In the nature of a substitute.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--Continued

Amendment No. 2524 to Amendment No. 2515

Mr. GRAHAM. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from South Carolina [Mr. Graham], for himself,
Mr. Levin, and Mr. Kyl, proposes an amendment numbered 2524
to amendment No. 2515.

Mr. GRAHAM. 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:

[[Page S12753]]

(Purpose: To improve the amendment)

In lieu of the matter proposed to be inserted, insert the
following:

SEC. __. REVIEW OF STATUS OF DETAINEES.

(a) Submittal of Procedures for Status Review of Detainees
at Guantanamo Bay, Cuba.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of Defense
shall submit to the congressional defense committees, and to
the Committees on the Judiciary of the Senate and the House
of Representatives, a report setting forth the procedures of
the Combatant Status Review Tribunals and the noticed
Administrative Review Boards in operation at Guantanamo Bay,
Cuba, for determining the status of the detainees held at
Guantanamo Bay.
(b) Procedures.--The procedures submitted to Congress
pursuant to subsection (a) shall, with respect to proceedings
beginning after the date of the submittal of such procedures
under that subsection, ensure that--
(1) in making a determination of status of any detainee
under such procedures, a Combatant Status Review Tribunal or
Administrative Review Board may not consider statements
derived from persons that, as determined by such Tribunal or
Board, by the preponderance of the evidence, were obtained
with undue coercion; and
(2) the Designated Civilian Official shall be an officer of
the United States Government whose appointment to office was
made by the President, by and with the advice and consent of
the Senate.
(c) Report on Modification of Procedures.--The Secretary of
Defense shall submit to the committees of Congress referred
to in subsection (a) a report on any modification of the
procedures submitted under subsection (a) not later than 60
days before the date on which such modification goes into
effect.
(d) Judicial Review of Detention of Enemy Combatants.--
(1) In general.--Section 2241 of title 28, United States
Code, is amended by adding at the end the following:
``(e) No court, justice, or judge shall have jurisdiction
to hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien 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)) who
is detained by the Department of Defense at Guantanamo Bay,
Cuba.''.
(2) Review of decisions of combatant status review
tribunals of propriety of detention.--
(A) In general.--Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to
determine the validity of any decision of a Designated
Civilian Official described in subsection (b)(2) that an
alien is properly detained as an enemy combatant.
(B) Limitation on claims.--The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to claims brought by or
on behalf of an alien--
(i) 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
(ii) for whom a Combatant Status Review Tribunal has been
conducted, pursuant to applicable procedures specified by the
Secretary of Defense.
(C) Scope of review.--The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on any
claims with respect to an alien under this paragraph shall be
limited to the consideration of--
(i) whether the status determination of the Combatant
Status Review Tribunal with regard to such alien applied the
correct standards and was consistent with the procedures
specified by the Secretary of Defense for Combatant Status
Review Tribunals (including the requirement that the
conclusion of the Tribunal be supported by a preponderance of
the evidence and allowing a rebuttable presumption in favor
the Government's evidence); and
(ii) whether subjecting an alien enemy combatant to such
standards and procedures is consistent with the Constitution
and laws of the United States.
(D) 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 paragraph shall cease upon the release of such alien
from the custody of the Department of Defense.
(3) Review of final decisions of military commissions.--
(A) In general.--Subject to subparagraphs (C) and (D), the
United States Court of Appeals for the District of Columbia
Circuit shall have exclusive jurisdiction to determine the
validity of any final decision rendered pursuant to Military
Commission Order No. 1, dated August 31, 2005 (or any
successor military order).
(B) Grant of review.--Review under this paragraph--
(i) with respect to a capital case or a case in which the
alien was sentenced to a term of imprisonment of 10 years or
more, shall be as of right; or
(ii) with respect to any other case, shall be at the
discretion of the United States Court of Appeals for the
District of Columbia Circuit.
(C) Limitation on appeals.--The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to an appeal brought by
or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the
military order referred to in subparagraph (A), detained by
the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant
to such military order.
(D) Scope of review.--The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on an
appeal of a final decision with respect to an alien under
this paragraph shall be limited to the consideration of--
(i) whether the final decision applied the correct
standards and was consistent with the procedures specified in
the military order referred to in subparagraph (A); and
(ii) whether subjecting an alien enemy combatant to such
order is consistent with the Constitution and laws of the
United States.
(e) Effective Date.--
(1) In general.--Except as provided in paragraph (2), this
section shall take effect on the day after the date of the
enactment of this Act.
(2) Review of combatant status tribunal and military
commission decisions.--Paragraphs (2) and (3) of subsection
(d) shall apply with respect to any claim whose review is
governed by one of such paragraphs and that is pending on or
after the date of the enactment of this Act.

