Unitesd States Policy in Iraq Resolution of 2007--S.J.Res. 9

Mr. President, I think Senator Specter, has given a good overview of where the Congress finds itself, where it wants to go, and how to get there. What I wish to do is give my view for people back home and my colleagues about how what we do now, for the moment, could affect the overall war on terror, and throw out this proposition: Do we believe the outcome in Iraq affects the overall war on terror? Is Iraq a central battlefront in the global struggle? I believe the answer is clearly yes. You could debate whether going into Iraq was the right thing. Clearly that is a debate that will be resolved by historians. We are there now. What are the consequences of a failed state in Iraq and how likely is that to occur, based on what we do for the moment?
I would argue very strongly a failed state in Iraq is a tremendous defeat in the overall war on terror on several fronts. No. 1, it means moderate forces in Iraq were overwhelmed by the extremists. There are basically three groups in Iraq trying to kill this infant democracy. There is a Shia extremist group that has as its goal a theocracy for Iraq where the Shias will dominate the Iraqi landscape and they will have an Iranian style theocracy. It may be different in many ways, but it will be a religious state.
The Sunni extremists are trying to seize power and kill this infant democracy and rule by the gun, not by the rule of law. They were in power during the Saddam era and they want to get back in power. These two groups have different views of what to do with a future Iraq, but they both come together believing a democracy hurts their agenda.
Then there is the rest of Iraq, the Sunnis, the Shia, and the Kurds, which I think are the overwhelming majority--and they are struggling to create a new democracy out of the ashes of a dictatorship. I want to associate myself with some understanding of the struggle they are going through because our country went through this very same struggle. It is hard to create a democracy, but the benefits are enormous if we can pull this off.
The third group is the most dangerous of all. They are in Iraq to kill this infant democracy, not for political power within the border of Iraq as their goal but to create a movement that will sweep the Mideast. This is the al-Qaida organization within Iraq and associated Islamic extremist organizations that have a more regional view of what to do. All three groups, the Shia extremists, the Sunni extremists, and the foreign fighters, namely al-Qaida, are threatened by democracy in different ways.
Shaikh Mohammed has just admitted in open session in a military tribunal that he was in fact the mastermind of 9/11. He went on ad nauseam about all the activity he had been involved in for over a decade. The point of his testimony was he believes he is at war with us. We need to understand we are at war with him. I think for years they were fighting us and we did not quite understand they had declared war upon us. But we all agree now that al-Qaida is a force that needs to be dealt with militarily and that there is a global struggle in which they are involved, and that Shaikh Mohammed is a warrior, an illegal warrior but nonetheless a warrior. He doesn't have a criminal agenda, he has a political agenda and religious agenda, and he considers himself a warrior.
What I hope we can do in Iraq is defeat extremism on all fronts; that we could, in fact, defeat al-Qaida in Iraq, which would be a blow to their overall regional world agenda.
What to do? Senator Specter made a good point. Where do we go? Congress is trying to find its footing. Congress doesn't want to cut off funding. There are different reasons people don't want to cut off funding. The polls clearly show that cutting off funding is not popular, by the American people. There are Members in the body who do want to cut off funding. I respect their point of view because they have concluded Iraq is not part of the war on terror in a traditional sense; that our involvement in Iraq is doing more damage in the war than it is helping.
I just disagree. I think a loss in Iraq is a huge event in the war on terror. And they will come and cast a vote. They will vote against Senator Gregg's resolution saying the Congress should cut off funding. I respect them, but I think they are wrong.
Now as to Senator Reid. His motion is that we are going to try to send a message to the Maliki Government and other political leaders in Iraq by telling them: At a date certain, we are going to start leaving if certain things are not done. I understand the point, that they are trying to get the moderate forces, the Democratic forces in Iraq, to do better and come together quicker.
My concern is pretty simple. I think Senator Specter expressed it very well: The audience of this resolution is not a single audience, that the world will be listening and watching what the Senate does.
If the Senate did pass a resolution setting a specific date--March of next year--where we will begin to redeploy if certain things are not done in Iraq, then I am convinced that in the Mideast it will be taken as a sign of weakness, not strength.
It will be not a message sent to the moderates alone, it will be a message sent to the enemies of democracy. We would be, no matter how well intentioned, laying out a roadmap as to how to drive the United States out of Iraq. The resolution would have two purposes, one well intended: to get the Iraqi Government to do more to expedite the political decisionmaking that is required to lead to a successful outcome.
The other consequence would be, we would be telling our enemies in great detail: Here is what you have to do to make sure we leave at a date certain and that every benchmark we set as to a date becomes a benchmark for the enemy. If you can achieve this benchmark, the United States will leave. To me, if we ever do that, then we have made a huge mistake.
Senator Specter mentioned some of the mistakes. I think General Shinseki was right, we never had enough troops to provide security. We planned for the best, never assumed for the worst. On the economic projections, in terms of the cost of the war, the military understanding of what would happen after the fall of Baghdad, we missed it by a mile. We are paying a heavy price for making those mistakes.
But the biggest mistake is yet to come. If we pass the Reid resolution, it would trump every mistake President Bush's team has made by a factor of many because it would be, in fact, destroying the last best chance we have to salvage democracy in Iraq.
General Petraeus is our best hope. Reinforcements are needed in Iraq: politically, economically, and militarily. Any resolution passed by the Senate declaring this operation lost before it is implemented cuts General Petraeus's legs out from under him. It would be the biggest mistake Congress could make--I would say maybe in American history--to a commander in the field. Eighty-one to zero, we sent the general off to fight in a war anew, and now we are about to send a message to the people he is fighting that on a date certain you win if you do the following things.
This resolution empowers our enemies. It gives them a roadmap of how to drive us out of the Mideast. It weakens the ability of General Petraeus to form coalitions to give the Iraqi politicians what they need to do the things they need to do.
If you want to empower a moderate, which is key to victory in the Mideast in the war on terrorism, the last thing you need to do, in my opinion, is make a public statement that our commitment ends at a certain date if you do not do certain things, because you are telling the enemy exactly what they have to do to win out over the moderates and the United States. It would be a huge mistake of monumental proportions. I hope this body will not allow that to happen.
What happens if we have a failed state in Iraq? Who is the biggest winner if Iraq breaks apart and democracy fails? Iran wins. In the south, the Shia south, a very oil-rich area, that most likely will become a puppet state of Iran. I cannot say for sure it will, but it is the most likely outcome. Let's start, for a change, planning for the worst.
I wish people who were introducing these resolutions would understand the consequences of a failed state and ask themselves: Does this resolution help create a democracy? Does it empower the enemy? Does it help create a failed State? What are the consequences?
Former Senator Edwards is saying we should draw 50,000 troops down today. They asked him the question: What would that mean for regional stability? I don't know. I am not sure.
Well, I can tell you what it means. It would tell the extremists we are leaving, you are winning. Every moderate in the Mideast would start hedging their bets because what kind of political solution are you going to come up with if you believe the American political and economic aid to your young democracy will vanish? You start hedging your bets.
The stronger we are, the bolder they become. The weaker we are, the bolder the enemy becomes. The stronger America, in a rational way, stands by moderate forces, the more likely they are to make the hard decisions to bring the country together. The weaker we seem, the weaker we portray ourselves, the stronger the enemy of democracy.
That is what I believe this is all about. You cannot kill the terrorists in numbers enough to win the war from an American perspective. This war will never be won by the American military killing terrorists. They are doing a wonderful job, our military. This war will be won when extremism is suppressed within the Mideast by the people who live in the Mideast.
So we have to take sides. This war is a war of religion and origin. The origin of this war is not Palestine-Israel, it is bin Laden, Shaikh Mohammed, and others who have a view of religion that has no place on the planet for the State of Israel or moderate Muslims, Christians, Jews. They have said publicly their goal is to drive us out of the Mideast, topple all moderate governments that do business with the West and essentially destroy Israel. I believe them.
Iraq is a test of us and our will versus their will. I do hope we understand the vote we are about to take will shape the fortunes in Iraq in the coming months one way or the other. The decision we take in Iraq will shape our national security interests for decades, will change the Mideast for the better or for the worse, and will have monumental consequences on the war on terrorism.
This is not about the political moment. This is about the decades to follow. Leaving Iraq, from a national security perspective, is not the question for the country. We all want to leave sooner rather than later for the good of our own troops, and eventually the stability of the world, to allow the Iraqis to take over their own destiny.
The question for this country is what do we leave behind? I am convinced if we leave behind a failed State, where moderates are overwhelmed by extremists, the problems in Iraq spill out to the Mideast, and the war does not end when you leave Iraq, it just begins.
You need to look at Shaikh Mohammed and what he said a few days ago, and what they are saying now, al-Qaida. Understand that they believe the outcome in Iraq is part of the war on terror. I believe it. These resolutions, in my opinion, do not understand that.
As to General Petraeus, I have a lot of confidence in this new plan. It is not more of the same. It is trying to go at the problems in Iraq new and differently. There are early signs of success. There is a long way to go, But please understand the General and those who are under his command are affected by our actions in Washington. The world is watching. Please do not send a message to the wrong people, no matter how well intended.
I yield the floor.

