To provide for judicial review of detention of enemy combatants.

[[Page S12727]]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 1042, which the clerk will report.
The legislative clerk read as follows:

A bill (S. 1042) to authorize appropriations for fiscal
year 2006 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe
personnel strengths for such fiscal year for the Armed
Forces, and for other purposes.

Pending:

Graham amendment No. 2515, relating to the review of the
status of detainees of the United States Government.
Warner/Frist amendment No. 2518, to clarify and recommend
changes to the policy of the United States on Iraq and to
require reports on certain matters relating to Iraq.
Levin amendment No. 2519, to clarify and recommend changes
to the policy of the United States on Iraq and to require
reports on certain matters relating to Iraq.

The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, before the Senator from Florida leaves the
floor, I wish to do two things. First, I want to thank him for the
energy and the perception he has shown in pointing out some of the
problems with this prescription drug benefit which was voted on.
He has a lot of seniors in his State, and he is uniquely aware of,
sensitive to, and determined to see if we cannot make some changes in
this process which will make what we have done a lot more friendly to
seniors. I cannot think of anybody in this body who knows more about
this subject or is more determined to make the changes necessary for
the benefit of our seniors.
Because of the confusion out there, the uncertainty is rife. We do
not have quite as many seniors in our State as they do in Florida, but
our seniors are telling me pretty generally what the seniors down in
Florida are saying to the Senator from Florida. I thank him and commend
him for the leadership he is taking and for the proposed change he is
proposing.
Secondly, I thank him for his service on the Armed Services
Committee. We have a wonderful committee. It is a bipartisan committee.
The Senator from Florida, Mr. Nelson, makes an important contribution
to it. He is there all the time with very perceptive questions that are
intended to support the men and women in our military. I thank him for
his participation.
Mr. President, the Senator from New Mexico, I believe, now is ready
to offer an amendment which is referred to in the unanimous consent
agreement. I will yield to him 15 minutes, should he so need 15
minutes, on our side of the debate for that purpose.
The PRESIDING OFFICER. The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, I thank my colleague from Michigan for
yielding.

Amendment No. 2523 to Amendment No. 2515

Mr. President, I send an amendment to the desk and I ask for its
consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from New Mexico [Mr. Bingaman] proposes an
amendment numbered 2523 to amendment No. 2515.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To improve the amendment)

Strike subsection (d) and insert the following:
(d) Judicial Review of Detention of Enemy Combatants.--
(1) In general.--Except as provided in paragraph (2), the
United States Court of Appeals for the District of Columbia
Circuit shall have exclusive jurisdiction to consider an
application for writ of habeas corpus filed by or on behalf
of an alien outside the United States (as that term is
defined in section 101(a)(38) of the Immigration and
Naturalization Act (8 U.S.C. 1101(a)(38))--
(A) who is, at the time a request for review by such court
is filed, detained by the Department of Defense at Guantanamo
Bay, Cuba; and
(B) for whom a Combatant Status Review Tribunal has been
conducted, pursuant to applicable procedures specific by the
Department of Defense.
(2) Exceptions.--This subsection does not apply to the
following:
(A) An individual charged with an offense before a military
commission.
(B) An individual who is not designated as an enemy
combatant following a combatant status review, but who
continues to be held by the United States Government.
(3) Venue.--Review under paragraph (1) shall commence in
the United States Court of Appeals for the District of
Columbia Circuit.
(4) Claims reviewable.--The United States Court of Appeals
for the District of Columbia Circuit may not, in a review
under paragraph (1) with respect to an alien, consider claims
based on living conditions, but may only hear claims
regarding--
(A) whether the status determination of the Combatant
Status Review Tribunal with regard to such alien was
consistent with the procedures and standards specified by the
Secretary of Defense for Combatant Status Review Tribunals;
(B) whether such status determination was supported by
sufficient evidence and reached in accordance with due
process of law, provided that statements obtained through
undue coercion, torture, or cruel or inhuman treatment may
not be used as a basis for the determination; and
(C) the lawfulness of the detention of such alien.
(5) Termination on release from custody.--The jurisdiction
of the United States Court of Appeals for the District of
Columbia Circuit with respect to the claims of an alien under
this subsection shall cease upon the release of such alien
from the custody or control of the United States.
(6) Effective date.--This subsection shall apply to any
application or other action that is pending on or after the
date of the enactment of this Act.

Mr. BINGAMAN. Mr. President, before describing the amendment, let me
talk briefly in opposition to Senator Graham's amendment, the
underlying amendment that was adopted by the Senate on Thursday, and
address some of the mistaken claims that were made last week during the
debate on that amendment.
There were a lot of statements made last week. It is important to be
clear about what the Graham amendment does. The amendment, as drafted,
as voted on last week in the Senate, would overrule a Supreme Court
case issued earlier this year that recognized the longstanding right to
file a petition for habeas corpus. This right is absolutely
fundamental. It is the right of an individual who is being detained by
the executive branch of our Government to question the legality of that
person's detention.
Contrary to what Senator Graham has said, I do not believe we are
giving prisoners new rights in the amendment that I just sent to the
desk or in the underlying bill. I believe we need to keep in place the
rights that have already existed, that currently exist, and that the
Supreme Court has recognized. We need to prevent the courts from being
stripped of the authority they have and have always had.
Let me take a moment to address the notion that we should not care
about these individuals because these individuals are terrorists.
Frankly, I have no doubt that some of the individuals being detained at
Guantanamo are a threat, and it is for this reason I have never
advocated that we release these prisoners. But we need to recognize
that not all of these prisoners are necessarily terrorists in the sense
that we are debating that here.
There is a January 2005 Wall Street Journal article stating:

American commanders acknowledge that many of the prisoners
shouldn't have been locked up here in the first place because
they weren't dangerous and didn't know anything of value.

The article also quoted BG Jay Hood, the commander at Guantanamo,
saying:

Sometimes, we just didn't get the right folks.

The deputy commander, GEN Martin Lucenti, was also quoted as saying:

Most of these guys weren't fighting. They were running.

My point is simple. It is reasonable to insist that when the
Government deprives a person of his or her liberty--and in this case
for an indefinite period of time--the individual have a meaningful
opportunity to challenge the legality of their detention and challenge
whether they are being wrongfully detained. This is not a radical
proposition I have enunciated. It is enshrined in our Constitution. It
was recently reaffirmed by our own Supreme Court in the Rasul decision.
That brings me to the second point. Last week, Senator Kyl compared
challenges by Guantanamo prisoners to a frivolous prisoner lawsuit
filed by an inmate in Arizona who was unhappy

[[Page S12728]]

with the type of peanut butter he was being served at his meals.
Let's be clear. We are not talking about depriving a person of their
right to eat a certain type of peanut butter. We are talking about
individuals challenging their indefinite imprisonment. If a claim is
filed that is frivolous, a court can simply refuse to hear the claim.
We are also not talking about suits against U.S. soldiers. There were
statements made in last week's debate about ``we don't want these
prisoners going and suing our soldiers.'' There is nothing in what I am
proposing or what is currently in place that permits that. We are
talking about suits challenging the legality of a person's imprisonment
by our own Government. The right to challenge the legality of one's
detention by the Government is one of the most fundamental human
rights, the right to be free from being unlawfully detained by the
Government.
It was also argued, last week, that by refusing to overrule the Rasul
decision, which was issued by our Nation's highest Court this last
year, we are giving Guantanamo prisoners access to rights that even our
own soldiers do not enjoy.
Last week, Senator Graham asserted:

Here is the one thing I can tell you for sure as a military
lawyer. A POW or an enemy combatant facing law of armed
conflict charges has not been given the right of habeas
corpus for 200 years because our own people in our own
military facing court-martials, who could be sentenced to
death, do not have the right of habeas corpus. It is about
military law. I am not changing anything. I am getting us
back to what we have done for 200 years.

Frankly, that statement is completely an incorrect representation of
what the Graham amendment does. If a U.S. soldier is detained for
committing a crime, then that soldier is charged, provided an attorney,
and tried pursuant to the Uniform Code of Military Justice. Military
personnel can challenge a court-martial conviction by filing a writ
of habeas corpus in a U.S. district court pursuant to 28 USC 2241.
Cases such as Dodson v. Zeliz, which is a Tenth Circuit decision in
1990, demonstrate that they are provided such habeas corpus relief or
the opportunity to file for habeas corpus.

One could also look at CPT Dwight Sullivan's article, ``The Last Line
of Defense: Federal Habeas Review of Military Death Penalty Cases,'' in
the Military Law Review, from 1994, to see that U.S. servicemen are
also allowed to seek habeas review in death penalty cases.
Mr. President, I ask unanimous consent that a letter sent to me by
the chief defense counsel for the Office of Military Commissions, COL
Dwight Sullivan, that flushes out these points, be printed in the
Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BINGAMAN. With regard to these Guantanamo prisoners, the
administration has refused to apply the laws of war, and only a handful
of the 500 prisoners held at Guantanamo have been charged. None have
been tried as yet, and it is unreasonable to say that these prisoners
are being granted more rights than our military personnel.
I would also like to take a moment to read to you the names of some
of the many people who oppose the Graham amendment: John Hudson, a
former Judge Advocate General of the Navy, has written to me indicating
his strong opposition; John Gibbons, a former Nixon appointee who
served on the Third Circuit Court of Appeals; Eugene Fidell, the
president of the National Institute of Military Justice; Dwight
Sullivan, the chief defense counsel for the Office of Military
Commissions. And I have a long list of other distinguished former
officials of our military. They have joined, and I will enter letters
they have given to me as part of the Record in a moment.
These leaders have dedicated their lives to fighting for and
preserving our freedom, democracy, human rights, and respect for the
rule of law. They oppose the Graham amendment because they see it as
contrary to the values and rights that the men and women of our armed
services have fought for.
I have no doubt that some of my colleagues are concerned that if they
vote against the Graham amendment, they would face 30-second attack ads
accusing them of being soft on terrorism. But this is not about our
resolve to defeat terrorists. This is about our resolve to maintain in
place the legal protections on which our country was established. These
are hard decisions. They are tough votes. This is the Senate. We have
taken an obligation to uphold the Constitution of the United States,
even in times of war.
The amendment I offer would maintain the right to seek a meaningful
judicial review. Specifically, the amendment would allow individuals--
any individual--to seek habeas review but would provide that the U.S.
Court of Appeals for the District of Columbia Circuit would have
exclusive jurisdiction to hear these claims. It would also limit the
ability of a court to consider claims regarding one's living
conditions, such as whether they were given peanut butter of a
particular type or access to particular DVDs or whatever other
frivolous claim might be envisioned. It would, however, allow a person
to seek review regarding whether he or she is being unlawfully
imprisoned. If a court determines that the detention is lawful, the
court can simply deny the petitioner's application.
There are good provisions in the Graham amendment, but there are also
some extremely problematic sections. Both the chairman and ranking
member of the Judiciary Committee argued on the Senate floor, last
Thursday, that this is an issue that needs careful consideration before
the Senate Judiciary Committee. Unfortunately, it appears this proposal
may have the votes to move forward.
The amendment I am offering will keep in place the necessary
protections in our Constitution and in our common law, and it will also
take the necessary steps to ensure there is a proper and expedited
procedure for these proceedings.
Mr. President, let me, briefly, before I yield the floor, call my
colleagues' attention to some of these letters that I think are
extremely important and make the case extremely well. I have previously
alluded to the letter I received from COL Dwight Sullivan, U.S. Marine
Corps Reserve, Chief Defense Counsel for the Office of Military
Commissions. This is the office that was established in the Department
of Defense to defend people who are charged by military commissions.
Colonel Sullivan goes step by step through the various statements
that have been made in support of the Graham amendment and refutes
those contentions at every step.
I also have a letter from the National Institute of Military Justice,
written by Eugene Fidell. Let me read it to my colleagues:

On behalf of the National Institute of Military Justice
(and as a retired Lieutenant Commander in the U.S. Coast
Guard Reserve), I am writing to express NIMJ's strong
opposition to Senator Graham's amendment to the Defense
Authorization Bill, withdrawing federal court authority to
grant writs of habeas corpus on the petition of non-citizens
in military custody as enemy combatants.
The proposed amendment would sanction unreviewable
Executive detention that cannot be harmonized with our
Nation's longstanding adherence to the rule of law. Military
detention without due process is antithetical to our
fundamental values, values that our men and women in uniform
put their lives on the line to protect.
The practical effect of the amendment would be to validate
actions by non-democratic countries around the world. Some of
these countries may try to jail our citizens (including but
not limited to GIs) on trumped-up grounds and then deny them
access to judicial forums in which they might at least try to
gain their freedom or fairer treatment. We should not take a
step we would be unwilling to see others apply to our fellow
citizens. We disable ourselves from objecting to flagrant
lawlessness elsewhere when we shut the doors to our courts,
which are the jewel in the crown of our democracy.
I will only add that oftentimes when NIMJ considers taking
a position on a matter of public policy our directors and
advisors have a range of views. That is one of our strengths
as an organization. On this one, we are emphatically of one
mind.

