Congressional Record: February 13, 2007 (Senate)
Page S1918-S1920



          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS


      By Mr. DODD (for himself, Mr. Leahy, Mr. Feingold, and Mr.
        Menendez):
  S. 576. A bill to provide for the effective prosecution of terrorists
and guarantee due process rights; to the Committee on Armed Services.
  Mr. DODD. Mr. President, I rise today to introduce the Restoring the
Constitution Act of 2007--a bill to provide for the effective
prosecution of terrorists and guarantee due process rights. I am
pleased to be joined by Senators Leahy, Feingold, and Menendez as
original cosponsors. This bill would make significant important changes
to the Military Commissions Act of 2006 which became law last October.
  I have served in this body for more than a quarter-century, but I
remember few days darker than September 28, 2006, the day the Senate
passed President Bush's Military Commissions Act. Let me be honest with
you, I believe this body gave in to fear that day. I believe we looked
for refuge in the rule of men, when we should have trusted in the rule
of law.
  Restoring the Constitution Act of 2007 is more than mere tinkering
with provisions of the Military Commissions Act. This legislation,
which is similar to the bill that I introduced in the last Congress,
makes major and important changes to that law in order to ensure we
have the essential legal tools to achieve a lasting American victory
without violating American values.
  What does this proposed legislation do?
  It restores the writ of habeas corpus for individuals held in U.S.
custody.
  It narrows the definition of unlawful enemy combatant to individuals
who directly participate in hostilities against the United States in a
zone of active combat, who are not lawful combatants.
  It requires that the United States live up to its Geneva Convention
obligations by deleting a prohibition in the law that bars detainees
from invoking Geneva Conventions as a source of rights at trial.
  It permits the accused to retain qualified civilian attorneys to
represent them at trial.
  It prevents the use of evidence in court gained through the
unreliable and immoral practices of torture and coercion.
  It charges the military judge with the responsibility for ensuring
that the jury is appropriately informed as to the sources, methods and
activities associated with developing out of court statements proposed
to be introduced at trial, or alternatively that the statement is not
introduced.
  It empowers military judges to exclude hearsay evidence they deem to
be unreliable.
  It authorizes the U.S. Court of Appeals for the Armed Forces to
review decisions by the military commissions.
  It limits the authority of the President to interpret the meaning and
application of the Geneva Conventions and makes that authority subject
to congressional and judicial oversight.
  It clarifies the definition of war crimes in statute to include
certain violations of the Geneva Conventions.
  Finally, it provides for expedited judicial review of the Military
Commissions Act of 2006 to determine the constitutionally of its
provisions.
  To be clear--I absolutely believe that under very clearly proscribed
circumstances military commissions can be a useful instrument for
bringing our enemies to justice. But those who ask us to choose between
national security and moral authority are offering us a false choice,
and a dangerous one. Our Nation has been defeating tyrants and would-be
tyrants for more than two centuries. And in all that struggle, we've
never sold our principles--because if We did, we would be walking in
the footsteps of those we most despise.
  In times of peril, throwing away due process has been a constant
temptation--but that is why we honor so highly those who resisted it.
At Nuremberg, America rejected the certainty of execution for the
uncertainty of a trial, and gave birth to a half-century of moral
authority. Today I am asking my colleagues to reclaim that tradition,
to put the principles of the Constitution above the passion of the
moment. That reclamation can begin today--if we remedy President Bush's
repugnant law. We can do it--and keep America Secure at the same time.
  Freedom from torture. The right to counsel. Habeas corpus. To be
honest, it still amazes me that we have to come to the floor of the
Senate to debate these protections at all. What would James Madison
have said if you told him that someday in the future, a Senator from
Connecticut would be forced to publicly defend habeas corpus, the
defendant's right to a day in court, the foundation of Our legal system
dating back to the 13 century? What have we come to that such long-
settled, long-honored rights have been called into question?
  But here we are. And now it is upon us to renew them. I'd like to
talk in detail about several key components of my legislation. The
Military Commissions Act eliminated habeas corpus. Habeas corpus allows
a person held by the government to question the legality of his
detention. In my view, to deny this right not only undermines the rule
of law, but damages the very fabric of America. It is not who we are,
and it is not who we aspire to be. My bill reopens the doors to the
Court house by restoring the writ of habeas corpus for individuals held
in U.S. custody.
  By approving the Military Commissions Act, Congress abdicated its
constitutionally-mandated authority and responsibility to safeguard
this principle and serve as a co-equal check on the executive branch.
This law confers an unprecedented level of power on the president,
allowing him the sole right to designate any individual as an
``unlawful enemy combatant'' if he or she engaged in hostilities or
supported hostilities against the United States. In my view and in the
view of many legal experts, this definition of ``unlawful enemy
combatant'' is unmanageably vague. As we have all seen, ``unlawful
enemy combatants'' are subject to arrest and indefinite detention, in
many cases without ever being changed with a crime, let alone being
found guilty. My bill would curtail potential abuse of the unlawful
enemy combatant designation by narrowing the definition of unlawful
enemy combatant to individuals who directly participate in hostilities
against the United States in ``a zone of active combat'', and who are
not lawful combatants. This correction is desperately needed to restore
America's standing in the world and to right injustices that have
recently been documented by international human rights organizations.
  According to the Pentagon, last October, only 70 out of the 435
detainees housed at U.S. prison camps were expected to face a military
trial, leaving hundreds of others to be held indefinitely. And while
the Pentagon acknowledges that at least 110 of these detainees were
labeled ``ready to release,'' for some reason they have been kept under
lock and key. Then there are stories such as the one about Asif Iqbal,
a British humanitarian aid volunteer who, according to a January 10,
2007 Associated Press story, was mistakenly captured in Afghanistan and
subjected to isolation, painful positioning, screeching music, strobe