Mr. GRAHAM. Mr. President, at this time I would like to, in
conjunction with my colleague Senator Levin, lay down this amendment,
give a brief explanation of what it is designed to do, and I think we
will vote on it tomorrow after we vote on Senator Bingaman's amendment.
No. 1, Senator Levin and his staff have been working on this, along
with Senator Kyl and other Senators, for the last couple of days. I do
not know how to say it other than it has been a lot of fun. It has been
tough at times, but I think we have come out with a product that the
Senate can be proud of, and hopefully the country can be proud of when
it comes to how to treat detainees at Guantanamo Bay.
Here is what we are trying to do. With my amendment, which we voted
on last week, the concern I had was we were about to criminalize the
war because of the Rasul case. Section 2241 of the habeas statute had
been interpreted not to prohibit foreign alien enemy terror suspects
from seeking habeas petitions in Federal court about their confinement
and detainment as enemy combatants. The Rasul case was the result of
the Supreme Court rejecting the Government's argument that Guantanamo
Bay was outside the jurisdiction of the Federal court. They ruled that
Guantanamo Bay was constructively within the jurisdiction of the
Federal court, and in that opinion basically challenged the Congress.
Now that we have decided that, since there are no due process rights
in place at the time, we are going to provide habeas petitions to these
detainees until Congress comes in and says otherwise.
My amendment was, Congress being on record that the 2241 habeas
statute has been used to provide habeas corpus rights by Congress to
American citizens, that we do not intend for an enemy combatant or
foreign national--someone captured in conflict against the United
States--to have habeas rights before our Federal courts to complain
about their confinement and their detention. In other words, we are not
going to allow enemy prisoners of war the right to go into civilian
court and start challenging their detention. The military commissions
are operating at Guantanamo Bay with a different purpose. They are
going to try people who are charged with violations of the law. Right
now there are about 10 or 15 cases. There are almost 500 people who are
being detained as enemy combatants. Last week, when Senator Levin was
arguing with me about my amendment, I think he made some very good
points. By working with him and others, Senator Kyl and others, we have
addressed some of the weaknesses in my original amendment. Senator
Bingaman will have another amendment, and I think we deal with some of
his concerns, too. I do see this as a win-win.
What we are trying to do, instead of changing what has been the rule
of law for 200 years in terms of enemy prisoner rights, is create a
process that not only mirrors the Geneva Convention but goes well
beyond the Geneva Convention.
An enemy combatant is a legal term of art. It applies to those people
involved in hostilities against the United

[[Page S12754]]

