Congressional Record: November 16, 2006 (Senate)
Page S11059-S11061
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. DODD:
S. 4060. A bill to amend the Military Commissions Act of 2006 to
improve and enhance due process and appellate procedures, and for other
purposes; to the Committee on Armed Services.
Mr. DODD. Mr. President: I rise to introduce the Effective Terrorists
Prosecution Act of 2006. This legislation would make critically
important changes to the measure that Congress narrowly approved on
September 29, the Mi1itary Commissions Act of 2006. Let me be clear
from the outset of my remarks. I will take a backseat to no one when it
comes to defending our country against terrorism. I fully support the
use of military commissions to protect U.S. intelligence and expedite
judicial proceedings vital to military action under the Uniform Code of
Military Justice. Unlike the Administration, I trust the United States
military and our legal system to arbitrate decisions related to enemy
combatants.
I strongly believe that terrorists who seek to destroy America must
be punished for any wrongs they commit against this country. But in my
view, in order to sustain America's moral authority and win a lasting
victory against our enemies, such punishment must be meted out only in
accordance with the rule of law.
My legislation provides essential legal tools for our war on terror
in seven key ways: It restores the writ of habeas corpus for
individuals held in U.S. custody. It narrows the definition of unlawful
enemy combatant to individuals who directly participate in hostilities
against the United States who are not lawful combatants. It prevents
the use of evidence in court gained through the unreliable and immoral
practices of torture and coercion. It empowers military judges to
exclude hearsay evidence they deem to be unreliable. It authorizes the
U.S. Court of Appeals for the Armed Forces to review decisions by the
military commissions. It limits the authority of the President to
interpret the meaning and application of the Geneva Conventions and
makes that authority subject to congressional and judicial oversight.
Finally, it provides for expedited judicial review of the Military
Commissions Act of 2006 to determine the constitutionality of its
provisions.
Before I elaborate on each of these critical points, let me simply
underscore the point that for more than 200 years, our Nation has
served as a shining example in its promotion of civil and human rights
throughout the world. Denial of basic legal proceedings to individuals
held in the custody of the United States has raised questions over our
basic adherence to the U.S. Constitution and also diminished our
reputation around the world. American citizens are questioning their
own government's judgments, terrorists are citing American abuses to
recruit new loyalists, and American servicemembers fear detention
overseas under similarly abusive conditions in violation of their human
rights.
Supporters of the administration's law may say that to speak out
against its enactment is being soft on terrorism. Not only is this
sentiment wholly inaccurate, it underestimates a fundamental strength
of our Nation and the best defense against terrorists--respect for the
rule of law.
For instance, the administration-backed law eliminates the principle
of habeas corpus which has served as the backbone of common law since
before the Magna Carta in the 13th century. Under the writ of habeas
corpus independent courts may review the legality of custody decisions.
My legislation would restore this basic tenet in the context of
military commissions.
The administration's approach allows the President to remove anyone
he so chooses from America's standard jurisprudence and designate him
or her as an ``unlawful enemy combatant'' if he has engaged in
hostilities or supported hostilities against the United States. Such
individuals are subject to arrest and detention indefinitely without
charge. In contrast, my legislation allows the designation of
``unlawful enemy combatants'' only for those individuals engaged in
armed conflict against the United States. This provision seeks to
curtail potential abuse of the enemy combatant designation so that
holding individuals in detention indefinitely without a trial will
prove
[[Page S11060]]
to be the exception rather than the norm.
Also, unlike the law backed by the administration, my bill further
promotes humane treatment of military personnel by prohibiting the use
of evidence gained by coercion in a trial. Such a provision is
critically important for two reasons. First, the use of torture has
been proven ineffective in interrogations when a detainee simply says
what he believes an interrogator wants to hear in order to stop the
torture. Second it deprives foreign militaries the ability to cite U.S.
actions to justify their own misconduct toward future American POWs.
My bill grants discretion to military judges to exclude hearsay
evidence determined to be unreliable. Under my legislation, judges are
given discretion in the event that classified evidence has a bearing on
the innocence of an individual, but is excluded due to national
security concerns and declassified alternatives are insufficient.
