House Floor Debate on Military Commissions Act

[Congressional Record: September 27, 2006 (House)]
[Page H7522-H7561]

MILITARY COMMISSIONS ACT OF 2006

Mr. HUNTER. Mr. Speaker, pursuant to House Resolution 1042, I call up
the bill (H.R. 6166) to amend title 10, United States Code, to
authorize trial by military commission for violations of the law of
war, and for other purposes, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1042, the
amendment printed in House Report 109-688 is adopted and the bill, as
amended, is considered read.
The text of the bill, as amended, is as follows:

H.R. 6166

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Military
Commissions Act of 2006''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military
commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to
protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status
Review Tribunals of propriety of detention.

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH
MILITARY COMMISSIONS.

The authority to establish military commissions under
chapter 47A of title 10, United States Code, as added by
section 3(a), may not be construed to alter or limit the
authority of the President under the Constitution of the
United States and laws of the United States to establish
military commissions for areas declared to be under martial
law or in occupied territories should circumstances so
require.

SEC. 3. MILITARY COMMISSIONS.

(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:

``CHAPTER 47A--MILITARY COMMISSIONS

``Subchapter
``I. General Provisions...........................................948a
``II. Composition of Military Commissions.........................948h
``III. Pre-Trial Procedure........................................948q
``IV. Trial Procedure.............................................949a
``V. Sentences....................................................949s
``VI. Post-Trial Procedure and Review of Military Commissions.....950a
``VII. Punitive Matters...........................................950p

``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.

``Sec. 948a. Definitions

``In this chapter:
``(1) Unlawful enemy combatant.--(A) The term `unlawful
enemy combatant' means--
``(i) a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the
United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
``(ii) a person who, before, on, or after the date of the
enactment of the Military Commissions Act of 2006, has been
determined to be an unlawful enemy combatant by a Combatant
Status Review Tribunal or another competent tribunal
established under the authority of the President or the
Secretary of Defense.
``(B) Co-belligerent.--In this paragraph, the term `co-
belligerent', with respect to the United States, means any
State or armed force joining and directly engaged with the
United States in hostilities or directly supporting
hostilities against a common enemy.
``(2) Lawful enemy combatant.--The term `lawful enemy
combatant' means a person who is--
``(A) a member of the regular forces of a State party
engaged in hostilities against the United States;
``(B) a member of a militia, volunteer corps, or organized
resistance movement belonging to a State party engaged in
such hostilities, which are under responsible command, wear a
fixed distinctive sign recognizable at a distance, carry
their arms openly, and abide by the law of war; or
``(C) a member of a regular armed force who professes
allegiance to a government engaged in such hostilities, but
not recognized by the United States.
``(3) Alien.--The term `alien' means a person who is not a
citizen of the United States.
``(4) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been determined
by the United States Government pursuant to statute,
Executive order, or regulation to require protection against
unauthorized disclosure for reasons of national security.
``(B) Any restricted data, as that term is defined in
section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C.
2014(y)).
``(5) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on
August 12, 1949.

``Sec. 948b. Military commissions generally

``(a) Purpose.--This chapter establishes procedures
governing the use of military

[[Page H7523]]

commissions to try alien unlawful enemy combatants engaged in
hostilities against the United States for violations of the
law of war and other offenses triable by military commission.
``(b) Authority for Military Commissions Under This
Chapter.--The President is authorized to establish military
commissions under this chapter for offenses triable by
military commission as provided in this chapter.
``(c) Construction of Provisions.--The procedures for
military commissions set forth in this chapter are based upon
the procedures for trial by general courts-martial under
chapter 47 of this title (the Uniform Code of Military
Justice). Chapter 47 of this title does not, by its terms,
apply to trial by military commission except as specifically
provided in this chapter. The judicial construction and
application of that chapter are not binding on military
commissions established under this chapter.
``(d) Inapplicability of Certain Provisions.--(1) The
following provisions of this title shall not apply to trial
by military commission under this chapter:
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any
rule of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) Other provisions of chapter 47 of this title shall
apply to trial by military commission under this chapter only
to the extent provided by this chapter.
``(e) Treatment of Rulings and Precedents.--The findings,
holdings, interpretations, and other precedents of military
commissions under this chapter may not be introduced or
considered in any hearing, trial, or other proceeding of a
court-martial convened under chapter 47 of this title. The
findings, holdings, interpretations, and other precedents of
military commissions under this chapter may not form the
basis of any holding, decision, or other determination of a
court-martial convened under that chapter.
``(f) Status of Commissions Under Common Article 3.--A
military commission established under this chapter is a
regularly constituted court, affording all the necessary
`judicial guarantees which are recognized as indispensable by
civilized peoples' for purposes of common Article 3 of the
Geneva Conventions.
``(g) Geneva Conventions Not Establishing Source of
Rights.--No alien unlawful enemy combatant subject to trial
by military commission under this chapter may invoke the
Geneva Conventions as a source of rights.

``Sec. 948c. Persons subject to military commissions

``Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.

``Sec. 948d. Jurisdiction of military commissions

``(a) Jurisdiction.--A military commission under this
chapter shall have jurisdiction to try any offense made
punishable by this chapter or the law of war when committed
by an alien unlawful enemy combatant before, on, or after
September 11, 2001.
``(b) Lawful Enemy Combatants.--Military commissions under
this chapter shall not have jurisdiction over lawful enemy
combatants. Lawful enemy combatants who violate the law of
war are subject to chapter 47 of this title. Courts-martial
established under that chapter shall have jurisdiction to try
a lawful enemy combatant for any offense made punishable
under this chapter.
``(c) Determination of Unlawful Enemy Combatant Status
Dispositive.--A finding, whether before, on, or after the
date of the enactment of the Military Commissions Act of
2006, by a Combatant Status Review Tribunal or another
competent tribunal established under the authority of the
President or the Secretary of Defense that a person is an
unlawful enemy combatant is dispositive for purposes of
jurisdiction for trial by military commission under this
chapter.
``(d) Punishments.--A military commission under this
chapter may, under such limitations as the Secretary of
Defense may prescribe, adjudge any punishment not forbidden
by this chapter, including the penalty of death when
authorized under this chapter or the law of war.

``Sec. 948e. Annual report to congressional committees

``(a) Annual Report Required.--Not later than December 31
each year, the Secretary of Defense shall submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report on any trials conducted by military
commissions under this chapter during such year.
``(b) Form.--Each report under this section shall be
submitted in unclassified form, but may include a classified
annex.

``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional
members.

``Sec. 948h. Who may convene military commissions

``Military commissions under this chapter may be convened
by the Secretary of Defense or by any officer or official of
the United States designated by the Secretary for that
purpose.

``Sec. 948i. Who may serve on military commissions

``(a) In General.--Any commissioned officer of the armed
forces on active duty is eligible to serve on a military
commission under this chapter.
``(b) Detail of Members.--When convening a military
commission under this chapter, the convening authority shall
detail as members of the commission such members of the armed
forces eligible under subsection (a), as in the opinion of
the convening authority, are best qualified for the duty by
reason of age, education, training, experience, length of
service, and judicial temperament. No member of an armed
force is eligible to serve as a member of a military
commission when such member is the accuser or a witness for
the prosecution or has acted as an investigator or counsel in
the same case.
``(c) Excuse of Members.--Before a military commission
under this chapter is assembled for the trial of a case, the
convening authority may excuse a member from participating in
the case.

``Sec. 948j. Military judge of a military commission

``(a) Detail of Military Judge.--A military judge shall be
detailed to each military commission under this chapter. The
Secretary of Defense shall prescribe regulations providing
for the manner in which military judges are so detailed to
military commissions. The military judge shall preside over
each military commission to which he has been detailed.
``(b) Qualifications.--A military judge shall be a
commissioned officer of the armed forces who is a member of
the bar of a Federal court, or a member of the bar of the
highest court of a State, and who is certified to be
qualified for duty under section 826 of this title (article
26 of the Uniform Code of Military Justice) as a military
judge in general courts-martial by the Judge Advocate General
of the armed force of which such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is
eligible to act as military judge in a case of a military
commission under this chapter if he is the accuser or a
witness or has acted as investigator or a counsel in the same
case.
``(d) Consultation With Members; Ineligibility to Vote.--A
military judge detailed to a military commission under this
chapter may not consult with the members of the commission
except in the presence of the accused (except as otherwise
provided in section 949d of this title), trial counsel, and
defense counsel, nor may he vote with the members of the
commission.
``(e) Other Duties.--A commissioned officer who is
certified to be qualified for duty as a military judge of a
military commission under this chapter may perform such other
duties as are assigned to him by or with the approval of the
Judge Advocate General of the armed force of which such
officer is a member or the designee of such Judge Advocate
General.
``(f) Prohibition on Evaluation of Fitness by Convening
Authority.--The convening authority of a military commission
under this chapter shall not prepare or review any report
concerning the effectiveness, fitness, or efficiency of a
military judge detailed to the military commission which
relates to his performance of duty as a military judge on the
military commission.

``Sec. 948k. Detail of trial counsel and defense counsel

``(a) Detail of Counsel Generally.--(1) Trial counsel and
military defense counsel shall be detailed for each military
commission under this chapter.
``(2) Assistant trial counsel and assistant and associate
defense counsel may be detailed for a military commission
under this chapter.
``(3) Military defense counsel for a military commission
under this chapter shall be detailed as soon as practicable
after the swearing of charges against the accused.
``(4) The Secretary of Defense shall prescribe regulations
providing for the manner in which trial counsel and military
defense counsel are detailed for military commissions under
this chapter and for the persons who are authorized to detail
such counsel for such commissions.
``(b) Trial Counsel.--Subject to subsection (e), trial
counsel detailed for a military commission under this chapter
must be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice) who--
``(A) is a graduate of an accredited law school or is a
member of the bar of a Federal court or of the highest court
of a State; and
``(B) is certified as competent to perform duties as trial
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member; or
``(2) a civilian who--

[[Page H7524]]

``(A) is a member of the bar of a Federal court or of the
highest court of a State; and
``(B) is otherwise qualified to practice before the
military commission pursuant to regulations prescribed by the
Secretary of Defense.
``(c) Military Defense Counsel.--Subject to subsection (e),
military defense counsel detailed for a military commission
under this chapter must be a judge advocate (as so defined)
who is--
``(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The
Chief Prosecutor in a military commission under this chapter
shall meet the requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission
under this chapter shall meet the requirements set forth in
subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who
has acted as an investigator, military judge, or member of a
military commission under this chapter in any case may act
later as trial counsel or military defense counsel in the
same case. No person who has acted for the prosecution before
a military commission under this chapter may act later in the
same case for the defense, nor may any person who has acted
for the defense before a military commission under this
chapter act later in the same case for the prosecution.

``Sec. 948l. Detail or employment of reporters and
interpreters

``(a) Court Reporters.--Under such regulations as the
Secretary of Defense may prescribe, the convening authority
of a military commission under this chapter shall detail to
or employ for the commission qualified court reporters, who
shall make a verbatim recording of the proceedings of and
testimony taken before the commission.
``(b) Interpreters.--Under such regulations as the
Secretary of Defense may prescribe, the convening authority
of a military commission under this chapter may detail to or
employ for the military commission interpreters who shall
interpret for the commission and, as necessary, for trial
counsel and defense counsel and for the accused.
``(c) Transcript; Record.--The transcript of a military
commission under this chapter shall be under the control of
the convening authority of the commission, who shall also be
responsible for preparing the record of the proceedings.

``Sec. 948m. Number of members; excuse of members; absent and
additional members

``(a) Number of Members.--(1) A military commission under
this chapter shall, except as provided in paragraph (2), have
at least five members.
``(2) In a case in which the accused before a military
commission under this chapter may be sentenced to a penalty
of death, the military commission shall have the number of
members prescribed by section 949m(c) of this title.
``(b) Excuse of Members.--No member of a military
commission under this chapter may be absent or excused after
the military commission has been assembled for the trial of a
case unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or
other good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military
commission under this chapter is reduced below the number of
members required by subsection (a), the trial may not proceed
unless the convening authority details new members sufficient
to provide not less than such number. The trial may proceed
with the new members present after the recorded evidence
previously introduced before the members has been read to the
military commission in the presence of the military judge,
the accused (except as provided in section 949d of this
title), and counsel for both sides.

``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of
statements obtained by torture and other statements.
``948s. Service of charges.

``Sec. 948q. Charges and specifications

``(a) Charges and Specifications.--Charges and
specifications against an accused in a military commission
under this chapter shall be signed by a person subject to
chapter 47 of this title under oath before a commissioned
officer of the armed forces authorized to administer oaths
and shall state--
``(1) that the signer has personal knowledge of, or reason
to believe, the matters set forth therein; and
``(2) that they are true in fact to the best of the
signer's knowledge and belief.
``(b) Notice to Accused.--Upon the swearing of the charges
and specifications in accordance with subsection (a), the
accused shall be informed of the charges against him as soon
as practicable.

``Sec. 948r. Compulsory self-incrimination prohibited;
treatment of statements obtained by torture and other
statements

``(a) In General.--No person shall be required to testify
against himself at a proceeding of a military commission
under this chapter.
``(b) Exclusion of Statements Obtained by Torture.--A
statement obtained by use of torture shall not be admissible
in a military commission under this chapter, except against a
person accused of torture as evidence that the statement was
made.
``(c) Statements Obtained Before Enactment of Detainee
Treatment Act of 2005.--A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may
be admitted only if the military judge finds that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
and
``(2) the interests of justice would best be served by
admission of the statement into evidence.
``(d) Statements Obtained After Enactment of Detainee
Treatment Act of 2005.--A statement obtained on or after
December 30, 2005 (the date of the enactment of the Defense
Treatment Act of 2005) in which the degree of coercion is
disputed may be admitted only if the military judge finds
that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
``(2) the interests of justice would best be served by
admission of the statement into evidence; and
``(3) the interrogation methods used to obtain the
statement do not amount to cruel, inhuman, or degrading
treatment prohibited by section 1003 of the Detainee
Treatment Act of 2005.

``Sec. 948s. Service of charges

``The trial counsel assigned to a case before a military
commission under this chapter shall cause to be served upon
the accused and military defense counsel a copy of the
charges upon which trial is to be had. Such charges shall be
served in English and, if appropriate, in another language
that the accused understands. Such service shall be made
sufficiently in advance of trial to prepare a defense.

``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.

``Sec. 949a. Rules

``(a) Procedures and Rules of Evidence.--Pretrial, trial,
and post-trial procedures, including elements and modes of
proof, for cases triable by military commission under this
chapter may be prescribed by the Secretary of Defense, in
consultation with the Attorney General. Such procedures
shall, so far as the Secretary considers practicable or
consistent with military or intelligence activities, apply
the principles of law and the rules of evidence in trial by
general courts-martial. Such procedures and rules of evidence
may not be contrary to or inconsistent with this chapter.
``(b) Rules for Military Commission.--(1) Notwithstanding
any departures from the law and the rules of evidence in
trial by general courts-martial authorized by subsection (a),
the procedures and rules of evidence in trials by military
commission under this chapter shall include the following:
``(A) The accused shall be permitted to present evidence in
his defense, to cross-examine the witnesses who testify
against him, and to examine and respond to evidence admitted
against him on the issue of guilt or innocence and for
sentencing, as provided for by this chapter.
``(B) The accused shall be present at all sessions of the
military commission (other than those for deliberations or
voting), except when excluded under section 949d of this
title.
``(C) The accused shall receive the assistance of counsel
as provided for by section 948k.
``(D) The accused shall be permitted to represent himself,
as provided for by paragraph (3).
``(2) In establishing procedures and rules of evidence for
military commission proceedings, the Secretary of Defense may
prescribe the following provisions:
``(A) Evidence shall be admissible if the military judge
determines that the evidence would have probative value to a
reasonable person.
``(B) Evidence shall not be excluded from trial by military
commission on the grounds that the evidence was not seized
pursuant to a search warrant or other authorization.
``(C) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence

[[Page H7525]]

complies with the provisions of section 948r of this title.
``(D) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient basis to find that the
evidence is what it is claimed to be; and
``(ii) the military judge instructs the members that they
may consider any issue as to authentication or identification
of evidence in determining the weight, if any, to be given to
the evidence.
``(E)(i) Except as provided in clause (ii), hearsay
evidence not otherwise admissible under the rules of evidence
applicable in trial by general courts-martial may be admitted
in a trial by military commission if the proponent of the
evidence makes known to the adverse party, sufficiently in
advance to provide the adverse party with a fair opportunity
to meet the evidence, the intention of the proponent to offer
the evidence, and the particulars of the evidence (including
information on the general circumstances under which the
evidence was obtained). The disclosure of evidence under the
preceding sentence is subject to the requirements and
limitations applicable to the disclosure of classified
information in section 949j(c) of this title.
``(ii) Hearsay evidence not otherwise admissible under the
rules of evidence applicable in trial by general courts-
martial shall not be admitted in a trial by military
commission if the party opposing the admission of the
evidence demonstrates that the evidence is unreliable or
lacking in probative value.
``(F) The military judge shall exclude any evidence the
probative value of which is substantially outweighed--
``(i) by the danger of unfair prejudice, confusion of the
issues, or misleading the commission; or
``(ii) by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
``(3)(A) The accused in a military commission under this
chapter who exercises the right to self-representation under
paragraph (1)(D) shall conform his deportment and the conduct
of the defense to the rules of evidence, procedure, and
decorum applicable to trials by military commission.
``(B) Failure of the accused to conform to the rules
described in subparagraph (A) may result in a partial or
total revocation by the military judge of the right of self-
representation under paragraph (1)(D). In such case, the
detailed defense counsel of the accused or an appropriately
authorized civilian counsel shall perform the functions
necessary for the defense.
``(c) Delegation of Authority to Prescribe Regulations.--
The Secretary of Defense may delegate the authority of the
Secretary to prescribe regulations under this chapter.
``(d) Notification to Congressional Committees of Changes
to Procedures.--Not later than 60 days before the date on
which any proposed modification of the procedures in effect
for military commissions under this chapter goes into effect,
the Secretary of Defense shall submit to the Committee on
Armed Services of the Senate and the Committee on Armed
Services of the House of Representatives a report describing
the modification.

``Sec. 949b. Unlawfully influencing action of military
commission

``(a) In General.--(1) No authority convening a military
commission under this chapter may censure, reprimand, or
admonish the military commission, or any member, military
judge, or counsel thereof, with respect to the findings or
sentence adjudged by the military commission, or with respect
to any other exercises of its or his functions in the conduct
of the proceedings.
``(2) No person may attempt to coerce or, by any
unauthorized means, influence--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to his judicial acts; or
``(C) the exercise of professional judgment by trial
counsel or defense counsel.
``(3) Paragraphs (1) and (2) do not apply with respect to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the
substantive and procedural aspects of military commissions;
or
``(B) statements and instructions given in open proceedings
by a military judge or counsel.
``(b) Prohibition on Consideration of Actions on Commission
in Evaluation of Fitness.--In the preparation of an
effectiveness, fitness, or efficiency report or any other
report or document used in whole or in part for the purpose
of determining whether a commissioned officer of the armed
forces is qualified to be advanced in grade, or in
determining the assignment or transfer of any such officer or
whether any such officer should be retained on active duty,
no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer, in acting as counsel, represented any accused before
a military commission under this chapter.

``Sec. 949c. Duties of trial counsel and defense counsel

``(a) Trial Counsel.--The trial counsel of a military
commission under this chapter shall prosecute in the name of
the United States.
``(b) Defense Counsel.--(1) The accused shall be
represented in his defense before a military commission under
this chapter as provided in this subsection.
``(2) The accused shall be represented by military counsel
detailed under section 948k of this title.
``(3) The accused may be represented by civilian counsel if
retained by the accused, but only if such civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, or possession of the United States or before a
Federal court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
classified information that is classified at the level Secret
or higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``(4) Civilian defense counsel shall protect any classified
information received during the course of representation of
the accused in accordance with all applicable law governing
the protection of classified information and may not divulge
such information to any person not authorized to receive it.
``(5) If the accused is represented by civilian counsel,
detailed military counsel shall act as associate counsel.
``(6) The accused is not entitled to be represented by more
than one military counsel. However, the person authorized
under regulations prescribed under section 948k of this title
to detail counsel, in that person's sole discretion, may
detail additional military counsel to represent the accused.
``(7) Defense counsel may cross-examine each witness for
the prosecution who testifies before a military commission
under this chapter.

``Sec. 949d. Sessions

``(a) Sessions Without Presence of Members.--(1) At any
time after the service of charges which have been referred
for trial by military commission under this chapter, the
military judge may call the military commission into session
without the presence of the members for the purpose of--
``(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial
of the issues raised by a plea of not guilty;
``(B) hearing and ruling upon any matter which may be ruled
upon by the military judge under this chapter, whether or not
the matter is appropriate for later consideration or decision
by the members;
``(C) if permitted by regulations prescribed by the
Secretary of Defense, receiving the pleas of the accused; and
``(D) performing any other procedural function which may be
performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members.
``(2) Except as provided in subsections (c) and (e), any
proceedings under paragraph (1) shall--
``(A) be conducted in the presence of the accused, defense
counsel, and trial counsel; and
``(B) be made part of the record.
``(b) Proceedings in Presence of Accused.--Except as
provided in subsections (c) and (e), all proceedings of a
military commission under this chapter, including any
consultation of the members with the military judge or
counsel, shall--
``(1) be in the presence of the accused, defense counsel,
and trial counsel; and
``(2) be made a part of the record.
``(c) Deliberation or Vote of Members.--When the members of
a military commission under this chapter deliberate or vote,
only the members may be present.
``(d) Closure of Proceedings.--(1) The military judge may
close to the public all or part of the proceedings of a
military commission under this chapter, but only in
accordance with this subsection.
``(2) The military judge may close to the public all or a
portion of the proceedings under paragraph (1) only upon
making a specific finding that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national
security, including intelligence or law enforcement sources,
methods, or activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera,
by either trial counsel or defense counsel.
``(e) Exclusion of Accused From Certain Proceedings.--The
military judge may exclude the accused from any portion of a
proceeding upon a determination that, after being warned by
the military judge, the accused persists in conduct that
justifies exclusion from the courtroom--
``(1) to ensure the physical safety of individuals; or

[[Page H7526]]

``(2) to prevent disruption of the proceedings by the
accused.
``(f) Protection of Classified Information.--
``(1) National security privilege.--(A) Classified
information shall be protected and is privileged from
disclosure if disclosure would be detrimental to the national
security. The rule in the preceding sentence applies to all
stages of the proceedings of military commissions under this
chapter.
``(B) The privilege referred to in subparagraph (A) may be
claimed by the head of the executive or military department
or government agency concerned based on a finding by the head
of that department or agency that--
``(i) the information is properly classified; and
``(ii) disclosure of the information would be detrimental
to the national security.
``(C) A person who may claim the privilege referred to in
subparagraph (A) may authorize a representative, witness, or
trial counsel to claim the privilege and make the finding
described in subparagraph (B) on behalf of such person. The
authority of the representative, witness, or trial counsel to
do so is presumed in the absence of evidence to the contrary.
``(2) Introduction of classified information.--
``(A) Alternatives to disclosure.--To protect classified
information from disclosure, the military judge, upon motion
of trial counsel, shall authorize, to the extent
practicable--
``(i) the deletion of specified items of classified
information from documents to be introduced as evidence
before the military commission;
``(ii) the substitution of a portion or summary of the
information for such classified documents; or
``(iii) the substitution of a statement of relevant facts
that the classified information would tend to prove.
``(B) Protection of sources, methods, or activities.--The
military judge, upon motion of trial counsel, shall permit
trial counsel to introduce otherwise admissible evidence
before the military commission, while protecting from
disclosure the sources, methods, or activities by which the
United States acquired the evidence if the military judge
finds that (i) the sources, methods, or activities by which
the United States acquired the evidence are classified, and
(ii) the evidence is reliable. The military judge may require
trial counsel to present to the military commission and the
defense, to the extent practicable and consistent with
national security, an unclassified summary of the sources,
methods, or activities by which the United States acquired
the evidence.
``(C) Assertion of national security privilege at trial.--
During the examination of any witness, trial counsel may
object to any question, line of inquiry, or motion to admit
evidence that would require the disclosure of classified
information. Following such an objection, the military judge
shall take suitable action to safeguard such classified
information. Such action may include the review of trial
counsel's claim of privilege by the military judge in camera
and on an ex parte basis, and the delay of proceedings to
permit trial counsel to consult with the department or agency
concerned as to whether the national security privilege
should be asserted.
``(3) Consideration of privilege and related materials.--A
claim of privilege under this subsection, and any materials
submitted in support thereof, shall, upon request of the
Government, be considered by the military judge in camera and
shall not be disclosed to the accused.
``(4) Additional regulations.--The Secretary of Defense may
prescribe additional regulations, consistent with this
subsection, for the use and protection of classified
information during proceedings of military commissions under
this chapter. A report on any regulations so prescribed, or
modified, shall be submitted to the Committees on Armed
Services of the Senate and the House of Representatives not
later than 60 days before the date on which such regulations
or modifications, as the case may be, go into effect.

``Sec. 949e. Continuances

``The military judge in a military commission under this
chapter may, for reasonable cause, grant a continuance to any
party for such time, and as often, as may appear to be just.

``Sec. 949f. Challenges

``(a) Challenges Authorized.--The military judge and
members of a military commission under this chapter may be
challenged by the accused or trial counsel for cause stated
to the commission. The military judge shall determine the
relevance and validity of challenges for cause. The military
judge may not receive a challenge to more than one person at
a time. Challenges by trial counsel shall ordinarily be
presented and decided before those by the accused are
offered.
``(b) Peremptory Challenges.--Each accused and the trial
counsel are entitled to one peremptory challenge. The
military judge may not be challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever
additional members are detailed to a military commission
under this chapter, and after any challenges for cause
against such additional members are presented and decided,
each accused and the trial counsel are entitled to one
peremptory challenge against members not previously subject
to peremptory challenge.

``Sec. 949g. Oaths

``(a) In General.--(1) Before performing their respective
duties in a military commission under this chapter, military
judges, members, trial counsel, defense counsel, reporters,
and interpreters shall take an oath to perform their duties
faithfully.
``(2) The form of the oath required by paragraph (1), the
time and place of the taking thereof, the manner of recording
the same, and whether the oath shall be taken for all cases
in which duties are to be performed or for a particular case,
shall be as prescribed in regulations of the Secretary of
Defense. Those regulations may provide that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any
time by any judge advocate or other person certified to be
qualified or competent for the duty; and
``(B) if such an oath is taken, such oath need not again be
taken at the time the judge advocate or other person is
detailed to that duty.
``(b) Witnesses.--Each witness before a military commission
under this chapter shall be examined on oath.

``Sec. 949h. Former jeopardy

``(a) In General.--No person may, without his consent, be
tried by a military commission under this chapter a second
time for the same offense.
``(b) Scope of Trial.--No proceeding in which the accused
has been found guilty by military commission under this
chapter upon any charge or specification is a trial in the
sense of this section until the finding of guilty has become
final after review of the case has been fully completed.

``Sec. 949i. Pleas of the accused

``(a) Entry of Plea of Not Guilty.--If an accused in a
military commission under this chapter after a plea of guilty
sets up matter inconsistent with the plea, or if it appears
that the accused has entered the plea of guilty through lack
of understanding of its meaning and effect, or if the accused
fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the military commission shall
proceed as though the accused had pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to
any charge or specification to which a plea of guilty has
been made by the accused in a military commission under this
chapter and accepted by the military judge, a finding of
guilty of the charge or specification may be entered
immediately without a vote. The finding shall constitute the
finding of the commission unless the plea of guilty is
withdrawn prior to announcement of the sentence, in which
event the proceedings shall continue as though the accused
had pleaded not guilty.

``Sec. 949j. Opportunity to obtain witnesses and other
evidence

``(a) Right of Defense Counsel.--Defense counsel in a
military commission under this chapter shall have a
reasonable opportunity to obtain witnesses and other evidence
as provided in regulations prescribed by the Secretary of
Defense.
``(b) Process for Compulsion.--Process issued in a military
commission under this chapter to compel witnesses to appear
and testify and to compel the production of other evidence--
``(1) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(2) shall run to any place where the United States shall
have jurisdiction thereof.
``(c) Protection of Classified Information.--(1) With
respect to the discovery obligations of trial counsel under
this section, the military judge, upon motion of trial
counsel, shall authorize, to the extent practicable--
``(A) the deletion of specified items of classified
information from documents to be made available to the
accused;
``(B) the substitution of a portion or summary of the
information for such classified documents; or
``(C) the substitution of a statement admitting relevant
facts that the classified information would tend to prove.
``(2) The military judge, upon motion of trial counsel,
shall authorize trial counsel, in the course of complying
with discovery obligations under this section, to protect
from disclosure the sources, methods, or activities by which
the United States acquired evidence if the military judge
finds that the sources, methods, or activities by which the
United States acquired such evidence are classified. The
military judge may require trial counsel to provide, to the
extent practicable, an unclassified summary of the sources,
methods, or activities by which the United States acquired
such evidence.
``(d) Exculpatory Evidence.--(1) As soon as practicable,
trial counsel shall disclose to the defense the existence of
any evidence known to trial counsel that reasonably tends to
exculpate the accused. Where exculpatory evidence is
classified, the accused shall be provided with an adequate
substitute in accordance with the procedures under subsection
(c).
``(2) In this subsection, the term `evidence known to trial
counsel', in the case of exculpatory evidence, means
exculpatory evidence that the prosecution would be required
to disclose in a trial by general court-martial under chapter
47 of this title.

``Sec. 949k. Defense of lack of mental responsibility

``(a) Affirmative Defense.--It is an affirmative defense in
a trial by military commission under this chapter that, at
the time

[[Page H7527]]

of the commission of the acts constituting the offense, the
accused, as a result of a severe mental disease or defect,
was unable to appreciate the nature and quality or the
wrongfulness of the acts. Mental disease or defect does not
otherwise constitute a defense.
``(b) Burden of Proof.--The accused in a military
commission under this chapter has the burden of proving the
defense of lack of mental responsibility by clear and
convincing evidence.
``(c) Findings Following Assertion of Defense.--Whenever
lack of mental responsibility of the accused with respect to
an offense is properly at issue in a military commission
under this chapter, the military judge shall instruct the
members of the commission as to the defense of lack of mental
responsibility under this section and shall charge them to
find the accused--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote Required for Finding.--The accused
shall be found not guilty by reason of lack of mental
responsibility under subsection (c)(3) only if a majority of
the members present at the time the vote is taken determines
that the defense of lack of mental responsibility has been
established.

``Sec. 949l. Voting and rulings

``(a) Vote by Secret Written Ballot.--Voting by members of
a military commission under this chapter on the findings and
on the sentence shall be by secret written ballot.
``(b) Rulings.--(1) The military judge in a military
commission under this chapter shall rule upon all questions
of law, including the admissibility of evidence and all
interlocutory questions arising during the proceedings.
``(2) Any ruling made by the military judge upon a question
of law or an interlocutory question (other than the factual
issue of mental responsibility of the accused) is conclusive
and constitutes the ruling of the military commission.
However, a military judge may change his ruling at any time
during the trial.
``(c) Instructions Prior to Vote.--Before a vote is taken
of the findings of a military commission under this chapter,
the military judge shall, in the presence of the accused and
counsel, instruct the members as to the elements of the
offense and charge the members--
``(1) that the accused must be presumed to be innocent
until his guilt is established by legal and competent
evidence beyond a reasonable doubt;
``(2) that in the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt
must be resolved in favor of the accused and he must be
acquitted;
``(3) that, if there is reasonable doubt as to the degree
of guilt, the finding must be in a lower degree as to which
there is no reasonable doubt; and
``(4) that the burden of proof to establish the guilt of
the accused beyond a reasonable doubt is upon the United
States.