S.Con.Res. 19

Expressing the sense of Congress on the nuclear program of Iran.

Introduced: 03/14/1007
Referred to Senate Committee on Foreign Relations

Improving America's Security Act of 2007--Resumed

Mr. Graham: Madam President, this is a session worthy of the Senate, worthy of the country, and I think incredibly important. I compliment Senator Kyl for what I thought was an excellent overview of what the law requires in this area, what the Geneva Conventions require, and how our country exceeds the requirement of the Geneva Conventions.
To my good friend Senator Specter, there is no better champion of fairness and constitutional causes than Senator Specter. On this we respectfully disagree as to what the courts have said, and as far as the lay of the land of how you do this.
I do not come to this body as an expert on the Geneva Conventions. I have had some time in the military as a military lawyer. I have a pretty good understanding of what
is going on in some respects. But I ask every Senator to review what is going on and make their own judgments, ask their own legal friends if they are not lawyers, and try to be fair.
We will all serve the country well if we will have a process that is constitutionally sound, that meets the test of fairness, and also recognizes we are at war and we are under great threat. So my basic presumption here as a Senator is I want to put infrastructure in place that recognizes the country is in an ongoing global struggle, and that as part of that global struggle we are dealing with people who are out of uniform.
This is not a capital to conquer or a navy to sink or an air force to shoot down. This is a unique war in the sense that it is ideologically based, not a particular location we are trying to conquer and not a particular uniform we are trying to suppress. The global war on terrorism is about extreme versus moderation, and it is rearing its head all over the planet.
So the battlefield in this war, from my point of view, is the globe itself, just as in World War II--the al-Qaida enemy. That is who we are talking about, people affiliated with al-Qaida, al-Qaida-like operatives who are going throughout the planet trying to kill civilians, rampantly trying to inflict harm on our own troops for an ideological agenda based on religion. They have no boundaries. They are not signatories to the convention. They do not play by the law of armed conflict.
But even if they have a status in the law of armed conflict, we are trying to make sure their status is determined in the proper way. We realized in past wars that the Viet Cong and others operated outside of a uniform, in a guerilla-type fashion. Well, the terrorists operate out of uniform with absolutely no respect for any concept of the law of armed conflict. But once they are captured, if they are not killed, then it becomes about us, not about them.
What does the United States do when it finds an enemy combatant, someone out of uniform, who is engaged in hostilities? See, I do believe 9/11 was not just a crime; this was an act of war. There are warriors all over this planet involved in a great struggle, in their minds, against moderate Muslims and every other religion, Christian, Jewish faith, and they have no place for the rest of us. If you solved the Jewish-Palestinian problem tomorrow, they would still be coming after us.
The people at greatest risk are moderate Muslims in the Middle East who would tolerate different ways of looking at religion. So there is a global struggle, and when we find a person we believe to be an al-Qaida operative or a supplier of materials to al-Qaida, the first thing, if they survive the battle, is that our military must fight the war, and if they are captured, we have to determine their status.
If there is a question as to whether the person captured by the American military is a lawful combatant, an enemy combatant, or nonbelligerent, who makes the decision as to what is the proper status for that individual?
Well, under the law of armed conflict--and I do believe we are at war--it is the military. Under the Geneva Conventions, it is the military. Article 5 of the Geneva Conventions is very important. Because within that article, it informs the world at large, the signatories of the conventions, that a competent tribunal must be empaneled to determine the status. That competent tribunal panel all over the world is the military.
The reason I object so vehemently to allowing habeas petitions to be filed to determine who is a military threat is we would be conferring what is a military decision, historically and under the law of armed conflict, and literally making it a civilian judge's decision where witnesses would be called and the judge would have a full-blown trial, with some very sensitive information.
I do respect our judges, but with all due respect to our judges--I think most of them appreciate this--they are not trained as to who a military threat is to the United States. That truly is a military decision, and we are not making that up after 9/11. That has been a military decision under the Geneva Conventions article 5 since the conventions were drafted. So we are doing nothing new because we were attacked by an ``un-uniformed'' enemy.
The question as to what Senator Specter has raised: What process do we have in place to determine if a person is truly an enemy combatant, a concept recognized by the Geneva Conventions, the combat status review tribunal to me is not only constitutionally sound, it goes beyond what the Geneva Conventions require. Senator Specter read a transcript of a case that went to the DC Circuit Court of Appeals. I want us to slow down for a moment and think about that. The case as to whether this person was an enemy combatant worked its way up through our Federal judiciary to the second highest court in the land.
Under the law we passed last year, we allowed in every decision by the military that results in a finding that a person is an enemy combatant that that individual will be able to go to our court system, which is not required under the Geneva Conventions and is done nowhere else that I know of, and the court will review that case on two grounds: Were the procedures in place constitutional--Senator Specter mentioned this--and do you feel comfortable with the rebuttable presumption? Well, that has already been decided. In the Hamdi case of 2004, they specifically comment on the CSRT procedures. There is a preponderance of the evidence test required. The Government must prove by a preponderance of the evidence that the person in question is an enemy combatant.
This is not a judicial proceeding, this is an administrative proceeding. It is like the EPA deciding an administrative question. But it is an important decision, because if you are an enemy combatant, you can be held for an indeterminate period of time. As long as you are a threat, you can be held as long as hostilities exist.
The problem with this war is we do not know when the war is going to be over, so we want to build robust due process.
Let me tell my colleagues without hesitation: We have let almost 200--I can't remember the number--go from Guantanamo Bay who had been captured and determined to be enemy combatants. Every year their status was reviewed because we do not want to keep people forever unless there is a reason to keep them. Three things are looked at in every person's case administratively: Do you have intelligence value still; are you a threat to the country; and has anything new come into the case file to say you were originally misidentified as an enemy combatant? Twelve of the people released have gone back to the fight, have gone back to trying to kill Americans and civilians.
The question for this country and the world is when it comes time to decide to release somebody, there is risk to be had in that decision. Who should share that risk the most? Is it the civilian populations that have been the victims of these ``un-uniformed'' killers who have chosen to join these organizations or support them with no boundaries or should it be the people who take up these causes?
I will tell you where I am coming down. If there is a doubt as to whether they continue to be a threat to our country and other peace-loving people, we are not going to turn them loose to fight us again. Every enemy combatant is not a war criminal. There is a separate proceeding at Guantanamo Bay to deal with those people involved in war crimes. If you start mixing the two, it will come back to haunt our country because we do not want to stand for the concept as a nation that every time an American soldier is captured in the battles of the future it would be appropriate to label them a war criminal. War criminals have to do specific things. Being part of an enemy force does not make one a war criminal.
So the point I am trying to make is the administrative procedures in place at Guantanamo Bay have been found to be constitutional, but we added a provision last year that allows the court to review whether the tribunal's finding was supported by a preponderance of the evidence, and allowing a rebuttal presumption in favor of the Government's evidence.
In other words, the DC Circuit Court of Appeals can look at the military's findings, not just the process, and they can say, as a panel of judges: Wait a minute, there is no competent evidence to support a finding that you are an enemy combatant. The court can say the case file is deficient. Not only was the process deficient--the process could be constitutionally sound--but it could result in an individual case where there was not sufficient evidence in the opinion of the court. The court does this all the time.
The court will review administrative bodies' decisionmaking abilities throughout this land. It could be in the EPA, it could be in some other agency of the Government, where the court will be able to look at the hearing officer's findings and determine if there was sufficient evidence to support that hearing officer's finding.
So going back to the transcript Senator Specter read, they did not tell him who it was. Well, maybe the reason he was not told who informed is because if we put out in a public setting our informant system, they will wind up getting killed. That is not an unknown concept in criminal law.
So I would argue, there is information in these cases that will never be publicly disclosed because if we start publicly disclosing the entire network that led to this capture, we are going to get people killed and we will be less safe. That is why we have a classified portion.
Shaikh Mohammed, the mastermind of 9/11, will be going through this process tomorrow, I believe, at Guantanamo Bay. Fourteen other high-value detainees captured in the global war on terror--very significant players in the al-Qaida movement--will be given a hearing at Guantanamo Bay, where the Government will have to prove the person in question--Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own regulations, consistent with the Geneva Convention.
These hearings will be closed. I applaud the fact they are closed. The evidence will be redacted and given to the public and the press. But there will be a transcript available to be reviewed by the DC Circuit Court of Appeals, including the classified portion, in a classified setting.
I think it would be a huge mistake to disclose the methods and operations and the sources that led to the capture of Shaikh Mohammed in an administrative proceeding. Our courts will look at that evidence in a classified fashion because Shaikh Mohammed will be allowed to have his case reviewed, after the military makes their decision, in Federal court--something never done in any other war. The reason we did this last year, with Senator Levin's help, was to make sure--because we do not know when this war will be over--there will be a check and balance on a military decision never known in any other war.
I support that check and balance. I support the idea that every military decision regarding enemy combatant status will work its way through our court system. I vehemently object to taking what is a military decision and giving it to a civilian judge in a habeas forum, which is a complete Federal trial where the civilian judge makes the decision, not the military. Let the judges review the military work product. Do not give it to the civilian judges.
Shaikh Mohammed will be classified one way or the other. I am sure he will be classified as an enemy combatant. But the DC Circuit Court of Appeals will get to review his case. What is likely to happen in his case, if you believe the press reports? If he truly can be proven to be the mastermind of 9/11, he will be tried as a war criminal because the activities he engaged in--of orchestrating a series of attacks on our country, where you hijack civilian aircraft to go into the World Trade Center and to attack Washington, DC--would be a violation of war, as well as a
crime.
So he could work his way into the military commission trial procedure. ``Enemy combatant'' is an administrative determination. Charging somebody with a war crime is a totally different process. If the Government charges him with a war crime in a military commission setting, in a military commission format at Guantanamo Bay, they will not be allowed to give to the jury classified information proving he is guilty of what we are accusing him of doing, unless they share it with the accused. That was my objection to President Bush's proposal. I do not want to create a precedent where one of our soldiers could be tried in a foreign land, accused of being a war criminal, and never be given the evidence and be able to defend against what would be a criminal proceeding resulting in death or long-term imprisonment.
So for Shaikh Mohammed or anyone else, if the Government decides to use classified evidence to find someone guilty, they get a chance to defend themselves because we are talking about a punishment that could include execution.
There are two different concepts. The rules are different. What goes on in a military commission trial is consistent with what we do with our own troops under the Uniform Code of Military Justice when we try them for crimes. One is an administrative determination that exceeds the Geneva Convention requirements. The other is a criminal proceeding under the Law of Armed Conflict that I believe will be constitutional and the courts will say is a process worthy of this country.
As to what the law is, I say to my good friend, Senator Specter, I believe the Rasul case was based on this concept. The Department of Justice argued that Guantanamo Bay was outside the jurisdiction of the United States. If that were the case, if they won that argument, the constitutional provisions of habeas would not apply, nor would the statutory provisions. But Rasul was about a statute, not about the constitutional provisions, in my opinion.
Here is what the court said: They rejected the Bush position that the laws of the United States do not apply to Guantanamo Bay because of the lease and because of the relationship we have to that facility.
Do you know what. I think the court was right. I think that was an ill-advised position by the Bush administration.
So once Rasul was decided, and they rejected Eisentrager's statutory interpretation test, the Rasul court, in my opinion, said since it is within the United States, and Congress has not spoken to this in 2241--Congress has never said because you are an alien enemy combatant at Guantanamo Bay you cannot have a 2241 right--we are going to confer that right until Congress decides otherwise.
Mr. SPECTER. Madam President, will the Senator from South Carolina yield for one question?
Mr. GRAHAM. Yes, I will.
Mr. SPECTER. Madam President, when the Senator from South Carolina says, in the case cited that got to the Court of Appeals for the District of Columbia, where the charge was he had talked to an al-Qaida person, but they could not give the name--and the Senator from South Carolina seeks to justify that on the ground there might be some circumstance where disclosing the name would reveal a confidential source--can the Senator from South Carolina give any conceivable way there would be a disclosure of a source simply by identifying the al-Qaida person this detainee was supposed to have talked to?