[[Page S1919]]

lights, sleep deprivation, and extreme temperatures. After three
months, of enduring such treatment, Iqbal was released in 2004 without
any charges brought against him.
  Such sordid episodes have gravely undermined our apparent commitment
to the Geneva Conventions and damaged our status both at home and in
the global community. By failing to reaffirm our obligations under
these vital treaties, the Military Commissions Act has only
further eroded America's moral authority and perhaps ceded our nation's
status as the leading proponent of international law and human rights.
For this reason, the legislation I am offering today will reaffirm our
obligations under the Geneva Conventions in several key ways. First, it
would allow detainees to invoke the Geneva Conventions as a source of
rights in their trials, overturning a ban put in place by the Military
Commissions Act. Second, this legislation will limit the authority of
the President to interpret and redefine the meaning and application of
the Geneva Conventions by subjecting this authority to Congressional
and judicial oversight. Lastly, my bill would statutorily define
certain violations of the Geneva Conventions as war crimes. These
provisions are all vitally important in allowing the United States to
effectively wage the war on terror. The war that we are currently
waging requires increasing international cooperation, but the
President's plan puts us on a path of increasing isolation from even
our staunchest allies.

  Furthermore, this path is undermining our government's commitments to
fundamental tenets of the American legal system. One of these tenets
entails the right of the accused not only to confront his/her accuser
but also to retain an attorney to represent him/her at trial. This is a
basic right afforded to even the most egregious criminals under
domestic law. And yet, under the administration's plan, this measure is
being abandoned. In response, my bill sets standards for legal
representation and allows for civilian legal counsel in military
commission proceedings.
  Even more importantly, my bill improves on these proceedings by
prohibiting the use in court of any evidence that was gained through
the unreliable and immoral practices of coercion. Incredibly, the
Military Commissions Act lacks this blanket ban on evidence gained
through torture. This is critically important for two very different
reasons. Torture has been proven to be ineffective in interrogations,
yielding highly unreliable information because a detainee, hoping to
end the pain, will simply say whatever he believes an interrogator
wants to hear. Second, torture allows foreign militaries to mistreat
future American prisoners of war and use U.S. actions as an excuse. No
one has said it with more authority than our colleague, Senator John
McCain.
  As he stated last year, ``the intelligence we collect must be
reliable and acquired humanely, under clear standards understood by all
our fighting men and women . . . the cruel actions of a few to darken
the reputation of our country in the eyes of millions,''
  To address these concerns, my bill restores to military judges the
responsibility of ensuring that information introduced at trial has not
been obtained through methods defined as cruel, inhuman, or degrading
treatment by the Detainee Treatment Act of 2005. Sadly, the Military
Commissions Act shows disrespect for and mistrust of the highly trained
professionals on our military's bench by stripping them of autonomy and
authority. The legislation I am proposing today empowers military
judges to exclude hearsay evidence they deem to be unreliable. In
addition, this bill will grant military judges discretion in the event
that classified evidence has a bearing on the innocence of an
individual but is excluded due to national security concerns and
declassified alternatives are insufficient. America's military judges
have been fully trained and prepared to handle classified information.
The Bush administration's failure to recognize this fact is an insult
to the men and women of our military's bench and an affront to our
military's justice system.
  Unlike the current administration, I trust our courts to be able to
handle the delicate legal and national security issues inherent in the