I also have letters from the Brennan Center for Justice in opposition
to the Graham amendment, from the Franklin Pierce Law Center in
opposition to the amendment, and a letter signed by nine former
generals and admirals in the military indicating their opposition, also
signed by Scott Silliman, former U.S. Air Force Judge Advocate,
indicating their strong opposition to the Graham amendment unless it is
changed as my amendment would change it.

[[Page S12729]]

I ask unanimous consent to print those letters in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Brennan Center for Justice

at NYU School of Law,

New York, NY, November 9, 2005.
Re: Graham Jurisdiction-Stripping Amendment to Defense
Appropriations Bill

Dear Senator: The Brennan Center for Justice at New York
University School of Law strongly urges you to oppose an
amendment, sponsored by Senator Lindsey Graham, expected to
be offered as early as today, that would strip all courts,
including the United States Supreme Court, of jurisdiction to
consider habeas corpus petitions or ``any other action
challenging any aspect of the detention'' of foreign
detainees held at Guantanamo Bay. We urge you to reject the
Graham Amendment because it would violate key constitutional
principles and would inflict great damage on both the
reputation of the United States and our ability to persuade
other countries to lend critical cooperation in counter-
terrorism efforts.
The Brennan Center, founded in 1995, unites thinkers and
advocates in pursuit of a vision of inclusive, effective, and
just democracy. Our Liberty & National Security Project,
initiated in July 2004, promotes thoughtful and informed
debate about how to maximize security and safeguard civil
liberties. It has published on the problem of classified
evidence in terrorism trials and litigates on matters related
to the Graham Amendment. Our scholarship and litigation
experience suggest that the amendment neither reflects our
long-standing constitutional traditions nor furthers our
present counter-terrorism efforts.
In many ways, the war on terror is new. But it cannot
justify shredding our oldest constitutional principles.
Constant revelations of how the United States is treating
detainees at Guantanamo and elsewhere have damaged our image
around the world. It would be ironic indeed if the Congress's
response were not to address the underlying problems but
instead to make it more difficult for rights to be vindicated
and facts to be learned.
In June 2004, the Supreme Court squarely rejected the
federal government's position that Guantanamo Bay is a legal
no-man's land, outside the reach of American courts. The rule
of law now applies to Guantanamo Bay, and the federal courts
have the authority to review government actions there to
determine whether they are unconstitutional or otherwise
illegal. Just last Friday, the Senate overwhelming and
courageously voted to affirm the rule of law by bolstering
the prohibition against government torture and cruel,
inhuman, and degrading treatment. Yet the Graham Amendment
would suspend the rule of law, including the anti-torture
rule, for those detained at Guantanamo Bay. Even more
troublingly, the amendment may extend to any and all aliens
who lawfully reside in the United States.
Nothing is more emblematic of the rule of law than judicial
review and the availability of habeas corpus in the courts.
And nothing is a greater marker of the absence of the rule of
law than the lack of judicial review of government action,
especially the legality of executive detention. Stripping the
courts of their historic habeas jurisdiction would violate
separation-of-powers principles and undermine the checks-and-
balances on which our Constitution rests.
This suspension of the rule of law has clear, long-term
costs for our nation's efforts to combat terrorists. The
Graham Amendment would terminate ongoing litigation on behalf
of detainees at Guantanamo who have never had a fair hearing
to prove their innocence. International condemnation of the
perceived ``legal black hole'' of Guantanamo has been
persistent and wide-ranging. Our allies have expressed broad
concerns about the legality and morality of placing
individuals beyond the rule of law. The Graham Amendment
purports to achieve a short-term goal of minimizing
government litigation but, rather, would only create a wave
of new litigation. It would do this at the cost of tremendous
damage to the United States' reputation overseas by sending
the message that we cannot defend the decision to detain
those at Guantanamo in a court of law.
The Brennan Center strongly urges you to reject the Graham
Amendment to the Defense Department authorization bill.
Please do not hesitate to call us at 212-992-8632 if you have
any questions.
Sincerely,
Michael Waldman,
Executive Director.
Aziz Huq,
Associate Counsel.
____

Franklin Pierce Law Center,

Concord, NH, November 9, 2005.
Senator Arlen Specter,
Hart Senate Office Building,
Washington, DC.
Dear Senator Specter: As Dean of a law school and as former
Judge Advocate General of the Navy, I am writing in strong
opposition to the amendment which I understand Senator Graham
intends to offer to S. 1042, the Defense Department
Authorization Bill. Among other things, the proposed Graham
Amendment would strip U.S. courts of jurisdiction to hear
habeas corpus petitions from aliens who are detained by the
United States or any other action which would challenge any
aspect of their detention.
This amendment, however well-intentioned, is the wrong law
at the wrong time. It appears aimed at fixing a problem that
doesn't exist, and creates a raft of new problems of its own.
For generations, the United States has stood firm for the
rule of law. It is not the rule of law if you apply it when
it is convenient and toss it over the side when it is not.
The Great Writ of Habeas Corpus has been at the heart of U.S.
law since the first drafts of the Constitution. Indeed, it
has been part of Western culture for 1000 years, since the
Magna Carta. Creating broad exceptions that would
categorically deny the writ to thousands of those subject to
the full detention power of the U.S. Government should be
done, if at all, only with the utmost care, serious debate
and consideration, and attention to the practical effects of
such a limit. The restriction on habeas contemplated by the
Graham Amendment would be a momentous change. It is certainly
not a change in the landscape if U.S. jurisprudence we should
tack on to the Defense Department Authorization Bill at the
last minute.
In any case, the practical effects of such a bill would be
sweeping and negative. America's great strength isn't our
economy or natural resources or the essentially island nature
of our geography. It is our mission, and what we stand for.
That's why other nations look to us for leadership and follow
our lead. Every step we take that dims that bright, shining
light undermines our role as a world leader. As we limit the
rights of human beings, even those of the enemy, we become
more like the enemy. That makes us weaker and imperils our
valiant troops. I am proud to be an American. This Amendment,
well intentioned as it may be, will diminish us.
More immediately, the Graham Amendment would be viewed by
our allies and enemies alike as just another example of the
United States taking a step down the slippery slope from the
high road to the low road. It would increase the likelihood
that our own troops, who daily face the risk of capture by
any number of our enemies abroad, will be subject to ad hoc
justice at the hands of those who would seize upon any
excuse. I believe it is the duty of those who would put our
troops in harm's way to deny our enemies any such an excuse.
I urge you to insist at the least upon full and forthright
consideration of this Amendment by the Judiciary Committee.
And I urge you to advocate vigorously for its defeat.
Sincerely,
John D. Hutson,
Dean and President.
____

November 14, 2005.
Honorable Senator,
U.S. Senate,
Washington, DC.
Dear Senator: We understand that the Senate may revisit the
issue of jurisdiction over habeas corpus petitions brought by
aliens who are detained by the United States at Guantanamo
Bay. We write to express our opposition to the court-
stripping provisions of Amendment 2516 to S. 1042, the
Defense Department Authorization Bill. We urge you to reject
any proposal that would diminish the power of another branch
of government and effectively suspend habeas corpus without
thoughtful deliberation.
Amendment 2516 is the wrong law at the wrong time. It
appears aimed at fixing a problem that doesn't exist, and
creates a raft of new problems of its own.
For generations, the United States has stood firm for the
rule of law. It is not the rule of law if you only apply it
when it is convenient and toss it over the side when it is
not. The Great Writ of Habeas Corpus has been at the heart of
U.S. law since the first drafts of the Constitution. Indeed,
it has been part of Western culture for 1000 years, since the
Magna Carta. Creating broad exceptions that would
categorically deny the writ to thousands of those subject to
the full detention power of the U.S. Government should be
done, if at all, only with the utmost care, serious debate
and consideration, and attention to the practical effects of
such a limit. The restriction on habeas contemplated by
Amendment 2516 would be a momentous change. It is certainly
not a change in the landscape of U.S. jurisprudence we should
tack on to the Defense Department Authorization Bill at the
last minute.
In any case, the practical effects of Amendment 2516 would
be sweeping and negative. America's great strength isn't our
economy or natural resources or the essentially island nature
of our geography. It is our mission, and what we stand for.
That's why other nations look to us for leadership and follow
our lead. Every step we take that dims that bright, shining
light diminishes our role as a world leader. As we limit the
rights of human beings, even those of the enemy, we become
more like the enemy. That makes us weaker and imperils our
valiant troops. We are proud to be Americans. This Amendment,
well intentioned as it may be, will diminish us.
More immediately, Amendment 2516 would be viewed by our
allies and enemies alike as just another example of the
United States taking a step down the slippery slope from the
high road to the low road. It would increase the likelihood
that our own troops--who daily face the risk of capture by
any number of our enemies abroad--will be subject to ad hoc
justice at best at the hands of

[[Page S12730]]

those who would seize upon any excuse. We believe it is the
duty of those who would put our troops in harm's way to deny
our enemies any such an excuse.
We urge you to insist at the least upon full and forthright
consideration of the issues by the Judiciary Committee before
allowing Amendment 2516 to become law and to exercise your
role in oversight of the military. We urge you to advocate
vigorously for full and fair judicial review.
Sincerely,
Lieutenant General Robert G. Gard, Jr., USA (Ret.);
Lieutenant General Charles Otstott, USA (Ret.); Major
General Fred E. Haynes, USMC (Ret.); Rear Admiral John
D. Hutson, USN (Ret.); Brigadier General David M.
Brahms, USMC (Ret.); Brigadier General James Cullen,
USA (Ret.); Brigadier General Evelyn P. Foote, USA
(Ret.); Brigadier General David R. Irvine, USA (Ret.);
Scott L. Silliman, former United States Air Force Judge
Advocate.
Lt. General Robert G. Gard, Jr., USA (Ret.)
General Gard is a retired Lieutenant General who served in
the United States Army; his military assignments included
combat service in Korea and Vietnam. He is currently a
consultant on international security and president emeritus
of the Monterey Institute for International Studies.
Lt. General Charles Otstott, USA (Ret.)
General Otstott served 32 years in the Army. As an
Infantryman, he commanded at every echelon including command
of the 25th Infantry Division (Light) from 1988-1990. His
service included two combat tours in Vietnam. He completed
his service in uniform as Deputy Chairman, NATO Military
Committee, 1990-1992.
Major General Fred Haynes, USMC (Ret.)
General Haynes is a veteran of World War II, Korea and
Vietnam. He was an infantry officer for 35 years and
commanded the second Marine division and the third Marine
division. He was also the senior member of the U.S. military
at the U.N. military armistice at Pat, Mun Jom, Korea.
Rear Admiral John D. Hutson, USN (Ret.)
Admiral John D. Hutson served as the Navy's Judge Advocate
General from 1997 to 2000. Admiral Hutson now serves as
President and Dean of the Franklin Pierce Law Center in
Concord, New Hampshire.
Brigadier General David M. Brahms, USMC (Ret.)
General Brahms served in the Marine Corps from 1963-1988.
He served as the Marine Corps' senior legal adviser from 1983
until his retirement in 1988. General Brahms currently
practices law in Carlsbad, California and sits on the board
of directors of the Judge Advocates Association.
Brigadier General James Cullen, USA (Ret.)
General Cullen is a retired Brigadier General in the United
States Army Reserve Judge Advocate General's Corps and last
served as the Chief Judge (IMA) of the U.S. Army Court of
Criminal Appeals. He currently practices law in New York
City.
Brigadier General Evelyn P. Foote, USA (Ret.)
General Foote was Commanding General of Fort Belvoir in
1989. She was recalled to active duty in 1996 to serve as
Vice Chair of the Secretary of the Army's Senior Review Panel
on Sexual Harassment. She is President of the Alliance for
National Defense, a non-profit organization.
Brigadier General David R. Irvine, USA (Ret.)
General Irvine is a retired Army Reserve strategic
intelligence officer and taught prisoner interrogation and
military law for 18 years with the Sixth Army Intelligence
School. He last served as Deputy Commander for the 96th
Regional Readiness Command, and currently practices law in
Salt Lake City, Utah.
Scott L. Silliman, former United States Air Force Judge
Advocate
Mr. Silliman served as a United States Air Force Judge
Advocate for 25 years, from 1968-1993, before joining the
faculty of Duke University School of Law as a professor of
the Practice of Law. He is also the Executive Director of the
Center on Law, Ethics and National Security at Duke
University School of Law.