The Tribunal President then says:
We are asking you the questions and we need you to respond to what is on the unclassified summary.
And the detainee later said:
I was hoping you had evidence that you can give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like this, I would take these accusations and I would hit him in the face with them. Sorry about that.
And then in parens it says:
Everyone in the tribunal room laughed.
That is from the transcript. The Tribunal President said:
We had a laugh but it is OK.
Then Judge Green says:
The laughter reflected in the transcript is understandable, and this exchange might have been truly humorous had the consequences of the detainee's ``enemy combatant status'' not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate.
This tribunal, as to the detainee in the Boumediene case, that got to the circuit court of appeals--how the circuit court of appeals could say this is fair, how the circuit court of appeals could say this comports with the definition the Department of Defense has set out, that enemy combatant means ``an individual who is a part or supporting Taliban or al-Qaida forces or including a person who has committed a belligerent act or who has directly supported hostilities in aid of the enemy Armed Forces'' when the only thing in the transcript is ``while living in Bosnia the detainee associated with a known al-Qaida operative''--``associated with a known al-Qaida operative'' hardly meets the definition of the Department of Defense itself, of supporting Taliban or al-Qaida forces or ``associated forces that are engaged in hostilities'' or ``a person who has committed a belligerent act.''
This detainee, whose detention was upheld by the Court of Appeals of the District of Columbia on as great a stretch as imaginable on legal principles, is looking at a record where all the detainee was supposed to have done was talked to al-Qaida. They couldn't even name the person. That is miles from satisfying the definition by the Department of Defense.