cases involving so-called unlawful enemy combatants. This legislation
therefore provides for appeals of the military commissions' decisions
to be heard by the U.S. Court of Appeals for the Armed Forces. In my
view, the right to an appeal is one of the most fundamental rights
granted to anyone in our justice system. We 3 grant appeals to people
accused of some of the most heinous crimes imaginable. We do this
because we know that courts are not infallible. They can err in their
decisions, and in order for these mistakes to be rectified and to avoid
punishing innocent men and women, appeals must be allowed.
  All of these provisions are important. But perhaps none is more
urgent than the final measure in my bill, which requires expedited
judicial review of the Military Commissions Act of 2006 to determine
the constitutionally of its provisions. I believe that the United
States Congress made a crucial mistake--that is why we must ensure that
each provision of the Administration's Military Commissions Act is
quickly reviewed by our Nation's courts. I believe that upon such
review, those best qualified to make these judgments--members of our
esteemed judiciary--will see to it that the most egregious provisions
of this act will be overturned.
  All 100 members of this body have been given the gravest of
responsibilities. The people of this country have entrusted us with
this Nation's security; and they have entrusted us with this Nation's
principles. But those who argue that our principles stand in the way of
our security are sadly, sorely mistaken: They are the source of our
strength.
  Five months ago, we departed from that source. But it is not too late
to turn back. It is not too late to redeem our error. I implore my
colleagues to join me.
  Mr. FEINGOLD. Mr. President, I am pleased to cosponsor the Restoring
the Constitution Act of 2007, which was introduced today by Senator
Dodd. It amends the deeply flawed Military Commissions Act of 2006 to
restore basic due process rights and to ensure that no person is
subject to indefinite detention without charge based on the sole
discretion of the President.
  Let me be clear: I welcome efforts to bring terrorists to justice.
This administration has for too long been distracted by the war in Iraq
from the fight against al Qaeda. We need a renewed focus on the
terrorist networks that present the greatest threat to this country.
  Last year, the President agreed to consult with Congress on the
makeup of military commissions only because he was essentially ordered
to do so by the Supreme Court in the Hamdan decision. Congress should
have taken that opportunity to pass legislation that would allow these
trials to proceed in accordance with our laws and our values. That is
what separates America from our enemies. These trials, conducted
appropriately, would have had the potential to demonstrate to the world
that our democratic, constitutional system of government is not a
hindrance but a source of strength in fighting those who attacked us.
  Instead, we passed the Military Commissions Act, legislation that
violates the basic principles and values of our constitutional system
of government. It allows the government to seize individuals on
American soil and detain them indefinitely with no opportunity for them
to challenge their detention in court. And the new law would permit an
individual to be convicted on the basis of coerced testimony and even
allow someone convicted under these rules to be put to death.
  The checks and balances of our system of government and the
fundamental fairness of the American people and legal system are among
our greatest strengths in the fight against terrorism. I was deeply
disappointed that Congress enacted the Military Commissions Act. The
day that bill became law was a stain on our Nation's history.
  It is time to undo the harm caused by that legislation.
  The Restoring the Constitution Act amends the Military Commissions
Act to remedy its most serious flaws, and I am pleased to support it.
  First of all, this legislation would restore the great writ of habeas
corpus, to ensure that detainees at Guantanamo Bay and elsewhere--
people who have been held for years but have not

[[Page S1920]]