Exhibit No. 1

Department of Defense, Office of the Chief Defense
Counsel, Office of Military Commissions
Washington, DC, November 14, 2005.
Re Amendment No. 2515 of National Defense Authorization Act
for Fiscal Year 2006.

Hon. Jeff Bingaman,
Hart Senate Office Building,
Washington, DC.
Dear Senator Bingaman: I am the Chief Defense Counsel for
the Office of Military Commissions. Please note that I am
writing in my capacity as Chief Defense Counsel for the
Office of Military Commissions and I do not purport to speak
for the Department of Defense.
Please accept my congratulations for your arguments in
opposition to certain portions of Amendment No. 2515. I also
wholeheartedly endorse your proposal to eliminate detainees
being tried by military commission from the class of
detainees whose access to habeas relief would be abolished. I
am writing to provide specific legal support for some of the
points you raised in your debate with Senator Graham and to
point out some of the specific errors in Senator Graham's
arguments.
In his initial floor speech supporting the Amendment,
Senator Graham stated, ``Never in the history of the law of
armed conflict has an enemy combatant, irregular component,
or POW been given access to civilian court systems to
question military authority and control, except here.'' 151
Cong. Rec. S12656 (daily ed. Nov. 10, 2005). That claim
simply is not true. As discussed in greater detail below, the
Supreme Court considered habeas petitions filed on behalf of
seven of the eight would-be German saboteurs in Ex parte
Quirin, 317 U.S. 1 (1942), and on behalf of a Japanese
general who was a prisoner of war in In re Yamashita, 327
U.S. 1 (1946). Senator Graham also described Ex parte Quirin
by stating, ``We had German POWs who tried to come into
Federal court, and our court said: As a member of an armed
force, organized against the United States, you are not
entitled to a constitutional right of habeas corpus.'' 151
Cong. Rec. at S12663. In fact, the Supreme Court said nothing
of the sort. Rather, the Court said almost the exact
opposite. Again, Senator Graham erred when he stated that
``[i]t has been the history of the law of armed conflict that
when you have somebody tried for a violation of law of armed
conflict, you don't go to Federal court.'' Id. at S12664.
Contrary to Senator Graham's arguments, the Supreme Court
bas held repeatedly held that enemy combatants can pursue
federal habeas litigation to challenge their susceptibility
to trial by military commission. In Ex parte Quirin, which
dealt with the trial of the would-be German saboteurs who
were captured in 1942, the Supreme Court considered the
merits of the enemy combatants' habeas petition. Ex parte
Quirin, 317 U.S. 1 (1942). While the Court ultimately denied
the petitioners' applications for leave to file petitions for
habeas corpus, the Court specifically observed that neither
President Roosevelt's military order convening the commission
``nor the fact that they are enemy aliens forecloses
consideration by the courts of petitioners' contentions that
the Constitution and laws of the United States
constitutionally enacted forbid their trial by military
commission.'' Id. at 25 (emphasis added). Quirin has been
celebrated for giving the individuals the right to file such
habeas corpus petitions, even though the President had tried
to bar it. See. e.g., Louis Fisher, Nazi Saboteurs on Trial
173 (2003).
In re Yamashita similarly involved an application for leave
to file a petition for writ of habeas corpus with the Supreme
Court. 327 U.S. 1 (1946). General Yamashita, who had
commanded the Imperial Japanese Army's Fourteenth Army Group
in the Philippines, was tried by a U.S. Army
military commission, found guilty, and sentenced to death.
Id. at 5. After unsuccessfully seeking a writ of habeas
corpus from the Supreme Court of the Philippine Islands,
Yamashita sought both a writ of certiorari and an original
writ of habeas corpus from the United States Supreme
Court. Citing Ex parte Quirin, the Supreme Court
reemphasized that in considering such a request for habeas
relief arising from trial by military commission, ``[w]e
consider . . . only the lawful power of the commission to
try the petitioner for the offense charged.'' Id. at 8.
So, while the Supreme Court emphasized the limited scope
of review, it reemphasized that the federal courts we
available to consider habeas petitions filed by enemy
combatants challenging trial by military commission. In
language specifically relevant to the debate over
Amendment No. 2515, the Supreme Court observed, ``The
courts may inquire whether the detention complained of is
within the authority of those detaining the petitioner.''
Id. The Court added: ``Finally, we held in Ex parte
Quirin, [317 U.S. at] 24, 25, as we hold now, that
Congress by sanctioning trials of enemy aliens by military
commission for offenses against the law of war had
recognized the right of the accused to make a defense. Cf
Ex: parte Kawato, 317 U.S. 69. It has not foreclosed their
right to contend that the Constitution or laws of the
United States withhold authority to proceed with the
trial. It has not withdrawn, and the Executive branch of
the Government could not, unless there was suspension of
the writ, withdraw from the courts the duty and power to
make such inquiry into the authority of the commission as
may be made by habeas corpus.''
Id. at 9. In fact, in his dissent Justice Murphy went out
of his way to praise the majority for doing exactly the
opposite of what Senator Graham said--for providing the
unlawful combatants the right to habeas corpus: ``This Court
fortunately has taken the first and most important step
toward insuring the supremacy of law and justice in the
treatment of an enemy belligerent accused of violating the
laws of war. Jurisdiction properly has been asserted to
inquire ``into the cause of restraint of liberty'' of such a
person. 28 U.S.C. Sec. 452. Thus the obnoxious doctrine
asserted by the Govermnent in this case, to the effect that
restraints of liberty resulting trom military trials of war
criminals are political matters completely outside the arena
of judicial review, has been rejected fully and
unquestionably. This does not mean, of course, that the
foreign affairs and policies of the nation are proper
subjects of judicial inquiry. But when the liberty of any
person is restrained by reason of the authority of the United
States the writ of habeas corpus is available to test the
legality of that restraint, even though direct court review
of the restraint is prohibited. The conclusive presumption
must be made, in

[[Page S12731]]

this country at least, that illegal restraints are
unauthorized and unjustified by any foreign policy of the
Government and that commonly accepted juridical standards are
to be recognized and enforced. On that basis judicial inquiry
into these matters may proceed within its proper sphere.''
In re Yamashita, 327 U.S. at 30 (Murphy, J., dissenting).
Additionally, in response to a point made by Senator Levin,
Senator Graham stated: ``Here is the one thing I can tell you
for sure as a military lawyer. A POW or an enemy combatant
facing law of armed conflict charges has not been given the
right to habeas corpus for 200 years because our own people
in our own military facing court-martials, who could be
sentenced to death, do not have the right of habeas corpus.
Again, Senator Graham's argument is factually incorrect.
U.S. servicemembers do have a right to challenge court-
martial proceedings through habeas petitions, in addition to
the direct appeal rights provided by Articles 66, 67, and 67a
of the Uniform Code of Military Justice. In Burns v. Wilson,
which was a habeas challenge to an Air Force capital court-
martial, the Supreme Court observed: ``In this case, we are
dealing with habeas corpus applicants who assert--rightly or
wrongly--that they have been imprisoned and sentenced to
death as a result of proceedings which denied them basic
rights guaranteed by the Constitution. The federal civil
courts have jurisdiction over such applications.'' Burns v.
Wilson, 346 U.S. 137, 139 (1953) (plurality opinion).
Interestingly, in reaching this conclusion, the Supreme Court
cited In re Yamashita, 327 U.S. 1, 8 (1946), thus drawing a
historical parallel to the right of a U.S. servicemember to
seek a writ of habeas corpus and the right of an enemy
combatant detained by the United States military to do the
same. Federal courts continue to review habeas challenges to
court-martial convictions and occasionally grant relief. See,
e.g., Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990) (ordering
petitioner's release from the United States Disciplinary
Barracks due to constitutionally-deficient reasonable doubt
instruction); Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990)
(finding a due process violation where the military judge's
sentencing instructions did not require the members to reach
a three-fourths majority vote in order to impose life
imprisonment).
An important policy consideration also suggests the need to
reassess the amendment. In its current form, Amendment No.
2515 would provide detainees seeking review of Combatant
Status Review Tribunals (CSRTs) with greater access to
federal courts than a detainee who has been sentenced to
imprisonment for life, or even death, by a military
commission. This result is anomalous for two reasons. First,
generally due process protections increase in direct
proportion to the magnitude of the interest at stake. Because
military commissions are literally empowered to take a life,
the recourse to Article III courts for those sentenced by
these tribunals should be at least equal to that of
individuals who are merely challenging their susceptibility
to continued detention. Second, the burden on the federal
judiciary is far greater in the case of review of CSRTs than
the review of commission proceedings. During the floor
debate, Senator Graham noted that there are currently 160
habeas petitions filed by or on behalf of Guantanamo
detainees pending in federal courts. But only three
individuals being tried by military commissions have filed
habeas petitions challenging those trials. The total number
of individuals with approved charges before military
commissions is only nine. There can be little doubt that
nowhere near 160 of the Guantanamo detainees will ever face
trial by military commission. Accordingly, while the federal
courts' burden of resolving habeas challenges to continued
detention might be large, the burden of resolving habeas
challenges to military commission proceedings will be quite
minimal. The resources that will be devoted to the District
of Columbia Circuit's review of CSRTs will likely dwarf the
resources that would be necessary to litigate every habeas
petition that has or will be filed by an accused before a
military commission.
I will be happy to provide any additional information that
might be helpful. You can reach me at my office, at home, or
by e-mail. Unfortunately, I am currently scheduled to leave
for Guantanamo Bay on the morning of Tuesday, November 15. If
you or a member of your staff would like to reach me after
today, please leave a voice mail on my work phone and I will
return your call.
Very Respectully,
Dwight H. Sullivan,
Colonel, USMCR, Chief Defense Counsel, Office of Military
Commissions.

Mr. BINGAMAN. How much time remains of the 15 minutes I am allotted?
The PRESIDING OFFICER. One minute.
Mr. BINGAMAN. I retain that minute and yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I will be glad to get a letter from the
prosecutor at the military commission about the procedures. I will bet
$100 he will say they are great. The point is, we are talking about two
different things. My amendment is designed to get us back to what we
have been doing for a couple hundred years. What I am concerned about
is that an enemy prisoner, not someone charged with a crime, is having
access to Federal courts to sue our own troops about the food, about
the mail, about whether they should have Internet access, about whether
they should get DVDs. There are 160 lawsuits now in Federal court suing
to stop interrogations unless a Federal judge oversees the
interrogation.
Never in the history of the law of armed conflict has a military
prisoner, an enemy combatant, been granted access to any court system,
Federal or otherwise, to have a Federal judge come in and start running
the prison and determining what is in bounds and what is out. The
military is the proper body to determine who an enemy combatant is and
how to run a war and how to interrogate people, not Federal judges who
are not trained in the art of military science.
Here is what these lawsuits are about. Here is why I am so adamant
that we stop it. No. 1, what are we stopping? We are not stopping a
constitutional right that exists under our law for an enemy prisoner in
our hands to be able to question their detention through Federal court
action. There is no constitutional right under habeas corpus in
American jurisprudence for an enemy prisoner to go to Federal court and
challenge whether they should have Internet access or DVD access, all
the other things they are suing the people for, medical malpractice.
That has never been the case. None of the Germans in World War II who
were housed in the United States, and the Japanese prisoners, were
allowed to go to Federal court and get a Federal judge to come in and
oversee their treatment. We don't allow that. That is not part of the
law of armed conflict.
Habeas petitions are not coming from the Constitution. They are
coming from an interpretation of section 2241. The Rasul case was a
Supreme Court case that said that contrary to the Government's
argument, Guantanamo Bay, Cuba is in the effective control of the
United States, even though it is not part of our own territories.
Because of the lease arrangements and because the Department of Defense
is an agency covered by the jurisdiction of the Federal courts, the
argument that it is outside the jurisdiction of Federal courts because
of its location was defeated. That led to the decision that since you
are within the control of our jurisdiction at Guantanamo Bay, section
2241 applies unless Congress says otherwise.
Here is the question I will ask every Member of this body: Does the
Senate want enemy terrorists, al-Qaida members being detained at
Guantanamo Bay, to have unlimited access to our Federal courts to sue
our troops about the following:
A Canadian detainee, who threw a grenade that killed an American Army
medic in a firefight and who comes from a family of longstanding al-
Qaida ties, moves for preliminary injunction forbidding interrogation
of him or engaging in cruel, inhumane, or degrading treatment of him.
That was a lawsuit brought in a Federal court by a person who blew up
one of our medics, who wanted a Federal judge to supervise his military
interrogation. If we start doing that, we might as well close
Guantanamo Bay down.
These are not people being charged. They are being kept off the
battlefield because they have been captured on the battlefield, and
they have been labeled enemy combatants. The procedures I am trying to
get in place will comply with the law of armed conflict. Twelve of the
people have been let go at Guantanamo Bay. Over 200 in total have been
let go. They have been found no longer to have intelligence value or to
be a threat to the United States. Once those two determinations are
made, they are let go, even if they are an enemy combatant. Twelve of
them have been recaptured. A couple of them have been killed. They have
gone back to the fight.
The people at Guantanamo Bay are captured as part of the war on
terror, and some of them may be running. The point is, when you join
al-Qaida, whether you stand or fight or run, you have lost your rights
to be considered anything other than what you are--an enemy combatant
taking up arms against the United States.

