sullivan is the Chief Defense Counsel in the Office of Military Commissions. He and other military lawyers have gone to court to challenge the legality of the administration's detention policies.

Colonel Sullivan opposes the Graham amendment. In his letter to me, he said:

I am writing to call your attention to serious errors in the arguments advanced by proponents of Amendment No. 2515 to the FY 2006 DOD Authorization Act that would strip Guantanamo detainees of habeas rights.

In his initial floor speech supporting the Amendment, Senator Graham stated, ``Never in the history of the law of armed conflict has an enemy combatant, irregular component, or POW been given access to civilian court systems to question military authority and control, except here.'' That claim simply is not true. As discussed in greater detail below, the Supreme Court considered habeas petitions filed on behalf of seven of the eight would-be German saboteurs in Ex parte Quirin and on behalf of a Japanese general who was a prisoner of war in In re Yamashita.

Senator Graham stated:

Here is the one thing I can tell you for sure as a military lawyer. A POW or an enemy combatant facing law of armed conflict charges has not been given the right to habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus.

Again, Senator Graham's argument is factually incorrect. U.S. servicemembers do have a right to challenge court-martial proceedings through habeas petitions, in addition to the direct appeal rights.

Colonel Sullivan is not the only military leader who has raised concerns about the Graham amendment. Yesterday, every member of the Senate received a letter from nine retired military officers, including seven Generals and one Rear Admiral. Here is what they said about the Graham amendment:

For generations, the United States has stood firm for the rule of law. It is not the rule of law if you only apply it when it is convenient and toss it over the side when it is not.

The Great Writ of Habeas Corpus has been at the heart of U.S. law since the first drafts of the Constitution. Indeed, it has been part of Western culture for 1000 years, since the Magna Carta ..... The restriction on habeas contemplated by Amendment 2516 would be a momentous change. It is certainly not a change in the landscape of U.S. jurisprudence we should tack on to the Defense Department Authorization Bill at the last minute.

The practical effects of Amendment 2516 would be sweeping and negative. America's great strength isn't our economy or natural resources or the essentially island nature of our geography. It is our mission, and what we stand for. That's why other nations look to us for leadership and follow our lead. Every step we take that dims that bright, shining light diminishes our role as a world leader. As we limit the rights of human beings, even those of the enemy, we become more like the enemy. That makes us weaker and imperils our valiant troops. We are proud to be Americans. This Amendment, well intentioned as it may be, will diminish us.

These American patriots, who served our country for decades, say it better than I ever could. This is not about giving rights to suspected terrorists. It is about American values. Secret indefinite detention is not the American way. Eliminating habeas corpus is not the American way. I urge my colleagues to support the Bingaman second-degree amendment.

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