Congressional Record: September 14, 2006 (Senate) Page S9586-S9588 Terrorist Surveillance Mr. SPECTER. Mr. President, I have sought recognition to comment briefly about two subjects: One, the legislation providing for judicial review for the President's terrorist surveillance program; and, second, what we are going [[Page S9587]] to do to comply with Hamdan v. Rumsfeld. The Judiciary Committee reported out three bills yesterday. S. 2453, which is my bill, provides that the surveillance program will be submitted to the Foreign Intelligence Surveillance Court. There is no doubt that the President's program violates the Foreign Intelligence Surveillance Act, which purports to be exclusive. But if there is constitutional authority under Article 2, that constitutional authority trumps the act. The only way there can be a determination on that is to have a court weigh the seriousness of the threat as opposed to the invasion on privacy. This legislation, S. 2453, does not authorize the President's program, contrary to the assertions of many people. What it does is subject the President's program to judicial review. It does not mandate review because, understandably, the President does not want to curtail his institutional authority. What I have sought to accomplish is to have this program reviewed; and the President has made a commitment, confirmed by the White House, that this program will be submitted for judicial review. There has been a contention raised that there is an inconsistency between Senator Feinstein's bill, S. 3001, and my bill, S. 2453, and it is not true. The provision in Senator Feinstein's bill says that the FISA is the exclusive means for wiretapping. That is true, unless the statute is superseded by a constitutional provision. My bill, S. 2453, says that nothing in the act limits the President's constitutional authority, because a statute cannot limit the President's constitutional authority. We will be moving ahead, I hope shortly, with the leader calling the bill to the floor so that we can make a determination on judicial review to see to it that whatever wiretapping is going on is judicially approved. It may be that some cases will come up collaterally. There are a number of cases in district courts. The one in Portland may have standing. I do not propose, in my legislation, to strip any court of jurisdiction where a case has been started and has proceeded. I think, in the course of business, the matters ought to be referred to the FISA court, but not for any jurisdiction stripping where courts have proceeded. With respect to the activities of the Congress seeking to comply with the ruling of the Supreme Court of the United States in Hamdan v. Rumsfeld, the primary responsibility goes to the Armed Services Committee. The Judiciary Committee does have jurisdiction because title 18 of the Criminal Code is implicated and we have jurisdiction over the interpretation of the Geneva Conventions. There have been a number of controversial issues raised on which I would like to comment. One provision relates to classified information. It is my view that it is indispensable to have witnesses confront their accusers and know what the evidence is. Common Article 3 of the Geneva Conventions provides that there has to be an affording of all judicial guarantees which are recognized as indispensable by civilized people. I think that would include telling somebody what the evidence is before they have a significant penalty which might include the death penalty. We have a Confidential Information Protection Act which sets the guidelines that I think ought to be applicable here. The consequence is, if you cannot produce the evidence for the defendant to hear, the case may have to be dismissed. But that will not prejudice the government here because these individuals can be detained as enemy combatants for an indefinite period of time. So we will not disclose sources and methods; we will not release anybody; we may not convict them if we can't produce the evidence, but they will be detained and not present a threat. There is an issue raised as to coerced confessions. I do not believe that we can tolerate that and be consistent with United States law or consistent with the Geneva Conventions. Coerced confessions are unfair and they are unreliable. With respect to Common Article 3, the Judiciary Committee has submitted for consideration and inclusion in the legislation being considered by the Armed Services Committee amendments to section 303 on war crimes. I ask unanimous consent that they be printed in the Record at the conclusion of my statement. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mr. SPECTER. Mr. President, with respect to the controversy about whether there ought to be included the provisions of the Detainee Treatment Act, I believe that they should be because they further delineate what would constitute a violation of Common Article 3. But I do not believe they ought to be exclusive or foreclose other considerations under Common Article 3. In addition to the specification of the crimes under the War Crimes Act, which I have submitted, it would be useful to have the provisions of the Detainee Treatment Act included, which are the fifth amendment, the eighth amendment and the 14th amendment, where there has been considerable judicial interpretation as to what are prohibited acts. General Hayden, Director of the CIA, thinks that is necessary in order to be able to give comprehensive advice. I personally do not know that the interrogation has to go beyond what is in the Army Field Manual. In a visit to Guantanamo, the chief interrogator handling some 32 interrogators and thousands of interrogations thinks that the Army Field Manual is sufficient. It may or may not be. The CIA wants greater latitude, but there is some assurance of congressional oversight because the interrogation tactics have to be submitted to the Intelligence Committee. One other point that I want to comment on is my concern about the inclusion of habeas corpus relief. I believe that it is important to retain jurisdiction of the Federal courts on habeas corpus. This was a contested issue under the Detainee Treatment Act, but we have seen that the only real firm guidance has come from the Supreme Court of the United States. In three cases regarding detainees from June of 2005, Jose Padilla, Hamdi, and the Hamdan v. Rumsfeld decision, the Congress has been unwilling or unable to act. I introduced legislation for military commissions shortly after September 11 as did other Senators. We didn't act. We punted to the Supreme Court. These issues, regrettably, experience has shown, are just too hot to handle