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National Defense Authorization Act for Fiscal Year 2006--Conference Report

Location: Washington, DC



Mr. GRAHAM. I agree entirely. If I could add one thing on this point: perhaps the best evidence that the current Rasul system undermines effective interrogation is that even the detainees' lawyers are bragging about their lawsuits' having that effect. Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants held at Guantanamo Bay, boasted in a recent magazine interview about how he has made it harder for the military to do its job. He particularly emphasized that the litigation interferes with interrogation of enemy combatants. Ratner stated:

The litigation is brutal for [the United States]. It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation ..... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

When I read that quote, that for me was the last straw. I knew that something had to be done. On this issue, both the detainees' lawyers and the Defense Department seem to agree: involving enemy combatants in adversarial litigation in U.S. courts undermines effective interrogation of those detainees.


Mr. GRAHAM. You are absolutely correct Senator KYL. I must admit, I'm a bit baffled by the assertion that our amendment is somehow internally inconsistent, that our provisions interfere with the McCain provisions in some way.

While we must ensure that detainees are treated humanely, and that is what we addressed so well with the McCain portion of our total package, directing our departments and agencies to refrain from cruel, inhumane, or degrading treatment; we also don't want to give these detainees the right to abuse our courts by going after our soldiers, sailors, airmen and marines based on how we have decided to treat them. In fact, while it is true that some physical abuses have occurred, we know that members of al-Qaida are trained to claim mistreatment to manipulate public opinion of the war.

I would like to remind all of my colleagues of some of the most egregious cases that prompted our amendments. For instance, a detainee who threw a grenade that killed an Army medic, a medic--someone trying to render medical assistance, and who often treats our enemies on the battlefield as well as our own troops.

In any event, the detainee who threw the grenade that killed an Army medic in a firefight, and who comes from a family with longstanding al-Qaida ties, filed for an injunction forbidding anyone from interrogating him or engaging in ``cruel, inhuman, or degrading'' treatment of him.

Now clearly, our reaffirmation of America's policy against treating anyone in a cruel, inhuman, or degrading way tells the world that we are not like our enemy. We do not allow our departments or agencies to treat people like that. And if our people do abuse people, we prosecute them to the fullest extent of the law.

However, to allow a detainee access to our courts to contest every aspect of his detention, a person who has fought against the very system he now seeks to make use of, is ludicrous. And for anyone to say that somehow our provisions undermine the McCain provisions or our overall amendment is just as wrong.

Senator MCCAIN, due to his service in our Nation's military, is uniquely qualified to take the lead on these issues. The McCain provisions are about us. How we behave. How we administer justice. It is another affirmative statement that the United States of America is that ``Shining City on the Hill'' President Reagan referred to. I am very proud to have been part of Senator MCCAIN's effort to retake the moral high ground in the war on terror.

The Graham-Kyl provisions are about them, the detainees, and what rights they do and, most importantly, do not have. And I am proud of the provisions we have made for the detainee's status to be reviewed by the Federal courts on the one time direct appeal. We allow for a just process, in the form of military tribunals and boards and commissions, a process based on Supreme Court precedent, modeled on the tribunals we have used in the past and created in accordance with Geneva Convention requirements. That is the process we have established for determining the status of detainees.

But I have gotten a little far a field here, let's get back to the lawsuits. Here is another of the crazy lawsuits out there: there's a suit out there by a detainee accusing military health professionals of ``gross and intentional medical malpractice'' in alleged violation of the 4th, 5th, 8th, and 14th Amendments, 42 U.S.C. 1981, and other, unspecified, international agreements. Now I don't know about the rest of you, but a detainee has no business in our courts suing the individual doctors and nurses that are making sure that that detainee is in good health.

Here is another one. There is one guy down there that we are trying to send home, and he's suing to keep us from sending him home. Imagine that, he is trying to stay.