States but are not part of a Geneva Convention-recognized Army. The
Geneva Convention uses the term ``irregular combatant.'' We have case
law in the United States talking about enemy combatant. It deals with
German saboteurs; those people who commit hostilities are engaged in
acts of war but shed the cloak of being part of a uniformed force. So
the term ``enemy combatant'' has been well recognized in our law.
What we do with an enemy combatant, once a person has been determined
to be an enemy combatant, we can detain them similar to a prisoner of
war. The Geneva Convention says if there is a question about whether a
person's status is rightfully conferred whether you are a prisoner of
war, enemy combatant, irregular combatant, or a civilian who has done
nothing wrong, the Geneva Convention requires the host country to have
a competent tribunal set up to determine status.
Since August of 2004, at Guantanamo, the Combatant Status Review
Tribunal system has been in place. In my opinion, it is Geneva
Convention article 5 tribunals on steroids. It gives a right to
confront. It gives adversarial process to the suspected enemy
combatant. It also allows a yearly review of an enemy combatant status.
What they are looking at, at Guantanamo Bay, is whether a person was
engaged in hostile acts against the United States in a regular fashion,
whether the person has intelligence value to the United States or poses
a threat. If one or two of those three conditions are met, they can be
detained at Guantanamo Bay, and every year there is a reevaluation.
We have had some people caught up in the net, and we found later
probably did not have all three requirements and they have been let go.
We have also had about a dozen people caught up in the net in the war
on terror who we thought were no longer a threat to the United States.
We released them and a dozen at least have gone back to fighting. Some
have been killed. Some have been captured yet again.
The process we use is important, but no process is perfect. We are
trying to come up with a process the country can be proud of that
applies the law of armed conflict standard and does not turn the war on
terror into a crime. Right now every person sent to Guantanamo Bay will
be offered a Combatant Status Review Tribunal hearing, which is well
beyond what the Geneva Convention requires, to determine their status.
In addition to the yearly review, working with Senator Levin, Senator
Kyl, and others, we have come up with a right of every enemy combatant
to go to Federal court. Instead of having unlimited habeas corpus
opportunities under the Constitution, we give every enemy combatant,
all 500, a chance to go to Federal court, the Circuit Court of Appeals
for the District of Columbia. On top of everything else we are doing,
they can challenge their status determination in a Federal court. The
Federal court will look at the process involved in their individual
case to see if it complied with the CSRT standards in terms of
procedure and the standards that were to be used to determine whether a
person was properly detained--the evidentiary standards, all other
standards.
This will allow a Federal court oversight of any combatant status. It
will be a one-time deal. It will not be an opportunity for the enemy
prisoner to sue us about everything they can think of.
Now, that to me is unprecedented. That is well beyond what the Geneva
Convention requires or envisions but is something we ought to do and we
can be proud of because it is a Federal court oversight of a military
action in a way that doesn't erode the military's ability to conduct a
war. We can go to other people in the world and say, Our courts are now
involved in looking at what we do. We can also say that Congress is
finally involved because in addition to the rights I have described,
under our amendment, the person who determines whether an enemy
combatant is retained or released will be confirmed by the Senate. That
will give the Senate a connection to what is going on in Guantanamo
Bay.
If you change the CSRT regulations in any way, you have to send those
changes to the Congress. That way we are involved. And we have a
statement in our bill to make sure you do not use statements that were
a result of undue coercion to determine if you are an enemy combatant.
So now we have Congress involved in an oversight function. We have
the courts involved in oversight function. We have a due process right
well beyond the Geneva Convention requirements. That is something we
should be proud of.
Military commissions. There are 10 or 20 people potentially facing a
military commission trial for what are violations of law of armed law
conflict. The flaw in my amendment is it did not have a right of appeal
from a military commission verdict to a Federal court. In World War II,
the enemy saboteurs I described before were all tried by military
commissions that President Roosevelt created by Executive order. Four
of the six were sentenced to death. The Supreme Court reviewed the
military commission process in the Quirin case and found that military
commissions were lawful if the person being tried was truly an enemy
combatant. So there is a historical precedent in our country for the
Federal courts, the Supreme Court, to look at military commission
trials to make sure they are lawfully constituted.
What we have done, working with Senators Levin, Kyl, and others, we
have created that same type appeal process for all military commission
decisions. Under the amendment that we have come up with, any case
resulting in a capital punishment finding--any person who is given the
death penalty by the military commission--has an automatic direct right
of appeal to the Circuit Court of Appeals for the District of Columbia
and the court will determine if they were tried in a court up to the
military commission standards and procedures and whether the military
commission was constitutional.
Anyone who receives a sentence of 10 years or more will also have an
automatic right to appeal the same court. If you receive a sentence
less than 10 years, the Circuit Court of Appeals for the District of
Columbia will determine whether they want to hear your case based on a
petition for certiorari or something akin to it.
That, in essence, is what we are trying to do. In both instances, the
CSRT procedures and the military commission procedures will be reviewed
by Federal courts and the court will have the ability to determine
whether they are constitutional and will have an ability in an
individual case to determine whether the enemy combatant or the person
tried under the military commission procedures will be reviewed by
Federal courts to decide whether they are constitutional according to
the rules and procedures that have been set up.

I defer to my friend and colleague, Senator Levin.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I thank my friend from South Carolina for working on this
matter as hard as he has. The Senator from Arizona has also worked
hard. Many Members on this side have worked on this issue as well as
the Republican side. There is a lot of thought that has been given to
this matter.
The amendment approved last Thursday had some real problems with it,
in my judgment, and I voted against it, as did 41 Senators. The
amendment which was approved last Thursday, which is the one now
awaiting this amendment, would have provided for review only for status
determinations and not of convictions by military commissions.
As my friend from South Carolina pointed out, that is an omission
which he and others acknowledge. It is a real indication of his
commitment to try to figure out what the right course of action is,
that he does acknowledge that omission. One of the reasons I voted
against the amendment last Thursday is that it did not provide for that
direct judicial review of convictions by military commissions. That is
the major change in the amendment before the Senate, the so-called
Graham-Levin-Kyl amendment which is before the Senate.
There are a number of other changes as well, but of all the changes,
what this amendment does is add to the Graham amendment, which was
agreed to last Thursday, adds a direct appeal for convictions by
military commissions--not just for status determinations--and that
direct appeal would, of course, go to a Federal court.