``Sec. 949m. Number of votes required

``(a) Conviction.--No person may be convicted by a military
commission under this chapter of any offense, except as
provided in section 949i(b) of this title or by concurrence
of two-thirds of the members present at the time the vote is
taken.
``(b) Sentences.--(1) No person may be sentenced by a
military commission to suffer death, except insofar as--
``(A) the penalty of death is expressly authorized under
this chapter or the law of war for an offense of which the
accused has been found guilty;
``(B) trial counsel expressly sought the penalty of death
by filing an appropriate notice in advance of trial;
``(C) the accused is convicted of the offense by the
concurrence of all the members present at the time the vote
is taken; and
``(D) all the members present at the time the vote is taken
concur in the sentence of death.
``(2) No person may be sentenced to life imprisonment, or
to confinement for more than 10 years, by a military
commission under this chapter except by the concurrence of
three-fourths of the members present at the time the vote is
taken.
``(3) All other sentences shall be determined by a military
commission by the concurrence of two-thirds of the members
present at the time the vote is taken.
``(c) Number of Members Required for Penalty of Death.--(1)
Except as provided in paragraph (2), in a case in which the
penalty of death is sought, the number of members of the
military commission under this chapter shall be not less than
12.
``(2) In any case described in paragraph (1) in which 12
members are not reasonably available because of physical
conditions or military exigencies, the convening authority
shall specify a lesser number of members for the military
commission (but not fewer than 9 members), and the military
commission may be assembled, and the trial held, with not
fewer than the number of members so specified. In such a
case, the convening authority shall make a detailed written
statement, to be appended to the record, stating why a
greater number of members were not reasonably available.

``Sec. 949n. Military commission to announce action

``A military commission under this chapter shall announce
its findings and sentence to the parties as soon as
determined.

``Sec. 949o. Record of trial

``(a) Record; Authentication.--Each military commission
under this chapter shall keep a separate, verbatim, record of
the proceedings in each case brought before it, and the
record shall be authenticated by the signature of the
military judge. If the record cannot be authenticated by the
military judge by reason of his death, disability, or
absence, it shall be authenticated by the signature of the
trial counsel or by a member of the commission if the trial
counsel is unable to authenticate it by reason of his death,
disability, or absence. Where appropriate, and as provided in
regulations prescribed by the Secretary of Defense, the
record of a military commission under this chapter may
contain a classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military
commission under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record
of the proceedings of the military commission under this
chapter shall be given the accused as soon as it is
authenticated. If the record contains classified information,
or a classified annex, the accused shall be given a redacted
version of the record consistent with the requirements of
section 949d of this title. Defense counsel shall have access
to the unredacted record, as provided in regulations
prescribed by the Secretary of Defense.

``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.

``Sec. 949s. Cruel or unusual punishments prohibited

``Punishment by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a military commission
under this chapter or inflicted under this chapter upon any
person subject to this chapter. The use of irons, single or
double, except for the purpose of safe custody, is prohibited
under this chapter.

``Sec. 949t. Maximum limits

``The punishment which a military commission under this
chapter may direct for an offense may not exceed such limits
as the President or Secretary of Defense may prescribe for
that offense.

``Sec. 949u. Execution of confinement

``(a) In General.--Under such regulations as the Secretary
of Defense may prescribe, a sentence of confinement adjudged
by a military commission under this chapter may be carried
into execution by confinement--
``(1) in any place of confinement under the control of any
of the armed forces; or
``(2) in any penal or correctional institution under the
control of the United States or its allies, or which the
United States may be allowed to use.
``(b) Treatment During Confinement by Other Than the Armed
Forces.--Persons confined under subsection (a)(2) in a penal
or correctional institution not under the control of an armed
force are subject to the same discipline and treatment as
persons confined or committed by the courts of the United
States or of the State, District of Columbia, or place in
which the institution is situated.

``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District
of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; procedures for execution of sentence of
death.
``950j. Finality or proceedings, findings, and sentences.

``Sec. 950a. Error of law; lesser included offense

``(a) Error of Law.--A finding or sentence of a military
commission under this chapter may not be held incorrect on
the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.
``(b) Lesser Included Offense.--Any reviewing authority
with the power to approve or affirm a finding of guilty by a
military commission under this chapter may approve or affirm,
instead, so much of the finding as includes a lesser included
offense.

``Sec. 950b. Review by the convening authority

``(a) Notice to Convening Authority of Findings and
Sentence.--The findings and sentence of a military commission
under this chapter shall be reported in writing promptly to
the convening authority after the announcement of the
sentence.
``(b) Submittal of Matters by Accused to Convening
Authority.--(1) The accused may submit to the convening
authority matters for consideration by the convening
authority with respect to the findings and the sentence

[[Page H7528]]

of the military commission under this chapter.
``(2)(A) Except as provided in subparagraph (B), a
submittal under paragraph (1) shall be made in writing within
20 days after the accused has been given an authenticated
record of trial under section 949o(c) of this title.
``(B) If the accused shows that additional time is required
for the accused to make a submittal under paragraph (1), the
convening authority may, for good cause, extend the
applicable period under subparagraph (A) for not more than an
additional 20 days.
``(3) The accused may waive his right to make a submittal
to the convening authority under paragraph (1). Such a waiver
shall be made in writing and may not be revoked. For the
purposes of subsection (c)(2), the time within which the
accused may make a submittal under this subsection shall be
deemed to have expired upon the submittal of a waiver under
this paragraph to the convening authority.
``(c) Action by Convening Authority.--(1) The authority
under this subsection to modify the findings and sentence of
a military commission under this chapter is a matter of the
sole discretion and prerogative of the convening authority.
``(2)(A) The convening authority shall take action on the
sentence of a military commission under this chapter.
``(B) Subject to regulations prescribed by the Secretary of
Defense, action on the sentence under this paragraph may be
taken only after consideration of any matters submitted by
the accused under subsection (b) or after the time for
submitting such matters expires, whichever is earlier.
``(C) In taking action under this paragraph, the convening
authority may, in his sole discretion, approve, disapprove,
commute, or suspend the sentence in whole or in part. The
convening authority may not increase a sentence beyond that
which is found by the military commission.
``(3) The convening authority is not required to take
action on the findings of a military commission under this
chapter. If the convening authority takes action on the
findings, the convening authority may, in his sole
discretion, may--
``(A) dismiss any charge or specification by setting aside
a finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding
of guilty to an offense that is a lesser included offense of
the offense stated in the charge.
``(4) The convening authority shall serve on the accused or
on defense counsel notice of any action taken by the
convening authority under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to
paragraphs (2) and (3), the convening authority of a military
commission under this chapter may, in his sole discretion,
order a proceeding in revision or a rehearing.
``(2)(A) Except as provided in subparagraph (B), a
proceeding in revision may be ordered by the convening
authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the military commission with respect to the findings or
sentence that can be rectified without material prejudice to
the substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a
specification laid under that charge, which sufficiently
alleges a violation; or
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
``(3) A rehearing may be ordered by the convening authority
if the convening authority disapproves the findings and
sentence and states the reasons for disapproval of the
findings. If the convening authority disapproves the finding
and sentence and does not order a rehearing, the convening
authority shall dismiss the charges. A rehearing as to the
findings may not be ordered by the convening authority when
there is a lack of sufficient evidence in the record to
support the findings. A rehearing as to the sentence may be
ordered by the convening authority if the convening authority
disapproves the sentence.

``Sec. 950c. Appellate referral; waiver or withdrawal of
appeal

``(a) Automatic Referral for Appellate Review.--Except as
provided under subsection (b), in each case in which the
final decision of a military commission (as approved by the
convening authority) includes a finding of guilty, the
convening authority shall refer the case to the Court of
Military Commission Review. Any such referral shall be made
in accordance with procedures prescribed under regulations of
the Secretary.
``(b) Waiver of Right of Review.--(1) In each case subject
to appellate review under section 950f of this title, except
a case in which the sentence as approved under section 950b
of this title extends to death, the accused may file with the
convening authority a statement expressly waiving the right
of the accused to such review.
``(2) A waiver under paragraph (1) shall be signed by both
the accused and a defense counsel.
``(3) A waiver under paragraph (1) must be filed, if at
all, within 10 days after notice on the action is served on
the accused or on defense counsel under section 950b(c)(4) of
this title. The convening authority, for good cause, may
extend the period for such filing by not more than 30 days.
``(c) Withdrawal of Appeal.--Except in a case in which the
sentence as approved under section 950b of this title extends
to death, the accused may withdraw an appeal at any time.
``(d) Effect of Waiver or Withdrawal.--A waiver of the
right to appellate review or the withdrawal of an appeal
under this section bars review under section 950f of this
title.

``Sec. 950d. Appeal by the United States

``(a) Interlocutory Appeal.--(1) Except as provided in
paragraph (2), in a trial by military commission under this
chapter, the United States may take an interlocutory appeal
to the Court of Military Commission Review of any order or
ruling of the military judge that--
``(A) terminates proceedings of the military commission
with respect to a charge or specification;
``(B) excludes evidence that is substantial proof of a fact
material in the proceeding; or
``(C) relates to a matter under subsection (d), (e), or (f)
of section 949d of this title or section 949j(c) of this
title.
``(2) The United States may not appeal under paragraph (1)
an order or ruling that is, or amounts to, a finding of not
guilty by the military commission with respect to a charge or
specification.
``(b) Notice of Appeal.--The United States shall take an
appeal of an order or ruling under subsection (a) by filing a
notice of appeal with the military judge within five days
after the date of such order or ruling.
``(c) Appeal.--An appeal under this section shall be
forwarded, by means specified in regulations prescribed the
Secretary of Defense, directly to the Court of Military
Commission Review. In ruling on an appeal under this section,
the Court may act only with respect to matters of law.
``(d) Appeal From Adverse Ruling.--The United States may
appeal an adverse ruling on an appeal under subsection (c) to
the United States Court of Appeals for the District of
Columbia Circuit by filing a petition for review in the Court
of Appeals within 10 days after the date of such ruling.
Review under this subsection shall be at the discretion of
the Court of Appeals.

``Sec. 950e. Rehearings

``(a) Composition of Military Commission for Rehearing.--
Each rehearing under this chapter shall take place before a
military commission under this chapter composed of members
who were not members of the military commission which first
heard the case.
``(b) Scope of Rehearing.--(1) Upon a rehearing--
``(A) the accused may not be tried for any offense of which
he was found not guilty by the first military commission; and
``(B) no sentence in excess of or more than the original
sentence may be imposed unless--
``(i) the sentence is based upon a finding of guilty of an
offense not considered upon the merits in the original
proceedings; or
``(ii) the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the
first military commission was in accordance with a pretrial
agreement and the accused at the rehearing changes his plea
with respect to the charges or specifications upon which the
pretrial agreement was based, or otherwise does not comply
with pretrial agreement, the sentence as to those charges or
specifications may include any punishment not in excess of
that lawfully adjudged at the first military commission.

``Sec. 950f. Review by Court of Military Commission Review

``(a) Establishment.--The Secretary of Defense shall
establish a Court of Military Commission Review which shall
be composed of one or more panels, and each such panel shall
be composed of not less than three appellate military judges.
For the purpose of reviewing military commission decisions
under this chapter, the court may sit in panels or as a whole
in accordance with rules prescribed by the Secretary.
``(b) Appellate Military Judges.--The Secretary shall
assign appellate military judges to a Court of Military
Commission Review. Each appellate military judge shall meet
the qualifications for military judges prescribed by section
948j(b) of this title or shall be a civilian with comparable
qualifications. No person may be serve as an appellate
military judge in any case in which that person acted as a
military judge, counsel, or reviewing official.
``(c) Cases To Be Reviewed.--The Court of Military
Commission Review, 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.
``(d) Scope of Review.--In a case reviewed by the Court of
Military Commission Review under this section, the Court may
act only with respect to matters of law.

``Sec. 950g. Review by the United States Court of Appeals for
the District of Columbia Circuit and the Supreme Court

``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as
provided in subparagraph (B), the United States Court of
Appeals for the District of Columbia Circuit shall have

[[Page H7529]]

exclusive jurisdiction to determine the validity of a final
judgment rendered by a military commission (as approved by
the convening authority) under this chapter.
``(B) The Court of Appeals may not review the final
judgment until all other appeals under this chapter have been
waived or exhausted.
``(2) A petition for review must be filed by the accused in
the Court of Appeals not later than 20 days after the date on
which--
``(A) written notice of the final decision of the Court of
Military Commission Review is served on the accused or on
defense counsel; or
``(B) the accused submits, in the form prescribed by
section 950c of this title, a written notice waiving the
right of the accused to review by the Court of Military
Commission Review under section 950f of this title.
``(b) Standard for Review.--In a case reviewed by it under
this section, the Court of Appeals may act only with respect
to matters of law.
``(c) Scope of Review.--The jurisdiction of the Court of
Appeals on an appeal under subsection (a) shall be limited to
the consideration of--
``(1) whether the final decision was consistent with the
standards and procedures specified in this chapter; and
``(2) to the extent applicable, the Constitution and the
laws of the United States.
``(d) Supreme Court.--The Supreme Court may review by writ
of certiorari the final judgment of the Court of Appeals
pursuant to section 1257 of title 28.

``Sec. 950h. Appellate counsel

``(a) Appointment.--The Secretary of Defense shall, by
regulation, establish procedures for the appointment of
appellate counsel for the United States and for the accused
in military commissions under this chapter. Appellate counsel
shall meet the qualifications for counsel appearing before
military commissions under this chapter.
``(b) Representation of United States.--Appellate counsel
appointed under subsection (a)--
``(1) shall represent the United States in any appeal or
review proceeding under this chapter before the Court of
Military Commission Review; and
``(2) may, when requested to do so by the Attorney General
in a case arising under this chapter, represent the United
States before the United States Court of Appeals for the
District of Columbia Circuit or the Supreme Court.
``(c) Representation of Accused.--The accused shall be
represented by appellate counsel appointed under subsection
(a) before the Court of Military Commission Review, the
United States Court of Appeals for the District of Columbia
Circuit, and the Supreme Court, and by civilian counsel if
retained by the accused. Any such civilian counsel shall meet
the qualifications under paragraph (3) of section 949c(b) of
this title for civilian counsel appearing before military
commissions under this chapter and shall be subject to the
requirements of paragraph (4) of that section.

``Sec. 950i. Execution of sentence; procedures for execution
of sentence of death

``(a) In General.--The Secretary of Defense is authorized
to carry out a sentence imposed by a military commission
under this chapter in accordance with such procedures as the
Secretary may prescribe.
``(b) Execution of Sentence of Death Only Upon Approval by
the President.--If the sentence of a military commission
under this chapter extends to death, that part of the
sentence providing for death may not be executed until
approved by the President. In such a case, the President may
commute, remit, or suspend the sentence, or any part thereof,
as he sees fit.
``(c) Execution of Sentence of Death Only Upon Final
Judgment of Legality of Proceedings.--(1) If the sentence of
a military commission under this chapter extends to death,
the sentence may not be executed until there is a final
judgment as to the legality of the proceedings (and with
respect to death, approval under subsection (b)).
``(2) A judgment as to legality of proceedings is final for
purposes of paragraph (1) when--
``(A) the time for the accused to file a petition for
review by the Court of Appeals for the District of Columbia
Circuit has expired and the accused has not filed a timely
petition for such review and the case is not otherwise under
review by that Court; or
``(B) review is completed in accordance with the judgment
of the United States Court of Appeals for the District of
Columbia Circuit and--
``(i) a petition for a writ of certiorari is not timely
filed;
``(ii) such a petition is denied by the Supreme Court; or
``(iii) review is otherwise completed in accordance with
the judgment of the Supreme Court.
``(d) Suspension of Sentence.--The Secretary of the
Defense, or the convening authority acting on the case (if
other than the Secretary), may suspend the execution of any
sentence or part thereof in the case, except a sentence of
death.

``Sec. 950j. Finality or proceedings, findings, and sentences

``(a) Finality.--The appellate review of records of trial
provided by this chapter, and the proceedings, findings, and
sentences of military commissions as approved, reviewed, or
affirmed as required by this chapter, are final and
conclusive. Orders publishing the proceedings of military
commissions under this chapter are binding upon all
departments, courts, agencies, and officers of the United
States, except as otherwise provided by the President.
``(b) Provisions of Chapter Sole Basis for Review of
Military Commission Procedures and Actions.--Except as
otherwise provided in this chapter and notwithstanding any
other provision of law (including section 2241 of title 28 or
any other habeas corpus provision), no court, justice, or
judge shall have jurisdiction to hear or consider any claim
or cause of action whatsoever, including any action pending
on or filed after the date of the enactment of the Military
Commissions Act of 2006, relating to the prosecution, trial,
or judgment of a military commission under this chapter,
including challenges to the lawfulness of procedures of
military commissions under this chapter.

``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p. Statement of substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser included offense.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commissions.
``950w. Perjury and obstruction of justice; contempt.

``Sec. 950p. Statement of substantive offenses

``(a) Purpose.--The provisions of this subchapter codify
offenses that have traditionally been triable by military
commissions. This chapter does not establish new crimes that
did not exist before its enactment, but rather codifies those
crimes for trial by military commission.
``(b) Effect.--Because the provisions of this subchapter
(including provisions that incorporate definitions in other
provisions of law) are declarative of existing law, they do
not preclude trial for crimes that occurred before the date
of the enactment of this chapter.

``Sec. 950q. Principals

``Any person is punishable as a principal under this
chapter who--
``(1) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures its commission;
``(2) causes an act to be done which if directly performed
by him would be punishable by this chapter; or
``(3) is a superior commander who, with regard to acts
punishable under this chapter, knew, had reason to know, or
should have known, that a subordinate was about to commit
such acts or had done so and who failed to take the necessary
and reasonable measures to prevent such acts or to punish the
perpetrators thereof.

``Sec. 950r. Accessory after the fact

``Any person subject to this chapter who, knowing that an
offense punishable by this chapter has been committed,
receives, comforts, or assists the offender in order to
hinder or prevent his apprehension, trial, or punishment
shall be punished as a military commission under this chapter
may direct.

``Sec. 950s. Conviction of lesser included offense

``An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit
either the offense charged or an attempt to commit either the
offense charged or an offense necessarily included therein.

``Sec. 950t. Attempts

``(a) In General.--Any person subject to this chapter who
attempts to commit any offense punishable by this chapter
shall be punished as a military commission under this chapter
may direct.
``(b) Scope of Offense.--An act, done with specific intent
to commit an offense under this chapter, amounting to more
than mere preparation and tending, even though failing, to
effect its commission, is an attempt to commit that offense.
``(c) Effect of Consummation.--Any person subject to this
chapter may be convicted of an attempt to commit an offense
although it appears on the trial that the offense was
consummated.

``Sec. 950u. Solicitation

``Any person subject to this chapter who solicits or
advises another or others to commit one or more substantive
offenses triable by military commission under this chapter
shall, if the offense solicited or advised is attempted or
committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or
advised is not committed or attempted, he shall be punished
as a military commission under this chapter may direct.

``Sec. 950v. Crimes triable by military commissions

``(a) Definitions and Construction.--In this section:
``(1) Military objective.--The term `military objective'
means--
``(A) combatants; and
``(B) those objects during an armed conflict--
``(i) which, by their nature, location, purpose, or use,
effectively contribute to the opposing force's war-fighting
or war-sustaining capability; and
``(ii) the total or partial destruction, capture, or
neutralization of which would constitute a definite military
advantage to the attacker under the circumstances at the time
of the attack.
``(2) Protected person.--The term `protected person' means
any person entitled to

[[Page H7530]]

protection under one or more of the Geneva Conventions,
including--
``(A) civilians not taking an active part in hostilities;
``(B) military personnel placed hors de combat by sickness,
wounds, or detention; and
``(C) military medical or religious personnel.
``(3) Protected property.--The term `protected property'
means property specifically protected by the law of war (such
as buildings dedicated to religion, education, art, science
or charitable purposes, historic monuments, hospitals, or
places where the sick and wounded are collected), if such
property is not being used for military purposes or is not
otherwise a military objective. Such term includes objects
properly identified by one of the distinctive emblems of the
Geneva Conventions, but does not include civilian property
that is a military objective.
``(4) Construction.--The intent specified for an offense
under paragraph (1), (2), (3), (4), or (12) of subsection (b)
precludes the applicability of such offense with regard to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(b) Offenses.--The following offenses shall be triable by
military commission under this chapter at any time without
limitation:
``(1) Murder of protected persons.--Any person subject to
this chapter who intentionally kills one or more protected
persons shall be punished by death or such other punishment
as a military commission under this chapter may direct.
``(2) Attacking civilians.--Any person subject to this
chapter who intentionally engages in an attack upon a
civilian population as such, or individual civilians not
taking active part in hostilities, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(3) Attacking civilian objects.--Any person subject to
this chapter who intentionally engages in an attack upon a
civilian object that is not a military objective shall be
punished as a military commission under this chapter may
direct.
``(4) Attacking protected property.--Any person subject to
this chapter who intentionally engages in an attack upon
protected property shall be punished as a military commission
under this chapter may direct.
``(5) Pillaging.--Any person subject to this chapter who
intentionally and in the absence of military necessity
appropriates or seizes property for private or personal use,
without the consent of a person with authority to permit such
appropriation or seizure, shall be punished as a military
commission under this chapter may direct.
``(6) Denying quarter.--Any person subject to this chapter
who, with effective command or control over subordinate
groups, declares, orders, or otherwise indicates to those
groups that there shall be no survivors or surrender
accepted, with the intent to threaten an adversary or to
conduct hostilities such that there would be no survivors or
surrender accepted, shall be punished as a military
commission under this chapter may direct.
``(7) Taking hostages.--Any person subject to this chapter
who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person
or persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or refrain
from acting as an explicit or implicit condition for the
safety or release of such person or persons, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(8) Employing poison or similar weapons.--Any person
subject to this chapter who intentionally, as a method of
warfare, employs a substance or weapon that releases a
substance that causes death or serious and lasting damage to
health in the ordinary course of events, through its
asphyxiating, bacteriological, or toxic properties, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(9) Using protected persons as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of, a protected person with the intent to shield a
military objective from attack, or to shield, favor, or
impede military operations, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
``(10) Using protected property as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of the location of, protected property with the
intent to shield a military objective from attack, or to
shield, favor, or impede military operations, shall be
punished as a military commission under this chapter may
direct.
``(11) Torture.--
``(A) Offense.--Any person subject to this chapter who
commits an act specifically intended to inflict severe
physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person
within his custody or physical control for the purpose of
obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(B) Severe mental pain or suffering defined.--In this
section, the term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(12) Cruel or inhuman treatment.--
``(A) Offense.--Any person subject to this chapter who
commits an act intended to inflict severe or serious physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions), including serious physical
abuse, upon another within his custody or control shall be
punished, if death results to the victim, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to the victim, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(B) Definitions.--In this paragraph:
``(i) The term `serious physical pain or suffering' means
bodily injury that involves--

``(I) a substantial risk of death;
``(II) extreme physical pain;
``(III) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(IV) significant loss or impairment of the function of a
bodily member, organ, or mental faculty.

``(ii) The term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(iii) The term `serious mental pain or suffering' has the
meaning given the term `severe mental pain or suffering' in
section 2340(2) of title 18, except that--

``(I) the term `serious' shall replace the term `severe'
where it appears; and
``(II) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.

``(13) Intentionally causing serious bodily injury.--
``(A) Offense.--Any person subject to this chapter who
intentionally causes serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(B) Serious bodily injury defined.--In this paragraph,
the term `serious bodily injury' means bodily injury which
involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) protracted and obvious disfigurement; or
``(iv) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.
``(14) Mutilating or maiming.--Any person subject to this
chapter who intentionally injures one or more protected
persons by disfiguring the person or persons by any
mutilation of the person or persons, or by permanently
disabling any member, limb, or organ of the body of the
person or persons, without any legitimate medical or dental
purpose, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(15) Murder in violation of the law of war.--Any person
subject to this chapter who intentionally kills one or more
persons, including lawful combatants, in violation of the law
of war shall be punished by death or such other punishment as
a military commission under this chapter may direct.
``(16) Destruction of property in violation of the law of
war.--Any person subject to this chapter who intentionally
destroys property belonging to another person in violation of
the law of war shall punished as a military commission under
this chapter may direct.
``(17) Using treachery or perfidy.--Any person subject to
this chapter who, after inviting the confidence or belief of
one or more persons that they were entitled to, or obliged to
accord, protection under the law of war, intentionally makes
use of that confidence or belief in killing, injuring, or
capturing such person or persons shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of

[[Page H7531]]

the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(18) Improperly using a flag of truce.--Any person
subject to this chapter who uses a flag of truce to feign an
intention to negotiate, surrender, or otherwise suspend
hostilities when there is no such intention shall be punished
as a military commission under this chapter may direct.
``(19) Improperly using a distinctive emblem.--Any person
subject to this chapter who intentionally uses a distinctive
emblem recognized by the law of war for combatant purposes in
a manner prohibited by the law of war shall be punished as a
military commission under this chapter may direct.
``(20) Intentionally mistreating a dead body.--Any person
subject to this chapter who intentionally mistreats the body
of a dead person, without justification by legitimate
military necessity, shall be punished as a military
commission under this chapter may direct.
``(21) Rape.--Any person subject to this chapter who
forcibly or with coercion or threat of force wrongfully
invades the body of a person by penetrating, however
slightly, the anal or genital opening of the victim with any
part of the body of the accused, or with any foreign object,
shall be punished as a military commission under this chapter
may direct.
``(22) Sexual assault or abuse.--Any person subject to this
chapter who forcibly or with coercion or threat of force
engages in sexual contact with one or more persons, or causes
one or more persons to engage in sexual contact, shall be
punished as a military commission under this chapter may
direct.
``(23) Hijacking or hazarding a vessel or aircraft.--Any
person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe
navigation of a vessel or aircraft that is not a legitimate
military objective shall be punished, if death results to one
or more of the victims, by death or such other punishment as
a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(24) Terrorism.--Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or
more protected persons, or intentionally engages in an act
that evinces a wanton disregard for human life, in a manner
calculated to influence or affect the conduct of government
or civilian population by intimidation or coercion, or to
retaliate against government conduct, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(25) Providing material support for terrorism.--
``(A) Offense.--Any person subject to this chapter who
provides material support or resources, knowing or intending
that they are to be used in preparation for, or in carrying
out, an act of terrorism (as set forth in paragraph (24)), or
who intentionally provides material support or resources to
an international terrorist organization engaged in
hostilities against the United States, knowing that such
organization has engaged or engages in terrorism (as so set
forth), shall be punished as a military commission under this
chapter may direct.
``(B) Material support or resources defined.--In this
paragraph, the term `material support or resources' has the
meaning given that term in section 2339A(b) of title 18.
``(26) Wrongfully aiding the enemy.--Any person subject to
this chapter who, in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of
the United States, or one of the co-belligerents of the
enemy, shall be punished as a military commission under this
chapter may direct.
``(27) Spying.--Any person subject to this chapter who with
intent or reason to believe that it is to be used to the
injury of the United States or to the advantage of a foreign
power, collects or attempts to collect information by
clandestine means or while acting under false pretenses, for
the purpose of conveying such information to an enemy of the
United States, or one of the co-belligerents of the enemy,
shall be punished by death or such other punishment as a
military commission under this chapter may direct.
``(28) Conspiracy.--Any person subject to this chapter who
conspires to commit one or more substantive offenses triable
by military commission under this chapter, and who knowingly
does any overt act to effect the object of the conspiracy,
shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.

``Sec. 950w. Perjury and obstruction of justice; contempt

``(a) Perjury and Obstruction of Justice.--A military
commission under this chapter may try offenses and impose
such punishment as the military commission may direct for
perjury, false testimony, or obstruction of justice related
to military commissions under this chapter.
``(b) Contempt.--A military commission under this chapter
may punish for contempt any person who uses any menacing
word, sign, or gesture in its presence, or who disturbs its
proceedings by any riot or disorder.''.
(2) Tables of chapters amendments.--The tables of chapters
at the beginning of subtitle A, and at the beginning of part
II of subtitle A, of title 10, United States Code, are each
amended by inserting after the item relating to chapter 47
the following new item:

``47A. Military Commissions....................................948a.''.

(b) Submittal of Procedures to Congress.--Not later than 90
days after the date of the enactment of this Act, the
Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a
report setting forth the procedures for military commissions
prescribed under chapter 47A of title 10, United States Code
(as added by subsection (a)).

SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

(a) Conforming Amendments.--Chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), is
amended as follows:
(1) Applicability to lawful enemy combatants.--Section
802(a) (article 2(a)) is amended by adding at the end the
following new paragraph:
``(13) Lawful enemy combatants (as that term is defined in
section 948a(2) of this title) who violate the law of war.''.
(2) Exclusion of applicability to chapter 47a
commissions.--Sections 821, 828, 848, 850(a), 904, and 906
(articles 21, 28, 48, 50(a), 104, and 106) are amended by
adding at the end the following new sentence: ``This section
does not apply to a military commission established under
chapter 47A of this title.''.
(3) Inapplicability of requirements relating to
regulations.--Section 836 (article 36) is amended--
(A) in subsection (a), by inserting ``, except as provided
in chapter 47A of this title,'' after ``but which may not'';
and
(B) in subsection (b), by inserting before the period at
the end ``, except insofar as applicable to military
commissions established under chapter 47A of this title''.
(b) Punitive Article of Conspiracy.--Section 881 of title
10, United States Code (article 81 of the Uniform Code of
Military Justice), is amended--
(1) by inserting ``(a)'' before ``Any person''; and
(2) by adding at the end the following new subsection:
``(b) Any person subject to this chapter who conspires with
any other person to commit an offense under the law of war,
and who knowingly does an overt act to effect the object of
the conspiracy, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
court-martial or military commission may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a court-martial or military
commission may direct.''.

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR
CERTAIN CLAIMS.

(a) In General.--No person may invoke the Geneva
Conventions or any protocols thereto in any habeas corpus or
other civil action or proceeding to which the United States,
or a current or former officer, employee, member of the Armed
Forces, or other agent of the United States is a party as a
source of rights in any court of the United States or its
States or territories.
(b) Geneva Conventions Defined.--In this section, the term
``Geneva Conventions'' means--
(1) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3114);
(2) the Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(3) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(4) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).

SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

(a) Implementation of Treaty Obligations.--
(1) In general.--The acts enumerated in subsection (d) of
section 2441 of title 18, United States Code, as added by
subsection (b) of this section, and in subsection (c) of this
section, constitute violations of common Article 3 of the
Geneva Conventions prohibited by United States law.
(2) Prohibition on grave breaches.--The provisions of
section 2441 of title 18, United States Code, as amended by
this section, fully satisfy the obligation under Article 129
of the Third Geneva Convention for the United States to
provide effective penal sanctions for grave breaches which
are encompassed in common Article 3 in the context of an
armed conflict not of an international character. No foreign
or international source of law shall supply a basis for a
rule of decision in the courts of the United States in
interpreting the prohibitions enumerated in subsection (d) of
such section 2441.