[[Page S12732]]

Here is my message to the terrorists: If you join a terrorist
organization taking up arms against the United States and you get
involved in combat, you are likely to get killed. If you get captured,
you will be taken off the battlefield as long as necessary to make sure
our country is protected from you.
Under the law of armed conflict, there is no right to try them or let
them go. Shaikh Mohammed, the mastermind of 9/11, is in U.S. control
right now. He is not a criminal, but you have to charge within 90 days
or let go. He is an enemy combatant, the mastermind of 9/11, and 9/11
was an act of war. It was not a crime. The law of war needs to
apply. Anybody who suggests that Shaikh Mohammed should have unlimited
access to the Federal courts to get a Federal judge to supervise his
interrogation is fundamentally changing the law of war and making us
less safe. He will not be let go. If you don't want to be captured and
detained for a long time, don't join al-Qaida.

Listen to this: Kuwaiti detainees seek court orders that they be
provided dictionaries in contravention of GTMO's force protection
policy and that their counsel be given high-speed Internet access at
their lodging on the base and be allowed to use classified DOD
telecommunications facilities, all on the theory of the right to
counsel. A motion by a high-level al-Qaida detainee complaining about
base security procedures, speed of mail delivery, and medical
treatment, seeking an order that he be transferred to the least onerous
conditions at GTMO and asking the court to order that GTMO allow him to
keep any books and reading materials sent to him and to report to the
court on his opportunities for exercise, communication, recreation, and
worship. A man captured on the battlefield, engaged in a war against
the United States, because of 2241's interpretation where Congress
hasn't spoken, is petitioning a court to supervise his opportunity to
exercise, communicate, recreate, and worship, and where he should be
housed.
In other words, Federal judges are going to determine how we run the
war, not the people fighting the war. Never in the history of warfare
has an enemy prisoner been allowed to do such things. It didn't happen
in World War II. Why? Because we have a right, as a country capturing
enemy prisoners, to take them off the battlefield. They are not common
criminals. We have an obligation to treat them humanely under the law
of armed conflict.
An emergency motion seeking a court order requiring GTMO to set aside
its normal security policies and show detainees DVDs that are purported
to be family videos. One hundred sixty of these cases, another 40 or 50
suing our own people, one for $100 million, suing the doctor who
treated the guy. This is an absurd result.
I proudly stand before the Senate asking the Senate to fix this
absurd result. The court in Rasul is asking the Senate and the House,
do you intend for al-Qaida terrorists, enemy combatants, to have access
to Federal courts under habeas rights to challenge their detention as
if they were American citizens? The answer should be, no, we never
intended that. That is what my amendment does. It says to the courts
and to the world that an enemy combatant is not going to have the
rights of an American citizen, and we are going to stop all these
lawsuits undermining our ability to protect ourselves.
What have I done in place? I have stopped a procedure that has never
been granted before because it is totally out of bounds of what we need
to be doing and have done. I allow Federal courts to review each enemy
combatant's determination at the Circuit Court of Appeals for the
District of Columbia to look at whether the combat status review
tribunal, the group deciding whether you are an enemy combatant,
followed the procedures and standards we set up.
What do the Geneva Conventions give our own troops, if our own troops
fall into enemy hands under the Geneva Conventions? If there is a
question about their status, it says a competent tribunal has the
ability to challenge. The combat status review tribunal that we have
set up at Guantanamo Bay since August of 2004 is Geneva Conventions
protection on steroids. They have a full-blown hearing, a right every
year to have their status redetermined. And what do you look at? Were
they an enemy combatant engaged in armed conflict against the United
States? Do they present intelligence value or a continuing threat to
the United States? That determination is made every year, a full-blown
adversarial process way beyond what the Geneva Conventions require in
such situations.
We have added to that Federal court oversight to see if the people at
Guantanamo Bay are following the rules and procedures set up in
accordance with the law of armed conflict.
Senator Bingaman is a very fine man, a fine Senator. I deeply
disagree with him. And any letter that anybody writes, I have my own
letters from JAGs.
It is a simple proposition. His amendment allows unlimited habeas
petitions regarding detention to come to the Circuit Court of Appeals
for the District of Columbia. The type lawsuits that we see now will
continue: A motion by Kuwaiti detainees unsatisfied with the Koran they
are provided and want another version, a filing by a detainee
requesting a stay of litigation pending related appeals, an emergency
motion by a detainee accusing military health professionals of gross
and intentional malpractice.

They are swamping the system. Americans are losing their day in court
because somehow we have allowed enemy combatants, people who have
signed up to kill us all, to take us into Federal court and sue us
about everything.
That is not part of the law of armed conflict. Our troops are not
going to get that right if they are in the hands of someone else. What
I am asking for is for us to treat enemy combatants humanely and in
accordance with the law of armed conflict. I am asking for us to
provide due process in accordance with the Geneva Conventions and then
some. I am even allowing a Federal court review of the process down
there. But I will not now or ever sit on the sidelines and give rights
to enemy combatants who have been caught on the battlefield in the war
of terror the unending, endless right to think of every reason in the
world to take our own troops into court. We will keep having this
debate and we will keep having this argument until the cows come home
because I am not going to sit on the sidelines and watch that happen.
There has never been a constitutional right for that to happen.
Section 2241 is what we are talking about here. Congress wrote it.
Congress has restricted habeas rights for illegal immigrants. Congress
has restricted habeas rights of its own citizens numerous times because
these petitions can get out of control and take over a courtroom.
The question for this Congress is whether you, after 9/11, want to
give enemy combatants detained at Guantanamo Bay who have been captured
on the battlefield the unlimited right to go into any Federal court in
this land and to sue over everything they can think of. If you do, then
we have made a huge mistake in the war on terror. I suggest that you
say no to Senator Bingaman's amendment and get us back to where we have
been for 200 years. Apply the law of armed conflict. Once you have been
determined to be an enemy combatant, you get the due process of the
Geneva Conventions. We have done that and then some to allow a limited
Federal court review, more than anybody has ever gotten in history. We
get back on track. And when it comes to military commissions and those
who will be charged with the law of armed conflict violations, I am
working with Senator Levin and others to try to find a way to get a
Federal court appeal right.
How much time do I have, Mr. President?
The PRESIDING OFFICER. The Senator has 2 minutes remaining.
Mr. GRAHAM. I will try to retain 1 minute.
Let it be said that the people who attacked us on 9/11 committed an
act of war, not a crime, and they are going to be tried under military
commissions, not in our Federal courts, because they are engaged in a
war and they are violating the law of armed conflict. They will get
their day in court and we will come up with a fair process to make sure
they have their day in court, but we are not going to take a war and
turn it into a crime.
I reserve the remainder of my time.

[[Page S12733]]

The PRESIDING OFFICER. Who yields time?
The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, let me use the remaining 1 minute I have
and then I will ask permission to speak for another 4 minutes, if
possible.
Let me say that I think the Senator obviously hasn't read the
amendment I have offered. The amendment I have offered makes it very
clear that the Federal court is available only to hear claims regarding
whether the determination of the combat status review tribunal is
consistent with the procedures and standards specified by the
Department of Defense, whether the status determination was supported
by sufficient evidence, and to determine the lawfulness of the
detention of the alien. They are not permitted under my amendment to
consider whether the DVDs are the ones that the prisoner would like.
They are not permitted to consider whether the peanut butter is the
peanut butter the prisoner would like, or anything else.
To try to trivialize this debate by suggesting that is what we are
talking about I think does a disservice to the issue.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. BINGAMAN. Mr. President, I ask unanimous consent to speak for an
additional 4 minutes as if in morning business.
The PRESIDING OFFICER. Is there objection?
Mr. GRAHAM. I don't mind if the Senator wants 4 more minutes to speak
on his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. I appreciate my colleague's courtesy.
Mr. President, first let me say we have a real difference of opinion
here as to what has been the law of this land for the last couple
hundred years.
The Senator from South Carolina continues to say we have never
recognized a right for people in conflict, armed conflict, to petition
for habeas corpus. The truth is we have. The truth is the Supreme Court
has--in the Ex parte Quirin case, the In re Yamashita case. There are a
variety of cases where this has been the case. The Supreme Court has
repeatedly held that enemy combatants can pursue Federal habeas
litigation to challenge that you are susceptible to trial by military
commission. It is very clear that that right has been there.
All I am trying to do is to be sure we do not strip the courts of the
right to consider these types of petitions. If we strip the courts of
the right to consider petitions in these cases, how many other areas
can we find where we will deny people within the jurisdiction of our
Federal court system the right to proceed with a petition for habeas
corpus in the Federal judiciary?
This is the most fundamental right any of us can conceive of. When
you start talking about imprisoning a person and not allowing that
person any opportunity to have a court review of the legality of that
imprisonment, you are talking about the most fundamental of rights.
Unfortunately, that is what the amendment by Senator Graham would do.
It would deny that right. It would be an unfortunate act by this
Congress. It would be an extraordinary act by this Congress to do that,
and I believe would be very contrary to the traditions this country was
built on. I strongly urge my colleagues to support the amendment I have
offered which maintains the right to petition for habeas corpus on the
part of everybody because there is nothing in our Constitution, there
is nothing in the history and tradition of this country that says this
is only available for citizens. It is available for all individuals who
become imprisoned within the confines of the United States and within
the jurisdiction of the Federal courts. Our Department of Defense tried
to locate these prisoners outside the jurisdiction of Federal courts
and put them in Guantanamo and it argued to the Federal court they are
now outside your jurisdiction, and the Federal court said, no, they are
not. The United States Government is the sovereign in Guantanamo. We
have a 100-year lease on that property, we operate that facility, and
we are responsible for the treatment of those individuals.