[[Page S12755]]

The amendment which we are going to consider tomorrow morning, after
we consider the Bingaman amendment, will also provide for review of
whether the standards and procedures which are referred to in the
amendment are consistent with the Constitution and laws of the United
States. Those are important words because all Members believe we must
operate according to our Constitution. Our laws and the review which is
provided for now, if we agree to this amendment to the adopted Graham
amendment, would explicitly make it clear that the review of a court
would look at whether standards and procedures that have been agreed to
are consistent with our Constitution and our laws.
The other problem which I focused on last Thursday with the first
Graham amendment was that it would have stripped all the courts,
including the Supreme Court, of jurisdiction over pending cases. What
we have done in this amendment, we have said that the standards in the
amendment will be applied in pending cases, but the amendment will not
strip the courts of jurisdiction over those cases. For instance, the
Supreme Court jurisdiction in Hamdan is not affected.
However, what our amendment does, as soon as it is enacted and the
enactment is effective, it provides that the standards we set forth in
our amendment will be the substantive standards which we would expect
would be applied in all cases, including cases which are pending as of
the effective date of this amendment.
We will first vote on the Bingaman amendment tomorrow. I will vote
for that amendment. It does preserve some habeas corpus review of
constitutional issues relative to the detention of enemy combatants at
Guantanamo Bay. It avoids habeas corpus review of less consequential
issues, while enumerating the important issues which it would provide
or permit habeas review of.
However, I cosponsored the Graham amendment with Senator Graham
because I believe it is a significant improvement over the provision
which the Senate approved last Thursday, specifically for the two main
reasons I identified. The direct review will provide for convictions by
the military commissions, and because it would not strip courts of
jurisdiction over these matters where they have taken jurisdiction, it
does, again, apply the substantive law and assume that the courts would
apply the substantive law if this amendment is agreed to. However, it
does not strip the courts of jurisdiction.
My friend from South Carolina has pointed out what the scope of the
review would be if this amendment was agreed to. I will read something
which he made reference to that is important it be very clear as to
what this grant of review is on page 6, paragraph B:

(i) with respect to a capital case in which the alien was
sentenced to a term of imprisonment of 10 years or more,
shall be as of right; or
(ii) with respect to any other case, shall be at the
discretion of the United States Court of Appeals for the
District of Columbia Circuit.