[[Page H7532]]

(3) Interpretation by the president.--
(A) As provided by the Constitution and by this section,
the President has the authority for the United States to
interpret the meaning and application of the Geneva
Conventions and to promulgate higher standards and
administrative regulations for violations of treaty
obligations which are not grave breaches of the Geneva
Conventions.
(B) The President shall issue interpretations described by
subparagraph (A) by Executive Order published in the Federal
Register.
(C) Any Executive Order published under this paragraph
shall be authoritative (except as to grave breaches of common
Article 3) as a matter of United States law, in the same
manner as other administrative regulations.
(D) Nothing in this section shall be construed to affect
the constitutional functions and responsibilities of Congress
and the judicial branch of the United States.
(4) Definitions.--In this subsection:
(A) Geneva conventions.--The term ``Geneva Conventions''
means--
(i) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3217);
(ii) the Convention for the Amelioration of the Condition
of the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
(B) Third geneva convention.--The term ``Third Geneva
Convention'' means the international convention referred to
in subparagraph (A)(iii).
(b) Revision to War Crimes Offense Under Federal Criminal
Code.--
(1) In general.--Section 2441 of title 18, United States
Code, is amended--
(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3
(as defined in subsection (d)) when committed in the context
of and in association with an armed conflict not of an
international character; or''; and
(B) by adding at the end the following new subsection:
``(d) Common Article 3 Violations.--
``(1) Prohibited conduct.--In subsection (c)(3), the term
`grave breach of common Article 3' means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12,
1949), as follows:
``(A) Torture.--The act of a person who commits, or
conspires or attempts to commit, an act specifically intended
to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control for the
purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind.
``(B) Cruel or inhuman treatment.--The act of a person who
commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another
within his custody or control.
``(C) Performing biological experiments.--The act of a
person who subjects, or conspires or attempts to subject, one
or more persons within his custody or physical control to
biological experiments without a legitimate medical or dental
purpose and in so doing endangers the body or health of such
person or persons.
``(D) Murder.--The act of a person who intentionally kills,
or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or any
other cause.
``(E) Mutilation or maiming.--The act of a person who
intentionally injures, or conspires or attempts to injure, or
injures whether intentionally or unintentionally in the
course of committing any other offense under this subsection,
one or more persons taking no active part in the hostilities,
including those placed out of combat by sickness, wounds,
detention, or any other cause, by disfiguring the person or
persons by any mutilation thereof or by permanently disabling
any member, limb, or organ of his body, without any
legitimate medical or dental purpose.
``(F) Intentionally causing serious bodily injury.--The act
of a person who intentionally causes, or conspires or
attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war.
``(G) Rape.--The act of a person who forcibly or with
coercion or threat of force wrongfully invades, or conspires
or attempts to invade, the body of a person by penetrating,
however slightly, the anal or genital opening of the victim
with any part of the body of the accused, or with any foreign
object.
``(H) Sexual assault or abuse.--The act of a person who
forcibly or with coercion or threat of force engages, or
conspires or attempts to engage, in sexual contact with one
or more persons, or causes, or conspires or attempts to
cause, one or more persons to engage in sexual contact.
``(I) Taking hostages.--The act of a person who, having
knowingly seized or detained one or more persons, threatens
to kill, injure, or continue to detain such person or persons
with the intent of compelling any nation, person other than
the hostage, or group of persons to act or refrain from
acting as an explicit or implicit condition for the safety or
release of such person or persons.
``(2) Definitions.--In the case of an offense under
subsection (a) by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering' shall be
applied for purposes of paragraphs (1)(A) and (1)(B) in
accordance with the meaning given that term in section
2340(2) of this title;
``(B) the term `serious bodily injury' shall be applied for
purposes of paragraph (1)(F) in accordance with the meaning
given that term in section 113(b)(2) of this title;
``(C) the term `sexual contact' shall be applied for
purposes of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
``(D) the term `serious physical pain or suffering' shall
be applied for purposes of paragraph (1)(B) as meaning bodily
injury that involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(iv) significant loss or impairment of the function of a
bodily member, organ, or mental faculty; and
``(E) the term `serious mental pain or suffering' shall be
applied for purposes of paragraph (1)(B) in accordance with
the meaning given the term `severe mental pain or suffering'
(as defined in section 2340(2) of this title), except that--
``(i) the term `serious' shall replace the term `severe'
where it appears; and
``(ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.
``(3) Inapplicability of certain provisions with respect to
collateral damage or incident of lawful attack.--The intent
specified for the conduct stated in subparagraphs (D), (E),
and (F) or paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (a) by reasons
of subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(4) Inapplicability of taking hostages to prisoner
exchange.--Paragraph (1)(I) does not apply to an offense
under subsection (a) by reason of subsection (c)(3) in the
case of a prisoner exchange during wartime.
``(5) definition of grave breaches.--The definitions in
this subsection are intended only to define the grave
breaches of common article 3 and not the full scope of United
States obligations under that Article.''.
(2) Retroactive applicability.--The amendments made by this
subsection, except as specified in subsection (d)(2)(E) of
section 2441 of title 18, United States Code, shall take
effect as of November 26, 1997, as if enacted immediately
after the amendments made by section 583 of Public Law 105-
118 (as amended by section 4002(e)(7) of Public Law 107-273).
(c) Additional Prohibition on Cruel, Inhuman, or Degrading
Treatment or Punishment.--
(1) In general.--No individual in the custody or under the
physical control of the United States Government, regardless
of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.
(2) Cruel, inhuman, or degrading treatment or punishment
defined.--In this subsection, the term ``cruel, inhuman, or
degrading treatment or punishment'' means cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York,
December 10, 1984.
(3) Compliance.--The President shall take action to ensure
compliance with this subsection, including through the
establishment of administrative rules and procedures.

SEC. 7. HABEAS CORPUS MATTERS.

(a) In General.--Section 2241 of title 28, United States
Code, is amended by striking both the subsection (e) added by
section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and
the subsection (e) added by added by section 1405(e)(1) of
Public Law 109-163 (119 Stat. 3477) and inserting the
following new subsection (e):
``(e)(1) No court, justice, or judge shall have
jurisdiction to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien detained by
the United States who has been determined by the United
States to have been properly detained as an enemy combatant
or is awaiting such determination.
``(2) Except as provided in paragraphs (2) and (3) of
section 1005(e) of the Detainee

[[Page H7533]]

Treatment Act of 2005 (10 U.S.C. 801 note), no court,
justice, or judge shall have jurisdiction to hear or consider
any other action against the United States or its agents
relating to any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is or was
detained by the United States and has been determined by the
United States to have been properly detained as an enemy
combatant or is awaiting such determination.''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act,
and shall apply to all cases, without exception, pending on
or after the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment, trial,
or conditions of detention of an alien detained by the United
States since September 11, 2001.

SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING
TO PROTECTION OF CERTAIN UNITED STATES
GOVERNMENT PERSONNEL.

(a) Counsel and Investigations.--Section 1004(b) of the
Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is
amended--
(1) by striking ``may provide'' and inserting ``shall
provide'';
(2) by inserting ``or investigation'' after ``criminal
prosecution''; and
(3) by inserting ``whether before United States courts or
agencies, foreign courts or agencies, or international courts
or agencies,'' after ``described in that subsection''.
(b) Protection of Personnel.--Section 1004 of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with
respect to any criminal prosecution that--
(1) relates to the detention and interrogation of aliens
described in such section;
(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
(3) relates to actions occurring between September 11,
2001, and December 30, 2005.

SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

Section 1005(e)(3) of the Detainee Treatment Act of 2005
(title X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801
note) is amended--
(1) in subparagraph (A), by striking ``pursuant to Military
Commission Order No. 1. dated August 31, 2005 (or any
successor military order)'' and inserting ``by a military
commission under chapter 47A of title 10, United States
Code'';
(2) by striking subparagraph (B) and inserting the
following new subparagraph (B):
``(B) Grant of review.--Review under this paragraph shall
be as of right.'';
(3) in subparagraph (C)--
(A) in clause (i)--
(i) by striking ``pursuant to the military order'' and
inserting ``by a military commission''; and
(ii) by striking ``at Guantanamo Bay, Cuba''; and
(B) in clause (ii), by striking ``pursuant to such military
order'' and inserting ``by the military commission''; and
(4) in subparagraph (D)(i), by striking ``specified in the
military order'' and inserting ``specified for a military
commission''.

SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF
COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY
OF DETENTION.

Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of
2005 (title X of Public Law 109-148; 119 Stat. 2742; 10
U.S.C. 801 note) is amended by striking ``the Department of
Defense at Guantanamo Bay, Cuba'' and inserting ``the United
States''.

The SPEAKER pro tempore. Debate shall not exceed 2 hours, with 80
minutes equally divided and controlled by the chairman and the ranking
minority member of the Committee on Armed Services and 40 minutes
equally divided and controlled by the chairman and ranking minority
member of the Committee on the Judiciary.
The gentleman from California (Mr. Hunter) and the gentleman from
Missouri (Mr. Skelton) each will control 40 minutes, and the gentleman
from Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr.
Conyers) each will control 20 minutes.
The Chair recognizes the gentleman from California.

General Leave

Mr. HUNTER. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
on H.R. 6166.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions
Act of 2006. I can't think of a better way to honor the fifth
anniversary of September 11 than by establishing a system to prosecute
the terrorists who on that day murdered thousands of innocent civilians
and who continue to seek to kill Americans, both on and off the
battlefield.
Our most important consideration in writing this legislation is to
protect American troops and American citizens from harm. The war
against terror has produced a new type of battlefield and a new type of
enemy. How is it different? We are fighting a ruthless enemy who
doesn't wear a uniform, an enemy who kills civilians, women and
children, and then boasts about it; a barbaric enemy who beheads
innocent civilians by sawing their heads off; an uncivilized enemy who
does not acknowledge or respect the laws of war.
Justice Thomas put it best in the Hamdan decision. He said, ``We are
not engaged in a traditional battle with a nation state, but with a
worldwide hydro-headed enemy who lurks in the shadows conspiring to
reproduce the atrocities of September 11, 2001, and who has boasted of
sending suicide bombers into civilian gatherings, has proudly
distributed videotapes of the beheadings of civilian workers, and has
tortured and dismembered captured American soldiers.
So how is the battlefield new? First, it will be a long war. We don't
know if this enemy will be defeated this decade, the next decade or
even longer than that. Second, in this new war, where intelligence is
more vital than ever, we want to interrogate the enemy; not to degrade
them, but to save the lives of American troops, American civilians and
our allies. But it is not practical on the battlefield to read the
enemy their Miranda warnings.
Finally, this is an ongoing conflict, and sharing sensitive
intelligence sources, methods and other classified information with
terrorist detainees could be highly dangerous to national security, and
we are not prepared to take that risk.
So what have we done to develop a military commission process that
will allow for the effective prosecution of enemy combatants during
this ongoing conflict? Without this action, the United States has no
effective means to try and punish the perpetrators of September 11, the
attack on the USS Cole and the embassy bombings. We provide basic
fairness in our prosecutions, but we also preserve the ability of our
warfighters to operate effectively on the battlefield.
I think a fair process has two guiding principles, Mr. Speaker.
First, the government must be able to present its case fully and
without compromising its intelligence sources or compromising military
necessity. Second, the prosecutorial process must be done fairly,
swiftly, and conclusively.
Who are we dealing with in military commissions? I have shown the
picture of Khalid Sheikh Mohammed, who is alleged to have designed the
attack against the United States that was carried out on 9/11. We are
dealing with the enemy in war, not defendants in our domestic criminal
justice system. Some of them have returned to the battlefield after we
let them out of Guantanamo.
Our primary purpose is to keep them off the battlefield. In doing so,
we treat them humanely, and, if we choose to try them as war criminals,
we will give them due process rights that the world will respect. But
we have to remember that they are the enemy in an ongoing war.
In time of war, it is not practical to apply to rules of evidence the
same rules of evidence that we do in civilian trials or court martials
for our troops. Commanders and witnesses can't be called from the front
line to testify in a military commission.
We need to accommodate rules of evidence, chain of custody and
authentication to fit what we call the exigencies of the battlefield.
It is clear, Mr. Speaker, that we don't have crime scenes that can be
reproduced, that can be taped off, that can be attended to by dozens of
people looking for forensic evidence. We have in this war against
terror a battlefield situation.

{time} 1330

If hearsay is reliable, we should use it. And I might add that
hearsay is utilized and has been utilized in tribunals like the Rwanda
tribunals and the Kosovo tribunals. If sworn affidavits are reliable,
we should use them. And, Mr. Speaker, we have not expanded the use of
hearsay beyond what is being used in those tribunals, Rwanda and
Yugoslavia.
The Supreme Court has tasked us with an adjustment, but in doing so

[[Page H7534]]

let's not forget our purpose is to defend the Nation against the enemy.
We won't lower our standards; we will always treat detainees humanely,
but we can't be naive either.
This war started in 1996 with the al Qaeda declaration of jihad
against our Nation. The Geneva Conventions were written in 1949, and
the UCMJ was adopted in 1951. In that sense, what we are required to do
after the Hamdan decision is broader than war crimes trials. It is the
start of a new legal analysis for the long war. It is time for us to
think about war crime trials and a process that provides due process
and protects national security in this new war.
So what do we do with these new military commissions? We uphold basic
human rights and state what our compliance with this standard means for
the treatment of detainees. We do this in a way that is fair and in a
way that the world will acknowledge is fair.
First, we provide accused war criminals at least 26 rights if they
are tried by a commission for a war crime. While I will not read all of
them, here are some of the essential rights we provide:
The right to counsel, provided by government at trial and throughout
appellate proceedings. An impartial judge. A presumption of innocence.
A standard of proof beyond a reasonable doubt. The right to be informed
of the charges against him as soon as practicable. The right to service
of charges sufficiently in advance of trial to prepare a defense.
And, Mr. Speaker, I am going to insert the balance of those 26 basic
and fundamental rights in the Record, so I won't read them all at this
point.
The right to reasonable continuances;
Right to peremptory challenge against members of the
commission and challenges for cause against members of the
commission and the military judge;
Witness must testify under oath; judges, counsel and
members of military commission must take oath;
Right to enter a plea of not guilty;
The right to obtain witnesses and other evidence;
The right to exculpatory evidence as soon as practicable;
The right to be present at court with the exception of
certain classified evidence involving national security,
preservation of safety or preventing disruption of
proceedings;
The right to a public trial except for national security
issues or physical safety issues;
The right to have any findings or sentences announced as
soon as determined;
Right against compulsory self-incrimination;
Right against double jeopardy;
The defense of lack of mental responsibility;
Voting by members of the military commission by secret
written ballot;
Prohibitions against unlawful command influence toward
members of the commission, counsel or military judges;
2/3 vote of members required for conviction; 3/4 vote
required for sentences of life or over 10 years; unanimous
verdict required for death penalty;
Verbatim authenticated record of trial;
Cruel or unusual punishments prohibited;
Treatment and discipline during confinement the same as
afford to prisoners in U.S. domestic courts;
Right to review of full factual record by convening
authority; and
Right to at least two appeals including to a Federal
Article III appellate court.

We provide all these rights, and we give them an independent judge,
and the right to at least two appeals, including the U.S. Court of
Appeals for the District of Columbia and access to the Supreme Court.
Nobody can say this is not a fair system.
I know some of my colleagues are concerned about the issue of
reciprocity. Look at this list of rights. And we are going to put it up
here, Mr. Speaker, so that all the Members can see this. And also keep
in mind that these are the rights for terrorists. These are the rights
for the people who struck us on 9/11 and killed thousands of Americans.
If we are talking about true reciprocity, then we are only concerned
about how the enemy will treat American terrorists. These are not our
rules for POWs; these are how we treat terrorists. We treat the
legitimate enemy differently, and expect them to treat our troops the
same.
How do we try the enemy for war crimes? In this act, Congress
authorizes the establishment of military commissions for alien unlawful
enemy combatants, which is the legal term we use to define
international terrorists and those who aid and support them, in a new
separate chapter of title 10 of the U.S. Code, chapter 47A. While this
new chapter is based upon the Uniform Code of Military Justice, it
creates, Mr. Speaker, an entirely new structure for these trials.
In this bill we provide standards for the admission of evidence,
including hearsay evidence and other statements, that are adapted to
military exigencies and provide the military judge the necessary
discretion to determine if the evidence is reliable and probative. And
he must find that it is reliable and probative before he allows it to
be admitted.
I want to talk a little bit about how we handle classified evidence.
We had three hearings on this bill in addition to briefings and
meetings with experts. I asked every witness the same question: If we
have an informant, either a CIA informant or an undercover witness of
some sort, are we going to tell Kalid Sheikh Mohammed who the informant
is? The legislation does not allow KSM to learn the identity of the
informant.
After several twists and turns in the road, after meeting with the
Senate and the White House in marathon sessions over the weekend, we
have crafted a solution that does not allow the alleged terrorists to
learn the identity of the informant, yet provides a fair trial. And,
Mr. Speaker, that is critically important to all of us in this Chamber,
because that American agent or informant may have information that
saves thousands of lives. He may be of enormous value added to the
security of this country. We can't divulge his identity, and we can't
divulge it to the alleged terrorist, and doing so would allow that
information to go back quickly, as it has on two occasions: one coming
out of the first bombing of the World Trade Center where we now have
established that Osama bin Laden did come into possession of classified
evidence that was moved up through those court proceedings, and once in
Guantanamo. So it is very, very important that we protect classified
evidence and that we protect the identity of our agents.
We address this in section 949d, subsection (f) of section 3.
Classified evidence is protected and is privileged from disclosure to
the jury and the accused if disclosure would be detrimental to national
security. The accused is permitted to be present at all phases of the
trial, and no evidence is presented to the jury that is not also
provided to the accused. Section 949d(f) makes a clear statement that
sources, methods, or activities will be protected and privileged and
not shown to the accused.
However, and this is how you move the essence of an undisclosed
agent's testimony to the jury without disclosing the identity of the
agent, the substantive findings of the sources, methods, or activities
will be admissible in an unclassified form. This allows the prosecution
to present its best case while protecting classified information. In
order to do this, the military judge questions the informant outside
the presence of the jury and the defendant. In order to give the jury
and the defendant a redacted version of the informant's statement, the
judge must find, one, that the sources, methods, or activities by which
the U.S. acquired the evidence are classified; and, two, that the
evidence is reliable.
Once the judge stamps the informant as reliable, the informant's
redacted statement is given to both the jury and the accused. It
removes the confrontation issue. And this, again, to my friends who
said we want to follow the UCMJ and we want to give these people all
the rights that we give our uniformed servicemen, our analysis is that
we would not be able to keep from disclosure the identity of our
special agents if we followed the UCMJ. That is designed to protect
American uniformed servicemen, and it is not something that we should
apply in the case of alleged terrorists.
I think that these rules protect classified evidence and yet preserve
a fair trial.
One other point I want to make for the record. As I mentioned
earlier, we have modified the rules of evidence to adapt to the
battlefield. One of the principles used by the judiciary in criminal
prosecutions of our citizens is called the fruit of the poisonous tree

[[Page H7535]]

doctrine. This rule provides that evidence derived from information
acquired by police officials or the government through unlawful means
is not admissible in a criminal prosecution.
I want to make it clear that it is our intent with the legislation
not to have this doctrine apply to evidence in military commissions.
While evidence obtained improperly will not be used directly against
the accused, we will not limit the use of any evidence derived from
such evidence.
The deterrent effect of the exclusionary rule is not something that
our soldiers consider when they are fighting a war. The theory of the
exclusionary rule is that if the constable blunders, the accused will
not suffer. However, we are not going to say that if the soldier
blunders, we are not going to punish a terrorist. Some rights are
reserved for our citizens; some rights are reserved for civilized
people.
Mr. Speaker, this is a complicated piece of legislation. In addition
to establishing an entire legal process from start to finish, we
address the application of common article 3 of the Geneva Conventions
to our current laws.
Section 5 clarifies that the Geneva Conventions are not an
enforceable source of rights in any habeas corpus or other civil action
or proceeding by an individual in U.S. courts. Mr. Speaker, this
protects American troops.
Section 6 of the bill amends 18 U.S.C. section 2441, the War Crimes
Act, to criminalize grave breaches of common article 3 of the Geneva
Conventions. As amended, the War Crimes Act will fully satisfy our
treaty obligations under common article 3. This amendment is necessary
because section C(3) of the War Crimes Act defines a war crime as any
conduct which constitutes a violation of common article 3. Common
article 3 prohibits some actions that are universally condemned, such
as murder and torture, but it also prohibits outrages upon personal
dignity and what is called humiliating and degrading treatment, phrases
which are vague and do not provide adequate guidance to our personnel.
Since violation of common article 3 is a felony under the War Crimes
Act, it is necessary to amend it to provide clarity and certainty to
the interpretation of this statute. The surest way to achieve that
clarity and certainty is to define the list of specific offenses that
constitute war crimes punishable as grave violations of common article
3.
And, Mr. Speaker, this is very important. This protects our troops,
it gives them certainty, it gives them clarity. You don't want to have
our troops so paralyzed by what they see as prosecutions arising out of
common article 3 that you will have a situation where a female officer
in the U.S. military will not interrogate a Muslim male on the basis
that she is afraid that that action may be defined or projected as
being a humiliation of that particular prisoner being interrogated and
therefore subjecting that female American officer to a war crimes
accusation.
So what we have done is we have taken the offenses that are
considered to be grave offenses under article 3, and then I have
enumerated several of those, and we define those as the offenses which
will be applicable upon which prosecutions can be brought, and then we
give to the President on what I would call infractions of Geneva
article 3 or lesser violations of Geneva article 3, we give him the
right to put together regulations that account for and treat actions
that are defined under those minor offenses.
Section 6 of the bill also provides that any detainee under the
custody or physical control of the United States will not be subject to
cruel, inhumane, or degrading punishment provided by the fifth, eighth,
and fourteenth amendments to the Constitution as defined by the U.S.
Reservations to the U.N. Convention Against Torture. This defines our
obligations under common article 3 by reference to the U.S.
constitutional standard adopted by the Detainee Treatment Act that we
passed in 2005. And, Mr. Speaker, all parties, both Houses, decided
that it was appropriate that we define this type of treatment,
degrading treatment, especially under the reservations to the
convention that is mentioned, the U.N. Convention Against Torture. We
decided that that was good enough for putting together the Detainee
Treatment Act; it should be good enough for this particular body of
law.
Section 7 of the bill addresses the question of judicial review of
claims by detainees by amending 28 U.S.C. section 2241 to clarify the
intent of the Detainee Treatment Act of 2005 to limit the right of
detainees to challenge their detentions. The practical effect of this
amendment will be to eliminate the hundreds of detainee lawsuits that
are pending in courts throughout the country and to consolidate all
detainee treatment cases in the D.C. Circuit Court.
However, I want to stress that under this provision detainees will
retain their opportunity to file legitimate charges to their status and
to challenge convictions by military commissions. Every detainee under
confinement in Guantanamo Bay will have their detention reviewed by the
U.S. Court of Appeals for the District of Columbia.

{time} 1345

So what we are doing here is channeling the suits to a particular
court which has great expertise in this area, rather than let them be
put in rifle-shot fashion or form-shot fashion to other courts
throughout the United States.
Mr. Sensenbrenner and my other colleagues are going to speak on the
rest of the bill. But, before I finish, I want to make one point very
clear. This legislation does not condone or authorize torture in any
way. In fact, we make it a war crime punishable by death for one of our
interrogators to torture someone to death.
Let me emphasize that again. In section 6 of this bill, we amend 18
U.S.C. 2441, the War Crimes Act. In this amendment, we explicitly
provide that torture inflicted upon a person in custody for the purpose
of obtaining information is a war crime for which we may prosecute one
of our own citizens. While most of this legislation deals with how we
handle the enemy, I want to make it crystal clear that nothing in what
we are doing condones or allows torture in any way.
Mr. Speaker, unfortunately, I heard at least one Member on the
Democrat side say that this gives the President the right to define
what torture is. That is not accurate. Torture is forbidden, and there
are specific criminal penalties for torture.
In summary, I think this legislation is the best way to prosecute
enemy terrorists and to protect U.S. Government personnel and service
members who are fighting them.
Let me make one final statement with respect to the right to Miranda
warnings and all of the evidentiary rulings that accompany an
application utilizing the UCMJ, the Uniform Code of Military Justice,
in battlefield situations if we had done that, which we did not.
In the hearings we had, we had at least one experienced officer in
the Judge Advocate Corps state that it was his opinion, having tried
hundreds of cases, that if you applied the UCMJ, as a number of Members
on the Democrat side said they would like to do, to constitute the body
of law under which we are prosecuting terrorists, in this officer's
opinion once a corporal had captured a terrorist on the battlefield,
maybe seconds after that terrorist had shot at him, and threw that
terrorist over the hood of a Humvee, if you used the UCMJ, he would at
that point have to give him the Miranda rights and then call up a
lawyer and assign that lawyer to that alleged terrorist, and then all
of the statements and all of the evidentiary rulings that could flow
from that activity would then trigger.
Mr. Speaker, we can't have a battlefield where platoon leaders and
company commanders are bringing up fire teams and with those fire teams
they are bringing up teams of lawyers. That is why we needed a new type
of structure for this new type of battlefield.
Mr. Speaker, I think we have responded to the mandate of the Supreme
Court that Congress involve itself in producing this new structure to
prosecute terrorists. I think we have done a good job. We have worked
hard with the Senate and White House. We have made dozens and dozens
and dozens of agreed provisions in here that have been carefully looked
over by the Senate, the White House, and the House of Representatives.
I think we have a package that will allow us to leave this

[[Page H7536]]

body in the next several days having put into place a system under
which we can try individuals who are now waiting at Guantanamo, people
who are alleged to have designed the attack against the United States
on 9/11 and which we can now begin the prosecution of those
individuals.
I want to thank everybody who has participated in this long and
arduous procedure. We have had lots of hearings in the Senate and in
the House. My good colleague, Mr. Skelton, was involved himself in
these hearings and on the original markup that we did on the bill.
We have differences of opinions. I think this is a time when we
should come together and pass what is an excellent body of law that
will be a very important part of fighting this new war against this new
type of enemy.
Mr. Speaker, I reserve the balance of my time.
Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we need to be tough on the terrorists, but we also need
to be tough with certainty. I oppose this legislation because it lacks
the certainty that we require.
As a former prosecuting attorney from yesteryear, Mr. Speaker, I
remember the specter that hangs over every prosecutor's head after
successfully prosecuting a criminal, and that specter is that the
Supreme Court will reverse that hard-won conviction.
I am terribly concerned that this is not tough enough because it does
not bring about the certainty of a conviction being upheld and standing
the scrutiny of our Supreme Court.
This is a constitutional issue. The debate today will undoubtedly go
down in the annals of our country as being one that stands out as a
study in constitutional law and duty thereunder. Our duty as Members of
Congress is to uphold the Constitution. That is what I intend to do in
my speech and in my vote.
But also it is our duty to pass legislation that is constitutional. I
have serious questions as to whether this is constitutional or not.
I received a letter from the Chief Counsel of the tribunals that
exist, Colonel Dwight Sullivan, who said, ``If the new military
commission system is constitutionally permissible, allow it to proceed
with the judiciary's imprimatur. If, as I believe, it is
constitutionally deficient, then allow the judiciary to quickly
identify its faults so they can be corrected.''
I offered an amendment to the Rules Committee that would provide for
expedited review by the court system, and it was turned down.
What is so bad is that a case goes cold, witnesses disappear,
witnesses die. It would be an absolute injustice for a despicable
terrorist, once convicted, to have that conviction overturned, and you
can't try it again. Some of these people are absolutely the worst of
the worst. That is why we need certainty in the law, and that is what
we do not have here.
There are numerous constitutional challenges regarding this
legislation. I will mention them:
The provisions that strip the Federal courts of jurisdiction over
habeas corpus.
Second, article I of the Constitution prohibits ex post facto laws.
That is what this creates.
Third, it is questionable as to whether under article III of the
Constitution the Supreme Court would uphold a system that purports to
make the President the final arbiter of the Geneva Convention.
Fourth, the provisions regarding coerced testimony may be challenged
under three amendments to our Constitution.
Fifth, the right to confront witnesses and evidence. It also, among
other things, has legislation containing the broadest of hearsay rules.
Sixth, the violation of the exceptions clause under article III.
Seventh, the challenges on equal protection and other constitutional
grounds.
We want certainty, Mr. Speaker. We want these people, once tried, to
be convicted and that conviction upheld. If we pass a law full well
knowing that there are provisions in here that would allow them a get-
out-of-jail-free card or to have a death sentence reversed, we are
doing wrong. We are doing wrong according to our duty, and we are doing
wrong in representing the people of our country.
We need certainty as well as toughness. Without certainty, we will
not be tough on these terrorists.
Mr. Speaker, I reserve the balance of my time.
Mr. HUNTER. Mr. Speaker, I yield 3 minutes to the gentleman from New
Jersey (Mr. Saxton), the chairman of the Subcommittee on Terrorism.
Mr. SAXTON. Mr. Speaker, I rise in strong support of H.R. 6166.
Ladies and gentleman, this is not an ordinary bill. This is an
urgently needed measure to fill a gaping hole in our legal system, both
in our ability to bring criminals of 9/11 to justice, the bombings of
the USS Cole and the American embassies in Kenya and Tanzania to
justice, and to protect our American troops and agents from frivolous
prosecutions and lawsuits. It is no exaggeration to say that this is
the most important measure to come before this body in this Congress.
Without this bill, the mastermind of 9/11, Khalid Sheik Mohammed, who
deliberated and cold-bloodedly plotted the death of thousands of
Americans, would go unpunished for his crimes upon humanity.
Yes, we are a nation of laws. The Supreme Court has called upon the
Congress to act, and that is what we will do.
We have produced an extraordinarily fair criminal process here to
adjudicate the fate of these terrorists. Those who would find the court
procedures laid out in this bill wanting will never be satisfied until
we are reading Miranda rights on the battlefield. We have carefully
narrowed and crafted the provisions of this bill to enable the United
States to prosecute the perpetrators of the 1998 bombings of the
American embassies in Kenya and Tanzania, the 2000 attack on the USS
Cole, and other crimes that have been committed.
Yes, these were suicide attacks and the men who delivered the
explosives were killed, along with innocent victims, but the planner,
logisticians, and financiers of those operations remain at large.
Importantly, this bill allows, as all Americans believe it should,
the criminal prosecutions of those who purposefully and materially
supported these criminal activities. And, of course, the measure covers
those responsible for 9/11 as well.
Mr. Speaker, I can think of no reason that this measure should not
pass unanimously. It outlaws torture.

Announcement By the Speaker Pro Tempore

The SPEAKER pro tempore. The Chair notes a disturbance in the gallery
in violation of the Rules of the House and directs the Sergeant at Arms
to restore order.
The gentleman may proceed.
Mr. SAXTON. Mr. Speaker, I can think of no reason that this measure
should not pass unanimously. It outlaws torture, mandates decent
treatment for unlawful enemy combatants who are in our custody,
protects Americans from frivolous lawsuits and prosecutions, and, most
critically, provides a fair, balanced and civilized process by which
the international war criminals may be held accountable for their
action.
The world has waited long enough to bring these men to justice. Vote
``yes'' on this measure.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Texas (Mr. Ortiz).
(Mr. ORTIZ asked and was given permission to revise and extend his
remarks.)
Mr. ORTIZ. Mr. Speaker, each and every Member of this House is
equally concerned with bringing terrorists to justice and punishing
them for attacking the United States because they have committed
horrible crimes.
But I have a lot of questions to ask. I want to be sure that I do the
right thing. Why are we rushing into this? I know we have to comply
with the law, but we should not be in a hurry. I think we need to do
what is right.

{time} 1400

You know, I have some questions. When the Geneva Conventions convened
back in 1949, there were at least 200 countries who agreed in what came
out of this convention. Are we prepared for other nations' leaders,
such as Iran, Syria, and others, to selectively interpret the
Conventions' article 3 in a way that we are comfortable with?

[[Page H7537]]

I am pretty sure that when they met in 1949, there were agreements
and disagreements, but we came out with something that everybody
accepted. Now there are going to be some changes into that. Have we in
any way contacted those leaders of those countries to see what they
think about the changes that are being formulated today?
I think that we are beginning to open up a can of worms. So we are
going to have to be very careful of what we do. The Navy Judge Advocate
General, the top lawyer for the Navy, reminded us recently that Geneva
exists to protect American soldiers. Our protections are only as strong
as the protections of the Geneva Conventions.
Mr. Speaker, each and every member of this House is equally concerned
with bringing terrorists to justice and punishing them for attacking
the United States.
Everything about this bill today begs questions.
Do we know what we are doing in putting our feet on an unsure path,
one which will certainly change the face of our international
responsibilities and our international obligations?
Why are we rushing this? We should not be in such a hurry to overhaul
our international obligations.
Nearly 200 nations around the world are signatories to the Geneva
Conventions. Are we prepared for other nations' leaders--such as Iran,
Syria and others--to selectively interpret the Convention's Article 3
in a way that we are comfortable with?
What can of worms are we opening today?
The Navy Judge Advocate General, the top lawyer for the Navy,
reminded us recently that Geneva exists to protect American soldiers.
Our protections are only as strong as the protections Geneva offers.
Why are we taking away the Supreme Court's authority--in a historic
grab of power--to consult international law in interpreting conduct
associated with the War Crimes Act?
Are we taking away power from our other Federal courts?
Do we remember one of the more salient points raised by the 9-11
Commission that the United States was negligent in staying involved in
matters around the world?
The 9-11 Commission encouraged the U.S. to get more involved with
other nations, to find security in a global environment. Are we doing
that today?
My grandson Oscar is almost 4 years old. He may be a soldier someday.
While his grandfather is in Congress, I will raise my voice to keep our
soldiers safe.
When Congress gives away power to the President, it is a permanent
move. The question each of us must ask is: how wise will this policy
seem 10 years from now? And when the Congress gives power to the
President, we must understand that the President today will not be in
office years down the road.
To my friends on the other side of the aisle: do you know the test to
apply for this question? It is this: Think of the person you disagree
with completely, imagine they are the President, and ask yourself: Do I
really want that person to have this authority?