So the Federal courts have authority to look at whether the
detentions that occur there are legal or illegal. That is the law as it
has always been in this country. That is the law today. We should not
change that by allowing the Graham amendment to remain as it is. We
need to adopt a refinement of that amendment, an improvement of that
amendment, and that is the second-degree amendment I have offered at
this point.
Mr. President, I will yield the floor. I think my colleague wants to
respond.
Mr. GRAHAM. If I may have the same courtesy and have 4 minutes.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. No. 1, we have a fundamental difference. I do not want
everyone to have habeas rights. I do not want the enemy combatant al-
Qaida terrorist to be able to go in our courts and start to sue our own
troops. I don't want it. I don't think people in this body want it. I
do not think the American people want it. I want al-Qaida members to be
detained in armed conflict. They should not have due process rights
beyond what the Geneva Conventions ever envisioned.
As to Senator Bingaman's amendment, he talks about they can't base
claims on living conditions, but listen to this: Whether the status
determination was supported by sufficient evidence and reached in
accordance with due process of law, provided that statements obtained
through undue coercion, torture, or cruel or inhuman treatment may not
be used as a basis for the determination, and consideration of
lawfulness of the detention of such alien. You could drive an army of
trucks through those legal exceptions. What it would do is legitimize
this request by a Canadian detainee, who threw a grenade and killed an
American medic, in moving for a preliminary injunction forbidding the
interrogation of him or engaging in cruel, inhumane, or degrading
treatment of him. In other words, under this amendment, that claim
stands. He could come in and ask a Federal judge: I want you sitting
there while they interrogate me. And we are turning the war away from
military people to Federal judges. We can't do that. We will compromise
our own defense, our own freedom.
As to the people at Guantanamo Bay who are going to be charged with a
crime, I am working with Senator Levin to come up with a military
commission model we all can be proud of. There are 490 enemy combatants
down there who are not going to be charged with crimes, and if we
allowed them unfettered freedom to have courts, to have judges control
military interrogation and get into the bowels of running this war--not
only has it never been done, but I challenge anybody to bring one case
down here where an enemy prisoner has been able to go into Federal
court and complain about their detention. Once you have a combatant
charged with a crime, you are working with 490 of them who are going to
have unfettered access under 2241 unless Congress acts. If you want to
stop this kind of litigation and not turn over the war to Federal
judges, then you need to tell the courts that 2241 does not apply. No
law in the history of armed conflict has allowed this to happen and it
needs to not happen now. Twelve people have been released down there
under the procedures we already have, and they have gone back to try to
kill us.
Nothing is perfect. Nothing is perfect. We may let some people go who
go back to the fight, but what we are going to do is we are going to
have a process we can be proud of that fairly determines who an enemy
combatant is and who is not following the Geneva Conventions law of
armed conflict. We are not going, with my amendment, to turn the al-
Qaida member into an American citizen suing us for anything they can
think of about due process of law and as to where they have been
detained.
This is a fundamental moment in terms of values in the law of armed
conflict. The American value system is being maintained by due process
and then some. The American value system that you can allow people who
are trying to kill you unfettered access to the Federal courts to sue
your own troops--if that becomes our value, we are going to lose this
war.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Michigan.

[[Page S12734]]

Mr. LEVIN. Mr. President, I yield 6 minutes to the Senator from
Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the Senator from Michigan.
In March 2003, the brave men and women of our Armed Forces were sent
into war in Iraq. Now, over 2\1/2\ years later, that war continues and
those brave men and women are waiting for what they should have gotten
long ago--a clear, realistic military mission with a flexible timetable
for achieving that mission. And, of course, that timetable has to
include a plan for withdrawing our troops from Iraq when their mission
is done.
On Tuesday, the Senate can start to put our Iraq policy on the right
course by demanding a public plan and a flexible timetable for
achieving our military goals and bringing our troops home. The absence
of any kind of timetable is not fair to our troops and their families.
It is making the American people increasingly anxious. And it is
hurting, not helping, our Iraq policy and our broader national security
strategy.
Why is it hurting us? Well, for one thing, the perception that U.S.
troops will be there indefinitely discourages Iraqi ownership of the
political process. It also fuels the insurgency, which thrives on
conspiracy theories about our intentions and presence in Iraq. The
failure to put forth a timetable is helping the recruitment of foreign
fighters and unifying elements of the insurgency that might otherwise
turn on each other. Former Republican Defense Secretary and Wisconsin
Congressman Melvin Laird recognized that when he said that ``our
presence is what feeds the insurgency.'' GEN George Casey recognized
that when he said that the perception of occupation in Iraq ``fuels the
insurgency.'' So did one of the top military commanders I spoke with in
Iraq, who told me off the record that nothing would take the wind out
of the sails of the insurgents more than a public timetable for
finishing the mission.
Drawing down our troops in Iraq is also essential if we are going to
prevent the U.S. army from being hollowed out and ensure our military
readiness. And it is essential if we are going to make sure that our
Iraq policy is consistent with our broader national security priority--
going after the global terrorist networks that threaten the U.S.
Despite the administration's desperate efforts to link them, Iraq has
been a dangerous and self-defeating diversion from that central fight
against global terrorism.
Unfortunately, the President is one of the dwindling group of people
who don't support a timetable. They argue that a timetable will
embolden the insurgency. Actually, it will undermine the insurgency.
They argue that fighting insurgents in Iraq means we won't have to
fight them elsewhere. That is just wishful thinking, of course--the
idea that all of our terrorist enemies will be irresistibly drawn to
Iraq like bees to honey doesn't make a whole lot of sense. They argue
that the insurgents will wait us out if we have a timetable. Of course,
the insurgents could do that now if that is what they wanted--lay low
and wait until we leave. They argue that if we leave prematurely, Iraq
will fall into chaos. The only problem is that the insurgency isn't
letting up and there is not much expectation it will, as long as our
troops remain with no endgoal in sight.
For months, I have been calling on the President to provide a
flexible, public timetable for our mission in Iraq. I am not calling
for a rigid timetable--I mean one that is tied to clear and achievable
benchmarks, with estimated dates for meeting those benchmarks. Today, I
am pleased to join with some of my distinguished colleagues in the
Senate in offering an amendment that demands just that. I hope that the
Senate will finally tell the administration that ``stay the course''
isn't a strategy for success--it is not even a strategy. We need to
correct the course we are on. To do that, we need openness, we need
honesty, and we need clarity about our military mission in Iraq. The
American people, and our troops in Iraq, have been waiting for that for
far too long. We can't afford to wait any longer.
I yield the floor.
Mr. GRAHAM. Mr. President, I ask unanimous consent to have letters in
support of my amendment printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Birmingham, AL, November 13, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: Congratulations on your success in
obtaining Senate adoption of your amendment (Senate Amendment
2516 to S. 1042) to restrict the ability of terrorist
detainees held at Guantanamo, to gain access to the U.S.
Districts Courts through habeas corpus applications.
I understand that Amendment opponents will make an effort
on Monday, November 14, to remove the habeas corpus
restrictions in the Amendment so that detainees can continue
to contest various issues regarding their detention and the
conduct of the Global War on Terror in the U.S. Federal Court
System.
While I strongly support Senator McCain's efforts to
prohibit cruel and degrading treatment against detainees in
American custody, I am not in favor of granting detainees'
access to our civilian court system. There are effective and
adequate procedures for detainees to question their status
through the Combatant Status Review Tribunal and the
Administrative Review Board without granting aliens outside
the United States access to our federal civilian courts.
I urge you to make the strongest effort possible to resist
efforts to weaken your amendment. If the habeas restrictions
are removed we can expect a logjam of litigation with the
attendant adverse effects on our ability to gather
intelligence and prosecute the Global War on Terrorism.
Very Respectfully,
Robert W. Norris,
Major General, USAF (Ret.).
____

November 14, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: I support your efforts to keep Senate
Amendment 2516 (the ``Amendment'') in S. 1042, the FY 06
National Defense Authorization Act.
Habeas corpus applications, brought on behalf of
terrorist--Guantanamo detainees, to which the Amendment will
put a stop, have become a means to advance efforts to
frustrate the Global War on Terror. The detainees appear to
have become secondary to anti-war efforts.
On the Senate floor, during last Thursday's debate on the
Amendment, you appropriately cited the Michael Ratner
interview in Mother Jones Magazine (The Torn Fabric of the
Law: An Interview with Michael Ratner, Mother Jones Magazine,
March 21, 2005.) I read Mr. Ratner's interview and I note
that, to him, the disruptive results of litigation brought
against the United States (under the guise of habeas corpus
applications) appear to be more important than his detainee--
clients. ``While we may not be having many victories in
freeing people, we're winning heavily in the litigation.''
That litigation, according to Mr. Ratner, as you pointed out,
``. . . is brutal for them [the United States]. It's huge.
We have over one hundred lawyers now from big and small firms
working to represent these detainees. Every time an attorney
goes down there, it makes it that much harder to do what
they're [the United States] doing. You can't run an
interrogation and torture camp with attorneys. What are they
[the United States] going to do now that we're getting court
orders to get more lawyers down there?''
Thank you for your strong efforts made in securing adoption
of the Amendment and in its preservation.
Thank you for your time and interest.
Very respectfully,

Edward F. Rodriguez, Jr.,

Brig. Gen., USAFR (Ret.),
Air Force Judge Advocate '70-'99.
____

November 13, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: I write to support Senate Amendment
2516 (the ``Amendment'') to S. 1042, the FY 06 National
Defense Authorization Act.
You proposed the Amendment to restrict the ability of
Global War on Terror detainees, held at Guantanamo, to gain
access to US District Courts through habeas corpus
applications, among other things. On Thursday, November 10,
you succeeded in persuading the Senate to adopt the Amendment
by a vote of 49 to 42.
I understand that, when the Senate reconvenes on Monday,
November 14, the Amendment's opponents will make a strong
effort to strip away the habeas restriction. That will enable
detainees to continue to contest all manner of issues related
to their detention and the conduct of the Global War on
Terror in the US civilian court system.
Detainees have ample opportunity to contest their combatant
status through the Combatant Status Review Tribunal
(``CSRT'') process, especially now since other provisions of
the Amendment provide for the exclusion of statements made
under undue coercion and for the appeal of adverse CSRT
rulings to the US Court of Appeals for the DC Circuit.
I urge you to hold fast and to prevent any watering down of
the Amendment. If the habeas restriction is struck from the
Amendment, then the pending 160 habeas applications will be
only the tip of the iceberg. This

[[Page S12735]]

is a true ``floodgates of litigation'' scenario. This is no
way to run a terrorist detention facility and a war against
foreign terrorists attacking our security. It would be a
significant setback in our resolve to defeat terrorists who
do not respect human rights and the rule of law.
It is ironic that we would knowingly facilitate foreign
terrorists to have access to our Constitutional safeguards to
condemn and attack them. The Constitutional safeguards and
rights that we have and protect should not be a tool for
foreign terrorists.
Thank you for your strong efforts made in securing adoption
or the Amendment and in its preservation.
Very Respectfully,
Bohdan Danyliw,
Brig. Gen., USAF (Ret), Former Command Judge Advocate Air
Force Systems Command.
____

November 12, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: Please know I support Senate Amendment
2516 (the ``Amendment'') to S. 1042, the FY 06 National
Defense Authorization Act. The Amendment restricts the
ability of Global War on Terror detainees, held at
Guantanamo, to gain access to U.S. District Courts through
habeas corpus applications, among other things. Yesterday the
Senate adopted the Amendment by a vote of 49 to 42. However.
I suspect this is not the end of the matter. The Amendment's
opponents will most likely undertake efforts to strip away
the habeas restriction so that detainees can continue to
contest, in the U.S. civilian court system, every conceivable
issue related to their detention and the conduct of the
Global War on Terror.
Detainees have ample opportunity to contest their combatant
status through the Combatant Status Review Tribunal
(``CSRT'') process. This is especially true now, since other
provisions of the Amendment provide for the exclusion of
statements made under undue coercion and for tbe appeal of
adverse CSRT rulings to the U.S. Court of Appeals for the DC
Circuit.
I urge you to hold fast and to prevent any watering down of
the Amendment. If the habeas restriction is struck from the
Amendment, then the pending 160 habeas applications will be
only the tip of the iceberg--a true ``floodgates of
litigation'' scenario. This is no way to run a terror
detention facility, much less a war.
Thank you for your strong efforts in securing adoption of
the Amendment and in its preservation.
Very respectfully,
Nolan Sklute,
Major General, USAF (Ret.).
____

Law Offices of

Driano & Sorenson,

Seattle, WA, November 11, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: I write to support Senate Amendment
2516 (the ``Amendment'') to S. 1042, the FY 06 National
Defense Authorization Act.
You proposed the Amendment to restrict the ability of
Global War on Terror detainees, held at Guantanamo, to gain
access to U.S. District Courts through habeas corpus
applications, among other things.
Yesterday, you succeeded in persuading the Senate to adopt
the Amendment by a vote of 49 to 42.
I understand that, when the Senate reconvenes on Monday the
Amendment's opponents will make a strong effort to strip away
the habeas restriction so that detainees can continue to
contest all manner of issues related to their detention and
the conduct of the Global War on Terror in the U.S. civilian
court system.
Detainees have ample opportunity to contest their combatant
status through the Combatant Status Review Tribunal
(``CSRT'') process, especially now since other provisions of
the Amendment provide for the exclusion of statements made
under undue coercion and for the appeal of adverse CSRT
rulings to the U.S. Court of Appeals for the DC Circuit.
I urge you to hold fast and to prevent any watering down of
the Amendment. If the habeas restriction is struck from the
Amendment, then the pending 160 habeas applications will be
only the tip of the iceberg. This is a true ``floodgates of
litigation'' scenario. This is no way to run a terror
detention facility, much less a war.
Thank you for your strong efforts made in securing adoption
of the Amendment and in its preservation.
Very respectfully,
Dominick V. Driano,
Brig. Gen., USAF (Ret.).
____