One high level al-Qaida detainee lawsuit complains about the base security procedures, the speed of the mail, and his medical treatment. He is asking the courts to order the marines to transfer him into the ``least onerous conditions'' at Guantanamo and allow him to keep any books and reading material sent to him.

I think this one is the one that makes me the maddest. A high level al-Qaida member, who probably has the blood of 9/11 on his hands, complaining about the speed of his mail delivery. Complaining about how onerous the conditions are at Guantanamo.

With the McCain provisions of our amendment, we have, in addition to the President's order and other regulations already in place, directed the Department of Defense to treat him humanely. But under our provisions, he will receive the justice he deserves.

As you can see, these cases have nothing to do with cruel or inhumane treatment. They are abuses of our courts by the very people who are trying to kill Americans here and abroad. I don't know about you, Senator KYL, but I believe that when you raise arms against the United States, you should not be surprised when you lose the privilege of our court system. As the McCain amendment provisions state very clearly, we are not going to treat people inappropriately. And, Senator KYL, as our provisions state very clearly, we are not going to allow them to make a mockery of our courts, standing beside our own citizens at the courthouse door.

We have provided a fair alternative judicial process for the detainees with our provisions. In fact, we have been more than fair. We have given them more process than our own soldiers and marines would enjoy under the Geneva Convention. This in no way undermines the McCain provisions about how we will treat them and I would challenge anyone who thinks so to come to the Senate floor and debate us on that point.

Mr. KYL. To be clear, neither the CSRT nor the ARB process is designed to entertain grievance about the conditions of confinement. Is that your understanding as well?

Mr. GRAHAM. And those are the only channels that have been created where the detainee himself can pursue a remedy on his own in a semi-adversarial forum. These complaints about conditions of confinement, these are for the military itself to enforce through its own procedures and systems of accountability for monitoring its soldiers. And we have no reason to believe that those systems are not adequate to investigate and remedy abuses. For all the attention to cases such as Abu Ghraib, one thing that deserves emphasis is that it was our own military that discovered, investigated, and punished those abuses. That is as it should be. These standards of treatment are important, but they need to be enforced through the military's internal systems of accountability and Congressional oversight, not through lawsuits and adversarial proceedings brought by detainees. The military's own accountability systems ultimately, I think, will be more effective in monitoring our detention centers and in remedying abuses. All that litigation would do--letting these detainees into court--is undermine intelligence gathering through interrogation.


Mr. GRAHAM. I thank the Senator from Arizona for his comments. I'd also like to say a word about the timing of this bill because we drafted this section very carefully and I want our colleagues to know exactly what they will be agreeing to. While our language does respond to the Rasul decision by effectively reversing the Supreme Court's decision in that case, we wanted to respect the courts' role in this by addressing two different considerations.

First, as we stated before, we wanted the CSRT process to yield decisions which will be reviewed by the DC Circuit Court of Appeals. And we wanted to be sensitive to the Rasul court's concerns about a process for the detainees. So, what we did was make the substantive provisions governing the CSRTs and ARBs apply to all cases, those pending on or after the enactment date. This was to ensure that every detainee was provided with the same protections and review.

Second, regarding the modification of the jurisdiction of those courts currently hearing individual habeas or other actions that have been filed by the detainees, we wanted those cases to be recast as appeals of their CSRT determinations. We believe that is the best way to balance between allowing the detainees to challenge their status, and still allowing effective detention and interrogation techniques. As we all know, a court either has jurisdiction to hear a case or it doesn't. Jurisdiction doesn't attach for all time when the case is filed.

This is really no different than transferring a case from one court to another. But in this case, given the change in the substantive law as well, we were required to extinguish these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court and substantive legal change as well.

Mr. KYL. Right. It may not be quite right to characterize this bill's provisions as transferring jurisdiction. Rather, they extinguish one type of action--all of the actions now in the courts--and create in their place a very limited judicial review of certain military administrative decisions.