COMPARISON OF ALTERNATIVES RELATED TO MILITARY COMMISSIONS
----------------------------------------------------------------------------------------------------------------
Compromise bill (H.R. 6166) McCain-Warner (S. 3901)
----------------------------------------------------------------------------------------------------------------
GENEVA CONVENTIONS, TREATY OBLIGATIONS AND INTERNATIONAL LAW

Authorizes the President to interpret of meaning and application of Defines grave breaches to Common Article 3
the Geneva Conventions. of the Geneva Conventions to include
cruel, unusual, inhumane treatment or
punishment with reference to the 5th, 8th
and 14th Amendments.
Revises War Crimes Act to provide limited immunity for government Does not retroactively apply the revisions
officials from prosecution for past acts that degraded and to the War Crimes Act.
humiliated detainees.
Asserts that the revised War Crimes Act fully satisfies the U.S. Does not create a three-tier system of
obligation under the Geneva Convention to provide penal sanctions enforcement, with Presidential discretion
for grave breaches of Common Article 3. to define and enforce any offenses below
grave breaches of Common Article 3.
Adds a ban on U.S. courts using any international law in ..........................................
interpreting conduct prohibited in the War Crimes Act.
Makes the War Crimes Act changes retroactive to the amendments to ..........................................
the War Crimes Act in 1997.
For lesser offenses below a grave breach, gives the President ..........................................
explicit authority to interpret the meaning and application of the
Geneva Conventions Common Article 3.
Requires that such interpretations be published, rather than ..........................................
described in secret to a restricted number of lawmakers.
Affirms that Congress and the judiciary can play their customary ..........................................
roles in reviewing the interpretations.
Prohibits cruel, inhuman, or degrading treatment or punishment and
relies on the President to ensure compliance.
..........................................
DEFINITION OF ENEMY COMBATANT

Expands the definition of an ``unlawful enemy combatant'' to include Defines ``unlawful enemy combatant'' as an
an individual who has ``purposefully and materially'' supported individual engaged in hostilities against
hostilities against the U.S. or its co-belligerents or a person who the United States who is not a lawful
is or was determined to be an unlawful enemy combatant by a enemy combatant.
Combatant Status Review Tribunal.

DETAINEE HABEAS CORPUS CLAIMS

Identical to S. 3901 Extinguishes pending Habeas Corpus claims.

CLASSIFIED INFORMATION AND ACCESS OF THE ACCUSED TO EVIDENCE.

Generally the same as S. 3901 with some additional clarifications to The accused may not be denied access to
ensure the accused will not see classified information. evidence against him that is presented to
the panel or jury.
The accused will not see classified
information.
Essentially follows the existing military
rules of evidence requiring
declassification, redaction and use of
substitutes.
The prosecution may decide to delete
charges, withdraw the case, or defer
prosecution.

EVIDENCE OBTAINED THROUGH COERCION/SELF-INCRIMINATION

Allows statements, obtained before passage of the DTA, through Prohibits use of statements obtained by
cruel, inhuman and degrading treatment and lesser forms if coercion cruel, inhuman, and degrading treatment
of the military judge finds it reliable and probative and in the not amounting to torture.
interest of justice.
Allows statements, obtained after passage of the DTA, through Statements obtained by lesser forms of
coercion (but not through cruel, unusual, or inhumane treatment or coercion may be allowed if the military
punishment) if the judge finds it reliable and probative and in the judge finds it reliable and probative,
interest of justice. and in the interest of justice.

HEARSAY EVIDENCE

Hearsay is more easily admissible. Hearsay is admissible if the military
judge finds the evidence more probative
than other evidence the proponent can
reasonably obtain.
Hearsay normally inadmissible can be used unless the party it is ..........................................
used against demonstrates it is unreliable or lacks probative value
(burden of proof is on the accused).
Emphasizes the importance of preventing disclosure of classified
hearsay (no substantive addition).
..........................................
APPEALS

Establishes a Court of Military Commission Review, with appeals to Appeals would be to the Court of Appeals
the D.C. Circuit, and by certiorari to the Supreme Court. for the Armed Forces, and by certiorari
to the Supreme Court.
----------------------------------------------------------------------------------------------------------------

Mr. HUNTER. Mr. Speaker, I would like to yield 3 minutes now to the
gentleman whose subcommittee oversees the policies for our 2.5 million
folks in uniform, Mr. McHugh of New York.
(Mr. McHUGH asked and was given permission to revise and extend his
remarks.)
Mr. McHUGH. Mr. Speaker, I thank the gentleman for yielding.
Let me just make a few comments based off that statement. This is a
great country when we can have, as we had moments ago, an individual
come into the people's House and express, perhaps out of order but very
passionately, their concerns about how we are being unfair.
Let me be very clear. As someone who has for 14 years visited our
troops in virtually every combat theater in which they have been
located, if our troops were to be taken prisoner, they would be well
served by the enemies of this Nation, such as Sudan, such as North
Korea, and, as was mentioned, Iran and others, to be treated under the
provisions of this act.
We are extending to these terrorists, and make no mistake about it
that they are terrorists, unlawful combatants, the rights and
protections that all of us as American citizens enjoy under the fifth,
the eighth, and the fourteenth amendment.
I have heard my good colleagues, and they are good Americans, express
concerns about somehow changing our obligations under the Geneva
Conventions under common article 3. Make no mistake about this as well.
The language that we are incorporating into our basic domestic criminal
law uses the language of the commentaries on

[[Page H7538]]

common article 3 and the Geneva Conventions. We simply harmonize that
common article 3 with our United States laws, requiring that only grave
breaches of that common article, as provided in the Geneva Conventions'
commentaries, are subject to criminal prosecution.
International law has traditionally provided, time and time again,
that it is the signatory to an international convention that is
responsible for making it clear what the violations of law may be, and
that is what we are doing here today.
John McCain, Lindsey Graham, Members of the other body who have had
experience in these matters, either as being prisoners of war or as
having the opportunity to go through as a Judge Advocate General in
prosecuting, understand our responsibility is to not throw away the
conventions that we have committed ourselves to as Americans and to not
abandon the leadership we have shown for more than 200 years in the
question of human rights. This bill meets that standard.
It is not sufficient to say that convictions may be overturned if the
answer is not to convict at all. We have to recognize that it is our
responsibility to the American people and to the brave men and women
that I have visited as a member of the Intelligence Committee who we
ask to interrogate these people that we will do the right thing by
them, respect international conventions and respect the basic tenets
upon which this Nation was built, that of human rights. This bill does
it, and I would hope all my colleagues would support it.
Mr. Speaker, I rise today in strong support of H.R. 6166. This bill
is vitally important for securing America and ensuring that accused
terrorists are tried for war crimes in an open and transparent court
that will apply justice swiftly and fairly.
There is more to this bill than military commissions, however. H.R.
6166 addresses an issue that Supreme Court created in the Hamdan case.
The Court in Hamdan decided that Common Article 3 of the Geneva
Conventions--a article that many assumed only applied to regular
armies--applies to terrorist organizations, like al Qaeda. As a result
of this decision, our brave personnel in the military and other
national security agencies are faced with' an unpredictable legal
landscape because the meaning of certain elements of Common Article 3
are vague--the standard? An outrage against personal dignity.
The question, would a female interrogator of a male Muslim detainee
be guilty of violating Common Article 3 because the mere scenario
constitutes an outrage upon personal dignity? That kind of situation is
untenable. It's unfair to our personnel out in the field trying to
protect lives here at home. It is Congress' responsibility to draw the
lines of what conduct will be judged criminal.
As a result, we need to amend the War Crimes Act to make clear that
only grave breaches of Common Article 3 constitute a war crime under
U.S. law. Let me be clear, under international law a party to the
treaty is responsible for incorporating only grave breaches of Common
Article 3 in its penal code. My point is simple: Today the Congress is
complying with our treaty obligations under Geneva Conventions and
today the Congress is following the guidance of the Supreme Correct in
Hamdan (even though many believe that the Court's decision was ill
construed).
Now, some have suggested that H.R. 6166 condones torture or that this
bill implicitly permits ``enhanced torture techniques''. These
suggestions are absolutely false and they fly in the face of the very
words that appear on the pages of this bill.
First--it is illegal under U.S. law to torture. This was true before
H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a
war crime that can result in the death penalty. This means that under
the War Crimes Act, any U.S. personnel that engages in torture will be
subject to prosecution for committing a war crime. Additionally, in the
context of military commissions, a statement obtained through torture
is not admissible.

Second--this bill makes clear that the way we treat our detainees is
guided by treatment standards set by the Congress--last year--in the
Detainee Treatment Act, also know as the McCain amendment. This
standard is based upon the familiar standards of the U.S. Constitution.
Thus, ``cruel, inhuman, and degrading treatment or punishment'' under
this section means the cruel, unusual, inhumane treatment or punishment
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution, as defined by the U.S. reservations to the UN Convention
Against Torture.
Don't we all agree that the Constitution, which provides the
fundamental, underlying protections for the citizens of the United
States, provides more than sufficient protections for unlawful enemy
combatants? Why should an accused terrorist enjoy protections that
exceed what the Constitution provides every to every one of us as
United States citizens?
Let me close by saying that this is an important bill for the
American people--we will bring the masterminds of 9/11 to justice, and
this is an important bill for the brave men and women fighting this
battle--they can do their job in theater without the fear of frivolous
prosecution here at home.
Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the distinguished
gentlewoman from California (Ms. Harman), ranking member of the
Intelligence Committee.
(Ms. HARMAN asked and was given permission to revise and extend her
remarks.)
Ms. HARMAN. Mr. Speaker, I thank the gentleman for yielding and
commend him for his very impressive service as ranking member of the
Armed Services Committee.
Mr. Speaker, I take a back seat to no one in my effort to understand
the threats against us, find those who would cause us harm, and prevent
them from harming us. I also believe strongly that Congress must act
under article I, section 8 of the Constitution to regulate ``captures
on land and on water.''
Since this administration started new programs to detain and
interrogate terror suspects after 9/11, I have offered to help craft a
new legal framework around those policies. I have called on the Vice
President, his chief of staff, the National Security Adviser, and the
Attorney General to help Congress craft such a framework to eliminate
the fog of law. And I have argued that this new framework would
empower, not limit, those who must carry out those policies because
they would know that they were acting legally.
Today's bill is far from the best we can do. The rule for debate is
closed, which means that none of us can improve the bill. And as debate
has made clear, this bill was written by the White House in
consultation with a few Republican Members. There was no bipartisan
consultation and possibly none with any of the Republican members of
the Intelligence Committee.
Others will address issues with immunity, coerced confession, habeas
corpus, and court review. I want to address the issue which relates to
the Intelligence Committee and which I believe is the primary reason
for rushing the legislation through. There is a carve-out for the CIA.
The bill would permit the CIA to continue a separate program for
interrogation that does not comply with the Army Field Manual. If such
a program is needed, then Congress must impose strict limits and ensure
that we have the tools to do strict oversight.
An amendment which Mr. Skelton and I hoped to offer today would have
required notification in advance to the intelligence committees of any
alternative set of interrogation procedures; a legal opinion from the
Attorney General that they comply with Federal and international law;
assurances that they are applied only to those we believe possess
reliable, high-value, actionable intelligence; that the Army Field
Manual techniques would not work; and that the use of the techniques
would not adversely affect our troops who may be captured. Our
amendment was not made in order, and I remain very skeptical that
Congress can assure that any CIA carve-out will be limited and
carefully monitored.
Mr. Speaker, we can do better. The bill negotiated by Senators
McCain, Graham, and Warner was better. Let us wait for the lame duck
session and do this right. Vote ``no.''
Mr. HUNTER. Mr. Speaker, at this time I would like to yield 2 minutes
to the gentleman who sits on both the Armed Services Committee and the
Intelligence Committee and has put enormous focus on this particular
bill, the gentleman from Texas (Mr. Thornberry).
Mr. THORNBERRY. Mr. Speaker, I think it is important to start with
some important truths to remind ourselves of: one, we are in a struggle
against a vicious, determined enemy who is determined to kill as many
of us in as spectacular and as brutal a fashion as possible. Secondly,
this struggle stretches all around the world and will go on for a long
time. And, third, the enemy lives in the shadows and does

[[Page H7539]]

not reveal when or where or how they are going to strike. Information
is the key weapon we have to prevent them from killing us and to
prevent them from attacking others in the future.
This debate, as you have heard, has been mostly about what rights
those few who we are able to capture, what rights, legal rights, they
have under our system. But I think it is important to also remind
ourselves about the critical nature of information and in stopping
future attacks. In the Cold War we worried about missiles and tanks,
and we could use satellites to count on. Here we are worried about
three guys in a cave or half a dozen in a compound or four in a flat in
London. If we don't have credible, specific information to stop those
individuals and what they plan, then we will not be able to do so.
I think this is a good bill, but I also believe that it is right up
to the edge of tying our own hands or, to change my metaphor, of
putting blinders on ourselves, to make it very, very difficult to stop
future attacks. I think it is important to do this bill now so that
there is the certainty that our folks in the field, in uniform and out
of uniform, desperately need to have. But we need to be careful that
those of us in this Congress do not take the extra step to make their
job impossible and then point the fingers at them in the future.
I think Members should support this bill, and I also believe Members
should be careful in the future.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the very distinguished
gentleman from Texas (Mr. Reyes).
Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, as a member of the House Intelligence Committee and the
House Armed Services Committee, I understand the critical need to have
the best possible intelligence both to prevent terrorist attacks
against our Nation and to protect our troops in the battlefield. But
those who have tied passage of military commissions legislation to the
collection of actionable intelligence are simply misleading the
American people.
I am deeply disappointed that military commissions legislation
crafted by the White House and the Republican congressional leadership
does not create a system that will pass constitutional muster. Like my
colleagues, I demand that our Nation prosecute those who commit
terrorist acts against us, but if Congress and the White House create a
system of military tribunals that will be struck down by the Supreme
Court as unconstitutional, we will further delay justice for the
victims of terrorism and for their families.
The Bush administration has determined that we can legally hold all
enemy combatants until the end of hostilities in the global war on
terrorism, and as the National Intelligence Estimate released yesterday
indicated, we won't be able to declare victory in the fight against
terror and extremism anytime in the foreseeable future. So I ask, why
are we in such a hurry to pass legislation that may do more harm than
good? Why are we putting politics above victims of terrorist acts? Why
are we endangering our troops?
Protecting our Nation also includes protecting the men and women who
are serving in uniform in battlefields around the world. I believe,
along with other military and legal experts, that the Republican
military commissions bill will be interpreted by the international
community as redefining our obligations under the Geneva Conventions.
Our Nation must act from a position of strength, and we must think
first of protecting our citizens before weighing how the world will
view our actions. However, it is very unrealistic to simply ignore the
impact that the changes included in H.R. 6166 could have on members of
our military.
For that reason, Mr. Speaker, in wrapping up, I cannot support H.R.
6166 as it is written. We can do much better for our troops, the
victims of terrorism, and the American people.
Mr. HUNTER. Mr. Speaker, I would like to yield at this time 2 minutes
to a gentleman who is himself a veteran and a former JAG officer and
the chairman of the Veterans' Affairs Committee and a gentleman who has
paid a lot of attention to this important subject, the gentleman from
Indiana (Mr. Buyer).
Mr. BUYER. Mr. Speaker, I rise to enter into a colloquy with the
distinguished chairman of the House Armed Services Committee, Mr.
Hunter.
Mr. Hunter, as stated in section 948k of the legislation before us,
military defense counsel shall be detailed to the accused as soon as
practicable after the swearing of charges against the accused.
Section 949a of the legislation permits the accused to represent
himself. That section also defines how the accused will conduct himself
and when the military judge, in his discretion, may partially or
totally revoke this right.

{time} 1415

Of concern to me and some military lawyers is that, should this right
be revoked, a delay of trial could occur while waiting for the detailed
defense counsel of the accused or an appropriate authorized civilian
counsel to get up to speed and to begin to perform the defense.
It is my understanding that the intent of the legislation allows the
detailed military counsel to remain as an associate counsel should the
accused exercise his right of self-representation. This ensures that
even if the accused's right is revoked by the judge, the trial will
continue in a timely and efficient manner.
Mr. HUNTER. Mr. Buyer, that is correct. It is the intent of the
legislation that the detailed military counsel shall act as an
associate counsel during the course of self-representation. As you
stated, should this right be revoked, the military counsel will then
proceed to represent the accused throughout the rest of the trial.
Mr. BUYER. Chairman Hunter, I want to thank you for entering into
this colloquy with me and for your work on this provision and the
legislation as a whole. I would also like to thank the President. He
said he would work with the House and the Senate. He has done that.
Chairman, you have done that. I want to thank Senator Lindsey Graham
for having done that.
Let me just share to all of my colleagues that I do believe this is a
good product, Chairman Hunter; and I want to let everybody know and
understand that.
This Code of Military Commissions, it has a good balance. You have
struck that.
Mr. HUNTER. Mr. Speaker, I thank the gentleman. I want to thank him
for his valuable contribution.
Mr. ANDREWS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman
from New York (Mr. Israel), my very thoughtful friend.
Mr. ISRAEL. Mr. Speaker, I rise in opposition to this bill. The
distinguished chairman of the committee, who I have a very strong
respect for, opened this debate by saying that in the global war on
terror we cannot read terrorists their Miranda rights. No one has said
that. No one has proposed it. No one has suggested it. That is not what
is being debated here. That is not what we should debate here. It is
absurd.
When it comes to terrorists planning mass murder on the American
people, I want to find them. I want to capture them. I want to kill
them. I want to try them. If they are found guilty, I want to kill
them. I believe in capital punishment for terrorists perpetrating
genocide.
But because I think that we should fight and kill terrorists, I want
there to be fewer of them to fight and kill. This bill says to
potential terrorists, the U.S. is surrendering the moral high ground.
It is unilaterally relaxing the Geneva Conventions, that we are willing
to keep people locked up indefinitely without a trial.
And since I believe in executing people found guilty of perpetrating
or planning a genocide on the American people, I want to make sure we
are executing the right terrorists. Government is imperfect. We make
mistakes. How do I know? Katrina. We lose records. How do I know? The
long line of veterans at my district office who cannot get their back
pay because we lost their records.
When it comes to capital punishment for terrorists, I want to make
sure that we are giving them the proper trial, that we are getting the
facts. If I am willing to execute them, I want to make sure it is based
on fact.
And because I believe we should fight and kill terrorists, I also
know that

[[Page H7540]]

Americans in that fight are going to be caught; and I want them treated
by the same standards that we would treat our enemy's prisoners. I do
not want any one of our military people to be subject to the whims and
the arbitrariness of a current interpretation by a foreign enemy.
Mr. Speaker, I want to close by suggesting and telling my colleagues
that I recently asked a service member, who received a Bronze Star for
valor in Fallujah, what he thought about this. He said, Congressman, I
do not think our enemies really care about the Geneva Conventions, but
I am fighting for my country because I care about morality, because I
care about strong values, because this is a good country that leads the
way, and I want to continue leading the way.
If I am asking young men and women to die for what we stand for, I
want to stand for something. If I am asking people to fight to kill
terrorists, I want to be in the pursuit of our values, not the
terrorist's values.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from New
Jersey (Mr. Andrews).
Mr. ANDREWS. Mr. Speaker, everyone who has spoken in this debate on
both sides I think shares a deeply held conviction that they want
terrorists who would threaten this country prosecuted, convicted and
punished.
Because I believe the commencement of those prosecutions is
imperative for the future of the country, I will support this bill. I
will do so, however, with two severe reservations which I would hope
would be dealt with by the other body and in conference.
The first has to do with the issue of habeas corpus, which is a
complicated word, but in this context, here is what it means: As I read
this bill there is a risk that a suspected terrorist could be held for
an indefinite period of time without recourse to any decisionmaker
outside of the executive branch.
The constitutionally of this is ambiguous. But the wisdom of it I
think is clear. It is not very wise. I think revisiting this provision
as the bill goes forward would assure the constitutionality of the bill
and its compliance with the Geneva Conventions.
Secondly, I am concerned about the fact that there has been an
insufficient procedure for us to consider this bill. There have been
many good ideas dealing with habeas corpus, dealing with issues of
retroactive immunity that I think deserve a full and fair airing and
hearing on this floor. This is an unfortunate procedure in which we
find ourselves.
My concern is it will be our sole opportunity, given the way things
go around here, to voice our opinions on this. I do think that the
underlying provisions of this bill are consistent with the spirit and
letter of our obligations under the Geneva Conventions.
I have concluded that compliance with these conventions is essential
so we can go forward in prosecuting and trying those who threaten our
country. I believe this process needs great improvement. I think this
bill needs one very specific improvement. But to move it forward, I
will vote ``yes.''
Mr. SKELTON. Mr. Speaker, I yield 5 minutes to the gentleman from
Maryland (Mr. Hoyer).
Mr. HOYER. I thank the gentleman for yielding.
Mr. Speaker, I wanted nothing more than to come to this floor today
and vote for a military commissions bill that comports with our
American values, that the rest of the world would see as fair and
humane, that honors our international commitments and protects our own
troops who fall into enemy hands and, as the ranking member has pointed
out, the Supreme Court would uphold.
I regret that the chairman and the ranking member are not shoulder to
shoulder on this issue, as should be the case. Too often have we
considered these weighty matters of defending our country, defeating
terrorism, protecting Americans in a partisan fashion. I think that is
regrettable. I think the American people think it is regrettable.
Make no mistake. Every single Member of this House wants our
President to have the intelligence necessary to prevent future
terrorist acts on our Nation and our allies. Every single one of us
wants those responsible for 9/11 and other terrorist acts to be tried
fairly and punished accordingly. And we want those convictions to be
upheld by the courts, and we want to stop future attacks.
But, regrettably, the bill before us today, in my opinion, falls far
short of the high standards that this Congress and the American people
expect and demand and indeed that the world expects of America. This
legislation at bottom is really more about who we are as a people than
it is about those who seek to harm us.
That is true if it were domestic. It is true internationally. No one
wants to defend murderers and rapists, those who would harm our people,
whether they live here or they live abroad. However, defending America
requires us to marshal the full range of our power, diplomatic and
military, economic, and, yes, moral. And when our moral standing is
eroded, our international credibility is diminished as well.
We must not lightly dismiss the somber warning of our former
Secretary of State, the leader of our Armed Forces, Chairman of the
Joint Chiefs of Staff, serving on the administrations of President Bush
I, and serving as his Secretary of State.
He said this, and I quote Colin Powell: ``The world is beginning to
doubt the moral basis of our fight against terrorism. I fear this
legislation before us will further diminish that credibility.''
While this bill properly lists as punishable offenses certain grave
breaches of article 3 of the Geneva Conventions, it leaves almost
unfettered discretion to the administration to define anything less
than such grave breaches.
Why should we be concerned about providing this administration with
such discretion, one might ask? Because our President and our Attorney
General have routinely flouted congressional authority with signing
statements and legal interpretations, which give to them unfettered
authority.
As the Washington Post has stated, and again I quote: ``The Bush
administration's history is one of interpreting limitations on
interrogation tactics, including Mr. McCain's previous legislation,
banning cruel, inhuman and degrading treatment, as permitting methods
most people regard as torture.''
Furthermore, Mr. Speaker, this bill eliminates the fundamental legal
right of habeas corpus. What is habeas corpus about? Why should we care
for terrorists who attack our country? Because we might make a mistake.
That is why we build in protections, to protect against mistakes
because we are human.
The bill would greatly minimize judicial oversight by establishing a
new appeals process and centralizing consideration of cases in the
District of Columbia Court of Appeals, thus stripping other appellate
courts from hearing cases currently pending before them.
Mr. Speaker, I am absolutely committed to winning the war on
terrorism and bringing to justice any and all terrorists who would
threaten us, harm us or cause harm to our country. However, I also
believe we have an obligation to the Constitution and to our oath to do
so in a manner that is consistent with our values, that makes us
different than other nations in the world, that secures just
convictions and that enhances our international credibility, thereby
strengthening our national security.
I end as I started. I regret that I cannot support this legislation,
and I are regret that it is not being offered in a bipartisan fashion.
It would have been better for us, for the people, and for our country.

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (Mr. LaHood). The Chair reminds all persons
in the gallery that they are here as guests of the House and that any
manifestation of approval or disapproval of proceedings or other
audible conversation is in violation of the rules of the House.
Mr. HUNTER. Mr. Speaker, I yield myself 30 seconds.
Mr. Speaker, I want to set the gentleman straight who just spoke.
Every single person held in Guantanamo has the right and will have the
right under this legislation to contest whether or not they are, in
fact, combatants and the status of their being swept up on the
battlefield inadvertently or being, in fact, true enemy combatants.
They will have that right.

[[Page H7541]]

That is, in my estimation, an important type of habeas corpus. That
is preserved in this bill.
Mr. Speaker, I yield 1 minute to the gentleman from Louisiana (Mr.
Boustany).
Mr. BOUSTANY. Mr. Speaker, I rise in strong support of H.R. 6166. I
want to compliment both Chairman Hunter and Chairman Sensenbrenner for
bringing forth a very good bill and their prodigious work on this
issue. I also want to commend Chairman Steve Buyer for his fine
leadership as well on this issue.
Mr. Speaker, it is time for the terrorists responsible for planning
the most horrendous attack on U.S. soil and who continue to plan
terrorist acts to be brought to justice. We have an obligation to the
American people to deliver justice upon these criminals, as well as an
obligation to the international community to uphold our treaty
obligations.
I, too, had some concerns about this at the outset, but I think this
bill addresses the concerns. I am pleased that this bill contains
provisions that will maintain our commitment to common article 3 of the
Geneva Conventions, while also providing the necessary protection to
U.S. personnel. This bill sets forth a fair, effective process
consistent with our values, our laws and our obligations.
Mr. Speaker, in closing, I urge swift passage of the Military
Commission Act of 2006, so that we can continue to prosecute these
terrorists intent on causing violence to innocent victims.

{time} 1430

Mr. SKELTON. Mr. Speaker, I yield 1 minute to the distinguished
gentleman from New York (Mr. Crowley).
Mr. CROWLEY. Mr. Speaker, I believe it is my belief my colleagues on
the other side of the aisle care more about giving the President what
he wants rather than what is in the best interests of the American
people, the people that we are sent here to represent.
I know that these terrorists are vicious murderers. I have
experienced it firsthand. I always thought I was safe in my warm,
little comfortable bed in Woodside, Queens, New York. I know it is no
longer the case, but it is my values as an American and those values
that I hold dear that keeps that hatred in check.
We must lead by example on these issues, not be evasive quasi-
participant in the rule of law.
Our soldiers are abroad fighting a battle that I believe our
President has not allowed them to win because of his continued
mismanagement.
The National Intelligence Estimate says that the war in Iraq has
actually invigorated the growth of terrorism and worsened its threat
around the globe.
Today, we could have had an opportunity to fix one of those mistakes,
but we are ignoring that opportunity and ignoring the respect for due
process and denying habeas corpus to detainees.
I cannot and will not support this legislation.
Mr. SKELTON. Mr. Speaker, I yield 1 minute to the gentleman from
Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Speaker, we ought to hold this truth to be self-
evident, that no President should be given the ability to hold people
in detention indefinitely without review by the judicial branch.
We should never yield to al Qaeda, not one inch, not one right, not
one American principle; but, today, in this bill, we yield a
fundamental American principle, the principle that no executive, no
President, should have the untrammeled ability to be free of checks and
balances that have kept our country so free in the last 230 years. That
principle of writ of habeas corpus has been fundamental, and it is
destroyed in this bill.
When we learn that George Bush's policy has kept a man in detention
for years who was totally innocent without trial, it was not just he
who suffered. It was we who had a wound as well.
We do not care about the terrorists' displeasure here, but we do care
about the principled integrity of our country, about the light of
liberty that so attracts the world. It is that light that will help us
win the war on terrorism, not just the light of our bombs. This is the
principal weapon in our arsenal. It is the light of liberty, may it
ever shine.
Reject this bill. Go back to the drawing board.
Mr. SKELTON. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman
from New Jersey (Mr. Holt).
(Mr. HOLT asked and was given permission to revise and extend his
remarks.)
Mr. HOLT. Mr. Speaker, I rise in opposition to this measure which
will not preserve principles of justice upon which this Nation was
founded. How true we are to our ideals affects the clarity and
decisiveness with which our soldiers can act, the safety of our troops,
the motivation of our potential enemies, and the behavior of our actual
enemies.
This bill provides protections that are vague, slippery and
imprecise. It is subject to interpretation by the President, by the
Secretary of Defense, by our commanders in the theaters of operation,
by our troops in the field, by our friends and enemies around the
world.
We need a bill that does at least two things. It should provide a
clear set of guidelines consistent with American principles such as in
our revised Army Field Manual; guidelines that apply to all U.S.
Government personnel, on how to treat prisoners; guidelines that
preserve our principles.
Second, it should include verification mechanisms to monitor how
prisoners and detainees are treated. One of those mechanisms is already
in use by police departments and prosecutors across the country: the
videotaping of interrogations.
Videotaping has proven to be extremely effective at preventing not
just abuse of detainees but also false allegations of abuse by
detainees against their interrogators. The practice aids in
interrogation, and it protects the enforcers, the prosecutors, the
defendants and, hence, protects all of us. By not including such a
provision in the bill, the drafters missed a real opportunity to ensure
that we prevent serious problems in the future.
Last night in the Rules Committee, I offered an amendment that would
have replaced a few critical provisions of H.R. 6166 with text that
Senators Warner, McCain, and Graham put forward two weeks ago
emphatically supporting the principle that everyone, even detainees in
Guantanamo, should be allowed to examine and respond to all evidence
presented against them at trial. Of course, The Rules Committee denied
Members the opportunity to vote on this and other amendments on the
floor today.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Oregon (Mr. Wu).
(Mr. WU asked and was given permission to revise and extend his
remarks.)
Mr. WU. Mr. Speaker, I want to focus like a laser beam on the right
of habeas corpus and the untoward effect of this legislation on habeas
corpus. This is an ancient doctrine that has been with us since at
least the days of Charles I. It has presented difficulties to many
American Presidents from Jefferson to Lincoln to Grant to Roosevelt.
We have the power to do much in restricting habeas corpus; but we
should do so very, very carefully because it is the protection from
tyranny that our forebears sought in the Revolution.
Congress here is entering upon dangerous constitutional shoal waters,
and it is, in my belief, unconstitutionally limiting access to habeas
corpus. The courts have repeatedly ruled in a restricted fashion
whenever Congress or the Presidency has restricted access to habeas
corpus and each of us, not just the Supreme Court, but we in the
Congress and those in the executive branch, we all take an oath to
uphold the Constitution of the United States, and this act, by
restricting habeas corpus, will not serve America well.
And by so restricting habeas corpus, this bill does not just apply to
enemy aliens. It applies to all Americans because, while the provision
on page 93 has the word ``alien'' in it, the provision on page 61 does
not have the word ``alien'' in it.
Let us say that my wife, who is here in the gallery with us tonight,
a sixth generation Oregonian, is walking by the friendly, local
military base and is picked up as an unlawful enemy combatant. What is
her recourse? She says,

[[Page H7542]]

I am a U.S. citizen. That is a jurisdictional fact under this statute,
and she will not have recourse to the courts? She can take it to Donald
Rumsfeld, but she cannot take it across the street to an article 3
court.
This bill applies to every American, regardless of citizenship
status.
Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the distinguished
gentleman from Ohio (Mr. Kucinich).
Mr. KUCINICH. Mr. Speaker, I want to thank the distinguished
gentleman from Missouri, and let my colleagues know that I have read
the bill and what I read here is pretty chilling. Matter of fact, I
want to quote something from the bill that has not been discussed and
ask that all of my friends read this bill so that we can see if this
really reflects what we want to do and the implications this could have
for Members of Congress because I have stood on this floor time and
time again to protect this institution, and I want Members of Congress
to think about this provision.
You know, we have heard the President make comments that people who
oppose this bill are really hurting the United States. We have all
heard him say this.
Section 26, wrongfully aiding the enemy. Any person subject to this
chapter, by the way anybody is who in breach of an allegiance or duty
to the United States knowingly and intentionally aids an enemy of the
United States or any of the co-belligerents of the enemy shall be
punished as a military commission under this chapter may direct.
I want to know, are Members of Congress who challenge this
administration as to their taking us into illegal wars, is that somehow
contrary to allegiance to the United States? I mean, we need to think
about this. What are we doing to this institution here? Are we turning
us all into mice here, running into a corner because we are afraid to
challenge the President?
I mean, my friends who are Republicans, stand up for the Republic, to
the Republic for which it stands. Stand up for the Republic. Read this
provision in this bill.
There is another provision in the bill that I think deserves a
careful look. Suppose a President sometime in the future declares that
some country has weapons of mass destruction, and based on those
claims, the Congress moves quickly to give the President the authority
to wage war, and then war is waged and hundreds of thousands of
civilians are killed as collateral damage, and then we find out later
on they did not have weapons of mass destruction, and then you have all
these dead people, but they were collateral damage. Under this bill,
which I have read, collateral damage is precluded from applicability
with respect to the enforcement of the rule of law, or if there is a
lawful attack, collateral damage is precluded from being cited.
Now, suppose that happened in this country. That would be so awful
that something like that happened, but essentially we are giving a get-
out-of-jail free card to the very officials who could lead this country
down a path to war and kill innocent people based on lies.
I do not see this as a Republican or a Democrat argument. I see this
as a question of whether we stand up for what this country was founded
upon. What are we about? What do we believe in? That is what we have to
answer here, and this bill is everything we do not believe in.