by the Congress. The Supreme Court of the United States under the rule of law has enforced compliance of detainees, and now compliance for those who are to be tried for war crimes under the Geneva Conventions' terms as well as under title 18. It is simply insufficient to limit the great rift which seems embodied in our habeas corpus statute. I have had some discussion with Senator Levin, who is on the floor at the present time, about offering an amendment if in fact the bill comes from the Armed Services cutting out habeas corpus. It is my hope that we can move reasonably promptly to S. 2453 so that there may be set in motion the procedures to have the Federal courts rule on the constitutionality of the President's electronic surveillance program. It would be highly desirable to bring the entire program under the Foreign Intelligence Surveillance Act. There are provisions in Senator Feinstein's bill, S. 3001, which I have cosponsored, that I believe would enable us to bring individual live warrants for causes which originated in the United States and go overseas. I have been advised that the calls which originate overseas are so numerous that it is not possible to have individual live warrants. So that under these circumstances the most that can be accomplished is to have the program submitted to the Foreign Intelligence Surveillance Court. In one of the four hearings on this bill, four former judges of the FISA Court appeared and testified and commented that the bill was practical, that there was sufficient standing, that there were litigable issues and that the Foreign Intelligence Surveillance Court can handle it. They can handle it as a matter of expertise because of their extensive experience, and they can handle it because their proceedings are closed so that there is not a public disclosure of state secrets. [[Page S9588]] It may be, as I said very briefly earlier, that one of the cases coming out of Federal courts--there has been a decision from Detroit, and there is a case pending in San Francisco--my review of those cases suggests to me that the case which is coming out of Portland I think would have standing. The PRESIDING OFFICER. The Senator's time has expired. Mr. SPECTER. Mr. President, I thank the distinguished chairperson of the Homeland Security Committee for yielding me the time. I yield the floor. Exhibit 1 SEC. 303. WAR CRIMES ACT AMENDMENT. Section 2441 of title 18, United States Code is amended by replacing subsection (c)(3) with the following: ``(3) which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva 12 August 1949, when committed in the context of and in association with an armed conflict not of an international character: ``(1) Torture.--Any 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, shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2). ``(2) Cruel or inhuman treatment.--Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of a violation of this subsection. `Severe mental pain or suffering' has the meaning provided in 18 U.S.C. 2340(2). ``(3) Performing biological experiments.--Any 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 purpose and in so doing endangers the body or health of such person or persons shall be guilty of a violation of this subsection. ``(4) Murder.--Any 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 section, one or more persons taking no active part in the hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. ``(5) Mutilation or maiming.--Any 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 section, one or more persons taking no active part in the hostilities, including those placed out of active 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, or burning any individual without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. ``(6) Intentionally causing great suffering or serious injury.--Any person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons taking no active part in the hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. `Serious bodily injury' has the meaning provided in 18 U.S.C. 113(b)(2). ``(6) Rape.--Any 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 shall be guilty of a violation of this subsection. ``(7) Sexual assault or abuse.--Any 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, shall be guilty of a violation of this subsection. For purposes of this offense, `sexual contact' has the meaning provided in 18 U.S.C. 2246(3). Sexual assault or abuse may also include, but is not limited to forcing any person to engage in simulated sexual acts or to pose in an overtly sexual manner. ``(8) Taking hostages.--Any 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, shall be guilty of a violation of this subsection. This provision shall not apply to prisoner exchanges during wartime. Any person who attempts to engage or conspires to engage in this offense shall also be guilty under this subsection;'' Section 2441 of title 18, United States Code is amended by replacing the period at the end of subsection (c)(4) and adding the following new subsections: ``(5) involving `genocide' as defined in title 18, United States Code, section 1091; ``(6) involving `sabotage' as defined in title 18, United States Code, section 2151 et seq.; or ``(7) involving forced oaths, conversions, or renouncements of one's allegiance to a nation or religion. Section 2441 of title 18, United States Code is amended in subsection (a) by adding ``attempts to commit a war crime, or conspires to commit a war crime,'' after ``commits a war crime.'' Section 2441 of title 18, United States Code is amended by adding the following sentence at the end of subsection (b): The circumstances referred to in subsection (a) shall also include unprovoked attacks on American citizens on domestic or foreign soil by any private army, terrorist organization, or other ideological combination or alliance where such an attack would otherwise be considered a war crime if committed by a nation state or military force. CHAPTER 3--JUDICIAL REVIEW; MISCELLANEOUS. SEC. 301. JUDICIAL REVIEW. Combatant Status Review Tribunals.--The United States Court of Appeals for the Armed Forces shall, with the United States Supreme Court upon a petition for certiorari, have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal. The scope of such review is defined in section 1005(e)(2) of the Detainee Treatment Act of 2005. If the Court grants a detainee's petition for review, the Department of Defense may conduct a new Combatant Status Review Tribunal. (1) Military commission.--Review shall be had only of final judgments of military commissions as provided for pursuant to section 247 of the Military Commissions Act of 2006.