Mr. GRAHAM. Yes, that is correct. But we do still allow some types of judicial review to go forward--those cases asking for review, in accordance with section 1405, of military commissions or CSRTs. And the very last paragraph of section 1405--I believe that it is paragraph (h)(2)--adopts a compromise of sorts. It states that the bill's authorization for limited DC Circuit review of CSRTs and military commissions shall apply to pending cases. Obviously, no pending case seeks judicial review in the DC Circuit pursuant to section 1405. What this paragraph means is that, at the same time that the courts like the DC district courts kick these cases out of their courtrooms, they can also tell them where they should go next. And if, for example, a habeas action currently is in the DC Circuit, that court can simply construe that action as a request for review of the detainee's CSRT pursuant to subsection (e) of 1405, and allow that claim to go forward in that form.

Mr. KYL. The DC Circuit will have to give the petitioner leave to amend his claim, I assume?

Mr. GRAHAM. Yes, I assume that they will do so. No sense in kicking out a detainee's current habeas action in the DC Circuit just so that he has to refile a section 1405 review request--it would be better to let the current case go forward as a 1405 review request, as appropriately amended.

Mr. KYL. We agree on that point. The one thing that critics have said about this bill that is correct is that it is a jurisdiction stripping bill. It strips every court of jurisdiction to hear claims from detainees held in Guantanamo Bay. The courts' rule of construction for these types of statutes is that legislation ousting the courts of jurisdiction is applied to pending cases. It has to. We're not just changing the law governing the action. We are eliminating the forum in which that action can be heard. And there is no exception anywhere in this bill for keeping intact part of that forum to hear the case. The case simply has nowhere to be heard.

I have just been handed a memorandum on this subject. The governing cases on this question are the Landraf case, as well as Hallowell v. Commons, 239 U.S. at 506, and Sherman v. Grinnell, 123 U.S. at 679. As the Landraf court noted, these statutes ``speak to the power of the court rather than the rights or obligations of the parties.'' These cases articulate the rule that will govern the detainee habeas actions and other lawsuits that currently are in the courts: legislation removing jurisdiction applies to pending cases and removes those cases from the courts.

Mr. GRAHAM. Mr. President, if Senator KYL would be so kind, could he explain how our amendment will affect ongoing litigation? Specifically, my understanding is that the Supreme Court granted certiorari recently in a case.

Mr. KYL. Yes. The Constitution gives Congress the power to make ``exceptions'' and ``regulations'' to the Supreme Court's jurisdiction--or at least, to its appellate jurisdiction. It was Marbury v. Madison that held that Congress could not regulate original jurisdiction, but the court since then has made clear that even habeas actions filed directly in the Supreme Court are regarded as falling within a subspecies of the Supreme Court's appellate jurisdiction. This would be an interesting exam question for a law school class.

The Congress's authority to use this power was affirmed by the Supreme Court in the case of Ex Parte McCardle. That case involved, I believe, an even sharper use of this authority than this bill does--I believe that there the Supreme Court had even heard argument in that case before Congress stripped the court's jurisdiction over it. The Supreme Court upheld the statute and dismissed Colonel McCardle's case for want of jurisdiction.

Mr. GRAHAM. And we are confident that McCardle still is good law?

Mr. KYL. So long as the Constitution still is good law. I am not aware that the clause in Article III allowing Congress to make exceptions and regulations to Supreme Court appellate jurisdiction has been repealed.

I suppose that some might argue that stripping the Supreme Court of jurisdiction over a pending case is unconstitutional if it is driven by some impure motive. But I can't imagine that the court would take away an authority clearly granted to Congress by the Constitution, regardless of what motive one might attribute to us. I am a member of this body, and would have great difficulty describing some definitive motive or intent to every law that we enact. I don't know how the Supreme Court or any other court could accurately discern such a motive. The laws that we enact have meanings that can be discerned through ordinary rules of construction. I think the rule of law is much more secure when the meaning of legislation is governed by those universally accessible rules of construction rather than through some attempt to psychoanalyze Congress's motive. And in any event, as I recall, this amendment was filed before the Supreme Court even granted review in the Hamdan case. That makes it a little hard to argue that the amendment was motivated by a desire to strip the court of its jurisdiction in that case. I don't think that the Constitution gives Hamdan a greater right to have his case go forward than it did to Colonel McCardle.