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (Mr. LaHood). The Chair notes a disturbance
in the gallery in violation of the rules of the House and directs the
Sergeant at Arms to restore order.
Mr. SKELTON. Mr. Speaker, I yield 3\1/2\ minutes to the gentleman
from California (Mr. Schiff).
Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, it has taken over 5 years since September 11 for the
administration to finally come to Congress and seek legislation
establishing military tribunals to try terrorist suspects.
For over 4 years now, many of my Democratic colleagues and I have
urged this Congress to act in this area. Four-and-a-half years ago I
introduced legislation, other of my colleagues did the same, to
establish military tribunals, and we introduced that legislation for
two reasons: first, because we should detain people who mean to harm
our country and mean to injure our citizens; and, second, because the
administration's unilateral act in establishing these commissions was
on the most dubious of constitutional grounds and we did not want to be
where we are today, 5 years hence, with a system that was struck down
by the Supreme Court, where people have not been brought to justice.
But here we are. It has taken the majority and the administration 5
years to get here, but here we are.
Terrorists who seek to harm this country must be captured. They must
be tried, detained and punished to protect our country, and there is a
way to detain them, to gather valuable intelligence from them, to try
and convict them without sacrificing our ideals as a Nation.
We are at war with a vicious enemy who seeks to destroy our way of
life. It is a military fight; but in a broader sense, it is also a war
of ideas.
America has always been not only a Nation it has been an idea and
when we sacrifice that idea, it is a setback in this war of ideas.
So we have to ask ourselves where does this position us? Where does
this bill position us in the war of ideas? Are we advancing or are we
retreating when we are perceived as abandoning the rule of law? When we
are perceived as defining what it means to be cruel or inhuman or
degrading?

{time} 1445

When we wonder out loud in the legislative process whether a Nation
so conceived as ours can long endure without cruel and inhuman
treatment? When we show to the world that we are questioning the very
idea of America, whether this Nation can long endure with a respect for
the rule of law, with respect for the concept that people who are
detained by America will not be mistreated, that people detained by
America will have a right to confront evidence against them will have
the sacred right of habeas corpus?
When we put forward legislation that says that an American can be
plucked off the street, given a label unilaterally by any
administration, by this President or the next, as an unlawful enemy
combatant, and all their rights evaporate once they are given that
label, that calls into question the very idea of America; and that, I
believe, is a setback in the war of ideas.
We can do better than this bill. And, in fact, on Friday, we had
better than this bill, when Senator Warner and Senator McCain came
forward with what I thought was a sound compromise. We had a sound
compromise on Friday, but during the weekend that unraveled. During the
weekend, I think we took a step back in the war on ideas.
It was not an irrevocable step back. The majority and the
administration has waited 5 years to bring us legislation on this
subject. Let us take another 5 days, if it takes it, to get it right.
We shouldn't be retreating back to our districts just because of our
election and leaving the work undone or done poorly. And I regret to
say that this bill is done poorly, and it must be changed.
Mr. HUNTER. I want to take 30 seconds, Mr. Speaker, just to remind my
friend who just spoke that this bill is largely the product of not only
this body but Senator Warner, Senator McCain, and Senator Graham.
Shortly, they are going to be introducing the precise same bill in the
other body.
And, Mr. Speaker, in this bill, military commissions, if you will
check on page 7, to answer the gentleman who just spoke who thought his
wife might in some wild circumstance be prosecuted under this bill,
this bill gives jurisdiction and military commissions, on line 24, page
7, to alien unlawful enemy combatants. It does not take away the habeas
rights of U.S. citizens.
Mr. Speaker, I reserve the balance of my time.
Mr. SKELTON. Mr. Speaker, at the request of the Democratic leader, I
submit for the Record a letter from various religious organizations
dated September 27.

[[Page H7543]]

For the last five years the United States has repeatedly
operated in a manner that betrays our nation's commitment to
law. The U.S. has held prisoners in secret prisons without
any due process or even access to the Red Cross and has
placed other prisoners in Guantanamo Bay in a transparent
effort to avoid judicial oversight and the application of
U.S. treaty obligations. The federal government has operated
under legal theories which dozens of former senior officers
have warned endanger U.S. personnel in the field and has
produced legal interpretations of the meaning of ``torture''
and ``cruel, inhuman and degrading'' treatment which had to
be abandoned when revealed to the public. Interrogation
practices were approved by the Department of Defense which
former Bush Administration appointee and General Counsel of
the Navy Alberto Mora described as ``clearly abusive, and * *
* clearly contrary to everything we were ever taught about
American values.'' According to media reports the CIA has
used a variety of interrogation techniques which the United
States has previously prosecuted as war crimes and routinely
denounces as torture when they are used by other governments.
Instead of finally coming to grips with this situation and
creating a framework for detaining, interrogating and
prosecuting alleged terrorists which comports with the best
traditions of American justice, the proposed legislation will
mostly perpetuate the current problems. Worse, it would seek
to eliminate any accountability for violations of the law in
the past and prevent future judicial oversight. While we
appreciate the efforts various members of Congress have made
to address these problems, the ``compromise'' falls far short
of an acceptable outcome.
The serious problems with this legislation are many and
this letter will not attempt to catalogue them all. Indeed,
because the legislation has only just been made available,
many of the serious flaws in this long, complex bill are only
now coming to light. For instance, the bill contains a new,
very expansive definition of enemy combatant. This definition
violates traditional understandings of the laws of war and
runs directly counter to Pres. Bush's pledge to develop a
common understanding of such issues with U.S. allies. Because
the proposed definition of combatant is so broad, the
language may also have potential consequences for U.S.
civilians. For instance, it may mean that adversaries of the
United States will use the definition to define civilian
employees and contractors providing support to U.S. combat
forces, such as providing food, to be ``combatants'' and
therefore legitimate subjects for attack. Yet, there has been
no opportunity to consider and debate the implications of
this definition, or other parts of the bill such as the
definitions of rape and sexual abuse.
We strongly oppose the provisions in the bill that strip
individuals who are detained by the United States of the
ability to challenge the factual and legal basis of their
detention. Habeas corpus is necessary to avoid wrongful
deprivations of liberty and to ensure that executive
detentions are not grounded in torture or other abuse.
We are deeply concerned that many provisions in the bill
will cast serious doubt on the fairness of the military
commission proceedings and undermine the credibility of the
convictions as a result. For instance, we are deeply
concerned about the provisions that permit the use of
evidence obtained through coercion. Provisions in the bill
which purport to permit a defendant to see all of the
evidence against him also appear to contain serious flaws.
We believe that any good faith interpretation of the
definitions of ``cruel, inhuman and degrading'' treatment in
the bill would prohibit abusive interrogation techniques such
as waterboarding, hypothermia, prolonged sleep deprivation,
stress positions, assaults, threats and other similar
techniques because they clearly cause serious mental and
physical suffering. However, given the history of the last
few years we also believe that the Congress must take
additional steps to remove any chance that the provisions of
the bill could be exploited to justify using these and
similar techniques in the future.
Again, this letter is not an attempt to catalogue all of
the flaws in the legislation. There is no reason why this
legislation needs to be rushed to passage. In particular,
there is no substantive reason why this legislation should be
packaged together with legislation unrelated to military
commissions or interrogation in an effort to rush the bill
through the Congress. Trials of the alleged ``high value''
detainees are reportedly years away from beginning. We urge
the Congress to take more time to consider the implications
of this legislation for the safety of American personnel, for
U.S. efforts to build strong alliances in the effort to
defeat terrorists and for the traditional U.S. commitment to
the rule of law. Unless these serious problems are corrected,
we urge you to vote no.
Sincerely,
Physicians for Human Rights; Center for National Security
Studies; Amnesty International U.S.A.; Human Rights
Watch; Human Rights First; American Civil Liberties
Union; Open Society Policy Center; Center for American
Progress Action Fund; The Episcopal Church; Jewish
Council for Public Affairs; Presbyterian Church (USA),
Washington Office; Maine Council of Churches;
Pennsylvania Council of Churches; Wisconsin Council of
Churches; Brennan Center for Justice at NYU Law School;
Robert F. Kennedy Memorial Center for Human Rights;
Center for Constitutional Rights; The Bill of Rights
Defense Committee; Unitarian Universalist Service
Committee; Leadership Conference of Women Religious;
Center for Human Rights and Global Justice, NYU School
of Law; The Shalom Center; Washington Region Religious
Campaign Against Torture; The Center for Justice and
Accountability; Center of Concern; Justice, Peace &
Integrity of Creation Missionary Oblates; Rabbis for
Human Rights--North America; Humanist Chaplaincy at
Harvard University; No2Torture.

Mr. Speaker, I yield 2 minutes to the gentlewoman from California
(Ms. Lee).
Ms. LEE. Mr. Speaker, I want to thank the gentleman for yielding and
for his leadership and his commitment to our young men and women in
uniform throughout the world.
At a time when even the National Intelligence Estimate has concluded
that the occupation in Iraq has spawned a new generation of terrorists
and made us, quite frankly, less safe, this bill now will undermine the
security of our brave troops and hand a victory to those who believe
the rule of force should prevail over the rule of law.
I have to say once again, as the daughter of a 25-year military
Lieutenant Colonel who served this country in many, many capacities
through two wars, that this scares me. It scares me to death.
What century are we living in when we trust intelligence acquired
through torture? Clearly, the President fails to realize that these
techniques will destroy the credibility of any verdicts that use
information derived from torture.
Insisting on fairness and just credibility is all we are asking for,
credibility in the process. This isn't about protecting those who would
harm us, as the Republicans would have you believe, it is about
protecting our own troops and our Nation and not further alienating our
country in the eyes of the world community.
When we turn away from the legal and the moral values that have
guided our Nation, we give up the principles that differentiate us from
the terrorists.
I quoted from a prayer given by Reverend Baxter at the National
Cathedral during the memorial service for the victims and families of
9/11 5 years ago, and Reverend Baxter said, and I keep thinking about
this prayer, he said, ``Let us not become the evil who we deplore.''
So I just want to urge a ``no'' vote on this bill; and I want to
thank Mr. Skelton for his leadership, for his support for the troops,
for his steadfast work on behalf of our national security, and for
making sure that this body continues to try to uphold the rule of law.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Virginia (Mr. Moran).
Mr. MORAN of Virginia . I thank my good friend, an inspirational
leader on the Armed Services Committee.
I oppose this bill. It would send a message to the world that the
United States can disregard international treaties and law and,
instead, do as it pleases. For generations, we have been the beacon to
guide the actions of other nations. If we descend from the high moral
ground, we are, in effect, losing ground to the terrorists.
Secretary of State Colin Powell was so accurate when he said, part of
this war on terrorism is an ideological and political struggle. Our
moral posture is our best weapon to prevail in that struggle.
Mr. Speaker, this is not a good bill. Since the inception of the
Geneva Conventions 60 years ago, no other country in the world has
tried to undermine and negate its provisons its spirit as this bill
would.
For enemy combatants, the bill eliminates the right of habeas corpus.
This is a right enshrined in our Constitution that may be abandoned
only, and I quote, ``when in cases of rebellion or invasion the public
safety may require it.'' The elimination of habeas is not just illegal,
it is flat out wrong.
The purpose of habeas corpus is simple. It is to avoid injustice, to
avoid the detention by government of any individual that is erroneous,
unwarranted, or in violation of law. This purpose and the values from
which it stems do not distinguish among individuals or circumstances.
They seek to avoid any injustice to any detained individuals.

[[Page H7544]]

All Americans want to hold terrorists accountable, but if we try to
redefine the nature of torture, whisk people into secret detention
facilities and use secret evidence to convict them in special courts,
our actions do, in fact, embolden our enemies more than any extremist
rhetoric could ever do.
This bill needs to be defeated.
Mr. HUNTER. Mr. Speaker, I yield 30 seconds to the gentleman from
Indiana (Mr. Buyer).
Mr. BUYER. Mr. Speaker, I want to make sure the debate has clarity.
To the gentleman, when you say this bill applies to everyone or all
American citizens, that is completely false. I want the gentleman to
know that.
I would like you to know that when you refer to page 61, at the top
it says, provisions of this chapter. So an earlier speaker brought us
this issue about, well, it doesn't say the word alien. In order to be
tried under the Code of Military Commissions, you have to be an alien.
So when you go to page 7, you look at line 17, section 948c, it says
the persons who are subject to a military commission is any alien
unlawful enemy combatant.
So this does not apply to American citizens.
Mr. SKELTON. Mr. Speaker, I yield 30 seconds to the gentleman from
Virginia (Mr. Moran).
Mr. MORAN of Virginia. I thank the ranking member.
Mr. Buyer, I have been to Guantanamo, as I am sure you have been, and
I was stunned at the fact that the vast majority of people detained at
Guantanamo were not in fact caught on the battleground. Many of these
people were put there by bounty hunters. They were in the wrong place
at the wrong time.
After 5 years, they have very little information to provide us. Those
14 that we are now putting at Guantanamo should not redefine the vast
majority of the prisoners at Guantanamo who do in fact deserve a fair
trial.
Mr. SKELTON. Mr. Speaker, I yield an additional 30 seconds to the
gentleman from Oregon (Mr. Wu).
Mr. WU. Mr. Speaker, I would like to respond to the two chairmen's
remarks that I was incorrect in my analysis of the law or of the
proposed bill.
I stand by that analysis, and not only is that analysis correct, but
this reference to the detention act as a cure for that is totally
specious, because this detention act we passed as a rider to an
appropriations bill. So any remedy provided by the detention act goes
away in the year of appropriation.
If you read that language, that word alien does appear on page 93,
but the determination of that jurisdictional fact will be done by a
military tribunal, and that is not where American civilians should have
their rights determined.
Mr. SKELTON. Mr. Speaker, may I inquire as to the amount of time
remaining?
The SPEAKER pro tempore. The gentleman from Missouri has 1 minute
remaining, and the gentleman from California has 3\1/2\ minutes
remaining.
Mr. SKELTON. May I inquire, Mr. Speaker, does the gentleman choose to
close?
Mr. HUNTER. We just have one other speaker, then I am going to
reserve the balance.
Mr. SKELTON. Mr. Speaker, I reserve the balance of my time.
Mr. HUNTER. Mr. Speaker, I yield 30 seconds to the gentleman from
Indiana (Mr. Buyer) for a response.
Mr. BUYER. I just want to share with the gentleman, I have to go
back, you have to look at the four corners of the document. Please
don't dive into rhetoric.
When you go to the four corners of the document, it is very clear who
is subject to the Code of Military Commissions. So, in title 18, you
will have the Federal Code that applies to U.S. citizens; you will have
the UCMJ creating a third chapter that will apply to unlawful enemy
combatants, the Code of Military Commissions. It will not apply to
United States citizens.
It is very, very clear. If you think it applies to somebody else,
sir, I cannot get into your mind, but I just want you to know that the
world will be able to see what we have created here does not apply to
American citizens.
Mr. HUNTER. Mr. Speaker, at this time, I would like to yield 1 minute
to the gentlewoman from Texas (Ms. Granger).
Ms. GRANGER. Mr. Speaker, each Member in this House comes to Congress
with his own agenda, his district's needs, and his committee requests,
but the one thing that should surmount all those individual desires,
needs, and energies is the commitment to keep our Nation safe.
Fourteen terrorists are now being held at Guantanamo Bay awaiting
trial. Thousands of the family members of Americans killed on September
11 are awaiting justice, and our constituents are waiting for Congress
to act. The bill we have before us helps make that possible. It sends a
message to the extremists that if they plot to kill or harm our
citizens, America will find them, get the information they have, and
bring them to justice. And it sends a message to those who fight to
protect our freedom that we will protect them, too.
I do not know of anything that this Congress can do that is more
important than passing this bill today, a bill carefully crafted,
protecting classified intelligence information, providing clear
guidelines for our intelligence officers who are responsible for
interrogating those terrorists, and keeping our promises to the
American people to do everything we can to keep them safe.
Mr. Speaker, I am proud to support this bill, and I thank those
responsible for bringing it to the floor.
Mr. SKELTON. Mr. Speaker, I yield 15 seconds to the gentleman from
Oregon (Mr. Wu).
Mr. WU. I stand by my analysis of the proposed bill. The two chairmen
stand by theirs. This is the best reason why this bill should not be
rushed through. The staff cannot be held responsible for drafting
errors, and we should not be rushing this kind of legislation through
without the careful consideration that it deserves.
Mr. SKELTON. Mr. Speaker, this is a day in constitutional history
that will stand out like Mars at perihelion. We want tough, but we also
want certainty in any conviction that comes from this tribunal; and I
am fearful, Mr. Speaker, that this legislation is an invitation for
reversal by the Supreme Court.
We want to be tough on those despicable people, but we also want a
conviction to withstand the scrutiny of our Supreme Court and our
judicial process.
Mr. Speaker, I yield back.
Mr. HUNTER. Mr. Speaker, at this time I reserve the balance of my
time, which I believe is 2 minutes, and move to the Judiciary
Committee.

{time} 1500

The SPEAKER pro tempore. The gentleman from California (Mr. Hunter)
reserves the balance of his time, which is 2 minutes; and the gentleman
from Wisconsin (Mr. Sensenbrenner) is recognized.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions
Act of 2006.
This legislation is critical to the national security interests of
the United States. The bill creates a fair and orderly process to
detain and prosecute al Qaeda members and other dangerous terrorists
captured during the war on terror. It also sets clear ground rules
pertaining to how we will treat these prisoners in our custody. The way
we treat terrorist enemy combatants sends a strong signal to the rest
of the world about our commitment to the rule of law.
This legislation says to the world that the U.S. rejects torture,
rejects cruel and inhumane treatment and rejects other tactics commonly
used by our terrorist enemies. It says that we will not subject enemy
combatants in our custody, many of whom planned and supported the
largest mass murder ever on American soil, to the cruel and brutal
treatment they regularly utilize against our soldiers and our
civilians.
At the same time, this bill also makes it clear to the terrorists and
their lawyers that America will not allow them to subvert our judicial
process or disrupt the war on terror with unnecessary or frivolous
lawsuits. The bill strikes the right balance. It establishes a
mechanism that is full and fair, but also orderly and efficient.
In the aftermath of the 9/11 attacks, the administration began
detaining foreign terrorists as ``enemy combatants'' at Guantanamo Bay
and instituted procedures to review their status

[[Page H7545]]

and to prosecute them for war crimes by military commissions authorized
by the President. During this time, detainees filed suit in Federal
Court to challenge the legality of their detention and of the
commissions.
The Supreme Court then held in the Rasul case that the Federal habeas
corpus statute protected Gitmo detainees. To address Rasul, Congress
passed the Detainee Treatment Act of 2005, which barred habeas and
other lawsuits by detainees in U.S. custody, but provided for limited
judicial review of DOD detention decisions by the D.C. Circuit.
In June, the Supreme Court held in Hamdan that the DTA did not bar
nearly 200 habeas corpus petitions and the other lawsuits by detainees
pending on the date of enactment, despite clear statutory language and
Supreme Court precedents to the contrary.
This bill clarifies congressional intent to prohibit any habeas
corpus petitions or other lawsuits pending on or filed after enactment
brought by any alien in U.S. custody detained as an enemy combatant or
awaiting such a determination.
The Supreme Court has never, never held that the Constitution's
protections, including habeas corpus, extend to non-citizens held
outside the United States. In fact, the Supreme Court rejected such an
argument in 1950 in the case of Johnson v. Eisentrager. Moreover, in
the 1990 Verdugo case, the Court reiterated that aliens detained in the
United States but with no substantial connection to our country cannot
avail themselves of the Constitution's protections. As a result, any
argument that this bill breaks new ground or improperly denies
detainees certain constitutional rights is both groundless and
misguided.
Despite the fact that detainees have very few rights under our
Constitution, this bill reflects Congress's statutory determination
that they are entitled to an orderly process and a full and fair review
of the government's core decisions authorizing their detention by the
D.C. Circuit, a respected article 3 court.
As we consider this legislation, it is important to remember first
and foremost that this bill is about prosecuting the most dangerous
terrorists America has ever confronted. Individuals like Khalid Sheik
Mohammed, the mastermind of the 9/11 attacks, or Ahbd al-Nashiri, who
planned the attack on the USS Cole. None of their victims was treated
with the kind of respect for human life and the rule of law embodied in
this legislation which will apply to them.
I urge my colleagues to support this vital legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this is a very important discussion today, and we have
an opportunity to consider whether we are willing to respect the ideals
of law and human dignity in actuality rather than just in rhetoric.
This legislation goes to the core of who we are as a nation.
So I begin the Judiciary Committee's discussion of this matter on two
points simply. The first is the point on habeas corpus. Because, you
see, we have determined that detainees will not have the ability to
challenge the conditions of their detention in court unless and until
the administration decides to try them before a military commission.
Those who are not tried will have no recourse to any independent court
at any time.
So because people have been encouraging each other to read the bill,
I want to turn to page 93, line 12, where the habeas corpus matters are
included. Here is what it says: ``No court shall hear or consider an
application for a writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been determined by the
United States to have been properly detained as an enemy combatant.''
There is where 62 law professors from dozens of universities tell us
that what we are doing is changing the hallowed writ of habeas corpus
so that it will not apply by law. We are by law changing a
constitutional provision.
The other important part of our discussion on the Judiciary
Committee, and, by the way, I hope that the ranking member of the Armed
Services Committee can serve on the Judiciary Committee, because he has
made some excellent legal arguments today, the other point that I would
bring to your attention is that the President will now, under these
provisions in the bill, be allowed to interpret the Geneva Conventions,
especially common article 3, the way that he wants and to exclude it
from other review by the courts. By eliminating the judicial review of
executive acts as significant as detention and domestic surveillance,
this cannot be squared with the principles of transparency and the rule
of law on which our constitutional democracy rests.
Congress would gravely disserve our global reputation as a law-
abiding country by enacting bills that seek to combat terrorism by
stripping judicial review. I refer my colleagues to page 83, section 6,
relating to treaty obligations. Here it is. This is the bill:
``(3) Interpretation by the President. As provided by the
Constitution and by this section, the President has the authority for
the United States to interpret the meaning and application of the
Geneva Conventions and to promulgate higher standards and
administrative regulations for violations of treaty obligations which
are not grave breaches of the Geneva Conventions.
``The President shall issue interpretations that will be published in
the Federal Register.''
So what we have done now is give to the President, and I think it is
about time somewhere in the proceedings that this be made public
knowledge, give the President exclusive power to interpret the common
article 3 of the Geneva Conventions and that it would be unreviewable.
It is upon these two points that I would urge that the Members of the
House of Representatives on this day go on record as refusing to accede
to these onerous provisions of a bill that would change the course of
America's relationship, historic relationship, with international
treaties.

Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee
on the Judiciary, September 25, 2006

Dear Senator Specter, Senator Leahy, and Members of the
Committee: Thank you for the opportunity to submit this
statement in connection with today's hearing. (``Examining
Proposals to Limit Guantanamo Detainees Access to Habeas
Corpus Review''). My comments focus on the historical
foundations of habeas corpus that are relevant to the
Committee's consideration of the proposed legislation, S.
3930. As the United States Supreme Court has repeatedly made
clear, the Constitution, at a minimum, protects the writ of
habeas corpus as it existed in 1789. Eliminating habeas
corpus for prisoners held at Guantanamo Bay would be
inconsistent with centuries of tradition and would fall below
the review required by the Constitution.
I am currently Counsel at the Brennan Center for Justice at
New York University School of Law. The Brennan Center is a
nonpartisan institution dedicated to safeguarding access to
justice and the rule of law through scholarship, public
education, and legal action. One of the Brennan Center's
primary goals is to ensure accountability, transparency, and
checks and balances in the formulation and implementation of
national security policy.
During the past decade, I have focused extensively on the
history of habeas corpus. My scholarly articles and amicus
curiae briefs on habeas have been cited by the Supreme Court
and federal courts of appeals. I hold a J.D. from Yale Law
School and a Masters Degree in History from Oxford
University.
My comments are organized as follows. First, I describe the
historical roots of habeas corpus as a check against unlawful
executive detention and how those protections are guaranteed
under the Constitution and laws of the United States. Second,
I explain the writ's broad territorial scope and guarantee of
a searching examination of the factual and legal basis for a
prisoner's detention. Third, I show that habeas corpus
secures another fundamental requirement of the common law and
due process--the right to be free of detention based on
evidence gained by torture. Finally, I explain why appellate
review under the Detainee Treatment Act of 2005 of a
Combatant Status Review Tribunal determination does not
provide an adequate and effective substitute for
constitutionally mandated habeas. To the contrary, such
review would foreclose any meaningful inquiry into the
factual and legal basis for a prisoner's detention and
sanction evidence secured by torture and other coercion.

I. Habeas Corpus Provides A Check Against Unlawful Executive Detention

For centuries, the writ of habeas corpus has provided the
most fundamental safeguard against unlawful executive
detention in the Anglo-American legal system. William
Blackstone praised habeas as the ``bulwark'' of individual
liberty, while Alexander Hamilton called it among the
``greate[st] securities to liberty and republicanism.'' The
writ

[[Page H7546]]

has since been described as ``the most important human
right in the Constitution.
Today habeas is typically used by convicted prisoners to
collaterally attack their criminal sentences. At its
historical core, however, the writ provides a check against
executive detention without trial, and it is in this context
that its protections have always been strongest. Above all,
habeas guarantees that no individual will be imprisoned
without the most basic requirement of due process--a
meaningful opportunity to demonstrate his innocence before a
neutral decisionmaker.
Habeas corpus was part of colonial law from the
establishment of the American colonies, and the common law
writ operated in all thirteen British colonies that rebelled
in 1776. The Framers enshrined habeas corpus in the
Suspension Clause of the Constitution, which states that
Congress ``shall not'' suspend the writ of habeas corpus
``unless when in Cases of Rebellion or Invasion the public
Safety may require it.'' The First Congress codified this
constitutional command in the Judiciary Act of 1789, making
the writ available to any individual held by the United
States who challenges the lawfulness of his detention. For
the Framers of the Constitution, restricting Congress's power
to suspend habeas corpus was never controversial: the only
debate concerned what conditions, if any, could ever justify
suspension of the Great Writ, and the Framers concluded that
Congress could exercise its suspension power only under the
most exceptional circumstances. The constitutional guarantee
of habeas corpus stands apart and perpetually independent
from the other guarantees of the Bill of Rights enacted two
years later in 1791.
Under the influence, if not the command of the Suspension
Clause, Congress has always felt itself obligated to provide
for the writ in the most ample manner. Since the Nation's
founding, the writ has been suspended on only four occasions:
during the middle of the Civil War in the United States;
during an armed rebellion in several southern States after
the Civil War; during an armed rebellion in the Philippines
in the early 1990s; and in Hawaii immediately after the
attack on Pearl Harbor. Each suspension was not only a
response to an ongoing, present emergency, but was limited in
duration to the active rebellion or invasion that
necessitated it.

II. Habeas Corpus Extends To Any Territory Within The Government's
Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry
Into The Factual And Legal Basis For A Prisoner's Detention

As the Supreme Court has recognized, the writ of habeas
corpus has an `` `extraordinary territorial ambit.' '' Habeas
has always reached any territory over which the government
exercised sufficient power and control to compel obedience to
the writ's command. As Lord Mansfield wrote in 1759, ``even
if a territory was `no part of the realm [of England],' there
was `no doubt' as to the court's power to issue writs of
habeas corpus if the territory was `under the subjection of
the Crown.' '' At common law, therefore, habeas was
available not only in territories beyond the borders of
England, such as the mainland American colonies and West
Indies, but also in territory over which England exercised
exclusive control and jurisdiction but lacked sovereignty.
The right to habeas corpus has always extended to aliens as
well as citizens. The writ has been available in time of
peace as well as in time of war. Even alleged enemy aliens
have had access to habeas to demonstrate their innocence,
including by submitting evidence to a court. Indeed, in one
case Chief Justice Marshall, on circuit, required an enemy
alien to be produced in court and ordered his release. As the
Supreme Court observed in Rasul v. Bush, detainees at
Guantanamo have the right to habeas review because they are
imprisoned in territory over which the United States has
complete jurisdiction and control and because, unlike the
World War II-era prisoners in Johnson v. Eisentrager, they
have never been convicted of any crime and maintain their
innocence.
Common law courts did not simply accept the government's
factual response to a prisoner's habeas petition; instead,
they routinely probed that response and examined additional
evidence submitted by both sides to ensure the factual and
legal sufficiency of a person's confinement. The writ's
guarantee of a searching judicial inquiry crystallized in
response to the Crown's efforts to detain individuals
indefinitely without due process. In 1592, English judges
protested that when they ordered the release of individuals
unlawfully imprisoned by the Crown, executive officials
transported them to ``secret [prisons]'' to place them beyond
judicial review. As a result, the judges issued a resolution
affirming their power to release prisoners if a response to
the writ was not made.
The Crown, nevertheless, continued to avoid a judicial
examination into a prisoner's detention by providing a
general response (or return) that did not specify the cause
of commitment. This issue came to a head in the seminal
Darnel's Case. There, the Attorney General asserted that it
was the king's prerogative to detain suspected enemies of
State by his ``special command,'' without a judicial inquiry
into the factual and legal basis for their detention. He
emphasized the Crown's overriding interest in national
security and insisted that judges defer to the king's
judgment.
When the court upheld the Crown by finding its response
sufficient, it sparked a constitutional crisis that led to
the establishment of habeas corpus as the pre-eminent
safeguard of common law due process and personal liberty.
This was entrenched through the enactment of the Petition of
Right or 1628, the Habeas Corpus Act of 1641, and the
Habeas Corpus Act of 1679. By the late 1600s habeas corpus
had become--and would remain--``the great and efficacious
writ, in all manner of illegal confinement'' and the most
``effective remedy for executive detention.''
At common law, courts consistently engaged in searching
review on habeas corpus to probe the factual and legal basis
for a prisoners commitment, including by conducting hearings
and taking evidence. In the United States, courts have
exercised the same searching review of executive detention.
Indeed, in one its first habeas cases, the Supreme Court
affirmed the writ's historic function at common law; to
determine whether there was an adequate factual and legal
basis for the commitment,'' fully examining and considering
the evidence and finding it insufficient to justify the
prisoners' detention on allegations of treason.
Habeas also has always guaranteed review of the lawfulness
of a newfangled tribunal established to try individuals
before that trial takes place. This review has been exercised
in time of war and in time of peace, and over all categories
of alleged offenders. To deny that review would jeopardize a
longstanding protection of habeas.
By contrast, habeas review has always been more limited in
post-conviction cases--which today make up the bread and
butter of a federal court's habeas docket. But that is
precisely because the prisoner had already been convicted at
a trial that provided fundamental due process, including the
opportunity to see the government's evidence and to confront
and cross-examine its witnesses, a right that Justice Scalia
has said is ``founded on natural justice,'' Absent that
process, a federal judge with jurisdiction over a habeas
corpus petition has the power to examine the factual and
legal basis for the prisoner's detention in the first
instance, including the power to take evidence and conduct a
hearing, where appropriate. At issue in the Guantanamo habeas
cases is executive detention without any judicial process--
precisely the situation that lies at the Great Writ's core
and that mandates a searching examination of the government's
allegations.