America's military judges have been fully trained and prepared to
handle classified information. The Bush administration's failure to
recognize this fact is an insult to the men and women of our military's
bench and an affront to the U.S. military legal system. Moreover, my
bill properly grants the Armed Forces judicial review of these
decisions unlike the administration's law which denies the United
States Court of Appeals of the Armed Forces the right to hearing
military commission appeals.
And, just as important as restoring our commitment in the Uniform
Code of Military Justice, my legislation would also reaffirm America's
commitment to the contents of the Geneva Conventions. In contrast, the
Administration's Military Commissions Act gives unprecedented authority
to the president to define what interrogation techniques constitute
``grave breaches'' of the Geneva Conventions. The United States
President should not have the right to unilaterally define the legal
boundaries of torture. The United States Congress has ratified
universally recognized conventions prohibiting such conduct, and the
President should recognize them as the law of the land. Indeed, there
is a lesson to be learned in the events of the last 6 years,
particularly in the case of Abu Ghraib, when not only was our Nation's
reputation tarnished, but our commitment to the rule of law was
credibly called into question. This is not the America our Nation's
greatest generations have long fought for. Our country would have been
better served if we had looked to the pages of history to guide us
through this national crisis.
Just 60 years ago, the United States confronted the daunting task of
bringing history's most despicable war criminals to justice. In
determining how to deal with Nazi leaders guilty of grave atrocities,
our country never forgot its pivotal role as the leader of the free
world. There were strong and persuasive voices crying for the execution
of these men who had commanded, with ruthless efficiency, the slaughter
of 6 million innocent Jews and 5 million other innocent men, women, and
children. Why should these men who had extinguished so many lives be
given a trial at all? Why should they not be subjected to the same fate
to which they had subjected countless innocent people? Why not just
shoot them, as Winston Churchill wanted? Why not just give in to legal
scholars, who said there was no court, no judge, no laws, and no
precedent?
Why not? Because, as I have recounted on this floor on several
occasions, America has always stood for something more. Our leaders at
Nuremberg, including the young prosecutor Thomas Dodd, my father,
rejected the certainty of execution for the uncertainty of a trial. In
doing so, we reaffirmed the ideal that this Nation should never tailor
its eternal principles to the conflict of the moment, because if we
did, we would be walking in the footsteps of the enemies we despised.
Almost 60 years to the day after the Nuremberg verdicts, Congress
passed the Military Commissions Act, with the support of the
administration which steps away from the high principles established at
Nuremberg and honored in the decades since. In my view, this law has
dishonored our Nation's proud history.
Indeed, to watch the Senate, on the anniversary of Nuremberg, negate
these great principles and traditions was one of the saddest days I
have seen in a quarter century of service in this body. It pains me to
no end to have seen the administration and its allies rush this bill
through Congress in the days before an election with hopes of
exploiting Americans' fears of a terrorist attack. This administration
would have the American people believe that the war on terror requires
a choice between protecting America from terrorism and upholding the
basic tenets upon which our country was founded--but not both. This
canard is untrue and frankly negligent.
I believe that the United States Congress made a crucial mistake. And
that is why the final provision in my bill is perhaps the most
important one--it will ensure that each of the provisions of the
administration's Military Commission Act is quickly reviewed by our
Nation's courts, and appropriately evaluated for their
constitutionality. I do not pretend to have all the answers regarding
the legality and probity of this highly controversial statute. But I
believe it is essential for America's security and moral authority to
allow those best qualified to make these judgments--members of our
esteemed judiciary--to have an opportunity to overturn the most
egregious provisions of this Act.
In turn, we in Congress have our own obligation, to work in a
bipartisan way to repair the damage that has been done, to protect our
international reputation, to preserve our domestic traditions, and to
provide a successful mechanism to improve and enhance the tools
required by the global war on terror.
I urge my colleagues to consider the consequences if we fail to
correct the mistakes that have been made. I hope that Congress and the
administration will take a serious look at my proposal and work with me
to improve the current system, for the sake of our security, our
international standing, and our commitment to the rule of law.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection the bill was ordered to be printed in the
Record, as follows:
S. 4060
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Effective Terrorists
Prosecution Act of 2006''.
SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.