Mr. GRAHAM. So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari?

Mr. KYL. Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte McCardle. I assume that we may see an unhappy dissent from the court's order from one or two of the Justices--there may be some members of the court who refuse to accept McCardle and article III. But I think that a majority of the court would do the right thing--to send Hamdan back to the military commission, and then allow him to appeal pursuant to section 1405 of this bill.

The court also may well request a round of briefing on the effect of the effect on the Hamdan case. I suppose that a lawyer in the SG's office can look forward to rereading Ex Parte McCardle and the debates on the case in Hart & Wechsler's. But again, I don't think that this will change the result.

As for legislative history, I think it usually is regarded as an element of the canons of construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write.

Mr. GRAHAM. Let me address another issue. As we worked through this language in conference, we received a lot of comments from our colleagues who were concerned not only about the frivolous cases being filed by al-Qaida terrorists at Guantanamo, but by people detained by our forces in Iraq.

I believe there are several cases that have been filed by those held in Iraq challenging their detention by American forces. Our language does not address these cases, and let me tell you why.

The Rasul v. Bush decision that we have talked so much about worked two significant changes in prior POW or detainee law. Prior to Rasul, the Eisentrager line of cases had governed whether foreign combatants had access to our courts. In 1950, the Eisentrager court held that a Federal district court lacked authority to hear habeas cases for some German POWs held by U.S. forces outside the U.S. These Germans had been tried and convicted of war crimes by an American military commission headquartered in Nanking, and then put in jail in Germany.

The Court stated six reasons for its decision. The German prisoners were: (1) Enemy aliens who (2) had never been or resided in the United States, (3) were captured outside U.S. territory and there held in military custody, (4) were there tried and convicted by the military (5) for offenses committed there, and (6) were imprisoned there at all times.

The Eisentrager line of cases is the reason the Bush administration chose to locate the al Qaida and Taliban holding facility at Guantanamo. The Bush administration relied upon the Eisentrager line of cases so as to prevent exactly what we have seen happen since Rasul: terrorists with lawyers. Now I'm a lawyer myself, and I think we can all agree that that is a bad combination.

In fact, if my colleagues will permit me a quick aside, I would remind them again of the statement by one of the lawyers for some of these terrorists, Michael Ratner. Mr. Ratner boasts about the fact that this litigation has undermined intelligence gathering in the war on terror. In an interview published in May of this year Mr. Ratner stated:

The litigation is brutal for the United States. It's huge. We have over one hundred lawyer now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder for the U.S. military to do what they're doing. You can't run an interrogation with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

Now that is what we are facing. Terrorists with lawyers. I am pretty sure the American people expect more from their government than that.

But getting back to what I was saying about Eisentrager. The Bush administration relied on the Supreme Court's decision in Eisentrager when they located the detainees at Guantanamo, reasoning sensibly, at least I think it was sensibly, that since the al-Qaida and Taliban members were enemy aliens who were being held by U.S. forces outside the United States after being captured on the battlefield, that they would not have access to Federal courts.

But then the Supreme Court held in Rasul that the detainees could have access to our courts to challenge their detention. Would my colleague from Arizona care to comment on the Rasul decision?

Mr. KYL. Where to even begin? The U.S. has been accused before in its history of imperialistic behavior, but I think that this is the first time ever that a portion of a sovereign nation has been annexed to the United States by the U.S. Supreme Court.


Mr. GRAHAM. Yes, my friend from Arizona is correct, our language applies only to Guantanamo just because we understand that the Supreme Court only extended the jurisdiction of the courts over the detainees held at Guantanamo. And since the Rasul decision was based on the habeas statute in the U.S. Code, I am very comfortable amending that statute as a proper congressional response to the Court's decision.