III. Habeas Corpus Serves As An Essential Check On The Use of Evidence
Gained By Torture.

Habeas corpus also vindicates another core guarantee of the
common law--the categorical prohibition on the use of
evidence obtained by torture. During the sixteenth century,
crown officials occasionally issued warrants authorizing the
torture of prisoners. Pain was inflicted by a variety of
ingenious devices, including thumbscrew, pincers, and the
infamous rack. The use of torture dec1ined after an
investigation showed that a suspected traitor had been
``tortured upon the rack'' based upon false allegations.
Shortly thereafter the king asked the common law judges
whether another alleged traitor ``might not be racked'' to
make him identify accomplices, and ``whether there were
any law against it.'' The judges' answer was unanimous:
the prisoner could not be tortured because ``no such
punishment is known or allowed by our law.''
The Framers of the Constitution also abhorred torture,
which they viewed as a mechanism of royal despotism. As the
Supreme Court has repeatedly held, reliance on evidence
obtained by torture is forbidden not merely because it is
inherently unreliable but also because such ``interrogation
techniques [are] offensive to a civilized system of
justice.'' Without the availability of habeas corpus to
provide a searching inquiry into the basis for a prisoner's
detention, and to determine whether, in fact, evidence
justifying that detention has been obtained by torture or
other coercive methods, this fundamental common law
protection would be jeopardized.

IV. The Proposed Legislation Would Violate the Suspension Clause

The proposed legislation would markedly depart from
historical precedent and the Constitution's command that the
writ be made available. This legislation, moreover, would
sweep under the jurisdictional bar only non-citizens, raising
serious questions under the Constitution's guarantee of equal
protection as well.
The Committee may ask whether review by the District of
Columbia Circuit established under the Detainee Treatment Act
of 2005 (``DTA'') obviates any problem under the
Constitution. It does not. Such review falls far short of the
minimum review guaranteed under the Suspension Clause because
it would deny prisoners any meaningful inquiry into the
factual and legal basis for their detention and would
sanction the use of evidence secured by torture and other
coercion. Since others have explained the flaws of this
review scheme in greater detail, I describe them below only
briefly.
The Guantanamo detainees are all held pursuant to a finding
by the Combatant Status Review Tribunal (``CSRT'') that they
are ``enemy combatants.'' The CSRT was established by the
President only nine days after the Supreme Court's ruling in
Rasul that Guantanamo detainees have the right to challenge
their executive detention in federal district court by habeas
corpus. The order creating the CSRT pre-judged the detainees,
declaring that they had already been

[[Page H7547]]

found to be enemy combatants based on multiple levels of
internal review. Rather than affording the detainees a
meaningful opportunity to prove their innocence, the CSRT
denied them fundamental rights, including the right to
counsel; the right to see the evidence against them; and the
right to a neutral decisionmaker. Moreover, as the government
itself acknowledges, the CSRT permits the use of evidence
gained by torture. In short, as District Judge Joyce Hens
Green found, the CSRT denies the core protections of
elementary due process that habeas provides: a searching
factual inquiry to determine whether a prisoner's
detention is unlawfu1, including whether it is based on
evidence secured by torture.
Review of CSRT determinations under the DTA would not
provide detainees with any opportunity to challenge the
factual and legal basis for their detention. The DTA, on its
face, limits review to whether the CSRT followed its own
procedures. No detainee, as the government argues, can ever
present evidence to a federal court even if that evidence
shows he is innocent or that he was tortured. In short, DTA
review of a CSRT finding would deny prisoners precisely the
meaningful factual inquiry provided by habeas corpus and
secured under the Suspension Clause.

V. Conclusion

Habeas corpus has aptly been described as ``the water of
life to revive from the death of imprisonment.'' For
centuries, the Great Writ has prevented the Executive from
imprisoning individuals based upon mere suspicion and without
a meaningful examination of its allegations. Habeas corpus
demands that individuals have a fair opportunity to
demonstrate their innocence before a neutral decisionmaker.
Eliminating habeas at Guantanamo would flout this long
tradition and would gut the core protections guaranteed under
the Suspension Clause.
Thank you for the opportunity to provide this statement. My
colleagues and I are happy to provide the Committee with any
further information.
Jonathan Hafetz,
New York, NY, September 25, 2006

Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
Mr. Speaker, let me just point out what the people on the other side,
if they have their way, are going to have as a result.
I just want to quote one of the coordinating counsels for the
detainees, a gentleman named Michael Ratner, who boasted about what
they are planning on doing in public. ``The litigation is brutal for
the United States. It is huge. We have over 100 lawyers now from big
and small firms working to represent the detainees. Every time an
attorney goes down there, it makes it much harder for the U.S. military
to do what they are doing. You can't run an interrogation with
attorneys. What they are going to do now is that we are getting court
orders to get more lawyers down there.''
Now, to put some order in this and to defeat what Mr. Ratner said,
the legislation has got to pass.
Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr.
Daniel E. Lungren).
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the
gentleman for yielding.
Mr. Speaker, there has been some discussion by some on the other side
to suggest that somehow this bill that we bring before us is
unconstitutional, that it grants powers to the President that are
somehow unconstitutional.
Let me just read from the concurring opinion of Justice Breyer in the
Hamdan case when he basically said that their decision rested upon a
single ground, that Congress had not issued the executive a blank
check, that the President had to go back to us to get authority for
this. Then they go ahead and say nothing prevents the President from
returning to Congress to seek the authority he believes necessary.
The President believes this authority is necessary. We have worked
with him in both the House and the Senate, two different committees on
the House side, to try and give him the authority he believes
necessary, in the words of Justice Breyer.
We need to be clear on some things concerning the language of section
7 of this bill. This action is necessary because, in Rasul, the United
States Supreme Court interpreted the Federal habeas corpus statutory
scheme as allowing those detained in Guantanamo Federal petitions for
relief in the Federal courts. The decision was, to say at the least, a
major departure from historical precedent. However, this is important.
Since the decision was based solely on an interpretation of a statute,
28 U.S.C. 2241, it was easily correctable by congressional action.
That is exactly what we did with the Senate with the enactment last
year of the Detainee Treatment Act. This statute replaced statutory
habeas review with a process of administrative review in which it
ultimately would be subject to review by the United States Circuit
Court of Appeals for the District of Columbia Circuit.

{time} 1515

So we are not changing the scheme, the statutory scheme of habeas
corpus. This Congress already did it a year ago. What we are dealing
with is the Hamdan case, another case of statutory interpretation in
which the court failed to apply the Detainee Treatment Act to cases
which were then pending as of the date of the enactment. Thus, we are
here once again to clarify what we have already determined to be the
law. In short, section 7 of our bill informs the court that this time
we really mean it.
For us to do anything other than to affirm the Detainee Treatment Act
would indeed be a dramatic departure from what has been deeply rooted
in our Nation's legal tradition. Contrary to what has been said on the
other side, the United States Supreme Court recognized the 1950 case of
Johnson v. Eisenstrager that there is, and this is the Supreme Court
speaking, ``no instance where a court in this or any other country
where the writ is known issued it on behalf of an alien enemy.''
So we are not changing the law, we are not being inconsistent with
the court, we are not being unconstitutional. What we are doing is
precisely in the mainstream of what the Court has said.
Furthermore, this raises an additional question which must be
clarified. The debate today relates to the interpretation of a statute
and has absolutely nothing to do with what is referred to as the other
writ. The other side keeps talking about this has been in our existence
for hundreds of years. They speak of it as being part of the
Constitution. Folks, that is the great writ, capital G, capital W. This
is the statutory writ. Two different things. Two different things. We
have to understand that. In both the Rasul and Hamdan, the question
relating to the Detainee Treatment Act was one of statutory
interpretation. The Supreme Court did not refer to the great writ; they
referred to the statutes. The statutory habeas framework found in title
28 is a creature of Congress. In fact, in Ex Parte McCardle, the United
States Supreme Court upheld congressional limitations on the scope of
judicial review concerning the habeas statute.
What Congress creates, it can also limit. Even professor Erwin
Chemerinsky, with whom I seldom agree, points out in his treatise on
Federal Jurisdiction that, following the Civil War, congressional
statutes rather than the constitutional provision are the source of
rights relating to habeas corpus.
At the same time, as has been pointed out but needs to be pointed out
again, this bill goes to great lengths to ensure detainees will receive
full and fair consideration of their claims. The bill allows the
respected article 3 court, the U.S. Court of Appeals for the D.C.
Circuit, to review two key government decisions: one, a combatant
status review tribunal's determination that a detainee is an enemy
combatant; and, two, any final decisions by the military commissions
authorized by this bill. This is ample protection when compared with
the requirement of a review of status by a competent tribunal under
article 5 of the Geneva Conventions.
In fact, this legislation before us would expand the eligibility of
judicial review over that provided in current law. It would expand it,
not contract it, not remain the same. It would actually expand it. I
urge my colleagues to vote for this bill.
Mr. CONYERS. Mr. Speaker, before yielding to the gentlewoman from
California, I would just like to respond to the comments that I have
heard.
Never before has a President of the United States had the exclusive
power to interpret the Geneva Conventions and publish what he has
interpreted in the Record. And never before has a President had the
power to eliminate judicial review of executive acts as significant as
detention and domestic surveillance. And that can't be squared with the
principles of transparency and the rule of law.

[[Page H7548]]

I would refer all of my colleagues to 62 professors of law, not
lawyers, professors of law, who have explained why section 83 and
section 6 are very problematic and are going to lead us right back into
the court, because for 5 long years after the 9/11 tragedy, not a
single detainee has been brought to justice because this administration
insists on unilaterally pursuing secret, unconstitutional strategies
that cannot pass judicial muster.
I yield 2 minutes to the gentlewoman from California (Ms. Zoe
Lofgren), member of the Judiciary Committee.
Ms. ZOE LOFGREN of California. Mr. Speaker, it was clear from the
beginning that the executive branch lacked the authority to create
courts without the Congress passing laws to provide for them, so it is
important and proper that Congress create courts so that terrorist
suspects can be swiftly tried, found guilty, and be punished.
Unfortunately, this bill will not accomplish that.
Others have spoken well about the deficiencies in the definition of
who may be incarcerated without charge forever, but I want to
particularly object to the provisions suspending habeas corpus.
America is a proud free Nation because we are a Nation of laws, not
men. Key to the rule of law is the brilliant system of checks and
balances created by the Founding Fathers. This bill dumps the checks
and balances by asserting that the courts cannot review the actions of
the executive branch.
While poorly crafted rules are included in the bill, rules without
remedies are not real rules. Not only is it unwise, it is mostly
unconstitutional. And instead of allowing for swift prosecution and
punishment, enactment of this bill into law will lead to years of
further legal wrangling.
We all took an oath to defend and uphold the Constitution of the
United States, and here is what article I, section 9 says: ``the
privilege of the writ of habeas corpus shall not be suspended unless
when in cases of rebellion or invasion the public safety may require
it.''
Congress may not suspend the great writ of habeas corpus and limit
the checks and balances whenever it wants to. Congress may do so only
in cases of rebellion and invasion, neither of which is present today.
Nine distinguished retired justices have written to bring this to our
attention.
I include their letter for the Record.

To Members of Congress: The undersigned retired federal
judges write to express our deep concern about the lawfulness
of Section 6 of the proposed Military Commissions Act of 2006
(``MCA''). The MCA threatens to strip the federal courts of
jurisdiction to test the lawfulness of Executive detention at
the Guantanamo Bay Naval Station and elsewhere outside the
United States. Section 6 applies ``to all cases, without
exception, pending on or after the date of the enactment of
[the MCA] which relate to any aspect of the detention,
treatment, or trial of an alien detained outside of the
United States . . . since September 11, 2001.''
We applaud Congress for taking action establishing
procedures to try individuals for war crimes and, in
particular, Senator Warner, Senator Graham, and others for
ensuring that those procedures prohibit the use of secret
evidence and evidence gained by coercion. Revoking habeas
corpus, however, creates the perverse incentive of allowing
individuals to be detained indefinitely on that very basis by
stripping the federal courts of their historic inquiry into
the lawfulness of a prisoner's confinement.
More than two years ago, the United States Supreme Court
ruled in Rasul v. Bush, 542 U.S. 466 (2004), that detainees
at Guantanamo have the right to challenge their detention in
federal court by habeas corpus. Last December, Congress
passed the Detainee Treatment Act, eliminating jurisdiction
over future habeas petitions filed by prisoners at
Guantanamo, but expressly preserving existing jurisdiction
over pending cases. In June, the Supreme Court affirmed in
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that the federal
courts have the power to hear those pending cases. These
cases should be heard by the federal courts for the reasons
that follow.
The habeas petitions ask whether there is a sufficient
factual and legal basis for a prisoner's detention. This
inquiry is at once simple and momentous. Simple because it is
an easy matter for judges to make this determination--federal
judges have been doing this every day, in every courtroom in
the country, since this Nation's founding. Momentous because
it safeguards the most hallowed judicial role in our
constitutional democracy--ensuring that no man is imprisoned
unlawfully. Without habeas, federal courts will lose the
power to conduct this inquiry.
We are told this legislation is important to the ineffable
demands of national security, and that permitting the courts
to play their traditional role will somehow undermine the
military's effort in fighting terrorism. But this concern is
simply misplaced. For decades, federal courts have
successfully managed both civil and criminal cases involving
classified and top secret information. Invariably, those
cases were resolved fairly and expeditiously, without
compromising the interests of this country. The habeas
statute and rules provide federal judges ample tools for
controlling and safeguarding the flow of information in
court, and we are confident that Guantanamo detainee cases
can be handled under existing procedures.
Furthermore, depriving the courts of habeas jurisdiction
will jeopardize the Judiciary's ability to ensure that
Executive detentions are not grounded on torture or other
abuse. Senator John McCain and others have rightly insisted
that the proposed military commissions established to try
terror suspects of war crimes must not be permitted to rely
on evidence secured by unlawful coercion. But stripping
district courts of habeas jurisdiction would undermine this
goal by permitting the Executive to detain without trial
based on the same coerced evidence.
Finally, eliminating habeas jurisdiction would raise
serious concerns under the Suspension Clause of the
Constitution. The writ has been suspended only four times in
our Nation's history, and never under circumstances like the
present. Congress cannot suspend the writ at wi1l, even
during wartime, but only in ``Cases of Rebellion or Invasion
[when] the public safety may require it.'' U.S. Const. art.
I, Sec. 9, cl. 2. Congress would thus be skating on thin
constitutional ice in depriving the federal courts of their
power to hear the cases of Guantanamo detainees. At a
minimum, Section 6 would guarantee that these cass would be
mired in protracted litigation for years to come. If one goal
of the provision is to bring these cases to a speedy
conclusion, we can assure you from our considerable
experience that eliminating habeas would be
counterproductive.
For two hundred years, the federal judiciary has maintained
Chief Justice Marshall's solemn admonition that ours is a
government of laws, and not of men. The proposed legislation
imperils this proud history by abandoning the Great Writ to
the siren call of military necessity. We urge you to remove
the provision stripping habeas jurisdiction from the proposed
Military Commissions Act of 2006 and to reject any
legislation that deprives the federal courts of habeas
jurisdiction over pending Guantanamo detainee cases.
Respectfully,
Judge John J. Gibbons, U.S. Court of Appeals for the Third
Circuit (1969-1987), Chief Judge of the U.S. Court of Appeals
for the Third Circuit (1987-1990).
Judge Shirley M. Hufstedler, U.S. Court of Appeals for the
Ninth Circuit (1968-1979).
Judge Nathaniel R. Jones, U.S. Court of Appeals for the
Sixth Circuit (1979-2002).
Judge Timothy K. Lewis, U.S. District Court, Western
District of Pennsylvania (1991-1992), U.S. Court of Appeals
for the Third Circuit (1992-1999).
Judge William A. Norris, U.S. Court of Appeals for the
Ninth Circuit (1980-1997).
Judge George C. Pratt, U.S. District Court, Eastern
District of New York (1976-1982), U.S. Court of Appeals for
the Second Circuit (1982-1995).
Judge H. Lee Sarokin, U.S. District Court for the District
of New Jersey (1979-1994), U.S. Court of Appeals for the
Third Circuit (1994-1996).
William S. Sessions, U.S. District Court, Western District
of Texas (1974-1980), Chief Judge of the U.S. District Court,
Western District of Texas (1980-1987).
Judge Patricia M. Wald, U.S. Court of Appeals for District
of Columbia Circuit (1979-1999), Chief Judge of the U.S.
Court of Appea]s for District of Columbia Circuit (1986-
1991).

We should be pulling together as a country to track down these
terrorists and bring them to justice instead of facing this
unconstitutional and divisive measure that was brought before us as
part of a political agenda with an eye on the midterm elections,
instead of a bill that would unify us as part of an American agenda
with an eye to the continued greatness and security of our country.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds.
Mr. Speaker, I am afraid that my friends on the other side of the
aisle aren't listening. There are two types of habeas corpus: one is
the constitutional great writ. We are not talking about that here. We
can't suspend that. That is in the Constitution, and we can't suspend
that by law.
The other is statutory habeas corpus, which has been redefined time
and time again by the Congress. That is what we are talking about here,
and we have the constitutional power to redefine it.
I yield 4 minutes to the gentleman from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Speaker, I thank the chairman for 6 powerful
years leading the Judiciary Committee.

[[Page H7549]]

The Supreme Court created a mess and hurt the Global War on Terror
with its unnecessary and unconstitutional opinion in the Hamdan case.
The Supreme Court had no authority to hear the Hamdan case. The
Detainee Treatment Act gave the Court of Appeals for the District of
Columbia Circuit exclusive jurisdiction over the validity of any final
decision of an enemy combatant status review tribunal. The Supreme
Court in Hamdan v. Rumsfeld ignored the provision of the DTA and a
longstanding line of its own precedents which stood for the principle
that Congress can limit jurisdiction in pending as well as future
cases.
The DTA provided that: no court, justice, or judge shall have
jurisdiction to hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the Department of
Defense at Guantanamo Bay.
The plain language of this statute clearly applies to cases pending
at the date of enactment. The Supreme Court should have reached this
conclusion, relying on their own precedent, but they failed to do so.
In response, this legislation, H.R. 6166, has been carefully drafted so
that the Court can fully understand that it applies to both pending and
later filed cases. It was not necessary for Congress to be so specific,
but in order that the Court will not make the same mistake twice,
Congress has carefully chosen the language ``pending on or filed after
the date of enactment'' in section 5 of this legislation.
In his dissent in Hamdan v. Rumsfeld, Justice Scalia reminded the
majority that they failed to cite a single case where such a
jurisdiction limitation provision was denied immediate effect in
pending cases. I agree with his opinion that the cases granting such
immediate effect are legion.
The Court's opinion has had yet another fatal flaw. In order to apply
the Geneva Conventions, the Court decided on its own that the Global
War on Terror was not of international character. I cannot imagine that
even the majority on the Court believed their own opinion. The Global
War on Terror can in no way be characterized as a mere civil war. It is
a war between Western Civilization and militant Islamic fascists from
all around the world. It does not take place only in legislation.

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (Mr. Simpson). The Chair notes a disturbance
in the gallery in violation of the rules of the House and directs the
Sergeant at Arms to restore order.
The Chair recognizes the gentleman from Iowa.
Mr. KING of Iowa. It is a war between Western Civilization and
militant Islamic fascists from all around the Muslim world. It does not
take place only in one nation. Global is international.
The Court decided the conclusion they desired and then shoehorned
their decision to fit a preferred result, substituting their judgment
for the constitutional judgment of Congress and of our Commander in
Chief. And that was during a time of war. By doing this, the Supreme
Court's majority in Hamdan further undermined our Constitution which
relies on the separation of powers.
The unconstitutional intervention by the Supreme Court in Hamdan
could have been handled by Congress and the President in another way.
Under article III, section 2, Congress could have reasserted our
clearly defined authority to limit the jurisdiction of the Supreme
Court and to grant jurisdiction to any inferior court of our choosing,
as expressed in the very plain language of the Detainee Treatment Act.
If we had not been a Nation at war, a Nation urgently concerned about
protecting our citizens from attack, Congress may well have advised the
Court of their unconstitutional intervention and the Court's
obstruction of the ability of the Commander in Chief to protect America
from our enemies and ignored the Court's decision. The necessities of
war won out over the separation of powers, and for the first time the
Supreme Court has engaged in setting parameters in war fighting beyond
our national borders.
Because of our national security, Congress and the President jumped
through a series of hoops set by the Court, rather than carry on a
protracted power struggle over the Constitution with the Court. But,
Mr. Speaker, Congress concedes no power to the Court not defined in the
Constitution or specified by statute.
Mr. CONYERS. Mr. Speaker, I now yield 2\1/2\ minutes to the gentleman
from Virginia, a member of the Judiciary Committee, Mr. Scott.
Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for
yielding.
Mr. Speaker, while I support the efforts to establish a system of
military commissions as required by the Supreme Court's decision in the
Hamdan case, I am disappointed that a bill of this magnitude is being
considered under a closed rule and without assurances that traditional
notions of due process, judicial independence, and full compliance with
the Geneva Conventions will be in the bill.
One of the most egregious problems of this bill is the creation of a
presumption in favor of admitting coerced evidence, along with the
continued insistence that a person can be fairly convicted using secret
evidence. Another problem with the bill is it strips jurisdictions of
civil courts from hearing cases involving plaintiffs who seek redress
for violations of the torture provisions of the Geneva Conventions.
This bill actually retroactively applies new standards. Now, whether
this review of the habeas corpus as statutory or constitutional, it is
a good idea; and it is the only way anybody can get a hearing on
whether or not they have been tortured by the United States.
Moreover, the only automatic right of appeal would be to an entirely
new appellate court of military commission review, with all of the
judges appointed by and in the chain of command of the Secretary of
Defense. In addition, the Secretary of Defense would be granted wide
latitude to depart without judicial scrutiny from the rules and
detainee protections the legislation purports to create. It would allow
him to do so whenever he deems it practicable or consistent with
military or intelligence activities. In an extraordinary move, the bill
would retroactively limit the scope of U.S. obligations under common
article 3 more than half a century after the United States ratified the
Geneva Conventions, and it immunizes all previous violations of the War
Crimes Act and other laws against torture and inhumane treatment of
detainees in our custody.
This retroactive provision grants immunity to government officials
and civilians, such as CIA operatives, interrogators, or those who may
have authorized, ordered, or even participated in illegal acts of
torture or abuse.

{time} 1530

Mr. Speaker, this is a complex bill, and it is before us on a take-
it-or-leave-it basis, with no amendments. We should take the time to
consider all of these new provisions deliberately to ensure that the
legislation does not undermine the United States' commitment to the
rule of law, the success of its fight against terrorism, and, most of
all, the safety of our United States' servicemen and women.
I urge my colleagues to defeat the passage of H.R. 6166.
Mr. CONYERS. Mr. Speaker, I am proud to yield to the gentleman from
California (Mr. Schiff), who has worked diligently on this issue, 2
minutes.
Mr. SCHIFF. Mr. Speaker, I want to try to resolve an issue which has
been debated here this afternoon about what the effect of this
legislation is on American citizens.
Plainly, the legislation defines ``unlawful enemy combatant'' as any
person who materially supports someone or is believed to support
someone engaged in hostilities against the United States. That includes
American citizens. And yet the majority says, but, under the
legislation, only aliens can be brought up before the military
tribunal. That is also correct. So how do you resolve this apparent
difference?
The reality is there is no difference. Because what the bill
contemplates is a two-part system of justice: one for those who are
brought before tribunals, and one for those who may never be brought
before tribunals but who are, nonetheless, detained as unlawful enemy
combatants. Because this bill contemplates that people will be
detained, whether it is in a secret CIA prison or elsewhere, and
perhaps never brought before a tribunal; and there is nothing in this
legislation that prohibits the detention of an American indefinitely,
never brought before a tribunal.

[[Page H7550]]

Now the majority says, we don't do away with the habeas rights of
Americans, writ large or writ small. If that is the case, why don't we
say that in this legislation, that an American detained as an unlawful
enemy combatant has the right of habeas corpus? The reason we don't say
it in this bill is because the administration has consistently taken
the position that those detained, including Americans, as unlawful
enemy combatants do not have the right of habeas corpus to seek redress
in courts and have fought that already in court.
So where does that leave us in the war of ideas? We have an enemy
that has nothing to offer in the war of ideas. We have everything to
offer. But when we undermine the idea of what it is to be an American,
the idea of this country, by saying that we will water down the rule of
law, that we will have a separate system of justice or no system of
justice, for those who are declared unlawful combatants will have no
right to court redress, that is a setback in the war of ideas.
Mr. CONYERS. Mr. Speaker, I am pleased to yield to the gentleman from
New York (Mr. Nadler), a distinguished member of the Committee on the
Judiciary, 2 minutes.
Mr. NADLER. Mr. Speaker, this is how a Nation loses its moral
compass, its identity, its values and, ultimately, its freedom to fear.
It is ironic that the people who use the word ``freedom'' with
reckless abandon, in everything from fries to a global vision, should
come before the American people advocating the suspension of habeas
corpus, secret star chamber tribunals, unlimited detention without
review, and, yes, torture.
Yes, we must be vigilant to protect our safety. But we must not allow
the honor and values of our Nation to be permanently stained by this
detestable legislation. It is beneath us. It is not what we stand for.
There are many infamies in this bill, as others have pointed out. I
will concentrate on just one.
This bill would allow the President, or any future President, to grab
someone off a street corner in the United States, or anywhere else in
the world, and hold them forever without any court review, without
having to charge them, without ever having to justify their
imprisonment to anyone.
This bill is flatly unconstitutional, for it repeals the great writ,
habeas corpus; not, Mr. Sensenbrenner, a statutory writ, the statutory
great writ.
Turn to page 93, ``No court, justice, or judge shall have
jurisdiction to hear or consider an application for writ of habeas
corpus filed by or on behalf of an alien detained by the United States
who has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.''
``Awaiting such determination''? That says it all. Nowhere in this
new law is there any time limit for making this determination. In fact,
it could be never.
We are told that these procedures are only for those the President
has called ``the worst of the worst.'' How do we know they are the
worst of the worst? Because the President says so. And the President
and Federal bureaucrats, as we all know, never make mistakes.
Some people held as unlawful enemy combatants may be put before a
military tribunal, but they need not be. They can be held forever
without a hearing, without a military tribunal.
So let's review. The government can snatch anyone who is not a U.S.
citizens anywhere in the world, including on the streets of this city,
whether or not they are actually doing anything, and detain them in
jail forever, out of reach of our Constitution, our laws or our courts.
We rebelled against King George, III, for far less infringements on
liberty than this 200 years ago, but we seem to have forgotten. This
bill makes the President a dictator for when someone can order people
jailed forever without being subject to any judicial review. That is
dictatorial power. The President wants to exist in a law-free zone. He
does not want to be bound by the law of war or our treaty obligations.
He does not want to answer to the Constitution, to the Congress or to
the courts.
Mr. Speaker, rarely in the life of a Nation is the question so stark:
Are we going to rush this complete repudiation of what we stand for
through the Congress? I hope we are better than that.
Mr. CONYERS. Mr. Speaker, I yield to the gentleman from Maryland (Mr.
Van Hollen), an excellent member of the Committee on the Judiciary, 2
minutes.
Mr. VAN HOLLEN. Mr. Speaker, we now know what the administration
wanted to hide from the American people: that the consensus view of all
16 intelligence agencies is that the Iraq war has made the overall
terrorism problem worse, not better; that it has fueled the jihadist
movement and made us less safe, and not more safe.
The Bush administration was wrong about weapons of mass destruction.
They were wrong about alleged collaboration between al Qaeda and Saddam
Hussein, and they are wrong about this bill.
This bill will weaken, not strengthen, our national security. They
are wrong because this bill will place our troops in Iraq and elsewhere
around the world in greater danger of torture, both today and in future
conflicts. They are wrong because this bill will further erode our
already tarnished credibility and moral standing around the world.
Let us always remember that our strength flows not only from the
force of our military but from the power of our example. And they are
wrong because we have learned the hard way that information extracted
through torture and extreme coercion can be unreliable.
Remember when Secretary Powell at the United Nations told the world
that Saddam Hussein had mobile bioweapons labs? That information came
from a person that we turned over to Egypt who was tortured, and the
CIA has since acknowledged that information was false, and yet that was
important information that was used as part of our argument to go to
war in Iraq.
This is a defining moment for our Congress and our country. It will
define who we are as a people and what we stand for, and yet it gives
the President too much of a blank check to unilaterally decide that
answer for all of us. It gives the President the authority to
unilaterally define what constitutes specific acts of torture. It gives
the President the authority to unilaterally decide who can be detained
as an enemy combatant, including American citizens, and, therefore,
send them into a legal limbo.
Mr. Speaker, when we take very important decisions in the name of the
American people, we better get it right. This bill gets it wrong.
Mr. CONYERS. Mr. Speaker, I include for the Record a letter dated
September 27 from the American Civil Liberties Union and 41 other
organizations.

September 27, 2006.
Dear Representative: We are writing to strongly encourage
you to reject the ``compromise'' Military Commissions Act of
2006 and to vote no on final passage of the bill. More than
anything else, the bill compromises America's commitment to
fairness and the rule of law.
For the last five years the United States has repeatedly
operated in a manner that betrays our Nation's commitment to
law. The U.S. has held prisoners in secret prisons without
any due process or even access to the Red Cross and has
placed other prisoners in Guantanamo Bay in a transparent
effort to avoid judicial oversight and the application of
U.S. treaty obligations. The Federal government has operated
under legal theories which dozens of former senior officers
have warned endanger U.S. personnel in the field and has
produced legal interpretations of the meaning of ``torture''
and ``cruel, inhuman and degrading'' treatment which had to
be abandoned when revealed to the public. Interrogation
practices were approved by the Department of Defense which
former Bush Administration appointee and General Counsel of
the Navy Alberto Mora described as ``clearly abusive, and . .
. clearly contrary to everything we were ever taught about
American values.'' According to media reports the CIA has
used a variety of interrogation techniques which the United
States has previously prosecuted as war crimes and routinely
denounces as torture when they are used by other governments.
Instead of finally coming to grips with this situation and
creating a framework for detaining, interrogating and
prosecuting alleged terrorists which comports with the best
traditions of American justice, the proposed legislation will
mostly perpetuate the current problems. Worse, it would seek
to eliminate any accountability for violations of the law in
the past and prevent future judicial oversight. While we
appreciate the efforts various members of Congress have made
to address these problems, the ``compromise'' falls far short
of an acceptable outcome.