Paragraph (1) of section 948a of title 10, United States
Code (as enacted by the Military Commissions Act of 2006
(Public Law 109-366)), is amended to read as follows:
``(1) Unlawful enemy combatant.--The term `unlawful enemy
combatant' means an individual who directly participates in
hostilities as part of an armed conflict against the United
States who is not a lawful enemy combatant. The term is used
solely to designate individuals triable by military
commission under this chapter.''.
SEC. 3. DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY
COMBATANT STATUS REVIEW TRIBUNAL NOT
DISPOSITIVE FOR PURPOSES OF JURISDICTION OF
MILITARY COMMISSIONS.
Section 948d of title 10, United States Code (as enacted by
the Military Commissions Act of 2006 (Public Law 109-366)),
is amended--
(1) by striking subsection (c); and
(2) by redesignating subsection (d) as subsection (c).
SEC. 4. EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF
STATEMENTS OBTAINED BY COERCION.
Section 948r of title 10, United States Code (as enacted by
the Military Commissions Act of 2006 (Public Law 109-366)),
is amended by striking subsections (c) and (d) and inserting
the following new subsection (c):
``(c) Exclusion of Statements Obtained by Coercion.--A
statement obtained by use of coercion shall not be admissible
in a military commission under this chapter, except against a
person accused of coercion as evidence that the statement was
made.''.
SEC. 5. DISCRETION OF MILITARY JUDGE TO EXCLUDE HEARSAY
EVIDENCE DETERMINED TO BE UNRELIABLE OR LACKING
IN PROBATIVE VALUE.
Section 949a(b)(2)(E)(ii) of title 10, United States Code
(as enacted by the Military Commissions Act of 2006 (Public
Law 109-366)), is amended by striking ``if the party opposing
the admission of the evidence demonstrates that the evidence
is unreliable or lacking in probative value'' and inserting
``if the military judge determines, upon motion by counsel,
that the evidence is unreliable or lacking in probative
value''.
[[Page S11061]]
SEC. 6. DISCRETION OF MILITARY JUDGE TO TAKE CERTAIN ACTIONS
IN EVENT THAT A SUBSTITUTE FOR CLASSIFIED
EXCULPATORY EVIDENCE IS INSUFFICIENT TO PROTECT
THE RIGHT OF A DEFENDANT TO A FAIR TRIAL.
Section 949j(d)(1) of title 10, United States Code (as
enacted by the Military Commissions Act of 2006 (Public Law
109-366)), is amended by adding at the end the following:
``If the military judge determines that the substitute is not
sufficient to protect the right of the defendant to a fair
trial, the military judge may--
``(A) dismiss the charges in their entirety;
``(B) dismiss the charges or specifications or both to
which the information relates; or
``(C) take such other actions as may be required in the
interest of justice.''.
SEC. 7. REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
RATHER THAN COURT OF MILITARY COMMISSION
REVIEW.
(a) Review.--
(1) In general.--Section 950f of title 10, United States
Code (as enacted by the Military Commissions Act of 2006
(Public Law 109-366)), is amended to read as follows:
``Sec. 950f. Review by Court of Appeals for the Armed Forces
``(a) Cases To Be Reviewed.--The United States Court of
Appeals for the Armed Forces, in accordance with procedures
prescribed under regulations of the Secretary, shall review
the record in each case that is referred to the Court by the
convening authority under section 950c of this title with
respect to any matter of law raised by the accused.
``(b) Scope of Review.--In a case reviewed by the United
States Court of Appeals for the Armed Forces under this
section, the Court may only act with respect to matters of
law.''.
(2) Clerical amendment.--The table of sections at the
beginning of subchapter VI of chapter 47A of such title (as
so enacted) is amended by striking the item relating to
section 950f and inserting the following new item:
``950f. Review by Court of Appeals for the Armed Forces.''.
(b) Conforming Amendments.--
(1) In general.--Chapter 47A of title 10, United States
Code (as so enacted), is further amended as follows:
(A) In section 950c(a), by striking ``the Court of Military
Commission Review'' and inserting ``the United States Court
of Appeals for the Armed Forces''.
(B) In section 950d, by striking ``the Court of Military
Commission Review'' each place it appears and inserting ``the
United States Court of Appeals for the Armed Forces''.