Mr. graham: Madam President, this is a session worthy of the Senate, worthy of the country, and I think incredibly important. I compliment Senator Kyl for what I thought was an excellent overview of what the law requires in this area, what the Geneva Conventions require, and how our country exceeds the requirement of the Geneva Conventions.
To my good friend Senator Specter, there is no better champion of fairness and constitutional causes than Senator Specter. On this we respectfully disagree as to what the courts have said, and as far as the lay of the land of how you do this.
I do not come to this body as an expert on the Geneva Conventions. I have had some time in the military as a military lawyer. I have a pretty good understanding of what
is going on in some respects. But I ask every Senator to review what is going on and make their own judgments, ask their own legal friends if they are not lawyers, and try to be fair.
We will all serve the country well if we will have a process that is constitutionally sound, that meets the test of fairness, and also recognizes we are at war and we are under great threat. So my basic presumption here as a Senator is I want to put infrastructure in place that recognizes the country is in an ongoing global struggle, and that as part of that global struggle we are dealing with people who are out of uniform.
This is not a capital to conquer or a navy to sink or an air force to shoot down. This is a unique war in the sense that it is ideologically based, not a particular location we are trying to conquer and not a particular uniform we are trying to suppress. The global war on terrorism is about extreme versus moderation, and it is rearing its head all over the planet.
So the battlefield in this war, from my point of view, is the globe itself, just as in World War II--the al-Qaida enemy. That is who we are talking about, people affiliated with al-Qaida, al-Qaida-like operatives who are going throughout the planet trying to kill civilians, rampantly trying to inflict harm on our own troops for an ideological agenda based on religion. They have no boundaries. They are not signatories to the convention. They do not play by the law of armed conflict.
But even if they have a status in the law of armed conflict, we are trying to make sure their status is determined in the proper way. We realized in past wars that the Viet Cong and others operated outside of a uniform, in a guerilla-type fashion. Well, the terrorists operate out of uniform with absolutely no respect for any concept of the law of armed conflict. But once they are captured, if they are not killed, then it becomes about us, not about them.
What does the United States do when it finds an enemy combatant, someone out of uniform, who is engaged in hostilities? See, I do believe 9/11 was not just a crime; this was an act of war. There are warriors all over this planet involved in a great struggle, in their minds, against moderate Muslims and every other religion, Christian, Jewish faith, and they have no place for the rest of us. If you solved the Jewish-Palestinian problem tomorrow, they would still be coming after us.
The people at greatest risk are moderate Muslims in the Middle East who would tolerate different ways of looking at religion. So there is a global struggle, and when we find a person we believe to be an al-Qaida operative or a supplier of materials to al-Qaida, the first thing, if they survive the battle, is that our military must fight the war, and if they are captured, we have to determine their status.
If there is a question as to whether the person captured by the American military is a lawful combatant, an enemy combatant, or nonbelligerent, who makes the decision as to what is the proper status for that individual?
Well, under the law of armed conflict--and I do believe we are at war--it is the military. Under the Geneva Conventions, it is the military. Article 5 of the Geneva Conventions is very important. Because within that article, it informs the world at large, the signatories of the conventions, that a competent tribunal must be empaneled to determine the status. That competent tribunal panel all over the world is the military.
The reason I object so vehemently to allowing habeas petitions to be filed to determine who is a military threat is we would be conferring what is a military decision, historically and under the law of armed conflict, and literally making it a civilian judge's decision where witnesses would be called and the judge would have a full-blown trial, with some very sensitive information.
I do respect our judges, but with all due respect to our judges--I think most of them appreciate this--they are not trained as to who a military threat is to the United States. That truly is a military decision, and we are not making that up after 9/11. That has been a military decision under the Geneva Conventions article 5 since the conventions were drafted. So we are doing nothing new because we were attacked by an ``un-uniformed'' enemy.
The question as to what Senator Specter has raised: What process do we have in place to determine if a person is truly an enemy combatant, a concept recognized by the Geneva Conventions, the combat status review tribunal to me is not only constitutionally sound, it goes beyond what the Geneva Conventions require. Senator Specter read a transcript of a case that went to the DC Circuit Court of Appeals. I want us to slow down for a moment and think about that. The case as to whether this person was an enemy combatant worked its way up through our Federal judiciary to the second highest court in the land.
Under the law we passed last year, we allowed in every decision by the military that results in a finding that a person is an enemy combatant that that individual will be able to go to our court system, which is not required under the Geneva Conventions and is done nowhere else that I know of, and the court will review that case on two grounds: Were the procedures in place constitutional--Senator Specter mentioned this--and do you feel comfortable with the rebuttable presumption? Well, that has already been decided. In the Hamdi case of 2004, they specifically comment on the CSRT procedures. There is a preponderance of the evidence test required. The Government must prove by a preponderance of the evidence that the person in question is an enemy combatant.
This is not a judicial proceeding, this is an administrative proceeding. It is like the EPA deciding an administrative question. But it is an important decision, because if you are an enemy combatant, you can be held for an indeterminate period of time. As long as you are a threat, you can be held as long as hostilities exist.
The problem with this war is we do not know when the war is going to be over, so we want to build robust due process.
Let me tell my colleagues without hesitation: We have let almost 200--I can't remember the number--go from Guantanamo Bay who had been captured and determined to be enemy combatants. Every year their status was reviewed because we do not want to keep people forever unless there is a reason to keep them. Three things are looked at in every person's case administratively: Do you have intelligence value still; are you a threat to the country; and has anything new come into the case file to say you were originally misidentified as an enemy combatant? Twelve of the people released have gone back to the fight, have gone back to trying to kill Americans and civilians.
The question for this country and the world is when it comes time to decide to release somebody, there is risk to be had in that decision. Who should share that risk the most? Is it the civilian populations that have been the victims of these ``un-uniformed'' killers who have chosen to join these organizations or support them with no boundaries or should it be the people who take up these causes?
I will tell you where I am coming down. If there is a doubt as to whether they continue to be a threat to our country and other peace-loving people, we are not going to turn them loose to fight us again. Every enemy combatant is not a war criminal. There is a separate proceeding at Guantanamo Bay to deal with those people involved in war crimes. If you start mixing the two, it will come back to haunt our country because we do not want to stand for the concept as a nation that every time an American soldier is captured in the battles of the future it would be appropriate to label them a war criminal. War criminals have to do specific things. Being part of an enemy force does not make one a war criminal.
So the point I am trying to make is the administrative procedures in place at Guantanamo Bay have been found to be constitutional, but we added a provision last year that allows the court to review whether the tribunal's finding was supported by a preponderance of the evidence, and allowing a rebuttal presumption in favor of the Government's evidence.
In other words, the DC Circuit Court of Appeals can look at the military's findings, not just the process, and they can say, as a panel of judges: Wait a minute, there is no competent evidence to support a finding that you are an enemy combatant. The court can say the case file is deficient. Not only was the process deficient--the process could be constitutionally sound--but it could result in an individual case where there was not sufficient evidence in the opinion of the court. The court does this all the time.
The court will review administrative bodies' decisionmaking abilities throughout this land. It could be in the EPA, it could be in some other agency of the Government, where the court will be able to look at the hearing officer's findings and determine if there was sufficient evidence to support that hearing officer's finding.
So going back to the transcript Senator Specter read, they did not tell him who it was. Well, maybe the reason he was not told who informed is because if we put out in a public setting our informant system, they will wind up getting killed. That is not an unknown concept in criminal law.
So I would argue, there is information in these cases that will never be publicly disclosed because if we start publicly disclosing the entire network that led to this capture, we are going to get people killed and we will be less safe. That is why we have a classified portion.
Shaikh Mohammed, the mastermind of 9/11, will be going through this process tomorrow, I believe, at Guantanamo Bay. Fourteen other high-value detainees captured in the global war on terror--very significant players in the al-Qaida movement--will be given a hearing at Guantanamo Bay, where the Government will have to prove the person in question--Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own regulations, consistent with the Geneva Convention.
These hearings will be closed. I applaud the fact they are closed. The evidence will be redacted and given to the public and the press. But there will be a transcript available to be reviewed by the DC Circuit Court of Appeals, including the classified portion, in a classified setting.
I think it would be a huge mistake to disclose the methods and operations and the sources that led to the capture of Shaikh Mohammed in an administrative proceeding. Our courts will look at that evidence in a classified fashion because Shaikh Mohammed will be allowed to have his case reviewed, after the military makes their decision, in Federal court--something never done in any other war. The reason we did this last year, with Senator Levin's help, was to make sure--because we do not know when this war will be over--there will be a check and balance on a military decision never known in any other war.
I support that check and balance. I support the idea that every military decision regarding enemy combatant status will work its way through our court system. I vehemently object to taking what is a military decision and giving it to a civilian judge in a habeas forum, which is a complete Federal trial where the civilian judge makes the decision, not the military. Let the judges review the military work product. Do not give it to the civilian judges.
Shaikh Mohammed will be classified one way or the other. I am sure he will be classified as an enemy combatant. But the DC Circuit Court of Appeals will get to review his case. What is likely to happen in his case, if you believe the press reports? If he truly can be proven to be the mastermind of 9/11, he will be tried as a war criminal because the activities he engaged in--of orchestrating a series of attacks on our country, where you hijack civilian aircraft to go into the World Trade Center and to attack Washington, DC--would be a violation of war, as well as a
crime.
So he could work his way into the military commission trial procedure. ``Enemy combatant'' is an administrative determination. Charging somebody with a war crime is a totally different process. If the Government charges him with a war crime in a military commission setting, in a military commission format at Guantanamo Bay, they will not be allowed to give to the jury classified information proving he is guilty of what we are accusing him of doing, unless they share it with the accused. That was my objection to President Bush's proposal. I do not want to create a precedent where one of our soldiers could be tried in a foreign land, accused of being a war criminal, and never be given the evidence and be able to defend against what would be a criminal proceeding resulting in death or long-term imprisonment.
So for Shaikh Mohammed or anyone else, if the Government decides to use classified evidence to find someone guilty, they get a chance to defend themselves because we are talking about a punishment that could include execution.
There are two different concepts. The rules are different. What goes on in a military commission trial is consistent with what we do with our own troops under the Uniform Code of Military Justice when we try them for crimes. One is an administrative determination that exceeds the Geneva Convention requirements. The other is a criminal proceeding under the Law of Armed Conflict that I believe will be constitutional and the courts will say is a process worthy of this country.
As to what the law is, I say to my good friend, Senator Specter, I believe the Rasul case was based on this concept. The Department of Justice argued that Guantanamo Bay was outside the jurisdiction of the United States. If that were the case, if they won that argument, the constitutional provisions of habeas would not apply, nor would the statutory provisions. But Rasul was about a statute, not about the constitutional provisions, in my opinion.
Here is what the court said: They rejected the Bush position that the laws of the United States do not apply to Guantanamo Bay because of the lease and because of the relationship we have to that facility.
Do you know what. I think the court was right. I think that was an ill-advised position by the Bush administration.
So once Rasul was decided, and they rejected Eisentrager's statutory interpretation test, the Rasul court, in my opinion, said since it is within the United States, and Congress has not spoken to this in 2241--Congress has never said because you are an alien enemy combatant at Guantanamo Bay you cannot have a 2241 right--we are going to confer that right until Congress decides otherwise.
Mr. SPECTER. Madam President, will the Senator from South Carolina yield for one question?
Mr. GRAHAM. Yes, I will.
Mr. SPECTER. Madam President, when the Senator from South Carolina says, in the case cited that got to the Court of Appeals for the District of Columbia, where the charge was he had talked to an al-Qaida person, but they could not give the name--and the Senator from South Carolina seeks to justify that on the ground there might be some circumstance where disclosing the name would reveal a confidential source--can the Senator from South Carolina give any conceivable way there would be a disclosure of a source simply by identifying the al-Qaida person this detainee was supposed to have talked to?