November 11, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: I write to support Senate Amendment
2516 (the ``Amendment'') to S. 1042, the FY 06 National
Defense Authorization Act.
You proposed the Amendment to restrict the ability of
Global War on Terror detainees, held at Guantanamo, to gain
access to U.S. District Courts through habeas corpus
applications, among other things.
Yesterday, you succeeded in persuading the Senate to adopt
the Amendment by a vote of 49 to 42.
I understand that, when the Senate reconvenes on Monday,
the Amendment's opponents will make a strong effort to strip
away the habeas restriction so that detainees can continue to
contest all manner of issues related to their detention and
the conduct of the Global War on Terror in the U.S. civilian
court system.
Detainees have ample opportunity to contest their combatant
status through the Combatant Status Review Tribunal.
(``CSRT'') process, especially now since other provisions of
the Amendment provide for the exclusion of statements made
under undue coercion and for the appeal of adverse CSRT
rulings to the U.S. Court of Appeals for the D.C. Circuit.
I urge you to hold fast and to prevent any watering down of
the Amendment. If the habeas restriction is struck from the
Amendment, then the pending 160 habeas applications will be
only the tip of the iceberg. This is a true ``floodgates of
litigation'' scenario. This is no way to run a terror
detention facility, much less a war.
Thank you for your strong efforts made in securing adoption
of the Amendment and in its preservation.
Very respectfully,

Walter A. Reed,

M. Gen. USAF (Ret),
AF Judge Advocate General (1977-1980).
____

November 14, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: A world in which non-state actors
engaged in terrorist activities can be our greatest security
threat requires legal mechanisms that allow us to deal
effectively with these threats while remaining true to our
values. I believe Senate Amendment 2516 to S. 1042
accomplishes these purposes.
When I was a Military Judge during the Viet Nam conflict, a
defense counsel who regularly appeared before me said that he
loved military juries. They always followed orders, and he
said that when a judge told a court to acquit if there was
reasonable doubt, they did their duty and would acquit
regardless of how difficult that decision might be. The CSRT
assures that detainee status decisions will be made by
persons with both the backbone, and the background, to get it
right. Simply stated, the members of the CSRT are in the best
position to make the necessary findings, and any review
process must take this into account.
Establishing the D.C. Circuit as the singular court for
review of CSRT decisions will promote consistency and
fairness. Similarly, the exclusion of statements made under
undue coercion promotes the integrity of the decision process
and is consistent with our core values.
I am pleased to offer my support for the Amendment.
Sincerely,
Gilbert J. Regan,
Brig. Gen. USAF (Ret.).
____

November 11, 2005.
Hon. Lindsey O. Graham,
c/o Ms. Meredith Beck, U.S. Senate, Russell Senate Office
Building, Washington, DC.
Dear Senator Graham: I write to support Senate Amendment
2516 (the ``Amendment'') to S. 1042, the FY 06 National
Defense Authorization Act.
You proposed the Amendment to restrict the ability of
Global War on Terror detainees, held at Guantanamo, to gain
access to U.S. District Courts through habeas corpus
applications, among other things.
Yesterday, you succeeded in persuading the Senate to adopt
the Amendment by a vote of 49 to 42.
I understand that, when the Senate reconvenes on Monday,
the Amendment's opponents will make a strong effort to strip
away the habeas restriction so that detainees can continue to
contest all manner of issues related to their detention and
the conduct of the Global War On Terror in the U.S. civilian
court system.
Detainees have ample opportunity to contest their combatant
status through the Combatant Status Review Tribunal
(``CSRT'') process, especially now since other provisions of
the Amendment provide for the exclusion of statements made
under undue coercion and for the appeal of adverse CSRT
rulings to the U.S. Court of Appeals for the D.C. Circuit.
I urge you to hold fast and to prevent any watering down of
the Amendment. If the habeas restriction is struck from the
Amendment, then the pending 160 habeas applications will be
only the tip of the iceberg. This is a true ``floodgates of
litigation'' scenario. This is no way to run a terror
detention facility, much less a war.
Thank you for your strong efforts made in securing adoption
of the Amendment and in its preservation.
Very respectfully,
Olan G. Waldrop, Jr.,
Brig. Gen., USAF (Retired).

The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that in the absence
of a speaker on the Republican side, the time between now and 4:30 p.m.
be divided as follows: the Senator from Massachusetts be recognized for
30 minutes, then the Senator from Connecticut be recognized for 10
minutes. If, during that period, the floor manager on the Republican
side indicates

[[Page S12736]]

time is required on the Republican side, we would then do our best to
make arrangements for that to happen, perhaps delaying the 4:30 p.m.
timetable. We are trying to accommodate two Senators, the Senator from
Massachusetts, who needs a half hour, and the Senator from Connecticut,
who needs 10 minutes.
Mr. GRAHAM. So I have to pick whom I like best?
Mr. LEVIN. We are trying to accommodate colleagues and make sure you
are protected. I suggest the following: the Senator from Massachusetts
speak for a half hour; the Senator from Connecticut speak for 10
minutes, unless the Senator from South Carolina knows of someone on his
side; and then if our people or a person on their side, Mr. President,
needs some time, the 4:30 p.m. shift to the appropriations bill be
delayed by 5 or 10 minutes to accommodate the Republican side. I can't
think of anything better without knowing exactly who wants to speak.
Mr. GRAHAM. I agree.
Mr. LEVIN. Mr. President, I ask unanimous consent that the Senator
from Massachusetts be recognized for 30 minutes, the Senator from
Connecticut for 10 minutes, and the remainder of the time between now
and 4:30 p.m. not be assigned at this time, and we will do our best to
accommodate the Republican side should there be speakers after the
Senator from Connecticut speaks.
The PRESIDING OFFICER. Is there objection?
Mr. GRAHAM. No.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts.
Mr. KERRY. Mr. President, I thank the managers, particularly Senator
Graham and Senator Levin.
Veterans Day is a very special day in our country's history. There
are a lot of veterans who believe Veterans Day is just plain sacred--a
lot of families, Gold Star mothers, wives for whom it is a day set
aside to memorialize the unbelievable sacrifice of generations of
Americans who have given themselves for our country. Veterans Day is
sacred. It is a day to honor veterans, not a day to play attack
politics. The President, who is Commander in Chief, should know and
respect this.
Veterans Day originally marked the 11th hour of the 11th day of the
11th month when the guns of World War I, the war to end all wars,
finally fell silent. Instead of honoring that moment, instead of laying
a wreath at the Tomb of the Unknown Soldier at Arlington, instead of
laying out a clear plan for success in Iraq, the President laid into
his critics with an 11th hour rhetorical assault that I believe
dishonors that day and does a disservice to veterans and to those
serving today. He did so even as he continued to distort the truth
about his war of choice.
Perhaps most striking of all is that his almost desperate sounding
Veterans Day attack on those who have told the truth about his
distortion was itself accompanied by more distortion. Does the
President really think the many generals, former top administration
officials, and Senators from his own party who have joined over two-
thirds of the country in questioning the President's handling of the
war in Iraq--are they all unpatriotic, too? This is America, a place
where we thrive on healthy debate. That is something we are trying to
take to Afghanistan and Iraq. It is something we are trying to export
to the rest of the world. The President does not have a monopoly on
patriotism, and this is not a country where only those who agree with
him support the troops or care about defending our country.
You can care just as much about defending our country and have just
as much support for the troops by being a critic of policies. No matter
what the President says, asking tough questions is not pessimism, it is
patriotism. And fighting for the right policy for our troops sends them
exactly the right message that all of us here take very seriously the
decision to put them in harm's way and that our democracy is alive and
well.
Ironically, the President even used the solemn occasion of Veterans
Day to continue his campaign of misrepresenting the facts and throwing
up smokescreens. His statement that Democrats saw and heard the same
intelligence he did is just flat-out untrue, unless, of course, the
President and the administration did not do their job and study the
additional intelligence given only to them and not the Congress.
As the Washington Post said on Saturday, Bush and his aides had
access to much more voluminous intelligence information than lawmakers
who were dependent on the administration to provide the material. But
that whole discussion is nothing more than an effort to
distract attention from the issue that matters most and can be answered
most simply: Did the administration go beyond what even the flawed
intelligence would support in making the case for war? Did they use
obviously inaccurate intelligence, despite being told clearly and
repeatedly not to? Did they use the claims of known fabricators and
rely on those claims of known fabricators? The answer to each and every
one of these questions is yes. The only people who are now trying to
rewrite that history are the President and his allies.

There is no greater breach of the public trust than knowingly
misleading the country into war. In a democracy, we simply cannot
tolerate the abuse of this trust by the Government.
To the extent this occurred in the lead-up to the war in Iraq, those
responsible must be held accountable. That is precisely why Democrats
have been pushing the Senate Intelligence Committee to complete a
thorough and balanced investigation into the issue. When the President
tried to pretend on Friday that the Intelligence Committee had already
determined that he had not manipulated intelligence and misled the
American public, he had to have known full well they have not yet
reported on that very question. That is precisely why Democrats were
forced to shut down the Senate in secret session and go into that
secret session in order to make our colleagues on the other side of the
aisle take this issue seriously.
When the President said his opponents were throwing out false
charges, he knew all too well that these charges are anything but
false. But the President and the Republicans seem far more interested
in confusing the issue and attacking their opponents than in getting
honest answers.
Let's be clear, Mr. President, let's be clear, my fellow Americans:
There is no question that Americans were misled into the war in Iraq.
Simply put, they were told that Saddam Hussein had weapons of mass
destruction when he did not. The issue is whether they were misled
intentionally.
Just as there is a distinction between being wrong and being
dishonest, there is a fundamental difference between relying on
incorrect intelligence and making statements that you know are not
supported by the intelligence.
The bottom line is that the President and his administration did
mislead America into war. In fact, the war in Iraq was and remains one
of the great acts of misleading and deception in American history. The
facts are incontrovertible.
The act of misleading was pretending to Americans that no decision
had really been made to go to war and that they would seriously pursue
inspections when the evidence now strongly suggests that they had
already decided as a matter of policy to take out Saddam Hussein, were
anxious to do it for ideological reasons, and hoped that inspections,
which Vice President Cheney had opposed and tried to prevent, would not
get in their way.
The President misled America about his intentions and the manner in
which he would make his decision. We now know that his speech in
Cincinnati right before the authorization vote was carefully
orchestrated window dressing where, again, he misled America by
promising, ``If we have to act, we will take every precaution that is
possible, we will plan carefully, and we will go with our allies.'' We
did not take every precaution possible, we did not plan--that is
evident for every American to see--and except for Great Britain, we did
not go in with our allies.
The act of misleading was just going through the motions of
inspections while it appears all the time the President just could not
wait to kick Saddam Hussein out of power. The act of misleading was
pretending to Americans the real concern was weapons of mass
destruction when the evidence suggests the real intent was to finish

[[Page S12737]]

the job his father wisely refused and remove Saddam Hussein in order to
remake the Middle East for modern times.
The act of misleading was saying in a Cincinnati speech that
``approving this resolution does not mean that military action is
imminent or unavoidable,'' when the evidence suggests that all along
the goal was always to replace Saddam Hussein through an invasion. For
most of us in Congress, the goal was to destroy the weapons of mass
destruction. For President Bush, weapons of mass destruction were just
the first public relations means to the end of removing Saddam Hussein.
For most of the rest of us, removing Saddam Hussein was incidental to
the end of removing any weapons of mass destruction. In fact, the
President was misleading America right up until 2 days before launching
his war of choice when he told Americans that we had exhausted all
other avenues.
The truth is that on the Sunday preceding the Tuesday launch of the
war, there were offers of Security Council members to pursue an
alternative to war, but the administration, in its race and rush to go
to war, rebuffed them, saying the time for diplomacy is over.
By shortcutting the inspections process and sidestepping his own
promises about planning, coalition building, and patience, the
President used WMD as an excuse to rush to war, and that was an act of
misleading contrary to everything the President told Americans about
the walkup to war.