(C) In section 950g(a)(2), by striking ``the Court of
Military Commission Review'' each place it appears and
inserting ``the United States Court of Appeals for the Armed
Forces''.
(D) In section 950h, by striking ``the Court of Military
Commission Review'' each place it appears and inserting ``the
United States Court of Appeals for the Armed Forces''.
(2) Uniform code of military justice.--Section 867a(a) of
title 10, United States Code (article 67a(a) of the Uniform
Code of Military Justice), is amended by striking
``Decisions'' and inserting ``Except as provided in sections
950d and 950g of this title, decisions''.
SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a) In General.--Section 6(a) of the Military Commissions
Act of 2006 (Public Law 109-366) is amended--
(1) in paragraph (2)--
(A) in the first sentence, by inserting after
``international character'' the following: ``and preserve the
capacity of the United States to prosecute nationals of enemy
powers for engaging in acts against members of the United
States Armed Forces and United States citizens that have been
prosecuted by the United States as war crimes in the past'';
and
(B) by striking the second sentence; and
(2) in paragraph (3)--
(A) in subparagraph (A)--
(i) by striking ``the President has the authority for the
United States to interpret the meaning and application of the
Geneva Conventions and to promulgate'' and inserting ``the
President has the authority, subject to congressional
oversight and judicial review, to promulgate''; and
(ii) by striking ``higher standards and'';
(B) in subparagraph (B), by striking ``interpretations''
and inserting ``rules''; and
(C) by amending subparagraph (D) to read as follows:
``(D) The President shall notify other parties to the
Geneva Conventions that the United States expects members of
the United States Armed Forces and other United States
citizens detained in a conflict not of an international
character to be treated in a manner consistent with the
standards described in subparagraph (A) and embodied in
section 2441 of title 18, United States Code, as amended by
subsection (b).''.
(b) Modifications of War Crimes Offenses.--
(1) Inclusion of denial of trial rights among offenses.--
Paragraph (1) of section 2441(d) of title 18, United States
Code (as enacted by the Military Commissions Act of 2006), is
amended by adding at the end the following new subparagraph:
``(J) Denial of trial rights.--The act of a person who
intentionally denies one or more persons the right to be
tried before a regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by
civilized peoples as prescribed by common Article 3 of the
Geneva Conventions.''.
(2) Definition of serious physical pain or suffering.--
Clause (ii) of subparagraph ((D) of paragraph (2) of such
section (as so enacted) is amended to read as follows:
``(ii) serious physical pain;''.
SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED
BY THE UNITED STATES.
(a) Restoration.--Subsection (e) of section 2241 of title
28, United States Code, as amended by section 7(a) of the
Military Commissions Act of 2006 (Public Law 109-366), is
repealed.
(b) Conforming Amendment.--Subsection (b) of section 7 of
the Military Commissions Act of 2006 (Public Law 109-366) is
repealed.
SEC. 10. EXPEDITED JUDICIAL REVIEW OF MILITARY COMMISSIONS
ACT OF 2006.
Notwithstanding any other provision of law, the following
rules shall apply to any civil action, including an action
for declaratory judgment, that challenges any provision of
the Military Commissions Act of 2006 (Public Law 109-366), or
any amendment made by that Act, on the ground that such
provision or amendment violates the Constitution or the laws
of the United States:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard in that
Court by a court of three judges convened pursuant to section
2284 of title 28, United States Code.
(2) An interlocutory or final judgment, decree, or order of
the United States District Court for the District of Columbia
in an action under paragraph (1) shall be reviewable as a
matter of right by direct appeal to the Supreme Court of the
United States. Any such appeal shall be taken by a notice of
appeal filed within 10 days after the date on which such
judgment, decree, or order is entered. The jurisdictional
statement with respect to any such appeal shall be filed
within 30 days after the date on which such judgment, decree,
or order is entered.
(3) It shall be the duty of the United States District
Court for the District of Columbia and the Supreme Court of
the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of any action or
appeal, respectively, brought under this section.
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall take effect on
October 17, 2006, the date of the enactment of the Military
Commissions Act of 2006 (Public Law 109-366), immediately
after the enactment of that Act and shall apply to all cases,
without exception, that are pending on or after such date.
______