Madam President, if I may, just not being an intelligence expert, when we start naming the people involved around the individual, then we are talking about locations, specific sites. I would be very worried if we started naming in detail al-Qaida operatives, where they were, what they said, because that could set in effect a chain of events that would allow the enemy to understand what happened in that transaction.
We may just disagree about this issue, but I do believe that the classified--that Shaikh Mohammed--maybe I can say it this way. I am glad that Shaikh Mohammed's case is classified, and we are not going to reveal to the public how we captured him, all the evidence that led us to find out where he was and what he was doing. I think it would be a nightmare for this country.
As to the DC Circuit Court of Appeals opinion, I say to Senator Specter, they said the procedure was constitutional. I agree with them. Whether or not the individual case had sufficient evidence to support a finding is now subject to review by the court. This gentleman will get that review by the court based on what we did last year.
Mr. SPECTER. Madam President, I find it very hard--really impossible--to follow that answer. I cannot conceive of what the Shaikh Mohammed case has to do with my question or has to do with the proceeding before the Combat Status Review Tribunal for the detainee whose case got to the court of appeals, where he was accused of talking to an al-Qaida person, and they could not even identify the name of the person. That is not asking any places and times and whatever other activity was taken. I would rest my case, contrary to the arguments by the Senator from South Carolina, on that point.
If anybody thinks the Senator from South Carolina has given any reason that they could not identify the identity of the al-Qaida person without disclosing a confidential source--not talking about when, where, and under what circumstances--if my colleagues who will vote on this ultimately are satisfied with the answer by the Senator from South Carolina, then I will accept their judgment.
Mr. GRAHAM. I appreciate that. And I will continue. I will say this to my good friend from Pennsylvania. You were reading the transcript of a case that went on appeal. You have determined yourself that an injustice was rendered. You have made an opinion inconsistent with what the court found. You have your own sense of justice. I appreciate it, I admire it, but I do believe the court is right and you are wrong.
I do believe there is no constitutional right available to enemy combatant terrorists, noncitizens. I do not believe Rasul decided that, because if they had decided that, all these cases we are talking about would have been dismissed.
The circuit court of appeals may not be the--they would have gotten that. We have a case going to the DC Circuit Court of Appeals that either they have no idea of what the law is or Senator Specter is wrong.
So I hope my colleagues will understand the DC Circuit Court of Appeals is not blind to the issues in this case, they just did not miss the fact that the Supreme Court, in Rasul, 3 years ago, declared a constitutional right and the DC Circuit Court of Appeals is out to lunch as a group of judges who do not understand one of the biggest decisions in American jurisprudence. If my colleagues believe that Rasul created a constitutional right for an enemy combatant, noncitizen, and everybody in the legal system has missed it, then you should not trust anything coming out of the DC Circuit Court of Appeals, you should not trust any decision coming from district court judges all over the country who are dismissing these cases, and you should not believe a thing I say.
But there is a reason the DC Circuit Court of Appeals did not feel bound by a constitutional finding in Rasul--because the court did not find that.
There is a reason they upheld the proceedings in the case in question, and some of that reason may be classified. I don't know. But I do know this: It is not good law or public policy to take a transcript released by the defense counsel and read it in isolation and try to use that anecdotal story to say that the whole process is broken, when the court looked at the entire process and found that it was not broken. I can promise my colleagues that if the Rasul case said there was a constitutional right to habeas corpus by a noncitizen enemy combatant, it would have been a major issue in the Al Odah case. The reason Al Odah decided what it did is because it rejected the defense claim there should be, and there is no evidence in the Al Odah case that the DC Circuit Court of Appeals took precedent in the Rasul case and came out with a different finding. Don't my colleagues think there would have been a long discussion in the Al Odah case by the DC Circuit Court of Appeals that here is why the precedent set in Rasul for a constitutional habeas right for an enemy combatant noncitizen is wrong?
So please give the DC Circuit Court of Appeals some credit for not missing the biggest issue in military law in 200 years because they didn't miss it. Please give the Department of Defense some credit that when they issued this memo to detainees and their lawyers in July of 2004 indicating there is a habeas petition available to you, that it wasn't the Department of Defense's desire to create that right and that what they were doing was consistent with Rasul in saying that under 2241 you now had this right. For someone to suggest that memo was a conscious decision by the Department of Defense to give a habeas right to detainees I think completely misunderstands what the memo was about, distorts what it was about, and is a complete misunderstanding of what happened in Rasul. The Department of Defense had no other choice but to tell the detainees after the Rasul decision: You can file habeas petitions under 2241.
The Supreme Court in three cases has told the Congress: You need to speak here. We found a statutory right because you haven't excluded it. Do you want as a Congress to confer on the Shaikh Mohammeds of the world an ability to go into Federal court of their own choosing, to find the most liberal judge they can find in this country, and take the military and every other intelligence agency to court and have that judge, in a full-blown trial, determine whether this person is an enemy combatant? That would be changing a process on its head. That would be taking away from the military the ability they have under the Law of Armed Conflict to decide who an enemy combatant is and give it to a civilian judge who is not trained in that. It would be a fundamental, far-reaching mistake that would haunt us and undermine our national security, put judges in positions they are not trained for, and take away from our military an obligation and right they have to defend us. There is a place for judges. There is a place for the Congress. There is a place for the President. There is a place for those fighting this war.
I have one simple goal. I want to put people in the lanes where they can do the most good and the least harm. I do believe, if we turn this war into a crime and if we take the Shaikh Mohammeds of the world and we let civilian judges have a full-blown trial about how we found out they were the mastermind of 9/11 and if you take away from the military what a military threat is and you give it to civilian judges, you are going to make this war much harder to prosecute, and it will come back to haunt us. It has never been done before for a reason. We never allowed the Nazis, who are on par with al-Qaida, the ability to go into our Federal courts and sue the people who were fighting them--our troops. Because Justice Jackson in 1950 said: You would undermine the commander. They would be fighting the enemy on two fronts: on the battlefield and in the courts of the United States. It would undermine the commander's credibility. It would lead to chaos. There is a reason the Germans and the Japanese never went to Federal court. It would be, in my opinion, dangerous to give to al-Qaida more rights than we gave to the Nazis.
This is a great debate to have, but it needs to be based on some sound concepts. I don't think it is a sound concept to say that Rasul gave a constitutional right to noncitizen enemy combatants under our Constitution. I don't think it is a sound concept to say that the DC Circuit Court of Appeals 2

Mr. SPECTER. Madam President, when the Senator from South Carolina says, in the case cited that got to the Court of Appeals for the District of Columbia, where the charge was he had talked to an al-Qaida person, but they could not give the name--and the Senator from South Carolina seeks to justify that on the ground there might be some circumstance where disclosing the name would reveal a confidential source--can the Senator from South Carolina give any conceivable way there would be a disclosure of a source simply by identifying the al-Qaida person this detainee was supposed to have talked to?