The scope of review is set forth. It gets the Congress back into the
business of laying out the ground rules for these reviews, which has
been the main goal of the Senator from South Carolina. It is a goal
which I hope all share. We may disagree as to what the ground rules
are, but I hope all Members share in that goal that Congress become
reinvolved in setting the ground rules for both the commissions and for
the tribunals which make the status determinations.
Again, it has been a very constructive effort on the part of Senator
Graham, myself, Senator Kyl, and others who cosponsored and will vote
for this. It makes a significant improvement over what the Senate did
last Thursday. Again, I as one Senator will first support the Bingaman
amendment, but if it is not agreed to, I will strongly urge our
colleagues to vote for the Graham-Kyl amendment.
I support my friend from South Carolina.
The PRESIDING OFFICER (Mr. Thune). The Senator from South Carolina.
Mr. GRAHAM. Mr. President, my hope is, as Senator Levin indicated, we
are all doing this because we believe Congress has a role in this war.
The executive branch has the job to lay the battle plans in place and
to go after the enemy and be the Commander in Chief. But the Congress
regulates captives of land and sea. The Congress is involved in issues
about the detention, interrogation, and prosecution of enemy combatants
and those who are trying to do harm to the country.
My goal over the last week was to do two things: get the Congress
involved and for us to start thinking, what do we want, as a nation, to
happen in this war now and down the road? What do we want to happen to
the Sheik Mohammeds and people such as he? Do we want them to be common
criminals? No. We want them to be people considered under the law of
armed conflict.
My amendment last week was a direct result of what I think was a
growing problem for our country. Section 2241 habeas rights were being
exercised by noncitizen, foreign terrorist suspects to the point they
were flooding our courts. They were bringing lawsuits.
I will give you an example. One Canadian detainee, who threw a
grenade that killed an Army medic in a firefight and who comes from a
family with longstanding al-Qaida ties, moved for a preliminary
injunction forbidding the interrogation of him or engaging in ``cruel,
inhuman, or degrading'' treatment of him.
In other words, he wanted the judge to come in and stop his
interrogation before it started and to sit there basically and
supervise it.
Another al-Qaida detainee complained about basic security procedures,
the speed of mail delivery and medical treatment. He was seeking an
order that he be transferred to the ``least onerous conditions'' at
Gitmo and asking the court to order that Gitmo 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,
worship, etc.''
As I said last week, we never allowed enemy prisoners to go into
civilian courts and ask judges to come over and take over the military
prison in a time of war.
The Nazis did not get that right in World War II. We had plenty of
Nazi prisoners housed in military prisoners all over the United States.
They were not able to go to Federal court and complain about the books
and the DVDs--they didn't have DVDs then--whatever they were asking
for.
There is an ``emergency'' motion seeking a court order requiring
Gitmo to set aside its normal security policies and show detainees DVDs
that are purported to be family videos.
There is another lawsuit wanting the lawyer to have Internet access
at Guantanamo Bay. That is what I objected to. This is not the law of
armed conflict being applied. This is giving an enemy prisoner a right
that no enemy prisoner has ever enjoyed before in the law of armed
conflict. It was creating litigation against our troops.
There was one medical malpractice claim. There are over 40 cases
suing for monetary damages. Can you imagine, after 9/11, if the Senate
were asked the question, Do you want an al-Qaida suspect who is
captured to be able to go into Federal court, in unlimited fashion, and
bring lawsuits against our own troops for their behavior? The answer is
no.
But Senator Levin was right. The military commission, part of it is
written in a way without a direct appeal to Federal courts. There is
historical precedent for doing it in-house, but there is a Supreme
Court review precedent. So I am willing to take that part of the
amendment that was not really the focus of the lawsuit abuse and come
up with a compromise the country should be proud of.
Now, as to Senator Bingaman's attempt to strike my language, I will
vote against Senator Bingaman's amendment, and I will urge all those
who voted for me last time to stand with me. Senator Bingaman is trying
to create a right to the DC Circuit Court of Appeals for all enemy
combatants to bring habeas petitions similar to an American citizen,
not what we have done in our amendment but a true habeas petition under
section 2241.
The question is, Does the Congress want al-Qaida members to have
habeas rights similar to American citizens? I say no. Senator Bingaman
allows that right to still exist. He addressed some of the concerns I
raised. He says the

[[Page S12756]]

habeas petition cannot consider claims based on living conditions.
Because I have described how outrageous these claims are--about the
exercise regime, the reading materials--most Americans would be highly
offended to know that terrorists are suing us in our own courts about
what they read.
He has two exceptions, however. They can still bring habeas lawsuits
similar to an American citizen, ``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.''
The reason I am going to vote no on the Bingaman amendment is that
these exceptions--the lawfulness of the detention of such alien--would
allow a court, if they chose, to look at every condition of the enemy
prisoner's life and do, again, what we are trying to prevent, that you
could go into Federal court and start asking for a Federal judge to
intervene in your interrogation before it even starts. My belief is the
military is the best group to run the war, not Federal judges.
So I am going to oppose Senator Bingaman's amendment because it
preserves habeas rights for noncitizen, foreign terrorists to come into
Federal court at the District Court of Appeals, DC Court of Appeals, to
put a wide variety of issues on the table. I do not think that is good
for us. I do not think it is good for the war.
Now, I will vote with Senator Levin on our comprehensive package when
it comes to how we are going to conduct the war on terror.
I will end with this thought. For the first time I know of, since
September 11, 2001, we have sat down as a Congress and an
administration to start thinking this thing through. We have come up
with, I believe, a darn good package.
I say to Senator Levin, I have enjoyed working with him on this. I
have been a military lawyer for over 20 years. There are a lot of
things that go on in the Senate I do not know as well as I should. But
I feel very comfortable that the war on terror is truly a war, that 9/
11 was an act of war, it was not a crime, and if we will apply the law
of armed conflict, we can be proud as a nation.