been tried or even charged with any crime--have the ability to
challenge their detention in court. Senator Dodd's bill would repeal
the habeas stripping provisions of both the Military Commissions Act
and the Detainee Treatment Act.
  Habeas corpus is a fundamental recognition that in America, the
government does not have the power to detain people indefinitely and
arbitrarily. And that in America, the courts must have the power to
review the legality of executive detention decisions.
  Habeas corpus is a longstanding vital part of our American tradition,
and is enshrined in the U.S. Constitution.
  As a group of retired judges wrote to Congress last year, habeas
corpus ``safeguards the most hallowed judicial role in our
constitutional democracy--ensuring that no man is imprisoned
unlawfully.''
  The Military Commissions Act fundamentally altered that historical
equation. Faced with an executive branch that has detained hundreds of
people without trial for years now, it eliminated the right of habeas
corpus.
  Under the Military Commissions Act, some individuals, at the
designation of the executive branch alone, could be picked up, even in
the United States, and held indefinitely without trial, without due
process, without any access whatsoever to the courts. They would not be
able to call upon the laws of our great nation to challenge their
detention because they would have been put outside the reach of the
law.
  That is unacceptable, and it almost surely violates our Constitution.
But that determination will take years of protracted litigation. Under
the Dodd bill, we would not have to wait. We would restore the right to
habeas corpus now. We can provide a lawful system of military
commissions so that those who have committed war crimes can be brought
to justice, without denying one of the most basic rights guaranteed by
the Constitution to those held in custody by our government.
  Some have suggested that terrorists who take up arms against this
country should not be allowed to challenge their detention in court.
But that argument is circular--the writ of habeas allows those who
might be mistakenly detained to challenge their detention in court,
before a neutral decision-maker. The alternative is to allow people to
be detained indefinitely with no ability to argue that they are not, in
fact, enemy combatants. Unless it can be said with absolute certainty
that every person detained as an enemy combatant was correctly
detained--and there is ample evidence to suggest that is not the case--
then we should make sure that people can't simply be locked up forever,
without court review, based on someone slapping a ``terrorist'' label
on them.
  We must return to the great writ. We must be true to our Nation's
proud traditions and principles by restoring the writ of habeas corpus,
by making clear that we do not permit our government to pick people up
off the street, even in U.S. cities, and detain them indefinitely
without court review. That is not what America is about.
  But the Restoring the Constitution Act does far more than restore
habeas corpus. It also addresses who can be subject to trial by
military commission.
  The Military Commissions Act was justified as necessary to allow our
government to prosecute Khalid Sheikh Mohammed and other dangerous men
transferred to Guantanamo Bay in 2006. Yet if you look at the fine
print of that legislation, it becomes clear that it is much, much
broader than that. It would permit trial by military commission not
just for those accused of planning the September 11 attacks, but also
individuals, including legal permanent residents of this country, who
are alleged to have ``purposefully and materially supported
hostilities'' against the United States or its allies.
  This is extremely broad. And by including hostilities not only
against the United States but also against its allies, the Military
Commissions Act allows the U.S. to hold and try by military commission
individuals who have never engaged, directly or indirectly, in any
action against the United States.
  Not only that, but the Military Commissions Act would also define as
an unlawful enemy combatant subject to trial by military commission,
anyone who ``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.'' This essentially grants a blank check to the executive
branch to decide entirely on its own who can be tried by military
commission.
  Senator Dodd's bill makes clear that the President cannot
unilaterally decide who is eligible for trial by military commission.
Under the Dodd bill, in order to be tried by military commission, an
individual must have directly participated in hostilities against the
United States in a zone of active combat, or have been involved in the
September 11 attacks, and cannot be a lawful enemy combatant.
  Senator Dodd's bill also addresses the structure and process of the
military commissions themselves. It ensures that these military
commission procedures hew closely to the long-established military
system of justice, as recommended by countless witnesses at
congressional hearings last summer.
  Some examples of the ways in which the Dodd bill improves the
military commission procedures include: It prevents the use of evidence
in court gained through torture or coercion. It ensures that any
evidence seized within the United States without a search warrant
cannot be introduced as evidence. It empowers military judges to
exclude hearsay evidence they deem to be unreliable. It authorizes the
existing U.S. Court of Appeals for the Armed Forces to review decisions
by military commissions, rather than the newly created ``Court of
Military Commission Review,'' whose members would be appointed by the
Secretary of Defense. And it provides for expedited judicial review of
the Military Commissions Act to determine the constitutionally of its
provisions before anyone is tried by military commission, so that we
will not face even more delays in the future.
  Many of these provisions were included in the bill passed by the
Senate Armed Services Committee in September 2006, but then stripped
out or altered in backroom negotiations with the Administration. The
bill also improves changes to the War Crimes Act and emphasizes the
importance of compliance with the Geneva Conventions.
  In sum, Senator Dodd's legislation addresses many of the most
troubling and legally suspect provisions of the Military Commissions
Act. Congress would be wise to make these changes now, rather than wait
around while the Military Commissions Act is subject to further legal
challenge, and another 4 or 5 years are squandered while cases work
their way through the courts again.
  In closing let me quote John Ashcroft. According to the New York
Times, at a private meeting of high-level officials in 2003 about the
military commission structure, then-Attorney General Ashcroft said:
``Timothy McVeigh was one of the worst killers in U.S. history. But at
least we had fair procedures for him.'' How sad that Congress passed
legislation about which the same cannot be said. We can and must undo
this mistake.
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