Mr. Graham: weeks ago missed that. They didn't miss it. That is not what this debate is about. This debate is about whether 2241--something under our control--whether we as a Congress want to give to enemy combatants the ability to sue our own troops. There are over 160 lawsuits filed. It has made a nightmare of Guantanamo Bay. They are suing our own troops for medical malpractice, for DVD access, for better exercise. You name it, they have brought a lawsuit around it and it has clogged our courts and it has impeded the ability to run this jail.
Let me tell my colleagues, in a classified and unclassified manner, the intelligence we have received from
people housed at Guantanamo Bay has helped this country defend itself. The last thing we should be doing in an ongoing war is hampering our ability to defend ourselves because we are having two fronts--the military front and the legal front--that confers a status on our enemy that will undermine the ability of our military to defend us.
This is a statement from one of the lawyers who has filed one of these 160 lawsuits:
The litigation is brutal for the United States. Boy, was he right about that.
We are having to call people off the battlefield. We are having to bring people off the battlefield into the new battlefield--the courtroom--to explain to some civilian judge why we think they are an enemy prisoner--enemy combatant that threatened the United States.
It is huge. We have over 100 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 are doing.
Boy, was that right.
You can't run an interrogation with attorneys.
You better believe that is right. We are interrogating to make sure we find out what the enemy is up to the best we can so they don't kill us. Now, if you want to take the interrogation process at Guantanamo Bay and put a bunch of lawyers in the middle of it, which we have never done in any other war--we never gave to the Nazis--then you are crippling the ability of this country to defend itself. It has nothing to do with fairness. You are creating a right never known in an armed conflict previously, and you will be criminalizing what I think is a war in a dangerous way.
What are they going to do now that we are getting court orders to get more lawyers down there? They are going to shut off the interrogation and the information is going to stop.
We have made mistakes at Guantanamo Bay. The Bush administration has taken legal positions that I don't think have been sound, but I believe we have finally got this right, and I am going to end now.
I think after a lot of give and take and after a lot of court decisions, we are on the road to exactly where we need to be, and we have it right. Here is what we have in place: a system that is Law of Armed Conflict compliant, Geneva Conventions compliant, that realizes that fairness is part of being an American, but we are at war with people who want to kill us, and if they could, they would go back to it, some of them. Some of them are war criminals. Some of them are warriors who are assisting in the effort that had to be kept off the battlefield until they are no longer a threat. The military is doing a darn good job, and I stand by the men and women down there who are carrying out this job at Guantanamo Bay. I stand with you. I am proud to be your advocate in this body. You are getting good intelligence, consistent with lawful interrogation techniques. You are making decisions about who an enemy prisoner is, who a threat is to this country, in a sound way. Keep it up. Your work product will be going to court, so be mindful that what you do will get reviewed, as it should. Some have been let go--about 100-and-something. Most, as far as I know, have gone back and not been a threat. Every year, every person at Guantanamo Bay will get to have their case argued anew. They will get to make a case: I am not an enemy combatant. I am no longer a threat. I have no intelligence value.
We do not want to misidentify someone. That has probably happened. This is a confusing war. I am not here to say there has not been someone sent to Guantanamo Bay who was a mistake. That is true of jails in Missouri, and it is true of jails in South Carolina. But you can't say there is no risk involved when you release somebody because I can tell my colleagues with certainty that 12 of the people we thought were no longer a threat, because we wanted to be fair and let them go, have gone back to try to kill Americans.
There is no perfect outcome. You try to create a system that models who you are and is as fair as possible, recognizing you are at war. These war crime tribunals and commissions are going on during the war. The enemy combatant determinations are being made during the war. The reason we don't want to disclose how we found Shaikh Mohammed is because the war is going on, and we don't want to help people who are our enemies. So everybody caught and suspected by our military of being an enemy combatant involved in a global war on terror out of uniform supporting al-Qaida, they are going to get to go to Federal court, but we are going to let the military decide if they are a threat first, and the judges of this country can look over the military's shoulder and see if the military got it right in that case and if the procedures are fair. If you are convicted of a war crime at Guantanamo Bay, as Shaikh Mohammed may be or someone like him, you are going to get your day in Federal court because it is an automatic right. Whatever procedures are used by our military, which is modeled after our own process to try our own people, will go through legal scrutiny, the procedures and the outcome.
So if you are worried as an American that we are putting people away forever without due process, don't worry about it. That is something to be concerned about. If you are worried that your country has gotten somebody in the global war on terror and we house them and nobody ever gets to look at the work product, don't worry about it. But if you are worried that the Congress is about to confer a right never known in any other war to al-Qaida that will undermine our security, you are right to worry. It is all about judges: What they should do and when they should do it--and I respect judges. It is all about the military: What should they do and when should they do it. God knows I respect them.
We have the right balance. The military fights, they kill our enemies, they capture our enemies, and once they are captured, they are going to be treated by this country under the Law of Armed Conflict, consistent with our values and consistent with the Geneva Convention and consistent with the fact that we are at war. Everything they do when it comes to adjudicating these prisoners' status will be reviewed in our Federal courts after the military acts. Every person convicted will have their day in court, and the courts can look and see if they were treated fairly. That is what America should do. That is what we are doing.
Please understand this war is different, and we have to make accommodations in a variety of ways, but this is a war. This is not a crime. These people we are rounding up throughout the globe wish to kill us all.
Mr. President, I yield the floor and I note the absence of a quorum.

Improving America's Security Act--Continued

The PRESIDING OFFICER. The Senator from South Carolina.

AMENDMENT NO. 286

Mr. GRAHAM. Mr. President, I would like to thank Senator Lieberman for working me into the line here. What I am rising to talk about is a very important issue for how we conduct this war, for how the law works in a time of war, for the values Americans would like to embrace when we are under siege as a nation, and try to give my explanation to what Senator Specter's amendment would do and why I oppose it so vehemently.

To give a little background and history of this issue, at least from my perspective--and I would ask every Senator to look at this very closely because this is a very important concept we are talking about--the Guantanamo military installation to house enemy combatants, people determined by our military to be enemy prisoners of war out of uniform, meeting the Geneva Convention's definition of an enemy combatant--the administration chose Guantanamo as the jailing site. There were prisoners there who brought actions in our Federal court, arguing that their confinement needed to be reviewed by Federal courts. The administration took the position that Guantanamo was outside the United States. They lost. I think the administration should have lost. To me, Guantanamo, because of the lease and the relationship the U.S. military has to that installation, is clearly part of the infrastructure of the United States.

The reason they made the argument is it is a long-held concept in law that habeas rights do not apply to people overseas, that our constitutional provisions granting to American citizens the right to bring a habeas petition when they are confined does not apply extraterritorially. The administration lost on the argument that Guantanamo was outside the United States, and the Federal court said: Okay, it is within the United States.

What habeas rights would attach to someone at Guantanamo Bay? Here is where Senator Specter and I dramatically differ. Senator Specter reads the Rasul case to say that someone confined at Guantanamo who is a noncitizen enemy combatant has a constitutional right under our Constitution to petition Federal courts, to have a district court judge review their confinement. I think that is completely wrong.

The D.C. Court of Appeals recently held in a 2-1 decision that people detained at Guantanamo Bay do not have constitutional rights under our Constitution to petition for habeas.

Rasul was about 2241, section 2241 of the U.S. Code, a congressional enactment that creates statutory habeas rights. That statute has been amended in many different forms--restricting habeas, granting habeas, allowing States appellate procedures postconviction relief to be substitutes for habeas.

The Supreme Court said: Since Congress has not spoken as to whether detainees at Guantanamo will be covered by 2241, we are going to allow a case to go forward under that statute until Congress tells us otherwise.

It was Justice O'Connor who was suggesting to the Congress we need to speak. The administration at the time of the Rasul case had no infrastructure in place to give due process to someone who is accused of being an enemy combatant. Justice O'Connor, in another case--I don't remember the name now--said: What you need to look at is Army Regulation 190-1, which is a procedure to guide military members how to determine who an enemy prisoner may be from a civilian who is an innocent person involved in war. So what the military did, after the second Supreme Court case, was come up with a Combat Status Review Tribunal. Now the Combat Status Review Tribunal is the due process right given to suspected enemy combatants.
To me, 9/11 was an act of war. It was also a crime, but it was an act of war. I believe the people housed at Guantanamo Bay are warriors, not common criminals. They will be afforded the due process rights of wartime law of armed conflict, not domestic criminal law.
What is the law of armed conflict when it comes to status? Article V of the Geneva Convention says that if there is a question of status, the country which houses the person, is in charge of the person, will conduct a competent tribunal. A ``competent tribunal'' all over the world is a military proceeding where the military of that country will determine if the person in front of them is a civilian, uniformed person, or enemy combatant.

The Combat Status Review Tribunal is well beyond the due process requirement of the Geneva Conventions. What happens at the Combat Status Review Tribunal, first of all, is that the enemy suspect prisoner will go before a panel of three military officers trained in who presents a military threat--an intelligence officer, a combat officer, and a legal officer. I think tomorrow or Friday, the 14 high-value detainees who have been in CIA custody will go through this process.

The question for this Congress is, Do we want the military to make the initial decision on who an enemy prisoner is based on what a military threat is to our country and the expertise the military has in determining if this person is an enemy prisoner, enemy combatant, or do we want to give that to a district court judge who has absolutely no training?

Enemy prisoners during World War II were not allowed to file habeas petitions and come into our Federal courts and sue the military during a time of war to be released. Chief Justice Jackson said: Wait a minute. This is not our job. We are not trained for this. If we allow enemy prisoners detained by our military during a time of war to have access to our Federal courts, Federal judges are taking over a job the military is trained for and we are not trained for.

Here is what Justice Jackson said in the Eisentrager case:
We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.

Nothing in the text of this Constitution extends such a right nor does anything in our statute.
So the Eisentrager case in 1950 clearly said habeas does not apply to enemy prisoners. I cannot find the language--it talks about why it is a bad idea--but it is forthcoming. So as early as 1950, the courts rejected enemy prisoner petitions in the Federal court.

Now, the question for Congress is, after 9/11--5 years later--do we as a Congress want to confer onto people classified by our military to be enemy combatants a Federal court right never known in the law of armed conflict at any other time in our history? Do we want to be the first Congress in the history of the United States to take away from our military the ability to determine who a military threat is and make literally a Federal court trial out of that decision?

There had been 160 habeas petitions filed before we acted last year. Let me tell you, they have sued our own military for everything imaginable: the quality of the food, DVD access, not enough exercise, judge-supervised interrogation. Some of the people who have brought these cases are accused of killing Americans in the most brutal way.

One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on behalf of enemy combatants held at Guantanamo Bay, publicly stated: The litigation [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?

It is clear that it does--according to one of the lawyers representing detainees--make it very difficult for the military to do their job when it comes to intelligence gathering. I will have an unclassified summary to put into the Record at the end of my time that talks about the information gained at Guantanamo Bay.

But here is what Justice Jackson said would be the real big mistake for the Federal courts if you start granting habeas petitions and give enemy prisoners a right to sue our own people about their status in a time of war:
The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise 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. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Was he prophetic? These 160 cases have created a nightmare for the military at Guantanamo Bay. Medical malpractice suits have been filed, $100 million money-damage lawsuits have been filed. It has been a legal nightmare.