[[Page H7551]]

The serious problems with this legislation are many and
this letter will not attempt to catalogue them all. Indeed,
because the legislation has only just been made available,
many of the serious flaws in this long, complex bill are only
now coming to light. For instance, the bill contains a new,
very expansive definition of enemy combatant. This definition
violates traditional understandings of the laws of war and
runs directly counter to President Bush's pledge to develop a
common understanding of such issues with U.S. allies. Because
the proposed definition of combatant is so broad, the
language may also have potential consequences for U.S.
civilians. For instance, it may mean that adversaries of the
United States will use the definition to define civilian
employees and contractors providing support to U.S. combat
forces, such as providing food, to be ``combatants'' and
therefore legitimate subjects for attack. Yet, there has been
no opportunity to consider and debate the implications of
this definition, or other parts of the bill such as the
definitions of rape and sexual abuse.
We strongly oppose the provisions in the bill that strip
individuals who are detained by the United States of the
ability to challenge the factual and legal basis of their
detention. Habeas corpus is necessary to avoid wrongful
deprivations of liberty and to ensure that executive
detentions are not grounded in torture or other abuse.
We are deeply concerned that many provisions in the bill
will cast serious doubt on the fairness of the military
commission proceedings and undermine the credibility of the
convictions as a result. For instance, we are deeply
concerned about the provisions that permit the use of
evidence obtained through coercion. Provisions in the bill
which purport to permit a defendant to see all of the
evidence against him also appear to contain serious flaws.
We believe that any good faith interpretation of the
definitions of ``cruel, inhuman and degrading'' treatment in
the bill would prohibit abusive interrogation techniques such
as waterboarding, hypothermia, prolonged sleep deprivation,
stress positions, assaults, threats and other similar
techniques because they clearly cause serious mental and
physical suffering. However, given the history of the last
few years we also believe that the Congress must take
additional steps to remove any chance that the provisions of
the bill could be exploited to justify using these and
similar techniques in the future.
Again, this letter is not an attempt to catalogue all of
the flaws in the legislation. There is no reason why this
legislation needs to be rushed to passage. In particular,
there is no substantive reason why this legislation should be
packaged together with legislation unrelated to military
commissions or interrogation in an effort to rush the bill
through the Congress. Trials of the alleged ``high value''
detainees are reportedly years away from beginning. We urge
the Congress to take more time to consider the implications
of this legislation for the safety of American personnel, for
U.S. efforts to build strong alliances in the effort to
defeat terrorists and for the traditional U.S. commitment to
the rule of law. Unless these serious problems are corrected,
we urge you to vote no.
Sincerely,
Physicians for Human Rights.
Center for National Security Studies.
Amnesty International USA.
Human Rights Watch.
Human Rights First.
American Civil Liberties Union.
Open Society Policy Center.
Center for American Progress Action Fund.
The Episcopal Church.
Jewish Council for Public Affairs.
National Religious Campaign Against Torture.
Presbyterian Church (USA), Washington Office.
Friends Committee on Nat'l Legislation.
Maine Council of Churches.
Pennsylvania Council of Churches.
Wisconsin Council of Churches.
Brennan Center for Justice at NYU Law School.
Center for Constitutional Rights.
Robert F. Kennedy Memorial Center for Human Rights.
The Bill of Rights Defense Committee.
Unitarian Universalist Service Committee.
Leadership Conference of Women Religious.
Center for Human Rights and Global Justice, NYU School of
Law.
The Shalom Center.
Washington Region Religious Campaign Against Torture.
The Center for Justice and Accountability.
Center of Concern.
Justice, Peace & Integrity of Creation Missionary Oblates.
Rabbis for Human Rights--North America.
Humanist Chaplaincy at Harvard University.
No2Torture.
Maryland Christians for Justice and Peace.
American Library Association.
Churches Center for Theology and Public Policy.
Disciples Justice Action Network (Disciples of Christ).
Equal Partners in Faith.
Christians for Justice Action (United Church of Christ).
Reclaiming the Prophetic Voice.
Baptist Peace Fellowship of North America.
Pax Christi USA: National Catholic Peace Movement.
Fellowship of Reconciliation.
Maryknoll Office for Global Concerns.

Mr. Speaker, I turn now to the gentleman from Massachusetts (Mr.
Frank), a former member of the committee, 1 minute.
Mr. FRANK of Massachusetts. Mr. Speaker, I understand the lack of
compassion for terrorists. I share much of it. But this is not about
terrorists. This is about people accused of terrorism. And there may be
human realms where infallibility is a valid concept, not in the
arresting of people and certainly not when this is done in the fog of
war.
Have we not had enough examples of error, of people like the recent
case, to our embarrassment, of a man sent to Syria to be tortured by
the United States wrongly; of Captain Yee; of Mr. Mayfield in Oregon?
Have we not had enough examples of error to understand that you need
to give people accused of this terrible crime a way to prove that the
accusations were not true? That is what is at risk here.
I believe that the law enforcement people of America and the Armed
Forces of America are the good guys. But they are not the perfect guys.
They are not people who don't make mistakes, particularly acting as
they do under stress.
It is a terrible thing to contemplate that this bill will allow
people to be locked up indefinitely with no chance to prove that they
were locked up in error. We should not do it.
Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
The last reason for the many that have been brought forward as to why
this legislation is dangerous and unwise is that it endangers our
troops because it has the effect of lowering the standards set forth in
the Geneva Conventions. By allowing the President to unilaterally
interpret the Geneva Conventions and then exempting his interpretations
from any scrutiny, we are creating a massive loophole to this time-
honored treaty and endangering our own troops.
As the head of Army intelligence, Lieutenant General Kimmons warned
us, no good intelligence is going to come from abusive practices. I
think history tells us that. And if you don't believe him, just ask
Maher Arar, an innocent Canadian national, who was sent by our Nation,
I am sorry to report, to Syria where he was tortured.
This legislation decimates separation of powers by retroactively
cutting off habeas corpus. Let us not approve this legislation in the
House of Representatives this evening.
Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 3 minutes, and I would
like to make a couple of points.
First of all, this legislation has to be read in conjunction with the
Detainee Treatment Act which was signed into law last year. That law
provides for a procedure to review whether or not someone is properly
detained as an enemy combatant. So the business of indefinite detention
is a red herring.
Secondly, this legislation itself creates a number of new rights for
detainees and people who are tried before military commissions. Let me
enumerate them. There are 26 new rights:
A right to counsel provided by the government at trial and throughout
appellate proceedings; an impartial judge; the presumption of
innocence; standard of proof is beyond a reasonable doubt.
The right to be informed of the charges against the defendant as soon
as practicable.
The right to service of charges sufficiently in advance of trial to
prepare a defense.
The right to reasonable continuances.
The right to peremptorily challenge members of the commission. That
is something nobody has in the United States against a Federal judge.
Witnesses must testify under oath and counsel, and members of the
military commission must take an oath.
The right to enter a plea of not guilty.
The right to obtain witnesses and other evidence.
The right to exculpatory evidence as soon as practicable.
The right to be present in court, with the exception of certain
classified evidence involving national security, preservation of safety
or preventing disruption of proceedings.

[[Page H7552]]

The right to a public trial, except for national security or physical
safety issues.
The right to have any finding or sentences announced as soon as
determined.
The right against compulsory self-incrimination.
The right against double jeopardy.
The defense of lack of mental responsibility.
Voting by members of the military commission by secret written
ballot.
Prohibition against unlawful command influence towards members of the
commission, counsel, and military judgments.
Two-thirds vote of members is required for conviction, three-quarters
is required for sentence to life or over 10 years, and unanimous
verdict is required for the death penalty.
Verbatim authenticated record of trial.
Cruel and unusual punishment is prohibited.
Treatment and discipline during confinement the same as afforded to
prisoners in U.S. domestic courts.
The right to review the full factual record by the convening
authority, and the right to at least two appeals, including two in
article 3 in Federal appellate court. That is one more appeal than the
Constitution gives United States citizens.

{time} 1545

So what's the beef? There are 26 more rights that are created in this
legislation. Vote down the legislation, you vote down all of these new
rights.
Mr. Speaker, at this time I yield the balance of my time to the
gentleman from California (Mr. Hunter) and ask unanimous consent that
he be permitted to yield portions of that time as he sees fit.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
The SPEAKER pro tempore. The gentleman from California has 3\1/2\
minutes remaining.
Mr. HUNTER. Mr. Speaker, I yield myself 2\1/2\ minutes.
Mr. Speaker, I want to thank all my colleagues on both sides of this
debate.
This great Nation, this shining city on a hill, was attacked on 9/11.
We undertook aggressive action against the terrorists who attacked us.
We killed a lot of them. We found them in places where they never
thought we would find them, in caves at 10,000-foot elevation mountain
ranges, in deserts, in cities, and we captured some of them. And some
of those who designed the attack against the United States and New York
and Pennsylvania and Washington have been captured. And they are now in
Guantanamo or going to Guantanamo. And the Supreme Court of the United
States has charged this body with building a system with which to
prosecute these terrorists, and we are responding with that system.
Now, I would say to those who say that this is not fair, that we
haven't given them enough rights, I think we have given them plenty. We
have enumerated those. The chairman of the Judiciary Committee went
over many basic rights. But the world is going to see these trials. And
as I watch these defendants, these people, including those who designed
the attack on 9/11, being presumed innocent; being given lawyers by the
United States; being set against a standard of proof beyond a
reasonable doubt; being protected against self-incrimination; being
given the right to exculpatory evidence; being given the right to two
appeals, not one appeal, as the minority had in the initial markup
coming out of the Armed Services Committee, the American people will
have an opportunity to see whether or not they think that the alleged
terrorists have been given enough rights. So let's do what the Supreme
Court asked us to do.
We have put together an excellent product. It is agreed on. It will
be introduced shortly in the U.S. Senate. For those who say they want
to see the product of Mr. Warner and Mr. McCain and Mr. Graham, they
have had a great deal of input into this, and they will be introducing
this piece of legislation in the other body. So let's get on with this.
It is our duty to pass this bill, to construct this system, construct
this court, and bring justice before the eyes of the widows and orphans
of 9/11, our fellow citizens, and the world. Let's do it.
Mr. Speaker, I yield the balance of my time to the majority leader,
Mr. Boehner.
Mr. BOEHNER. Mr. Speaker, let me thank my colleague for yielding.
We all know that in the years since 9/11 we have been focused on one
vital goal, and that is stopping terrorist attacks before they happen.
I want to commend Chairman Hunter and Chairman Sensenbrenner for
their work on this piece of legislation. I think we all know that to
stop terrorist attacks before they happen, we need to be able to
interrogate terrorist suspects, find out what they know, and put them
on trial.
After 9/11, President Bush vowed to devote his Presidency to
protecting the American people, and he vowed to use every tool at his
disposal under the law to fight the terrorists and attack them before
they attack us.
If we are serious about stopping terrorist attacks before they
happen, the ability to extract information from terrorist suspects and
put them on trial is essential.
President Bush put together a system to accomplish these goals after
9/11. We have captured some of the world's most dangerous terrorists.
But now our efforts are on hold because of a Supreme Court decision in
June and that without congressional authorization, the Federal
Government lacks the authority to use military tribunals for these
suspected terrorists.
In the wake of this Court decision, Congress has a choice. We can do
nothing and allow the terrorists in U.S. custody to go free or to go
into a trial meant for American civilians; or we can authorize
tribunals for terrorists, find out what they know, and bring them to
justice.
This bill will allow us to continue to gather important intelligence
information from foreign terrorists caught in battle or caught while
plotting attacks on America. As President Bush has said, the
information we have learned from captured terrorists ``has helped us to
take potential mass murderers off the streets before they were able to
kill us.''
We know these interrogations have provided invaluable intelligence
information that has thwarted terrorist attacks and has saved American
lives. This bill allows Congress to draw the parameters for detaining
and bringing to justice terrorists like Khalid Sheikh Mohammed, the
driving force behind the terrorist attacks of September 11. The bill
will provide clear guidance for Americans who are interrogating the
terrorist suspects on behalf of our country. It will preserve this
crucial program while meeting our commitments and obligations under the
Geneva Conventions. It will also help us meet a 9/11 Commission
recommendation that America develop a common coalition approach toward
the detention and humane treatment of captured terrorists.
We recognize military tribunals play a critical role in helping us
fight the global war on terror, and we will give these tools to our
President as he fights to help keep all of us safe.
But the real question today is, what will my colleagues, my Democrat
colleagues, do when it comes to this vote today?
Virtually every time the President asks Congress for the tools he
needs to stop terrorist attacks, a majority of my Democrat friends have
said ``no.'' Democrats by and large voted ``no'' on establishing the
Department of Homeland Security in July of 2002.
A majority of Democrats voted ``no'' on additional funds to respond
to the attacks of September 11 and bolster homeland security efforts in
May of 2002. The majority of the Democrats voted ``yes'' to deny
funding for law enforcement to carry out provisions of the PATRIOT Act
in July of 2004. And a majority of Democrats voted ``no'' on the REAL
ID Act, which makes it difficult for terrorists to travel freely
throughout the United States, in February of 2005. And Democrats voted
``no'' on reauthorizing the PATRIOT Act, and gloated about killing it,
in December of 2005.
And more recently, many Democrats voted against a resolution
condemning the illegal leaks of classified intelligence information
that could impair our fight against terrorism. Democrats voted ``no''
in the Judiciary Committee against allowing the terrorist surveillance
program to go forward. And the

[[Page H7553]]

Democrats in the Judiciary Committee voted ``no'' on this bill as well.
So the question is, will my Democrat friends work with Republicans to
preserve this crucial program or oppose giving the President the tools
that he needs to protect the American people? Will my Democrat friends
work with Republicans to give the President the tools he needs to
continue to stop terrorist attacks before they happen, or will they
vote to force him to fight the terrorists with one arm tied behind his
back?
Now, I do not, and will never, question the integrity or the
patriotism of my colleagues on the other side of the aisle. This is
about giving our President the tools he needs to wage war against
terrorists who are trying to kill us. And I hope that we will stand
together this week and vote to give our President the tools that we
need to fight and win in our war against terrorists all over the world.
Mr. BLUMENAUER. Mr. Speaker, I am disappointed and perplexed that the
administration and the Republican leadership refuse to provide
meaningful legislation dealing with suspected terrorists and instead
attempt to repeat the mistakes of the past. H.R. 6166, the Military
Commissions Act, does nothing for our security and attempts to add
legitimacy to the current improper actions of the Bush administration.
By not adhering to the strictest standards when putting suspected
terrorists on trial, we run the risk of punishing innocent people who
could simply have been in the wrong place at the wrong time. It is now
widely known that potentially hundreds of inmates in Guantanamo Bay may
in fact have had nothing to do with terrorism, If we accept this
legislation to be the new law of the land, we will be skirting our
moral responsibility to be vigorous in our pursuit of terrorists while
remaining just in our cause,
This administration has repeatedly shown that it will make the wrong
judgments and has repeatedly crossed the line while never acknowledging
its own mistakes. Rather than stepping back to address the flaws that
resulted in the Supreme Court's ``Hamdan vs, Rumsfeld'' decision, the
administration and the Republican Majority continue to charge forward
with more of the same. Congress can and must do better.
Mr. SHAYS. Mr. Speaker, although I have some reservations, I support
this legislation and appreciate it being brought up for consideration.
On June 29, 2006, the Supreme Court ruled 5-3 in the case of Hamdan
v. Rumsfeld that the Bush administration lacked the authority to take
the ``extraordinary measure'' of scheduling special military trials for
inmates, in which defendants have fewer legal protections than in
civilian U.S. courts. Supreme Court Justice John Paul Stevens
recommended Congress authorize a trial system closely based on our
military's court-martial process. I am pleased that is what we are
doing today.
It is a testament to our system of government that the highest court
has given us guidance in properly administering justice to these
terrorism suspects. We should bring detainees to trial with protections
similar to military courts. This will guarantee the trials are honest,
fair and impartiaI and that justice is done.
I recognize there are certain areas in which the tribunal system we
are authorizing must deviate from a traditional court-martial and in my
judgment this bill handles those differences in a fair and just manner.
On September 19, 2006, along with several of my Republican
colleagues, I wrote to Majority Leader Boehner urging him to bring a
bill to the floor that ensures the United States remains fully
committed to the Geneva Convention. In our judgment, the bill
considered by the Senate Armed Services Committee was a good bill, and
I am grateful the bill before the House was modified to closely reflect
the provisions in the Senate.
The legislation could have be more explicit in stating the so-called
enhanced or harsh techniques that have been implemented in the past by
the CIA may not be used under any U.S. law or order. The bill provides
the President with some latitude to define what techniques may be used
in accordance with the prohibition against cruel, inhuman and degrading
treatment.
When I read the language in this bill--and specifically the
definitions of cruel, inhumane and degrading treatment--I believe any
reasonable person would conclude that all of those techniques would
still be criminal offenses under the War Crimes Act because they
clearly cause ``serious mental and physical suffering.''
I am also concerned about the bill's definition of rape, and of
sexual assault or abuse under a section delineating what crimes may be
prosecuted before military tribunals if committed by an enemy combatant
or if committed by an American against a detainee. The narrow
definition in this bill leaves out other acts, as well as the notion
that sex without consent is also rape, as defined by numerous state
laws and federal law.
For these reasons, I am voting for the Democrat Motion to Recommit
the bill to require a reauthorization of this legislation and also to
request expedited judicial review.
Mr. LEVIN. Mr. Speaker, I regret that once again the Republican
Leadership has chosen to stampede far-reaching legislation through the
House without adequate debate or any opportunity for Members to offer
amendments. It has been 5 years since the 9/11 attacks, and it is only
now that Congress is taking up legislation to try and punish terrorist
suspects. The 96-page bill before the House was negotiated in secret
last weekend and only introduced less than 48 hours ago. After waiting
5 years, can't we take even 5 days to consider a bill of this
magnitude?
This Nation's security requires that terrorists must be caught,
convicted and punished, and we need a process to do this. It is not
clear to me how the proponents of this bill can claim that they are
being tough on terrorists when it is almost certain that this
legislation will not withstand constitutional scrutiny by the Supreme
Court. The bill before the House bars detainees from filing habeas
corpus suits challenging their detention. Under the bill, a person can
be labeled an unlawful enemy combatant and detained indefinitely with
no judicial view. This will not pass constitutional muster. Habeas
corpus isn't about giving special rights to terrorists, as some have
claimed; rather, it is about giving people who are accused of serious
crimes an opportunity to disprove the charges against them.
I am also concerned that this legislation gives the President the
authority to reinterpret the meaning and application of Common Article
3 of the Geneva Conventions. Especially given the well documented
abuses of prisoners held at Abu Ghraib and Guantanamo Bay, we need to
be clear that the United States will rigorously comply with its
international obligations under the Geneva Conventions. This is
important both to reinforce our Nation's moral standing in the world
and to protect the men and women of our Armed Forces. If a U.S. soldier
is held prisoner by another nation, we expect that they will enjoy the
full protections of the Geneva Conventions, not some watered-down
interpretation.
It is the job of Congress to pass legislation to try and punish
terrorists. That legislation must protect our men and women in uniform
from erosion of the Geneva Conventions, and the legislation must be
tough, fair and able to withstand constitutional challenge. The bill
before the House meets none of these standards, and I urge my
colleagues to reject it. Rather than rush through such a fundamentally
flawed bill, the House should remain in session and do the job right.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong opposition to
H.R. 6166, the Military Commissions Act of 2006. I oppose the bill
because it creates an unfair trial system for military detainees, and
does almost nothing to curb the President's power to authorize
interrogation tactics that are widely recognized as torture.
Mr. Speaker, this so-called compromise bill, is actually nearly
identical to what the administration has sought all along. The bill
continues to allow secret evidence in trials, prohibits detainees from
challenging the merits of their detention in courts, and effectively
allows the President to authorize the CIA to continue inhumane
detention and interrogation.
The Supreme Court ruled in the Hamdan v. Rumsfeld case that the
President's system to try terrorist suspects is unlawful. All of us
here and Americans everywhere want to see al Qaeda fighters tried and
convicted for their crimes. The measure the House is considering,
however, does not go far enough to ensure that military trials will be
conducted in a fair and open fashion. For instance, the bill still
allows certain classified evidence to be kept secret from defendants,
giving them access only to evidence with large redacted portions. And
it still permits certain cases under which a military judge could allow
a trial in absentia. Perhaps most egregiously, the measure actually
blocks the ability of innocent detainees to challenge the validity of
their detention in an independent judicial tribunal because the bill
denies the right of detainees to bring a habeas corpus action.
Mr. Speaker, habeas corpus is not ``special treatment for
terrorists,'' as proponents of the measure claim. Rather, it is a legal
procedure that has the power to exonerate innocent detainees--not
terrorists--who have been imprisoned and not brought to trial. Indeed,
the writ of habeas corpus is the bedrock of the rule of law and traces
its heritage back to the signing of the Magna Carta in 1215 A.D.
Denying habeas corpus review for detainees in U.S. custody is simply
another unwarranted attempt by the Executive branch to arrogate powers
vested by the Constitution in the Federal judiciary. If the bill before
us becomes law, the administration could pick and choose not only who
could be tried, but could hold them in prison indefinitely with no
possibility of judicial review.

[[Page H7554]]

Although the bill does not technically redefine the Geneva
Conventions, the measure does nothing to curb the power of an executive
branch, like the current one, with a track record of abusing the human
rights of secret military detainees. The bill states that the President
has the `` authority to interpret the meaning and application of the
Geneva Conventions,'' and could do so through executive orders. There
is no question that President Bush fully intends to authorize the CIA
to continue what it euphemistically refers to as ``alternative
interrogation techniques.''
We know now that most of these interrogations using ``alternative
techniques'' have occurred in secret ``black site'' prisons in Eastern
Europe and other foreign lands in clear and direct violation of Common
Article 3, which prohibits signatories from inflicting ``cruel
treatment and torture'' and ``humiliating and degrading treatment''
upon individuals who are not actively engaging in combat, including
soldiers who have surrendered or been arrested and become prisoners of
war.

The bill may technically skirt the issue of America's conduct under
the Geneva Conventions. But if American personnel blithely toss aside
our international treaty obligations to uphold standards in the
detention and interrogation of wartime prisoners, America will alienate
our long-time allies who are crucial partners in the fight against
terrorism. If America whisks people from the streets into secret
detention facilities, and then uses secret evidence to convict them in
special courts, it will do more to embolden our enemies than any
extremist jihad web site ever could.
Mr. Speaker, this is far too serious an issue to be used as a script
for the mud-slinging commercials of campaign season. The very fact that
the House is considering such legislation shows that Congress has not
been exercising adequate authority over an arrogant and overbearing
executive branch. There is a great need for a system to try suspected
terrorists, both for the sake of the families of the victims of the
September 11 attacks and for the sake of our American men and women
fighting overseas. But the bill before the House--despite being labeled
as a ``compromise''--fails to provide truly open trials and does not
even allow innocent detainees to challenge their imprisonment. It is
just another opportunity to rubber-stamp the President's ill-advised
plan, and should be defeated.
Mr. Speaker, in the final analysis, the debate today is not about the
terrorists or America's enemies; it is about the character of our
country. It is not about them; it is about us. It is not about the
terrorists; it is about who we are. We are the United States of
America. We fight hard but we fight fair. We fight to defend our
families, our friends, the powerless and unprotected. We fight to
preserve our way of life and the ideas we believe in. And here is what
we believe:
We believe in equal justice under law.
We believe in the dignity of the human being.
We believe in fair play and square dealing.
We believe in opportunity for all, responsibility from all, and
community of all.
We believe in personal liberty and the public interest.
We believe in freedom of conscience and worship.
Mr. Speaker, the Global War on Terror is not just a battle of arms,
though arms we need. It is also a battle of ideas over how we should
live. If we jettison the principles bequeathed us by our forebears to
gain a temporary and fleeting advantage over our enemies, then we will
succeed in doing something no adversary ever could do and that is to
defeat ourselves.
Mr. Speaker, we do not need to surrender our cherished beliefs,
values, and liberties to prevail against our enemies. We need only
conduct our affairs by the principles of honor and freedom that have
made this nation the strongest, most powerful, and most admired nation
in the history of the world.
I urge my colleagues to reject this ill-conceived and unwise
legislation.
Mr. PAUL. Mr. Speaker, I rise in strongest opposition to this ill-
conceived legislation. Once again, the House of Representatives is
abrogating its Constitutional obligations and relinquishing its
authority to the executive branch of government.
Mr. Speaker, this legislation will fundamentally change our country.
It will establish a system whereby the President of the United States
can determine unilaterally that an individual is an ``unlawful enemy
combatant'' and subject to detention without access to court appeal.
What is most troubling is that nothing in the bill would prevent a
United States citizen from being named an ``enemy combatant'' by the
President and thus possibly subject to indefinite detention. Congress
is making an enormous mistake in allowing such power to be concentrated
in one person.
Additionally, the bill gives the President the exclusive authority to
interpret parts of the Geneva Convention relating to treatment of
detainees, to determine what does and does not constitute a violation
of that Convention. The President's decision on this matter would not
be reviewable by either the legislative or judicial branch of
government. This provision has implications not only for the current
administration, but especially for any administration, Republican or
Democrat, that may come to power in the future.
This legislation eliminates habeas corpus for alien unlawful enemy
combatants detained under this act. Those thus named by the President
will have no access to the courts to dispute the determination and
detention. We have already seen numerous examples of individuals
detained by mistake, who were not involved in terrorism or anti-
American activities. This legislation will deny such individuals the
right to challenge their detention in the court. Certainly we need to
prosecute those who have committed crimes against the United States,
but we also need to be sure that those we detain are legitimately
suspect.
I am also concerned that sections in this bill dealing with
protection of U.S. personnel from prosecution for war crimes and
detainee abuse offenses are retroactively applied to as far back as
1997.
Mr. Speaker, this bill will leave the men and women of our military
and intelligence services much more vulnerable overseas, which is one
reason many career military and intelligence personnel oppose it. We
have agreed to recognize the Geneva Convention because it is a very
good guarantee that our enemy will do likewise when U.S. soldiers are
captured. It is in our own interest to adhere to these provisions.
Unilaterally changing the terms of how we treat those captured in
battle will signal to our enemies that they may do the same.
Additionally, scores of Americans working overseas as aid workers or
missionaries who may provide humanitarian assistance may well be
vulnerable to being named ``unlawful combatants'' by foreign
governments should those countries adopt the criteria we are adopting
here. Should aid workers assist groups out of favor or struggling
against repressive regimes overseas, those regimes could well deem our
own citizens ``unlawful combatants.'' It is a dangerous precedent we
are setting.
Mr. Speaker, we must seek out, detain, try, and punish if found
guilty anyone who seeks to attack the United States. We in Congress
have an obligation to pass legislation that ensures that process will
go forward. What Congress has done in this bill, though, is to tell the
President ``you take charge of this, we reject our Constitutional
duties.'' I urge my colleagues to reject this ill-conceived piece of
legislation.
Mr. CARDIN. Mr. Speaker, Congress has an obligation under the
Constitution to enact legislation that creates fair trials for accused
terrorists that will be upheld by the courts. We also have an
obligation to protect our troops that fall into enemy hands, and to
uphold American values and the rule of law. Finally, even during
wartime, the President must work with Congress and the courts to uphold
our Constitution. In June, the Supreme Court in Hamdan v. Rumsfeld
struck down the President's military commissions, since they violated
the Uniform Code of Military Justice and the Geneva Conventions. The
Court noted that Congress, not the president, has the authority under
Article I, Section 8 of the Constitution to ``define and punish
piracies and felonies committed on the high seas, and offenses against
the law of nations.''
I strongly support our government's efforts to isolate, track down,
and ultimately kill or capture suspected terrorists who are planning
terrorist attacks against the United States. We must bring these
terrorists to justice swiftly. We must also strengthen our efforts to
protect the homeland by providing additional resources to law
enforcement and emergency services personnel who are charged with
disrupting and responding to a terrorist attack in the United States.
As a former member of the Homeland Security Committee, I have fought
hard to implement the recommendations of the 9/11 Commission and to
distribute our homeland security funds on the basis of actual threats
and vulnerabilities.
I am therefore extremely disappointed, Mr. Speaker, that the House
leadership failed to reach out to members on both sides of the aisle in
crafting this legislation. We should heed the warning given by our
former Chairman of the Joint Chiefs of Staff and former Secretary of
State Colin Powell, who states that ``the world is beginning to doubt
the moral basis of our fight against terrorism.''
The 9/11 Commission recommended that ``the United States should
engage its friends to develop a common coalition approach toward the
detention and humane treatment of captured terrorists. New principles
might draw upon Article 3 of the Geneva Conventions . . . Allegations
that the United States abused prisoners in its custody make it harder
to build the diplomatic, political, and military alliances the [U.S.]
government will need.'' This legislation today undermines the
protections of the Geneva Convention, and by weakening our moral
authority makes it harder for us to work

[[Page H7555]]

with allies to win the war on terrorism and protect Americans.
I share the concerns of the many current and former military officers
that testified to Congress that any weakening of these protections will
place American soldiers at risk if they are captured overseas. I am
pleased that last December Congress adopted Senator McCain's
legislation and outlawed the use of torture, and cruel, inhuman or
degrading treatment by U.S. personnel, which would endanger the
treatment of our American soldiers overseas. I am disappointed,
therefore, that this legislation allows the use of statements obtained
by some this prohibited behavior to be admissible in court.
Finally, this legislation eliminates the fundamental legal right of
habeas corpus, which would permit our government to hold detainees
indefinitely without charge, trial, or the right to an independent
hearing to weigh the evidence against the accused terrorist.
We must join with our allies to win the war on terrorism and bring
terrorists to justice. Our Constitution contains the very values we
hold dear and that makes us proud to be Americans, and which motivate
our soldiers to lay down their lives in defense of this country. I have
sworn to uphold and defend our Constitution and to protect our
democracy. This legislation takes a step backward, is inconsistent with
the rule of law, and will make it harder to work with our allies to
build an effective coalition to defeat terrorism. I therefore will vote
against this legislation.
Five years after the 9/11 attacks, it is inexcusable that not a
single one of the terrorists who planned the 9/11 attacks has been
brought to trial. I am hopeful that the Senate will improve this
legislation as Congress continues to discharge its constitutional duty
to create military commissions that are consistent with the rule of law
and that will result in convictions of terrorists that will be upheld
by our courts.
Mr. LANTOS. Mr. Speaker, we are embarking on a debate of
extraordinary importance to the Nation and to our success on the war on
terrorism. It is centered on a fundamental issue of concern to anyone
who cares about human rights--and there are still many of us,
thankfully.
So this should be a debate about ideas, and there should be full and
complete deliberation.
Unfortunately, because of an arrogant White House and a Republican
Leadership in this House that has simply bowed to the Executive's
will--as it has so many times before--we have once again made the
consideration of a critical legislative initiative a charade, a debate
being conducted with undue haste and without any serious consideration.
Mr. Speaker, since September 11, 2001, one of the most vexing
problems that has faced our country in the struggle against the forces
of nihilism and extremism is our approach to those who come into our
custody because we believe they are a danger to the United States. We
have seen unclear policy and muddy thinking leading to cruel treatment
of those in U.S. custody, with some conduct even amounting, in the view
of the former General Counsel to Department of the Navy under this
Administration, to be torture. Finally, last June the Supreme Court
ruled that the Administration's unilateral set of rules for trying
terrorist suspects was unlawful.
Let us make no mistake about it--our treatment of detainees and our
failure to come up with a joint approach with our allies has damaged
our ability to prosecute successfully the war on terrorism. It has
endangered our troops by setting standards for others that I believe we
will deeply regret. It has impeded our ability to work with many of our
allies who have a different view from this Administration on the
obligations of the Geneva Convention, one that has since been adopted
by our own Supreme Court. It has undermined our legitimacy worldwide
and been a recruiting tool for our enemies.
The legislation before us should be an effort to address these
problems, and in some ways it has. It establishes a better framework
for trying detainees than the one established by the Administration.
And by keeping it a crime to engage in serious physical abuse against
detainees, it prohibits the worst of the abuses that we have seen,
including those that are also banned by the Army's new Field Manual on
interrogation, including forcing the detainee to be naked, perform
sexual acts, or pose in a sexual manner; placing hoods or sacks over
the head of a detainee or using duct tape over the eyes; applying
beatings, electric shock, burns, or other forms of physical pain;
waterboarding; using working dogs during an interrogation; inducing
hypothermia or heat injury; conducting mock executions; depriving the
detainee of necessary food, water, sleep or medical care.
Unfortunately, Mr. Speaker, the legislation remains deeply flawed in
more ways than I have time to describe here. It prohibits any detainee
from ever raising the Geneva Conventions in any case before any court
or military commission, a provision that I fear will be used against
our own troops if they are ever captured by the enemy. It takes actions
against existing lawsuits and establishes a whole new system for
military appeals that is constitutionally suspect, will lead to even
more court cases, and could leave us five years from now with exactly
the same number of convictions we have under the existing military
tribunal system: zero. We should be trying to expedite trials of
terrorist suspects, not providing the basis for more delays. And,
acting directly against the recommendations of the bilateral 9-11
Commission, this legislation does not represent a joint approach with
our allies.
Mr. Speaker, nearly 60 years ago, I fled from a continent in ruins
from a war conducted without rules, marked by atrocities on a scale
that the world had never seen. Much of that continent was under a
dictatorship in Moscow that was bent on oppressing its citizens and
those under its dominance everywhere. So the issues presented by this
bill are more than a policy debate to me.
I am profoundly disappointed by what we are doing today. It does not
represent progress in protecting our troops and civilians who are
caught up in armed conflict. It represents a retreat.
The Geneva Conventions were meant to protect people like me and our
country's troops from the worst abuses of war. This country has always
stood for the upholding and supporting those protections and expanding
them whenever we could, in our national interest.
We should not be rushing legislation through now, just before an
election, when we know it won't be needed for many months. We should
not be considering a bill that is substantially different from the one
that has been already put through our Committees. And we should not be
debating legislation without any chance of presenting our individual
ideas for improving it.
But here we are. Under these circumstances, I oppose this legislation
and fully expect to be back debating these issues when the Supreme
Court overturns this ill-advised legislation.
Mr. NADLER. Mr. Speaker, this is how a nation that has become fearful
loses its moral compass, its identity, its values, and, ultimately, its
freedom.
It is ironic that the people who use the word freedom with reckless
abandon, in everything from fries to a global vision, should come
before the American people today advocating for the suspension of
habeas corpus, secret Star Chamber tribunals, unlimited detention
without review and, yes, torture.
I know, we've been told it's not really torture, but I am sickened by
the quibbling, legalistic hair splitting on something so basic to our
nation's fundamental values.
Have you forgotten? We are America.
Let me say that again: we are the United States of America.
We have stood as a beacon to the world. People have aspired to our
way of life, our values, our example, our leadership.
We are told that our enemies do not respect the rules of war or the
rights of their captives, but do you really believe that ``somewhat
better than al Qaeda'' is how we should measure our conduct? I don't.
And now, with scant deliberation, in an election eve stampede, we are
urged to throwaway our values, our honor, our constitution, and our
standing in the world as if it were yesterday's newspaper.
Yes, we must be vigilant to keep our nation safe, but we must not
stand by while the honor and values of our nation are permanently
stained by this detestable legislation. It is beneath us. It is not
what we stand for.
Benjamin Franklin once said ``they that can give up essential liberty
to obtain a little temporary safety deserve neither liberty nor
safety.'' He was right.
Perhaps if this administration had the minimal competence necessary
to make us safe, we might have a debate about the wisdom of Franklin's
and the Founders' commitment to liberty. But this administration has
demonstrated beyond any doubt that it is not our values that place us
at risk, but its own incompetence, and the willingness of a rubber-
stamp Republican Congress to follow the President over any cliff.
What are we being asked to do here, and why are we being asked to
rush to judgement?
There are many infamies in this bill, as others have pointed out. I
will concentrate on just one.
This bill would allow the President, or any future President, to grab
someone off a street comer in the United States, or anywhere else in
the world, and hold them forever, without any court review, without
having to charge them, without ever having to justify their
imprisonment to anyone.
This bill is flatly unconstitutional, for it repeals the Great Writ--
Habeas Corpus. Not a statutory writ, but the Constitutional Great Writ.
Read the bill. I know we're not supposed to do that in the Republican
Congress, but, just

[[Page H7556]]

this once, for the sake of our nation, please read the bill.
Turn to page 93.