As I stated repeatedly to a number of my colleagues, we did not want to deprive the courts of jurisdiction to hear cases filed on behalf of detainees in Iraq because we are confident that, as the law stands now, those cases are already barred by previous Supreme Court decisions, which the Rasul decision left in place.

We should always be careful when dealing with our co-equal branches. Just as we do not appreciate it when they stray into our areas of constitutional responsibility, we should always be willing to refrain from straying into theirs unnecessarily. As I read the Rasul decision, these other cases from other parts of the world are still subject to the Eisentrager opinion and will not be considered by U.S. courts.

And so, our language is limited to Guantanamo. To my friends who counseled that we should extend our jurisdiction modification to those cases being filed on behalf of Iraqis held in accordance with the Geneva Convention, I would just counsel them to be patient. I cannot imagine the Court extending its jurisdiction halfway around the world to involve what is almost exclusively an executive branch function. However, should that become necessary, I am perfectly willing to modify our courts' jurisdiction again to ensure that does not happen. But again, in truth, especially after our very robust action here today, I cannot even conceive of such a decision by the Supreme Court.

Mr. KYL. Well, that is what I thought before Rasul was decided. But we can cross that bridge if we get to it.

Mr. GRAHAM. Mr. President, I would also like my esteemed colleague from Arizona, Senator KYL, to address the misunderstandings that seem to have made their way into the press. For instance, when I returned from Iraq this morning, I was surprised to see the New York Times editorial page making some fundamental mistakes about what our legislation does.

Mr. President, I would also request unanimous consent to have the New York Times editorial entitled Ban Torture. Period. from December 16, 2005 entered in the RECORD.

The first sentence reads, ``It should have been unmitigated good news when President Bush finally announced yesterday that he would back Senator JOHN MCCAIN's proposal to ban torture and ``cruel, inhuman or degrading'' treatment at United States prison camps. Nothing should be more obvious for an American president than to support a ban on torture.'' I agree, nothing should be more obvious. And I'd like to applaud the New York Times for finally endorsing the actions President Reagan took when we signed the Convention Against Torture on April 18, 1988, and the Senate ratified the Convention on October 21, 1994.

But since they appear to be laboring under some confusion, I would like to clarify how and when our antitorture statutes apply. First, torture has been illegal for quite some time. Indeed, Section 2340A of Title 18 of the United States Code specifically provides for the prosecution of people who torture overseas. And most of the techniques of torture, beatings, improper imprisonment, and threats have long been part of the criminal code of the United States.

I strongly supported Senator MCCAIN'S amendment each and every time it came up. I am extremely pleased it passed. But, make no mistake, it does not make torture illegal. Torture has long been illegal. What the McCain language does is make a very clear statement that we will treat people humanely while we have them in our custody. The McCain amendment is a very clear policy statement that is in accord with the best of American tradition. But it does not ban torture. Accordingly, the Graham-Levin-Kyl provisions do not equivocate in any way regarding torture. The Times editors, regrettably, for I appreciate the place the Times holds in our public discourse, do not appear to understand what they are talking about.

I would like to address one other statement the Times makes. They state, and I quote, that ``What is at stake here, and so harmful to America's reputation, is the routine mistreatment of prisoners swept up in the so-called war on terror.'' Now I take great exception to this baseless smear of our soldiers and marines. It is said off-handedly, almost as if everyone takes it for granted that the fine men and women of our armed services routinely mistreat our prisoners.

Well I will tell you, I for one don't take it for granted that the fine people who are putting their lives on the line to protect our Nation routinely mistreat the prisoners in their care. I believe they follow the orders that their superiors give them, orders based on such policy statements as Senator MCCAIN'S or the Army Field Manual, and they follow them to the best of their ability.