I say to the Senator, your amendment and my amendment together have
gotten us back to where we should have been years ago, applying the law
of armed conflict to these terror suspects in a way that goes beyond
the Geneva Conventions because we are a nation that wants to do it
right and then some. But we are also preserving our own ability to
defend ourselves.
So to the world, if you are wondering what is going on in America
now, if anybody goes to Guantanamo Bay, the Congress will be told about
what goes on, and we will have a say about what goes on. If anybody at
Guantanamo Bay is determined to be an enemy combatant, not only will
Congress be involved in how they are kept and how long they are kept,
our Federal courts will review the actions of our military to see if
they comply with the Constitution of our Nation. And that is a huge
change.
I say to the Senator, I congratulate you for working with me--working
together--to come up with a review process, where the world can know
for sure that what we are doing meets our own constitutional standards.
Enemy combatants are going to get a chance to go to Federal court. The
Federal court is going to look at the big picture and see whether what
we have done is constitutional, and when it comes to that individual's
case, to look at whether the procedures and standards that were
involved were properly applied. The world should respect us for that. I
am proud to have been part of that process.
To those who go to court and have their liberty interests dealt with,
those who are going to be tried for law of armed conflict violations,
we can tell the world that those people who will be tried at Guantanamo
Bay will not be tried in secret. They will be tried in public to the
extent that we can.
There is an op-ed piece today in the Washington Post by a defense
counsel--and God bless him; I have been a defense counsel, and I want
every right I can get as a defense counsel--saying that the trials at
Guantanamo Bay are a lot different than the ones at Nuremberg. He is
right in this regard. Nuremberg was trying people after the war was
over. We will be trying people at Guantanamo Bay while the war is going
on.
What we want to do is make sure the public knows as much as possible
about the process, that the defendants understand the evidence against
them, that they have the right to challenge the evidence, call
witnesses, and testify. And they are presumed innocent. It is a very
good infrastructure. But there may be some evidence down there about a
particular defendant that has to be classified because to divulge that
evidence would tip our enemy off as to what we are doing and how we are
doing it.
We are still at war. It is important we understand we are still at
war. But we can tell the world that for every person who goes through a
military commission trial, we will be as open as we possibly can be
without compromising our own security.
When that verdict is rendered, the Federal courts of the United
States of America will look at the military action to see if it
comports with the Constitution of our Nation, the preeminent legal
document in the world, and will also review the individual's case. I am
proud of that. It is going further than we probably absolutely have to,
but it is doing the American thing. It is putting American values on
display.
Ladies and gentlemen of the Senate, tomorrow is a historic day in the
war on terror. You have a chance to put some legal infrastructure in
place that will be a model for the world, that will help us win this
war on our terms. I am proud to have been part of it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I want to commend the Senator from South
Carolina and my colleague from Michigan whom I have worked with these
many years.
If the Senator from South Carolina will retake his seat for a minute
while the chairman speaks, I wish to say I thank my distinguished
colleague because I look upon the work by Members of the Senate toward
a resolution of these very difficult issues regarding prisoners taken
in this series of conflicts, seeing what we have witnessed in
terrorism, where there are no clear precedents, in many ways, in
history for this nonstate-sponsored aggression.
As we witnessed in the tragedy in Jordan, it is not restricted to
Iraq and Afghanistan. As General Abizaid has briefed the Senate and,
indeed, briefed the American public on television, this is a worldwide
movement that goes all the way from Spain to Indonesia. And you do not
know where they will hit next or whom they will hit or by what means
they will hit.
But I do believe as to the work initiated by our distinguished
colleague from Arizona, Mr. McCain, which you and I worked with him on,
this matter, which you and Senator Levin have worked on, and to a
limited extent--I am supporting you--I have had a voice, this is--and I
say this with great respect to the President and the administration--a
coequal branch of Government, the Senate. The Congress has a very clear
mandate in the Constitution that we shall take care of the men and
women of the Armed Forces. And this is part of that.
So I say to my good friends who have worked on this, well done. You
are profiles in courage.