No court, justice, or judge shall have jurisdiction to hear
or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such
determination.

``Awaiting such determination?'' That says it all. Nowhere in this
new law is there any time limit for making this determination. In fact,
it could be never.
We are told that these procedures are only for those who the
President has called ``the worst of the worst.''
How do we know they are the worst of the worst? Because the President
says so, and the President, and federal bureaucrats, as we know, are
never wrong.
Some people held as ``unlawful enemy combatants'' may be put before a
military tribunal, but they need not be. They can be held forever
without any hearing.
A person designated as an ``unlawful enemy combatant'' can challenge
his detention only if he is brought before a military commission, or a
Combat Status Review Tribunal, and only after the military commission
and all the appellate procedures are finished. Then he can appeal to
the D.C. Circuit, but only to review the legal procedures. The court
can never look at the facts. That's on page 56.
So, let's review:
The government can snatch anyone who is not a U.S. citizen, anywhere
in the world, including on the streets of this city, whether or not
they are in a combat situation, whether or not they are actually doing
anything, and detain them forever, out of reach of our constitution,
our laws, and our courts.
It also says that a court can never review the conditions of
detention, which is an elegant way of saying no court can hear a claim
that the detainee was tortured. Ever.
Who is subject to these rules? Well the President wants you to think
this is only about Khalid Sheikh Mohammed. Bad guy. Dangerous guy.
Deserves to be locked up. We all agree on that one.
But it could also mean a lawful permanent resident. Someone like my
grandmother while she was waiting to become a loyal American citizen,
which she did, and which is why I am fortunate enough to have been born
in this great country. It would apply to the relatives of anyone in
this room who is not a Native American.
We rebelled against King George III for far lesser infringements of
our liberties than this. This bill makes the President a dictator--for
the power to order people jailed forever without being subject to any
judicial review is the very definition of dictatorial power.
The President wants to live in a law-free zone. He does not want to
be bound by the law of war or by our treaty obligations. He does not
want to be answer to our Constitution, to the Congress or to the
Courts.
If someone is in this country and he commits a crime, we have laws to
stop him and lock him up. If those laws, including the Classified
Information Procedures Act, don't work, we can improve them. That's how
we put Zacarias Moussaoui in jail. Anyone remember the 11th hijacker?
We caught him, tried him in a regular court, and now he's in jail.
Perhaps if this administration hadn't been asleep at the switch, we
might have caught him before September 11th, and saved our nation from
that terrible crime.
We could also hold people as prisoners of war if we catch them on the
battlefield. That's worked pretty well in all our wars.
We can set up new rules that actually sort out the bad guys from the
people we just grabbed, or who were sold to us by a rival group, as
happened in Afghanistan. We already know that some of the people in
Guantanamo have been there for years for nothing. Some of them have
been released and some of them are still there. How does that make us
safer?
And then there's torture. When is torture not torture? Apparently
whenever the President and his team of legal scholars says it isn't.
This bill would write that dangerous practice into law.
It would also allow statements extracted under torture to be used as
evidence. See page 17 of the bill.
Is it really hard, as the President and some members of Congress say,
to understand the difference between legal interrogation and illegal
torture? The people who wrote the Army Field Manual, and the people who
train our troops, have never thought so. It only became a question when
this President decided he was above the law.
Now the President wants to have us grant him immunity, in advance,
for whatever he might have ordered. That's a neat trick, and it's in
this bill.
Mr. Speaker, rarely in the life of a nation is the question so stark.
Are we going to rush this complete repudiation of all we stand for
through the Congress to give the Republicans an election issue? I hope
we are not as cynical as some here seem to think we are.
There is nothing we are doing today that we can't do properly with
some care and deliberation. There is no danger that someone is going to
be released from custody. This administration has certainly fiddled for
the last few years without accomplishing anything.
Perhaps, just perhaps, this time we can do it right. Let's try.
That's the oath we took when we became members of this House. That's
the responsibility we have today.
Mr. GEORGE MILLER of California. Mr. Speaker, all Members of Congress
support the effort to thwart international terrorism and make Americans
safe. But there are right ways and wrong ways to carry out that
critical effort. The military commissions bill before us today is the
wrong way, and I urge my colleagues to vote against it.
The Geneva Convention protects Americans everywhere. Congress should
not alter our international obligations in an election-year rush
ordered by Karl Rove's partisan strategy shop.
We cannot use international law to justify America's actions when it
suits our purposes and ignore it when it does not.
America has given its word to the rest of the world that we win abide
by the Geneva Conventions.
Redefining our interpretation of the Geneva Convention is a slippery
slope. Consider the words of the Navy's own Judge Advocate General, who
testified to Congress on the possible implications of altering
America's commitment to the Geneva conventions:
``I would be very concerned about other nations looking in on the
United States and making a determination that, if it's good enough for
the United States, it's good enough for us, and perhaps doing a lot of
damage and harm internationally if one of our servicemen or
servicewomen were taken and held as a detainee.''
Beyond military personnel, the Geneva Conventions also protect those
not in uniform--special forces personnel, diplomatic personnel, CIA
agents, contractors, journalists, missionaries, relief workers and all
other civilians. Changing our commitment to this treaty could endanger
them, as well.
In addition to my concerns about our commitment to the Geneva
Conventions, there is a real possibility that this bill will not stand
up to judicial scrutiny. The Supreme Court in ``Rasul v. Bush'' decided
that detainees have habeas corpus rights. And well established case law
lays out that legislation depriving federal courts of jurisdiction does
not effect currently pending cases. And nine former federal judges
recently wrote:
``Congress would thus be skating on thin constitutional ice in
depriving the federal courts of their power to hear the cases of
Guantanamo detainees. . . . If one goal of the provision is to bring
these cases to a speedy conclusion, we can assure you from our
considerable experience that eliminating habeas would be
counterproductive.''
Sacrificing our principles makes us neither safe nor free. In fact,
there is some evidence that sacrificing our principles in this bill may
make us less safe.
Just yesterday, the President declassified portions of a National
Intelligence Estimate--or NTE--which, news accounts say, details that
U.S. foreign policy in Iraq and elsewhere has increased the spread of
terrorism, making America less safe.
One of the key reasons outlined in the NTE for this conclusion was
that, entrenched grievances of injustice help create an anti-U.S.
sentiment among Muslims that terrorist groups exploit to recruit new
members and grow the jihadist movement--the images of and stories about
detainee abuse at Abu Ghraib; the unexplained death of prisoners at the
Bagram Collection Point in Afghanistan; the denial of habeas corpus
rights to detainees at Guantanamo bay; the use of extraordinary
rendition to kidnap suspected enemies of the state anywhere in the
world; and secret CIA prisons.
These incidents have all helped spread anti-U.S. sentient around the
world. This has alienated us from friends and allies and added to the
list of grievances terrorist groups like al Qaeda use to recruit new
jihadists.
The President should have the best possible intelligence to prevent
future terrorist attacks on the United States and our allies. And those
responsible for 9/11 and other terrorist acts should be brought to
justice, tried, and punished accordingly, and their convictions should
be upheld by our courts.
Sadly, this legislation does not accomplish any of those things. For
that reason, I encourage my colleague to vote against its passage.
Mr. CROWLEY. Mr. Speaker, I have lost faith in this Republican
controlled Congress. The Congress is no longer about doing what is
right for out country.
My colleagues on the other side of the aisle care more about giving
the President what he wants then what is in the best interests of the
people we are here to represent.
And in case my friends don't read, the country does not have a very
high opinion of this Congress and the rest of our government.

[[Page H7557]]

This Congress granted an excessive amount of executive power to the
President to wage his war on terror with no oversight.
That excessive power brought us to our present day problems and this
President is unwilling to fix these problems or even admit they exist.
We must reclaim our Constitutional authority and bring America back
to the moral high ground.
Regardless of how we feel about detainees, we must treat them
humanely and in accordance with our rule of law and the Geneva
Conventions.
The example set by the United States is the example given to our own
soldiers in the field.
These terrorists are vicious murderers, I know firsthand because they
killed my cousin on 9/11, but my values as an American are what keeps
those hatreds in check.
I find it amazing that the man who campaigned on bringing values back
to the Oval office has lead the perception of our nation to an all time
low.
Torture and harsh interrogation techniques are not my values and are
not those of the American people.
We must lead by example on these issues, not be an evasive quasi
participant.
Our soldiers are abroad fighting a battle our President has not
allowed them to win because of his continued mismanagement of all
aspects of the war.
The National Intelligence Estimate done by our 16 intelligence
agencies flat out says that the war in Iraq has actually invigorated
the growth of terrorism and worsened the threat around the globe.
We diverted all our attention from Afghanistan where the terrorists
actually are and invaded Iraq on false statements and scare tactics.
This Administration with the help of the Republican controlled
Congress has continued to stay on the wrong course.
Today, we could have had an opportunity to fix ones of those
mistakes, but we are ignoring the respect for due process and denying
Habeas Corpus to detainees.
This bill disregards the Hamdan decision, which stated that it should
be a requirement of a ``regularly recognized constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized people.''
As civilized people we must respect our laws, without the rule of law
we would have chaos.
The Bush Administration still refuses to explain why we even need a
different judicial system for accused terrorists.
We must take the back the moral high ground in Congress just like
many of our military leaders on the ground threw out the Department of
Defenses recommendations on interrogation and instead decided to
strictly follow the Geneva Conventions.
We should be following the advice of our military who truly
understand what the Geneva Conventions mean, not the civilian
leadership who stay out of harms way.
The President wants this Congress to bend the rules of our laws and
the Geneva Conventions, a document that has protected our soldiers
abroad since its inception.
I ask my colleagues, are you prepared to bend those laws that have
governed us so successfully so the President can have the power to
allow the harsh interrogations tactics and detention of detainees who
mayor may not be terrorists.
We need to regain our stature as a world leader.
I hate these terrorists and I believe they should be punished,
punished for the murder of my cousin on 9/11.
But they should be punished under the rule of law.
I pray this Congress will lead by example and not follow the example
of the terrorists.
Mr. STARK. Mr. Speaker, I rise to defend American values.
The Military Commissions Act--H.R. 6166--continues Republicans'
despotic assault on the Constitution. It denies detainees held abroad
the fundamental right of habeas corpus, which has for centuries
protected against unjust government imprisonment. It limits protections
against detainee mistreatment, sanctioning ``alternative procedures''
of interrogation that amount to cruel and unusual punishment. It denies
people the opportunity to confront the evidence used against them--even
if that evidence is obtained through coercive and inhumane practices.
It strips our courts of the jurisdiction to review cases--including
those already pending--concerning detainee abuse.
Some call this legislation a ``compromise.'' I call it a
capitulation. No sooner had the ink dried on this deal than the Bush
administration declared that the CIA's program of secret detention and
interrogation could and would continue. That should come as no
surprise. Though this bill does not explicitly redefine our obligations
under the Geneva Conventions, it permits the President to ``interpret
the meaning and application'' of our historic commitment to the
international community--and theirs to us.
Make no mistake, our disregard for international law imperils the
safety and security of our men and women in uniform. Our denial of due
process to detainees invites foreign states and organizations to
indefinitely imprison and interrogate our soldiers. Our insistence on
defining detainees as ``enemy combatants'' undeserving of legal
protections encourages our adversaries to deny these very same
protections to American prisoners. Provided, of course, we haven't
already done so ourselves: This legislation allows the Government to
declare not only foreigners, but also U.S. citizens, ``enemy
combatants'' and arrest and hold them indefinitely.
This legislation further confirms that Republicans in Congress are no
more interested in fundamental human rights than is President Bush and
his administration. I urge my colleagues to vote ``no.''
Mr. CLEAVER. Mr. Speaker, I was unable to personally cast votes today
because I was attending a memorial service for SFC Michael Fuga.
Sergeant Fuga was killed September 9, 2006 in Kandahar, Afghanistan.
Sgt. Fuga was assigned to the Missouri National Guard's 35th Special
Troops Battalion based in St. Joseph, MO. He and his family made
Independence, in the district I am proud to serve, their home. Sgt.
Fuga was 47 and had spent 28 years of his life in the Army. At the time
of his death, he was training Afghan armed forces to help bring peace
and stability to a nation that has known neither for decades.
SGM James Schulte, who was in charge of Sergeant Fuga's deployment
said, ``He was a true patriot and a great family man. I am truly
honored to have known and served with him.'' We should all be so lucky
to have something like that be said of us when we are gone.
Sergeant Fuga volunteered to extend his time in Afghanistan because,
his family says, he was committed to defeating those who attacked our
Nation 5 years ago this week. Each day we are blessed to live under the
freedoms which Sergeant Fuga and his colleagues in the Armed Forces so
bravely serve to protect and ensure.
Sergeant Fuga leaves behind his wife and 12-year-old daughter.
I do not take the decision to miss votes lightly, but hope I can
provide Sergeant Fuga's family some comfort on what will be a difficult
night.
Today, the House of Representatives debated and voted on H.R. 6166--
Military Commissions Act.
Republicans tried to paint those who were not in favor of the bill as
being soft on bringing terrorists to justice and meting out just
punishment. They implied that those who were not in favor of the
measure were trivializing the heinous crimes perpetrated against
American citizens and service members.
They refused to allow an open debate by suppressing thoughtful and
germane amendments designed to strengthen the intent of the
legislation. Once again they rushed through a piece of bad legislation
written to appease an administration stubbornly determined on doling
out justice as it sees fit. I am disheartened by the lack of importance
this administration places on human rights, on due process, and on
upholding the Constitution of these United States.
Mr. LANGEVIN. Mr. Speaker, I rise in opposition to H.R. 6166 and am
deeply disappointed that Congress has missed an opportunity to act in a
bipartisan manner to prosecute those who would do harm to Americans,
while ensuring that such efforts would withstand legal scrutiny.
In June, the Supreme Court ruled in Hamdan v. Rumsfeld that President
Bush exceeded his authority by establishing military commissions to try
detainees in the global war on terrorism without explicit congressional
approval. That decision presented Congress with an important
opportunity to develop a proposal to try some of the world's most
dangerous people and to provide swift justice to those who engaged in
horrendous acts against our Nation. Unfortunately, instead of
proceeding in a bipartisan manner to craft legislation that enjoys the
full confidence of this body, Congress is faced with a proposal
negotiated exclusively by Republicans and whose actual effectiveness in
prosecuting terrorists remains in question.
After the Hamdan decision, the House Armed Services Committee held
numerous hearings on how Congress should respond, and I commend the
chairman for his efforts to ensure that committee members learned the
complexities of this topic.
One constant theme we heard from the witnesses testifying was that
Congress should ensure that any system established to try military
detainees followed existing legal procedures to the greatest extent
practicable.
On that point, let us be clear. Despite the mischaracterizations of
some Members on the floor today, no one has recommended giving
terrorists the same rights as criminals or members of our Armed Forces.
Everyone recognizes that many of these detainees are dangerous people,
and we agree that the judicial

[[Page H7558]]

system used to try them must reflect the complexities of prosecuting
enemy combatants in the midst of an ongoing war. What the legal experts
did counsel, though, was that if military commissions did not include
basic, broadly accepted principles of jurisprudence, the commissions
could be subject to legal challenge.
Unfortunately, we have no idea if the legislation before us will
withstand such scrutiny because the commissions it would establish vary
significantly from other accepted forms of tribunals that have been
used to prosecute crimes in times of war.
I hope that this legislation does ultimately pass constitutional
muster, because it would be a devastating blow to our efforts to combat
global terrorism if the conviction of a terrorist were overturned on a
legal challenge. However, because I am not confident that the
legislation will be upheld, I must oppose it.
The other overarching concern I have with this measure is the impact
it will have on the United States' obligations under the Geneva
Conventions. The legislation would give the President broad authority
to interpret U.S. compliance with the Geneva Conventions and would
create confusion about which practices would be prohibited. The Supreme
Court specifically stated in Hamdan that basic protections of the
Geneva Conventions' Common Article 3 apply to detainees, but the
legislation actually complicates compliance with Common Article 3 by
creating new definitions of offenses that do not comport with
international law. Unfortunately, this change could endanger our own
men and women in uniform by encouraging other nations to redefine how
they treat captured prisoners. We would not want other nations to offer
anything other than full Geneva protections to our own troops, and we
must therefore respect the concept of reciprocity on which the
Conventions were established.

As Colin Powell noted, respecting the Geneva Conventions not only
protects our own servicemembers, but it affirms our commitment to
international standards of law and justice at a time when our moral
authority in the global war on terrorism is increasingly being
questioned.
I am deeply disappointed that, on a matter of such importance to the
American people, Congress did not act in a careful and bipartisan
fashion to establish a system of military commissions that can protect
the American people and withstand legal scrutiny. Instead, the
leadership is forcing this measure through the House while ignoring
some very valid concerns. I simply ask where their sense of urgency was
nearly 5 years ago when the President established military tribunals
without congressional input.
Some of my Democratic colleagues have argued for years that we need
greater congressional involvement in the justice system for military
detainees, but those appeals were ignored. Once again, Congress has
abdicated its constitutional oversight responsibility for too long and,
when finally forced to act, has chosen partisanship over sound policy.
I urge my colleagues to oppose this measure so that we can craft an
alternative that is tough on terrorists while meeting our legal and
international obligations.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1042, the previous question is ordered
on the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.

Motion to Recommit Offered by Mr. Skelton

Mr. SKELTON. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. SKELTON. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Skelton moves to recommit the bill H.R. 6166 to the
Committee on Armed Services with instructions to report the
same back to the House forthwith with the following
amendment:
At the end of the bill, add the following new sections:

SEC. 11. EXPEDITED JUDICIAL REVIEW.

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
this Act, or any amendment made by this 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. 12. REAUTHORIZATION REQUIRED.

(a) Military Commissions.--No military commission may be
convened under chapter 47A of title 10, United States Code,
as added by this Act, after December 31, 2009, except for
trial for an offense with respect to which charges and
specifications against the accused are sworn under section
948q(a) of that title before that date.
(b) Treaty Obligations.--Effective on December 31, 2009--
(1) sections 5, 6(a), and 6(c) of this Act shall cease to
be in effect; and
(2) section 2441 of title 18, United States Code, is
amended--
(A) in subsection (c), by striking the text of paragraph
(3) and inserting the text of that paragraph as in effect on
the day before the date of the enactment of this Act; and
(B) by striking subsection (d) (as added by section
6(b)(1)).

Mr. SKELTON (during the reading). Mr. Speaker, I ask unanimous
consent that the motion to recommit be considered as read and printed
in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Missouri?
There was no objection.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Missouri is recognized for 5 minutes in support of his motion.
Mr. SKELTON. Mr. Speaker, it is our obligation in this body to fix
the deficiencies in this system in order to bring terrorists to
justice. My motion to recommit with instructions would add two
important elements to the bill that address this basic concern. First,
it would require an expedited constitutional review of the entire
matter. That is what we need. Second, it would require reauthorization
of these military commissions after 3 years.
Expedited judicial review is a well-known way to improve legislation
for which legal challenges can be anticipated, and we can be sure that
the military commissions system created by this bill will be subject to
change. We can provide for expedited review of civil actions
challenging the legality of this act by creating a three-judge panel of
the D.C. District Court that would hear the actions. The U.S. Supreme
Court would then review a judgment or review an order of the panel on
an expedited basis.
This type of provision is routinely placed in novel legislation. It
was part of the McCain-Feingold campaign finance bill, part of the
Voting Rights Act, and part of the Communications Decency Act.
The motion to recommit would also require that Congress reauthorize
these military commissions after 3 years and would allow any action
before a military commission begun before 2010 to go forward, but it
would require an educated debate on reauthorizing this system after we
have had some real-world experience with this new judicial process.
There is ample precedent for requiring reauthorization for
controversial measures passed in a hurry in times of conflict. Most
recently, Mr. Speaker, the PATRIOT Act contained reauthorization, or
sunset, provisions. And taken together, Mr. Speaker, these two
provisions will significantly improve the flawed legislation that we
have before us today.
We need not only to be tough. We need to be certain. And my motion to
recommit would make this more certain that those despicable terrorists
would be brought to justice.
The SPEAKER pro tempore. Does the gentleman from California claim
time in opposition to the motion to recommit?
Mr. HUNTER. Yes, Mr. Speaker.
The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
Mr. HUNTER. Mr. Speaker, I do rise to oppose this motion.
First, let me thank my colleague, Mr. Skelton, an outstanding
gentleman and friend and a guy who cares about our country, and all the
folks

[[Page H7559]]

who have really worked this issue and participated in the hearings and
the briefings that we have had and the discussions with military
experts.
Let me tell you why I oppose this. First, Mr. Speaker, the Supreme
Court not only gave permission but invited the Congress to put together
this new system to try terrorists. And I want to direct my colleagues
to the opinion of Justice Breyer, where he said: ``Nothing prevents the
President from returning to Congress to seek the authority he believes
necessary.''
So the point is the Supreme Court has not only given us permission.
They have given us the obligation of putting this together. The
American people have given us the obligation of putting this together.
The idea that we are going to pass this legislation with an
uncertainty, with a lack of confidence, sending a message that somehow
we need two permissions, is, I think, exactly the wrong message to send
to the world.
And I just remind my colleague Mr. Skelton that when we had our
initial hearings and our initial markup, Mr. Skelton, you held up
Senator Graham in the Senate and Senator McCain as having the gold
standard with respect to this legislation and you offered their
legislation. Let me tell you that this legislation will be introduced
by them. The gentlemen that you said had the gold standard and judgment
on what is fair, they will be introducing this in the other body very
shortly.
So, my colleagues, this is not a time to seek a second permission
before we have passed the first legislation that actually sets into
force and effect this important structure with which to try terrorists.

{time} 1600

Let me just go to the second problem with what Mr. Skelton has. Mr.
Skelton has a sunset provision. This sunsets a very important part of
the bill. It sunsets the commission. So it says we have to go back and
redo it, that we don't have confidence in what we have done, and we
have to redo it after 3 years.
The other bad part about this motion to recommit is it sunsets
section 5 and section 6 which protect American troops. They say that
you cannot sue American troops under Geneva article 3. You can't sue
them civilly. Now that is a bad thing. That means that you would have,
if this sunset goes into place that Mr. Skeleton is asking for, that
you will have American troops exposed to civil suit by terrorists in
American courts for alleged violations of Geneva article 3.
It also does away with this distinction that we have made between
grave offenses under Geneva article 3. The real grave offenses, the
murder, the torture, all of those things, goes away with the cleavage
between that. And maybe an American female colonel interrogating a male
Muslim, and therefore being construed as having degraded him and his
culture by having an American female interrogate him, that distinction
between that and a bad offense would now be erased and American troops
would be exposed to civil liability and civil suits under Geneva
article 3.
I would just ask my colleagues, if you have confidence in what we
have done, and this has been a product of this body, of the other body,
and of the administration working night and day to put together a solid
package, if you have confidence in that, and you have confidence in
this list of rights that we have enumerated, that we give to the
defendants, that we give to the people who designed the attack on 9/11:
the right to counsel, the right to proof beyond a reasonable doubt, the
right to a secret vote in the jury so that a colonel cannot lean on a
lieutenant to get a guilty verdict, the right against self-
incrimination, all of the basic rights. If you look at that package of
rights and you think that is enough for the terrorists, then vote
``yes'' on this bill, vote ``no'' on this motion to recommit.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of
the Skelton motion to recommit with instructions to the Armed Services
Committee the bill H.R. 6166, the Military Commissions Act of 2006. I
support the Skelton motion because it provides for expedited judicial
review of the bill's constitutionality.
The need for expedited judicial review of the constitutionality of
this proposed law is clear. Already, the Administration's military
commissions plan has already been found fatally defective by the
Supreme Court. That the majority has worked closely with the
Administration to produce the bill before us provides little comfort or
confidence that this bill will pass constitutional muster. It would be
a shame to go prosecute detainees under the regime established in this
bill only to have any convictions set aside because the procedures are
later found to be constitutionally infirm.
Mr. Speaker, Congress should pass legislation that will provide the
President with a tough and fair system of military commissions that
will ensure swift convictions for terrorists and protect our men and
women in uniform. But the legislation must also respond to the United
States Supreme Court's ruling in the Hamdan case and withstand judicial
scrutiny, or it may not serve its other purposes.
Many legal experts have raised serious questions about this bill's
constitutionality. That is why it is critically important to quickly
determine whether the statute will survive judicial scrutiny. Just
think. If this bill is tied up in years of litigation and eventually
struck down by the Supreme Court as unconstitutional, this could have
disastrous implications: Convictions would be overturned; terrorists
would have a ``get-out-of-jail-free'' card; and the United States would
once again be left without a working military commissions system.
Mr. Speaker, there is a right way to remedy this situation and it is
simple. Under the Skelton provision, the judicial review would occur
early on and quickly--before there are trials and convictions. And it
would help provide stability and sure-footing for novel legislation
that sets up a military commissions system unlike anything in American
history.
Such an approach provides no additional rights to alleged terrorists.
All it does is give the Supreme Court of the United States the ability
to decide whether the military commissions system under this act is
legal or not. It simply guarantees rapid judicial review.
For this reason, I support the Motion to Recommit.
Mr. HUNTER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.

Recorded Vote

Mr. SKELTON. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the minimum time for any electronic vote on
the question of passage.
The vote was taken by electronic device, and there were--ayes 195,
noes 228, not voting 9, as follows:

[Roll No. 490]

AYES--195

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Case
Chandler
Clay
Clyburn
Conyers
Cooper
Costa
Costello
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis (TN)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Edwards
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank (MA)
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jefferson
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Schwartz (PA)
Scott (GA)
Scott (VA)
Serrano
Shays
Sherman
Skelton
Slaughter

[[Page H7560]]

Smith (WA)
Snyder
Solis
Spratt
Stark
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--228

Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boustany
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Chabot
Chocola
Coble
Cole (OK)
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, Jo Ann
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Murtha
Musgrave
Myrick
Neugebauer
Northup
Norwood
Nunes
Nussle
Osborne
Oxley
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schmidt
Schwarz (MI)
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (NJ)
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--9

Castle
Cleaver
Davis (FL)
Jackson-Lee (TX)
Lewis (GA)
Meehan
Millender-McDonald
Ney
Strickland

{time} 1628

Messrs. GALLEGLY, KENNEDY of Minnesota and MURTHA changed their vote
from ``aye'' to ``no.''
Ms. ZOE LOFGREN of California, Messrs. GORDON, OTTER, BRADY of
Pennsylvania, STUPAK, MOLLOHAN and KANJORSKI changed their vote from
``no'' to ``aye.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Bass). The question is on the passage of
the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.

Recorded Vote

Mr. HUNTER. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 253,
noes 168, not voting 12, as follows:

[Roll No. 491]

AYES--253

Aderholt
Akin
Alexander
Andrews
Bachus
Baker
Barrett (SC)
Barrow
Barton (TX)
Bass
Bean
Beauprez
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boswell
Boustany
Boyd
Bradley (NH)
Brady (TX)
Brown (OH)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Chabot
Chandler
Chocola
Coble
Cole (OK)
Conaway
Cramer
Crenshaw
Cubin
Cuellar
Culberson
Davis (AL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Edwards
Ehlers
Emerson
English (PA)
Etheridge
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
Melancon
Mica
Michaud
Miller (FL)
Miller (MI)
Miller, Gary
Moore (KS)
Murphy
Musgrave
Myrick
Neugebauer
Northup
Norwood
Nunes
Nussle
Osborne
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Pryce (OH)
Putnam
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ryan (WI)
Ryun (KS)
Salazar
Saxton
Schmidt
Schwarz (MI)
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (NJ)
Smith (TX)
Sodrel
Souder
Spratt
Stearns
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOES--168

Abercrombie
Ackerman
Allen
Baca
Baird
Baldwin
Bartlett (MD)
Becerra
Berkley
Berman
Berry
Bishop (NY)
Blumenauer
Boucher
Brady (PA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Case
Clay
Clyburn
Conyers
Cooper
Costa
Costello
Crowley
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Evans
Farr
Fattah
Filner
Frank (MA)
Gilchrest
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Hinchey
Hinojosa
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jefferson
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
LaTourette
Leach
Lee
Levin
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McKinney
McNulty
Meek (FL)
Meeks (NY)
Miller (NC)
Miller, George
Mollohan
Moore (WI)
Moran (KS)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Price (NC)
Rahall
Rangel
Reyes
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Schwartz (PA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Stark
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOT VOTING--12

Castle
Cleaver
Davis (FL)
Davis, Tom
Jackson-Lee (TX)
Keller
Lewis (GA)
Meehan
Millender-McDonald
Ney
Radanovich
Strickland

{time} 1645

So the bill was passed.
The result of the vote was announced as above recorded.

[[Page H7561]]

A motion to reconsider was laid on the table.
Stated for:
Mr. KELLER. Mr. Speaker, on rollcall No. 491, I voted ``aye'' and I
was here. Apparently, there was a card malfunction and it did not
record my vote. Had I been present, I would have voted ``aye''.

____________________