Now, are there going to be bad apples? As a former JAG prosecutor and defense counsel, I can tell you affirmatively, yes, there will be. And they will be arrested, tried, convicted, and will serve long sentences. Those few individuals who do not live up to the high standards of the vast majority of our honorable service members, will be held accountable for their actions.

Our troops do not deserve such a slander, and I call on the New York Times to take back the vile assertion they have made against the people who exemplify the best our Nation has to offer.


Mr. GRAHAM. I was pleased to support this legislation and work toward its enactment from the beginning. Under section 1402, our troops now have one standard--the Army Field Manual--for their interrogations. In section 1403, we close the loophole in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As National Security Advisor Stephen Hadley said, ``those standards, as a technical, legal matter, did not apply abroad. And that is what Senator MCCAIN, in the second section of his legislation, wanted to address--wanted to make clear that those would apply abroad. We applied them abroad as a matter of policy; he wanted to make sure they applied as a matter of law. And when this legislation is adopted, it will.'' I agree that these sections do not create a new private right of action, but that they are binding on the executive and may be applicable to actions brought under other statutes.


Mr. GRAHAM. Mr. President, today I rise to comment upon the recently passed Defense authorization bill. That bill contained a Graham-Levin-Kyl amendment which dealt with the Combatant Status R eview Tribunals and Military Commissions at Guantanamo Bay. I was very pleased to join with Senators LEVIN and KYL and others to offer this amendment, and I want to thank them for working so hard on this issue.

In rising today, I address one particular section of our amendment, the requirement that the tribunals consider whether evidence was coerced. In drafting this section, we were compelled to recognize three basic facts.

First, we were compelled to recognize the impracticality of importing domestic criminal protections into a forum constructed to administer what are essentially enemy soldiers; combatants for a very unique enemy, an enemy without uniforms, capitals, or cohesive command structures, but combatants nonetheless.

Second, we were forced to address the necessity of relying on evidence without a complete picture of how it was obtaine d; evidence that might be obscured by the fog of war, derived from battlefield intelligence, from classified sources, or even through unknown circumstances.

Lastly, we were required by our constitutional responsibilities to err on the side of protecting the American people. In instances where there is some doubt as to the evidence or the status of the detainee, the benefit of the doubt must go to the government as it seeks to discharge its first duty, providing for the common defense of our people.

In our efforts to balance these interests, we initially included an exclusionary rule for evidence obtained through ``undue coercion.'' We felt that the term ``undue coercion'' reflected the reality that, in the national security context, there is some level of coercive interrogation that is acceptable. We also understand that, at some point, the reliability of the information can be questioned as a result of the methods used to obtain it. I believe Guantanamo Bay serves a unique and necessary purpose in the war on terror, but we need to ensure that we are holding the right people.

However, upon reconsideration, we came to believe that the term ``undue coercion,'' being a new term without legal precedent, might not be as instructive as we required. Furthermore, a number of the military judge advocates we consulted were concerned that the exclusionary rule could limit them from considering evidence tainted by only an allegation of mistreatment.

Therefore, after much consultation with legal professionals, we decided to eliminate the ``undue'' qualifier. Unfortunately, striking the qualifier also eliminated the consideration of whether the information was obtained by acceptable sources and methods. Accordingly, we decided to refrain from mandating the exclusionary rule. Instead, our language requires, for the first time, the panels to consider the source of the information and the information's reliability. I am very confident our language provides for the proper consideration.

Now, to be sure, our language also provides for the benefit of the doubt to go to the government. In granting this benefit, however, we recognize that we are fundamentally different from our adversaries. Though we may fail at times, we strive to be fair and just and honorable. And because our military men and women exemplify those values, we can trust them to fairly administer this process. In the end, we must remember that this is a military administrative process, and, with the proper congressional and judicial oversight provided by our amendment, we must trust our professional military officers to do their jobs.

In our amendment as a whole, we sought to protect our national security while still striking the proper balance between aggressively interrogating detainees and providing a competent military administrative process for their status determination. I am confident that this new evidentiary standard serves that goal.

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