The very worst that Members of Congress can be accused of is trusting
the intelligence we were selectively given by this administration and
taking the President at his word. Imagine that, taking a President of
the United States at his word. But unlike this administration, there is
absolutely no suggestion that the Congress intentionally went beyond
what we were told by the facts. That is the greatest offense by this
administration. Just look at the most compelling justification for war:
``Saddam's nuclear program and his connections with al-Qaida.''
The facts speak for themselves. The White House has admitted that the
President told Congress and the American public in his State of the
Union Address that Saddam was attempting to acquire fuel for nuclear
weapons despite the fact that the CIA specifically told the
administration three times in writing and verbally not to use this
intelligence. Obviously, Democrats did not get that memo. In fact,
similar statements were removed from a prior speech by the President,
and Colin Powell refused to use it in his presentation to the U.N. This
is not relying on faulty intelligence as Democrats did, it is knowingly
and admittedly misleading the American public on a key justification
for going to war.
This is what the administration was trying so desperately to hide
when it attacked Ambassador Wilson and compromised national security by
outing his wife. It is shameful that to this day, Republicans continue
to attack Ambassador Wilson rather than condemning the fact that those
16 words were ever spoken and that so many lies were told to cover it
up.
How are the same Republicans who tried to impeach a President over
whether he misled a nation about an affair going to pretend it does not
matter if the administration intentionally misled the country into war?
The State of the Union was hardly an isolated event. In fact, it was
part of a concerted campaign to twist the intelligence, to justify a
war that had already been decided was more preferable. Again playing on
people's fears after 9/11, the administration made statements about the
relationship between al-Qaida and Iraq that went beyond what the
intelligence supported. As recently reported by the New York Times in
the Cincinnati Address, the President said, We have learned that Iraq
has trained al-Qaida members in bombmaking and poisons and deadly
gases, despite the fact that the Defense Intelligence Agency had
previously concluded that the source was a fabricator.
The President went on to say that Iraq has a growing fleet of
unmanned and manned aerial vehicles that could be used to disburse
chemical or biological weapons, despite the fact that the Air Force
disagreed with that conclusion. As the Wall Street Journal reported:
The Air Force dissent was kept secret, even as the President publicly
made the opposite case before a congressional vote on the war
resolution.
That is two more memos that the Congress never got. In fact, when
faced with the intelligence community's consensus conclusion that there
was no formal relationship between Saddam and al-Qaida, the
administration then proceeded to set up their own intelligence shop at
DOD to get some answers that were better suited to their agenda. Again,
there is a fundamental difference between believing incorrect
intelligence and forcing or making up your own intelligence.
Where would the Republicans and the President draw the line? How else
would 70 percent of the American public be led to conclude that Saddam
Hussein was involved in 9/11? That was not an accident. In fact, I
remember correcting the President of the United States at our first
debate when he said to America it was Saddam Hussein who attacked us.
Why else did Vice President Cheney cite intelligence about a meeting
between one of the 9/11 hijackers and Iraqis that the intelligence
community and the 9/11 Commission concluded never took place? Why else
make false statements about Saddam's ability to launch a chemical or
biological weapon attack in under an hour without ever clearing that
statement with the CIA, which in itself mistrusted the source and
refused to include it in the National Intelligence Estimate? Why else
would they say we would be greeted by liberators when their own
intelligence reports said we could be facing a prolonged and determined
insurgency? Why else tell Americans that Iraqi oil would pay for the
invasion when they had to know that the dilapidated oil infrastructure
would never permit that to happen?
What about the President's promises to Congress that he would work
with allies, that he would exhaust all options, that he would not rush
to war? If the President wants to use quotes of mine from 2002, he
might just look at the ones that were not the result of relying on
faulty intelligence and trusting the President's word. As I said in my
former statement before the authorizing vote--I wish the President had
read this--if we go it alone without reason, we risk inflaming an
entire region, breeding a new generation of terrorists, a new cadre of
anti-American zealots, and we will be less secure, not more secure, at
the end of the day. Let there be no doubt or confusion about where we
stand on this. I will support a multilateral effort to disarm him by
force if we ever exhaust those other options, as the President has
promised, but I will not support a unilateral U.S. war against Iraq
unless that threat is imminent and the multilateral effort has proven
not possible.
In my speech at Georgetown on the eve of the war, I said: The United
States should never go to war because it wants to. The United States
should go to war because we have to. And we do not have to until we
have exhausted the remedies available, built legitimacy, and earned the
consent of the American people.
We need to make certain that we have not unnecessarily twisted so
many arms, created so many reluctant partners, abused the trust of
Congress, or strained so many relations that the longer term and more
immediate vital war on terror is made more difficult. I say to the
President, show respect for the process of international diplomacy
because it is not always right but it can make America stronger, and
show the world some appropriate patience in building a genuine
coalition. Mr. President, do not rush to war.
Today, our troops continue to bear the burden of that promise broken
by this administration. We need to move forward with fixing the mess
the administration has created in Iraq. I have laid out in detail on
five or six occasions my views about exactly how we can accomplish that
and how we can get our troops home within a reasonable period of
time. But that does not excuse our responsibility to hold the
administration accountable if they knowingly misled the country when
American lives were at stake. We need to do both.

Those colleagues on the other side of the aisle need to stop
pretending that it does not matter if the administration stretched the
truth beyond recognition and they need to start working to find out the
real answers that

[[Page S12738]]

the country deserves and the real leadership that our troops in Iraq
deserve. They deserve it from a Commander in Chief, not just a
``campaigner in chief.''
I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. I believe the Senator from Rhode Island had an
inquiry.
Mr. REED. Parliamentary inquiry: What is the status of the floor?
The PRESIDING OFFICER. The routine is the Senator from Connecticut is
due to be recognized for 10 minutes, followed by a Republican.
Mr. REED. Mr. President, I understand the Senator from Tennessee will
seek recognition after the Senator from Connecticut. How much time did
the Senator want?
Mr. ALEXANDER. Three minutes.
Mr. REED. I ask unanimous consent that at the conclusion of Senator
Dodd's time, Senator Alexander be recognized for 3 minutes, and at the
conclusion of Senator Alexander's time I be recognized for 15 minutes.
The PRESIDING OFFICER. Is there objection?
Mr. GRAHAM. Reserving the right to object, how does this affect the
debate on the Energy and Water conference report?
The PRESIDING OFFICER. If this request is approved, it would delay
the beginning of consideration of the conference report.
Mr. GRAHAM. By how long?
The PRESIDING OFFICER. By approximately 6 minutes.
Mr. GRAHAM. I have no objection.
Mr. DODD. Reserving the right to object, what I think might be the
appropriate way to do it, since I do not want to have my remarks on
Iraq to necessarily go directly from that to the celebration of the
year of dealing with premature babies, I suggest that at the conclusion
of my remarks on the subject matter that I wish to speak on that we
then turn to the Senator from Tennessee about the issue for 3 minutes,
which I may ask him to yield for a minute of time just to comment
because we worked together on this issue, and then turn to my colleague
from Rhode Island. Is that all right?
Mr. REED. That is perfectly all right. I think to expedite
consideration of the Energy bill, I revise my consent rather than 15
minutes, 10 minutes.
The PRESIDING OFFICER. As I understand, it is 10 minutes, 3 minutes,
10 minutes. Is there objection?
Without objection, it is so ordered.
The Senator from Connecticut.
Mr. DODD. Mr. President, in these 10 minutes I will address the issue
of an amendment offered by my colleague from Michigan, and several
others including this Senator, which we have worked on over the last
week or so. This amendment will be voted on tomorrow, and we have tried
here to come up with some ideas that could build bipartisan support for
how we go from where we are today in Iraq to a successful conclusion of
that conflict.
I think all of us recognize that we have ourselves in a mess in Iraq,
no matter how one wants to characterize it. I was disappointed that the
President used Veterans Day last week as an opportunity to attack those
who have agreed with him at certain points and disagreed with him at
others. It seems to me that what we need from the administration is far
more clarity, a greater sense of vision, some concrete ideas on how we
intend to conclude our involvement in Iraq, and a strategy for
increasing the likelihood that the Iraqi people can build a stable
government.
As we know, from the very beginning, the rationale for going to war
in Iraq was filled with misrepresentations, deceits, and the
falsification of many facts. There was no Iraqi purchase of uranium
from Niger. There were no aluminum tubes being used to construct
nuclear centrifuges. There were no stockpiles of biological and
chemical weapons. We now know that allegations linking Iraqi officials
to al-Qaida were untrue. To make matters worse, in my view, the
administration's penchant for discarding international norms with
respect to our missions in Iraq, Afghanistan and elsewhere, has
unraveled decades of American diplomacy dedicated to enshrining the
rule of law.
The course set by this administration has cost America its treasure,
but it has also cost the lives of more than 2,000 of our service men
and women. More than 14,000 others have sustained serious injuries. We
are now spending somewhere around $4-$6 billion every month for U.S.
military operations alone in that country.
There have been intangible costs as well most--significantly, the
cost to America's favorable public image at home and abroad--a cost
that has seriously impaired our ability to shape global responses to
global challenges.
These challenges include North Korea's nuclear weapons, Iran's
ambitions to develop its own weapons capability, genocide in Sudan's
Darfur region, political instability in Lebanon and Syria, and a
festering Arab-Israeli conflict. Anti-American nationalism is spreading
throughout our own hemisphere as we saw in recent days during the
summit meetings of the Americas; and the HIV/AIDS epidemic and the
possibility of an avian flu epidemic all are being held hostage because
of the missteps we have taken in Iraq.
These missteps have tarnished America's image, and have allowed the
disaffected in Iraq and elsewhere to capitalize on these misfortunes
and to distort our values and intentions, in order to inspire violence
for their own purposes. We saw it in recent protests in Argentina. We
are seeing it to a certain extent in the ongoing youth violence in
France. We saw it several days ago in the tragic bombings in Amman,
Jordan. We see it every day in Iraq as American and Iraqi soldiers and
civilians are randomly attacked by angry, nameless, and faceless
individuals. It is not enough to simply decry past mistakes or
America's tarnished reputation. We have to do something to correct
these mistakes and restore America's prestige.
In short, what we need is a plan for success in Iraq, and what better
place to start than in that war-torn nation. Last month, while visiting
Baghdad with my colleague from Rhode Island, Senator Reed, I had the
opportunity to meet with U.S. commanders on the ground and to visit
with our men and women in uniform who in some cases are on their second
or third tours of duty in that nation.
I cannot say how impressed I was with these heroes who risk their
lives every single day in the service of our Nation, and with the
senior military officers who lead them. We owe these brave Americans a
huge debt of gratitude for their courage, sacrifice, and
professionalism. But we owe them much more than that. We owe them a
strategy and a framework for completing this mission. We owe them a
sense of conviction that this is not going to be an indefinite
struggle. That is why I joined with Senator Levin and others in
crafting this amendment, which we hope will be embraced on a bipartisan
basis. This amendment would require the President to publicly lay out
for the first time a strategy and framework for our troops to follow so
that they can successfully complete the mission in Iraq and come home.
Recently, the President told the American people that Iraq has made
incredible political progress: from tyranny, to liberation, to national
elections, to a new constitution in the space of 2\1/2\ years.
I agree with that assessment, but that is not a strategy for success.
It is a statement of discrete events that have thus far occurred in
Iraq, albeit positive events. Our troops and the American people
deserve more than that, in my view. They certainly deserve more than
simply being told that the strategy is: When they stand up, we will
stand down. What our troops are looking for, what I believe the
American people are looking for, what Iraq and Iraq's neighbors are
looking for, is a clearly articulated strategy, a timetable which
culminates in the election of a sovereign, inclusive Iraqi government
with the expertise and experience to govern effectively. Thus far, the
administration has failed to articulate such a strategy or such a
timetable.
Before success can be a reality, however, competent Iraqi security
and police forces, respectful of the civilian authority, must be at the
ready to secure Iraq's borders and provide security within its
territory.
And fundamental to achieving success, in my view, is ensuring that
the vast majority of Iraqi Kurds, Sunnis, and Shi'as have bought into
whatever political architecture emerges from the upcoming elections. At
the moment, that is not a given.