So what I am trying to persuade the Congress to do is not grant in statute a right never given to any other enemy prisoner during any other war, because it is dangerous to do so.

What did we do to accommodate the unique needs of this war, a war potentially without end? For the first time in the history of our country, we are allowing Federal courts to review whether a person has been properly classified as an enemy prisoner. Once the military decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/11, can you imagine 5 years after 9/11 the Congress would open up any Federal courtroom that a lawyer could shop to find--whatever judge the lawyer could find in the country--and allow Shaikh Mohammed to sue our own military about his status, creating a nightmare zoo courtroom trial, bringing people from all over the world to determine his status, where the judge would have a say, not the military? That would be a mistake of monumental proportions.

What will happen is Shaikh Mohammed, in a classified setting, will have evidence presented by the Government to show he is an enemy combatant. He will have a chance to rebut that. When his case has been decided, he will have an automatic right of appeal to the DC Circuit Court of Appeals, where the DC Circuit Court of Appeals will look at the military decision in question and find out whether two things occurred. Were the due process rights given Shaikh Mohammed and other enemy combatant suspects consistent with our own Constitution? Secondly, was the evidence introduced sufficient to support the finding he is an enemy combatant?
That is the proper role for a judge. That is what judges are trained to do. It would be a monumental mistake to allow a habeas petition to be filed, where literally you could go to any court in the land and have a full-blown trial, calling people off the battlefield to make the case that this person was an enemy prisoner and give that decisionmaking ability to a judge not trained in who is a military threat to our country and take it away from the military.

That is why I am so passionate about this issue. I do believe in due process at a time of war. I have been a military lawyer for well over 20 years. I believe our country should adhere to the Geneva Conventions, that we should be a standard-bearer for what is right. But we should not cripple our military's ability to defend us in a way that makes absolutely no sense.

We should not put Federal judges on the frontlines in deciding who is a threat to this country, when the military is trained to do that. Let the judges look over the military's shoulder and in a proper way, consistent with their training.

Now, what is going to happen? The case is going to go to the Supreme Court soon. If I am wrong, I will take the floor and say so. Senator Specter has a belief there is a constitutional right to habeas. I do not believe that. But if the Court holds so, then I would be wrong. I would argue that the DC Circuit Court of Appeals is an adequate substitute for habeas, but that will be up to the Court.

All I am asking is to allow the work product of last year that has gone before the DC Circuit Court of Appeals that has been upheld to go through the system. I will gladly sit down with Senators SPECTER and LEVIN to see if we can work on better due process rights for people accused of being an enemy combatant. I think we can do that as a Congress without turning that decision over to Federal judges. It is a very dangerous thing we are proposing to do, to take away from the military to determine who a threat is and to give it to a Federal judge.
Finally, I would like to say: I know this is a war without end. Two hundred-and-something people have been released from Guantanamo Bay because they get an annual review board to look at their status anew. We do not want to keep people who have been misidentified who are not a threat. But we do not have the choice of ``try them or let them go.'' This is a war, and we can keep warriors off the battlefield as long as they are a threat. When it comes time to determine who should bear that risk, who should bear the risk of letting someone go at Guantanamo Bay--the innocent civilian populations of the world who have been a victim of people out of uniform wreaking havoc or the people who started this whole mess to begin with--if you are going to proportion risk, I think it should fall on the people who created the problem to begin with.

Twelve people have been released from Guantanamo Bay under the annual review process of the 200-and-something. Twelve have gone back to the battle. Three have been killed. So you make mistakes both ways. I don't want to hold one person down there who should not be held, but I don't want to let anybody go who is a threat to our country because we are at war.

Due process rights attach to people in war, but we cannot criminalize what has been an act of war beginning on September 11, 2001. The people down there will have their day in court. They will have a chance to have a say about who they are and what the facts are. But I do believe there are people down at Guantanamo Bay who are warriors. If they ever got out, they would try to kill us again.

Mr. LIEBERMAN. Mr. President, will my friend from South Carolina yield for a question?

Mr. GRAHAM. Yes, sir.

Mr. LIEBERMAN. I appreciate the Senator's remarks. I know the Senator from South Carolina has a background in military law, so he speaks with some authority on these questions.
What interests me in this discussion is the rights of citizens as opposed to noncitizens. I wanted to ask my friend, first, am I right that you are not arguing against the principle that an American citizen, even one alleged to be an enemy combatant, does have habeas corpus rights?

Mr. GRAHAM. The Senator is absolutely right; any American citizen. The Padilla case is the best example you could give. Padilla was charged as an enemy combatant, a U.S. citizen. It is true American citizens in the past have been held indefinitely as enemy combatants. But I do believe they should have access to our courts as a member of citizenship. And they would have a constitutional right to seek relief from a Federal judge to determine whether the military or law enforcement officers make that decision. We are talking about people in the same status as the Germans and the Japanese. There was a reason the thousands of enemy prisoners housed in the United States never had access to our Federal courts. It is what Justice Jackson was saying. The Federal judiciary would make a mockery of the military's ability to run the war if you turned every military decision into a Federal court trial as to who an enemy prisoner is. Justice Jackson, in the most eloquent fashion, told us what could come if you conferred these rights on enemy prisoners.

Here is what is odd. If I am a lawful combatant, if I am captured tomorrow as a member of the uniformed services of the United States, I do not have any rights under the Geneva Conventions to go to the host country's judiciary. We are creating, for unlawful combatants, enemy combatants, a right greater than someone who is captured as a lawful combatant.

Under the Geneva Conventions, there is no right to go to a court in any land to ask to be released. But in America, if you are an unlawful combatant, we are giving you your day in Federal court, after the military acts, which I think is an accommodation for the fact that this war is different. It is not lost upon this Senator this war is different. There will be no signing on the ``Missouri.'' I do not know when this war is going to end. I do not want an enemy combatant decision to be a de facto life sentence without robust due process. But I do believe, if the choice is between letting them go or having them die in jail, if they are still a threat, let them die in jail.
I do believe every enemy prisoner is not a war criminal, and the choice for the country is not ``let them go or try them.'' Because that is a false choice in the law of armed conflict. It would not serve us well to say that every American captured in the next war is a war criminal because they are performing their duties. You only confer war criminal status on someone who goes outside the law of armed conflict. So we are making some decisions for the ages.

I am all for due process. I am all for scrutiny and transparency because I want my country to win the war not changing whom we are. But I do not want us to fundamentally change the relationship between the military and military threats. Our judges have a role to play. The Congress has a role to play. The military has a role to play. Keep everybody in their lanes, and this will work.

Mr. LIEBERMAN. I thank my friend.

So I take his answer to say also--correct me if I am wrong--that the existing statute, including the MCA--which is the subject of the lawsuits we have been describing that are pending--the existing statute does not alter the right of American citizens who are alleged to be enemy combatants to use habeas corpus rights?

Mr. GRAHAM. The Senator is correct in two fashions. It says no military commission can try an American citizen. A military commission at Guantanamo Bay cannot, as a matter of law, try an American citizen, even if they are an enemy combatant. Someone from America could join al-Qaida, but they are going to be tried in our Federal courts if they are caught.

What we are trying to do is have a military commission consistent with the Uniformed Code of Military Justice to try people. The difference between now and Nuremberg, I say to the Senator, is the war is still ongoing. The reason we are not going to release all the information as to why Shaikh Mohammed is an enemy combatant is because that is very sensitive information. We will give a summary to the public. And the courts will get to review that decision in full in a classified setting. But I cannot stress to you enough we are at war.

The last time we had a Federal trial where somebody tried to blow up the World Trade Center in the early 1990s, some of the information in that courtroom setting that had to be released wound up in a cave in Afghanistan. I will talk about that later. We are trying to balance the need to be safe and the obligations we have under the law of armed conflict.

I think we have struck a good balance. If I am wrong, the Supreme Court will tell me. Please, just to my fellow Senators, let this case go to the Supreme Court, see what they say, and we can fix it if we need to. That is all I am asking.

Mr. LIEBERMAN. Again, I thank my friend. So in furthering what this discussion is about, it is whether non-American citizens seized in the war on terrorism and alleged to be enemy combatants should have habeas corpus rights under our Constitution?

Mr. GRAHAM. I am the biggest advocate that an American citizen such as Mr. Padilla should be tried in Federal court. The man who was caught working with the Taliban in Afghanistan was in Federal court. Moussaoui was in Federal court because we didn't have the Military Commissions Act. An American citizen will be tried in Federal court with all the rights of an American citizen available to them.

Mr. LIEBERMAN. Let me ask this final question. This is the part of this discussion that I struggle with, which is what is the appropriate status in the context in which we are talking about permanent lawful residents of the United States.