[[Page S12739]]

Some but not all Iraqis have decided that the road to reconciliation
and inclusion is the right road. Others remain mistrustful and
uncertain. Although the latter may be a minority, it is painfully
evident that they have the capacity to derail progress for all Iraqis.
With more than 160,000 American servicemen in Iraq, our presence and
our policies are going to be pivotal in helping to shape Iraq's future.
But the United States, despite all of its military strength, cannot,
through force alone, remake Iraq. Moreover, the longer U.S. troops
remain an occupying force there, the greater the hatred and
disaffection among Iraqis and the larger attraction for foreign
jihadists.
That is why it is especially important that the administration
proceed with some sense of urgency in setting forth its strategy for
involving Iraq's neighbors in addressing the political, ethnic, and
tribal divisions that exist in Iraq and fuel instability, particularly
so in light of the size of the ``no'' vote cast by Sunni voters against
the new constitution.
The Levin amendment imbues the administration with that urgency. It
states that U.S. forces should not remain in Iraq indefinitely. It
establishes expectations that calendar year 2006 should be a period of
significant transition to full Iraqi sovereignty, thereby creating the
conditions for the phased redeployment of U.S. forces from Iraq. It
stresses the need for compromise among Iraqis to achieve a sustainable
sovereign government. And most important, it calls upon the President
no later than 30 days after enactment of this bill to tell the American
people his campaign plan and estimated dates for the redeployment of
U.S. forces.
The pending amendment provides concrete ideas for completing our
mission in Iraq successfully, for phased redeployment of U.S. combat
forces, for reassuring Iraq and its neighbors that we have no ulterior
motives with respect to Iraq's future, and for restoring America's
influence and prestige.
A successful strategy for Iraq will free-up critical resources and
personnel to enable America to address urgent homeland security
priorities: protecting schools and hospitals, water and power stations,
and other vital locations; equipping our firefighters and other first
responders who are the first line of defense in our communities against
acts of terror; and fortifying our Nation's transportation
infrastructure.
Today, America is less secure than it was 5 years ago, as resources
have been diverted from programs to maintain the readiness of our Armed
Forces, and to strengthen our homeland security, in order to pay for
the continuing occupation of Iraq. It is time for the Bush
administration to make a major course correction in our policy in Iraq
if we are going to be successful, one that will bring our military
involvement nearer to a close. It is time for the administration to
refocus attention and resources on our Nation's real priorities--
keeping America strong, secure, and prosperous for the 21 century.
I urge my colleagues to take a good look at the Levin amendment. It
has been worked on for the last week by a number of us who have tried
to come up with a plan for success, recognizing the achievements that
have occurred but also laying out a strategy of how to succeed in the
coming months. We cannot continue on the path we are on indefinitely.
It will not work. It has cost us dearly at home and abroad.
I think that this amendment is one that many of my colleagues could
be drawn to. It doesn't lay out timetables definitely, but it does lay
out a framework, a strategy for success. I urge my colleagues to vote
to adopt this amendment when it comes to a vote tomorrow.
I yield the floor.

National Prematurity Awareness Day

The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. While my friend, the Senator from Connecticut, is on
the floor, I would like to change the subject for just 2 or 3 minutes
and talk about the issue of babies born prematurely, an area he and I
have been working on together. Premature infants are 14 times more
likely to die in the first year of their lives. This is Prematurity
Awareness Month. Tomorrow is Prematurity Awareness Day. It is the No. 1
cause of infant death in the first month of life in the United States.
Premature babies who survive may suffer lifelong consequences,
including cerebral palsy, mental retardation, chronic lung disease,
vision and hearing loss. Half the cases of premature birth have no
known cause, and any pregnant woman is at risk.
That is why the Senator from Connecticut and I have introduced the
Prematurity Research Expansion and Education for Mothers Who Deliver
Infants Early Act, which we call the PREEMIE Act. It expands research
into the causes and prevention of prematurity and increases education
and support services related to prematurity.
I ask unanimous consent that the following Senators be added to our
legislation in honor of Prematurity Awareness Day, which is tomorrow:
Senators Bennett, Bingaman, Clinton, Bond, Cochran, Collins, Hagel,
Inouye, Lieberman, Lugar, Obama, Lautenberg, Lincoln, and Talent.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. The March of Dimes is our partner, a strong advocate
for the PREEMIE bill. It is leading the prematurity campaign. It will
sponsor a symposium on prematurity research here in Washington, DC, on
November 21 and 22.
Mr. GRAHAM. Would the Senator add my name, please?
Mr. ALEXANDER. I ask unanimous consent to add the name of the Senator
from South Carolina.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. It calls for a Federal research plan. I thank our
colleagues for joining us in this effort. We hope the legislation will
pass Congress this year.
With the permission of the Senator from Rhode Island, I ask unanimous
consent that the Senator from Connecticut have a minute to make his
comments on the legislation.
Mr. REED. I have no objection.
Mr. DODD. I thank my colleague. I am pleased to join with my
colleague from Tennessee in this effort. I commend our colleagues from
around the country who joined us, including our friend from South
Carolina, the most recent cosponsor of this legislation.
One out of every eight babies in our country is born prematurely--
that is 1,300 infants every day and over 470,000 every year. The
problems associated with prematurity are legion. We are making
incredible advances in how we treat these children, but we need to do a
lot more. I am not going to go to great length here except to commend
my colleague from Tennessee and tell him how much I have enjoyed
working with him on this issue.
This is a critically important issue. It is the kind of issue that
deserves more attention. We hope to get that attention with these
efforts. I commend him for his leadership. I am pleased to be a partner
in this effort, and I am grateful to my colleagues for joining us in
this endeavor.
The PRESIDING OFFICER. The time of the Senator has expired.
The Senator from Rhode Island.
Mr. REED. Mr. President, I rise to express my strong support for the
amendment offered by Senator Levin from Michigan. I was pleased to work
with a number of my colleagues on this amendment, including Senator
Levin, Senator Biden, Senator Harry Reid, Senator Kerry, Senator
Feingold, Senator Kennedy, Senator Durbin, and particularly Senator
Dodd. Senator Dodd and I had the privilege of traveling together
through Iraq just about 3 weeks ago. Our trip was very illuminating.
His participation is one I deeply appreciated.
We all understand that there are over 160,000 American troops in
Iraq. They are serving magnificently, and they have paid a difficult
price for their service. We have lost soldiers and sailors and airmen
and marines. We know how important it is to succeed in Iraq.
But the American people are concerned. A Pew Research poll conducted
last week found that those polled believed that Iraq was the most
important problem facing the country today. A second poll conducted by
NBC News and the Wall Street Journal, however, found that 64 percent of
those polled disapproved of the way President Bush is handling this
situation in Iraq.
At the heart of that, I believe, is a sense that there is no plan.
There are slogans--``Stay the course.'' There are

[[Page S12740]]

slogans--``When the Iraqis stand up, we stand down.'' But a slogan is
not a plan, and the American people and this Congress should demand a
plan.
That is the essence of the Levin amendment. We are not collectively a
Commander in Chief. We should not presume to think so. He is
responsible for such a plan, and he has to provide, not just to us but
to the American people, a sense that there is a plan that is leading to
an outcome which is successful in a timeframe which is feasible. What
the American people are seeing, however, is chaos without a plan.

I did not vote to authorize the use of force in Iraq. At that time,
my concerns were, after the initial decisive military victory, that we
would be swept up in a difficult situation. That is what has come to
pass. I thought the cost would be huge then, but I did not expect that
we would enter the phase after military operations, the conventional
attack, with essentially no plan. That was a surprise to me and a
surprise to so many others.
According to an article in the Philadelphia Inquirer, when a
lieutenant colonel briefed war planners and intelligence officers in
March 2003 on the administration's plans in Iraq, the slide for the
rebuilding operations or phase 4-C, as it is known in the military, was
simply this: ``To be provided.'' We are still waiting. We are still
waiting for a plan that works, that is measurable, and that will give
the American public the confidence that our course ahead will lead to
success.
We all know in February of 2003 when General Shinseki was asked about
the troop strength we needed there, he said several hundred thousand
soldiers. He was dismissed--and that is a kind word for the treatment
he received. Secretary Rumsfeld said the estimate was `` . . . far from
the mark.'' Secretary Wolfowitz called it ``outlandish.'' In fact, it
was very accurate, very perceptive--prophetic, indeed, because after
our initial entry into Iraq, after the first days of fighting, it
became more and more obvious we needed more troops to, among other
things, secure ammo dumps that were prolific throughout the country.
Perhaps we have lost that window where more troops will make a
difference, but we certainly have not gone past the point where a good
plan will make a difference, and we need that good plan.
The Congressional Research Service has summarized dozens of reports
and articles, cataloging mistake after mistake. In their words:

The lack of reconstruction plan; the failure to adequately
fund reconstruction early on; unrealistic application of U.S.
views to Iraqi conditions by, for example, emphasizing
privatization policy; the organizational incompetence of the
CPA; changing deadlines . . .

Et cetera, et cetera, et cetera.
I could add, a very unwise de-Baathification process and the
disestablishment of the Iraqi army. But the litany goes on and on. It
was ad hoc, off the cuff. It was not a plan that worked and it is not
working today.
We need this plan. That is what the Levin amendment calls for. Give
us a plan. Not just us, but give the American people a plan. We have
made progress in Iraq. We have had elections. But that progress is
fragile and reversible. We have to have a coherent way ahead. And
again, hope is not a plan.
This amendment is not, as some would characterize it, cut and run. It
asks the President to lay out conditions. It asks to define a mission.
It asks to catalog the resources necessary. Then it anticipates--and I
think this is prudent--that we would have a phased redeployment of
troops.
Just today, in London, Prime Minister Blair talked about British
troops coming out next year, 2006. Jalal Talabani, the Iraqi President,
said the troops are coming out in 2006. British Defense Secretary John
Reid--no relation--said that we are likely to see troops come out next
year if conditions allow. So the idea of looking ahead with a good plan
and making a good-faith estimate as to troop levels seems to me the
appropriate thing to do. It is a campaign plan. It is a campaign plan
which will give us an idea of how long we will be there.
We need not simply to reflect what is happening on the ground in
Iraq. We cannot sustain indefinitely 160,000 American troops in Iraq.
It will bring our land forces, our Army, our Marines to their knees.
They are overstretched. They have a billion dollars of built-up
maintenance on helicopters and vehicles. And the personnel turmoil is
excruciating. We owe it to them to have a plan. And we must be able to
show how we are paying for this plan.
This plan would also ask the President to talk about a definition of
``success,'' talk about the conditions, talk about situations which
would cause those conditions to be reevaluated. The Levin amendment is
asking for the obvious. Show us the way ahead, not in a slogan but in
concrete, measurable elements that will constitute a good plan. We have
been waiting for 2\1/2\ years for such a plan.
What is the mission? It has changed. One of the initial missions was
to deny the Iraqi Government weapons of mass destruction. We find they
had none.
Then, of course, the mission was to root out terrorist insurgents
that might be collaborating with Saddam Hussein's regime. The evidence
strongly suggests there was no such material collaboration. But today
there are thousands of hardened terrorists that we are in the process
of rooting out--after the attack, not before.
Then, of course, there was the mission of creating a democratic oasis
in Iraq that would be transformative of the entire region.
Is that still the mission? If it is the mission, we are going to need
many decades, billions of dollars, and to mobilize the strength of this
country, not just militarily but for technical and political
assistance, and we haven't done that.
The President doesn't suggest--from everything I have heard and from
everything I have seen--that he intended to do that.
What is the mission? What are the resources? We are spending about $4
billion to $6 billion a month in Iraq and Afghanistan. How long will we
spend that much money, and when we finish how much will we have to
spend to reconstitute our equipment, to reorganize our troops? Tell us.
It is important because we make decisions on this floor that are based
upon assumptions about how much we will be spending years ahead in
Iraq, and we have to have those numbers. We need the conditions. More
than that, we need all this tied into our troop strength in Iraq.
That is essentially what the American people are looking at very
consciously.
How long will their sons and daughters be committed to this struggle?
I believe we have to succeed, and I am here because we can't succeed
without a coherent plan, not one that is made up of slogans and good
intentions but one that is premised on real conditions, hardnosed, and
something that will help us and help the American people to understand
our commitment and help us to succeed in that commitment.
I hope very strongly that the Levin amendment is agreed to. The
Republican counterpart makes a few changes, but the critical change is
it essentially takes out the notion of a plan.
The opposing amendment would strip out something vital in the Levin
amendment; that is, a campaign plan that would help show, project, the
phased redeployment of American troops. I think that is essential.
If Tony Blair can speak off the cuff in London today about the phased
withdrawal of British troops, and Talabani, the Iraqi President can do
it, and John Reid, the Defense Secretary of Great Britain can do it,
then certainly the President of United States can do it. And we ask him
to do it. In fact, if we agree to this amendment, it will require him
to do it.
I yield the floor.

____________________