In other words, if I understand what the Military Commissions Act--again, correct me if I am wrong--says, is that a permanent, lawful resident of the United States who is apprehended as part of the war on terrorism and alleged to be an enemy combatant does not have a right of habeas, or a right to have a case heard in Federal court. That concerns me. This is what I want to ask my friend from South Carolina who has had experience with this to clarify, as to whether that may be--if I can use the term a ``denial'' of equal protection--to say a permanent, lawful resident of the United States cannot have the same rights in these cases that a citizen of the United States has.

Mr. GRAHAM. Well, that is a very good question, and I think that is something we actually need to sit down and look at, that situation where you are not a citizen, but you are here on a legal status. I would be, quite frankly, very comfortable to clarify that, if anyone ever finds themselves in that category, to say, no, you are going to have all the rights of an American citizen.

What I am trying to do is make sure that we don't change 200 years of history. The people who assassinated President Lincoln, within 30 days they were caught, tried, and executed in a military commission format. We have had American civilians tried in military commissions in times of war, but they were reviewed by our Federal courts. Some of the German saboteurs who landed during World War II, I think one or two of them actually were American citizens who left to go back to Germany to aid the enemy. They got tried by military commissions, and the Supreme Court reviewed their case.

What I am saying is that an enemy prisoner, a noncitizen, since time began in our country and in every other country, has been treated under the law of armed conflict, not domestic statutes. That is a distinction of great significance, and we don't need--the due process rights these enemy combatants, noncitizens, have are greater than the Geneva Conventions require, and every enemy combatant had their day in Federal court but in a way consistent with what judges are trained to do.

I don't believe it is in our national interests during ongoing hostilities to take away from the military the ability to classify who they believe to be a threat, what status that person has acquired based on their activities. I do believe the courts can look at every case and see: Was due process afforded? Did the evidence support the finding? That, to me, is the magic combination, and habeas destroys that combination.

Mr. LIEBERMAN. I thank the Senator from South Carolina. This, to me, has been a very helpful exchange. I would like to continue the discussion on the distinct question of what the habeas rights of permanent lawful residents of the United States should be.

Mr. GRAHAM. It is a great area to discuss. I thank the Senator. I yield the floor.

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

Mr. SPECTER. Mr. President, I ask my colleague from South Carolina if he would be willing to respond to a few questions.

Mr. GRAHAM. I would be honored to respond to my friend from Pennsylvania.

Mr. SPECTER. I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically: Aliens held at the base, like American citizens, are entitled to invoke the Federal courts' section 2241 authority--Which is the habeas corpus statute.

So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case.

Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that:
All detainees shall be notified--
Leaving out some irrelevant material--
of the right to seek a writ of habeas corpus in the courts of the United States.
Is the Senator familiar with that provision?

Mr. GRAHAM. No, sir, I am not.

Mr. SPECTER. Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy.
The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Mr. GRAHAM. I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make.
Rasul said that habeas rights attached to Guantanamo Bay detainees until Congress says otherwise, and that is the difference we have. I read Rasul to say, since Congress hasn't spoken under 2241, Guantanamo Bay is within U.S. jurisdiction and the statute would apply to anybody held at Guantanamo Bay. It is not an overseas location. Until Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

Mr. SPECTER. Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Mr. GRAHAM. OK.

Mr. SPECTER. Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant:
An individual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Mr. GRAHAM. If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts.

Here is where the Senator and I have been partners. I have always believed the executive branch has to collaborate with the Congress, and they have been hard-headed about this and they wound up losing in court. They lost on whether it was outside the United States. Once the court ruled 2241 applied, the DOD had no other choice but to tell people: This is a statutory right. They were telling people at Guantanamo Bay: This is your statutory right. They were coming to me and other Senators saying: Please change 2241 because it is hampering the war effort.

That is exactly where we find ourselves. We took the input of the administration, we voted last year, we stripped habeas from 2241 where district court judges could make military decisions, and we are replaced in the appeals process where Federal courts do look at what the military does after they have decided. I think not only did the D.C. Circuit Court of Appeals uphold that as a proper thing to do but the Supreme Court will also.

So my belief is that it was our decision as Congress as to whether to give these enemy prisoners habeas rights, unlike any other war. We decided with Rasul we didn't want to do that. I think it is the best decision we have ever made. If you had asked this Congress on September 30, 2001: Would you want to create a Federal court action for any al-Qaida member caught to go into Federal court and bring lawsuits against our own troops alleging not enough exercise, bad DVD access, you name it, we would have said no. That would have been crazy. Why would we want to give this group of people who are trying to kill us all rights that we didn't give the Japanese and the Nazis who were trying to kill us all?

So now we find ourselves in Congress filling in the gap that the court found. The Congress has spoken. We told the courts, D.C. Circuit Court of Appeals: No habeas rights under 2241. We substituted another procedure that I think makes sense, and the court found out that we did it in a constitutional manner, and I think we are going to win at the Supreme Court.

But having said that, if there are other ways to improve due process where the Congress can make this CSRT process better, count me in. But I am not going to sit on the sidelines and watch the Federal courts do something they are not trained to do before Congress blesses it. If the Senator is right that the Supreme Court says apart from 2241 an enemy prisoner, noncitizen, has a constitutional right to habeas, then I would be wrong. I would argue that our procedures under the D.C. Circuit Court of Appeals method of going to challenge the military is an adequate substitute. But I am firmly convinced that our courts are going to say there is no constitutional right for these prisoners, like there was none for Japanese and German prisoners, and that Congress has made a good decision to take the Federal courts and put them behind the military, not in front of the military.
Mr. SPECTER. Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right?
That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Mr. GRAHAM. All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days.
Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.
Mr. SPECTER. Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes.

The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute.

They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points.

As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established.

I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional.

I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them.
I hate to leave. I have enjoyed this debate.

Mr. SPECTER. I have one more thing. I take your last extended statement to be a ``no,'' am I right?

Mr. GRAHAM. I believe they will be constitutional. If you think there has been a miscarriage of justice in any case, that will go to court. If you think something happened in the CSRT that is laughable, then the Federal court is going to get to look at every case. I can assure you and every other American that every decision made by the military on Guantanamo Bay will work its way to the Federal court, and our judges will look at the record and the process, and they will tell us in individual cases and as a group whether this works. Give them a chance to do it.

With that, I have to leave.

Mr. SPECTER. One last question. I still take that to be a ``no.'' It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Mr. GRAHAM. No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans.

There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone.

If you let these people out of jail, at least 12 of them are going to come back and kill you.
With that, I must leave. We will continue the debate.

Mr. SPECTER. Let me say, in conclusion, that bombast and oratory and repetition cannot undercut a few very basic facts. One is that the Department of Defense established a rule to give Guantanamo detainees the right of habeas corpus. They set out a standard as to what would constitute being an enemy combatant. These are rules, when they call for evidence, that judges are equipped to decide. When there is a rebuttable presumption of guilt, undercutting the basic principle of America, the presumption of innocence, that is basically unfair.

When you talk about the decision by the Court of Appeals for the District of Columbia, where they limited the Supreme Court opinion to a narrow holding on the statute, although the court then went on to say there was a constitutional right, that will not pass muster when it comes back to the Supreme Court. It is fallacious to the utmost to argue that there is no constitutional right to habeas corpus, when the Constitution explicitly says the right of habeas corpus may be suspended only in time of invasion or rebellion. It simply cannot be contended rationally that there is no constitutional right to habeas corpus.

I am as concerned as the Senator from South Carolina about protecting America. I led the fight to reauthorize the PATRIOT Act. But the question is, is there some reason to hold the detainees? In the case that went to the District of Columbia Circuit Court of Appeals, you had the District Court looking at the information--it wasn't evidence--which was that the detainee had a conversation with an al-Qaida member, but they could not identify him. The proceeding was a laughingstock. That is the detainee in the District of Columbia Circuit Court case which is going to the Supreme Court.

I don't think this Congress ought to wait or punt to the Supreme Court. We passed a statute which takes away Federal court jurisdiction to make the simple determination: Is there a reason to hold them? We ought not to let that stand.

I ask unanimous consent that a letter dated today, received by Senator Leahy and myself, be printed in the Record. It sets forth eloquently the reasons why habeas corpus for detainees should be reinstated by the Congress. It is signed by RADM Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge Advocate General at an earlier period; BG David Brahms, who was the Marine Corps senior legal adviser from 1983 until 1988; and BG James Cullen, who was the chief judge of the U.S. Army Court of Criminal Appeals.

S 688

To provide for the relief of Griselda Lopez.

Introduction: 02/27/2007
Refered to Committee on the Judiciary

S. 365

A bill to authorize the Secretary of Energy to establish monetary prizes for achievements in overcoming scientific and technical barriers associated with hydrogen energy.

Sponsor: Lindsey Graham [R-SC]
Co-Sponsors: Byron Dorgan [D-ND], Chuck Hagel [R-NE]

Lindsey Graham: Press Release

S.1

To provide greater transparency in the legislative process.

Passed: 96-2

Sen. Lindsey Graham (R) Y