Amendments Nos. 2518 and 2519

Now, Mr. President, as announced earlier, we will continue the
remarks regarding the two amendments, one by my distinguished colleague
from Michigan with his distinguished leader, the Senator from Nevada,
and one by myself together with Senator Frist.
Now, I wish to make an opening comment, and then I would like to
yield the floor for such time as my distinguished colleague may speak,
and then I will make some closing comments.
But it is important in our bill, and particularly on the last day, to
address the situation in Iraq. But, indeed, it is broader than Iraq. It
is, as I said a moment ago, the militant Jihadists attacking from Spain
to Indonesia, wherever they want to bring freedom and current
government to a standstill.
So we could have devised on this an entire amendment out of whole
cloth,

[[Page S12757]]

but it seemed to me--and I am going to take responsibility--it seemed
to me that we could show the maximum bipartisanship if we took the
amendment, as drawn by my distinguished colleague from Michigan,
Senator Reid, and others, and made a minimal number of changes.
That is exactly the posture of these proper amendments. That, to me,
indicates how much we really agree upon, page after page, paragraph
after paragraph. It is carefully drawn so, first, the Senate expresses
the sense of the Senate, not binding on the executive branch, it is the
sense of the Senate. Then the second portion is a reporting
requirement. But those reporting requirements are looking forward. We
are not going back to debate history. History will debate that fully.
We are going forward because the next 120 days, with Iraq in particular
in mind, with the election in December, the formation of a new
government, this next 120 days we must maintain stability, a clarity of
understanding among the American people and the Iraqi people, and we
cannot adopt any language, be it sense of the Senate or reporting
language, that in any way raises speculation. Everything we say about
the implementation of our Armed Forces should be with complete clarity.
The amendment by my good friend from Michigan left only the option,
in the reporting to the President, of putting out unclassified
information. That, to the maximum, the executive branch will do. But
there are certain aspects--and every Member should be cognizant of
this--of this very complicated war on terrorism that have to be given
to the Congress in a classified version.
So that is the sum and substance of our amendment. Take away any
indication of timetable, give the President the option to do
unclassified and classified and have a forward-looking approach as we
go into these next 120 critical days. This document can be referred to,
hopefully, as a bipartisan instrument.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I thank my dear friend from Virginia for
his positive comments. As always, he seeks to build bridges and to
overcome differences and to reach across the aisle. It is typical of
him, and it has been that way since the first day I met him many years
ago.
The Levin-Reid amendment--there are two amendments pending--is an
effort to, indeed, try to improve the situation in Iraq, to try to
change the course for the better. There is no date for withdrawal in
our amendment. It is not saying that we will withdraw troops at any
particular specific date. We have done that because we think it would
be a mistake to set a specific date, at least most of us do. On the
other hand, we believe it is essential that we change course in a
number of directions in order to improve the chances of Iraq becoming a
success.
America is going to be less secure if Iraq is a failed state.
Everybody agrees on that. The question is, How can we improve the
chances of Iraq not becoming a failed state? What could we do here,
carrying out our responsibility, what contribution can we make here to
success in Iraq? Things are not working very well in Iraq in many ways.
I know there are people who will point to progress in Iraq and,
obviously, there are things to which one could point. But on the other
hand, there are things that are not working well, and this amendment
intends to address those in a constructive and positive way.
Staying the course is not a strategy; that is a slogan. How do we
improve the chances for success? How do we modify our course so that we
can achieve or help the Iraqis achieve--more accurately--a nation? And
how can we also look forward to the day when our troops come out sooner
rather than later?
This amendment looks at the year 2006 as a transition year, with
Iraqi forces taking over security functions to a far greater extent.
For that to happen, this amendment points out that a number of things
need to happen. First, we have to advise the Iraqis that we are not
there for an indefinite period of time, that they must take the steps
necessary to achieve a broad-based political settlement which is so
essential to defeating the insurgency. Our military advisers are
unanimous on this point. There is no purely military solution unless
the Iraqis come together politically. Unless they unify politically,
they will not be able to defeat the insurgents. It is a point which
must be made to the Iraqis. They cannot simply continue to squabble
over the content of a constitution. They have to come together or else
they are not going to succeed, and we are not going to succeed in
helping them to achieve the security they want.
We need to advise the Iraqis we are not there indefinitely. They have
to take the steps necessary to achieve a broad-based political
settlement which is critically important to defeating the insurgency.
We need a plan for success. We don't have a plan for success. I will
speak more about that in a moment.
I want to go through the amendment. I want to point out where there
is apparently agreement and where there is disagreement and what the
significance is of both. The sense of the Senate starts by saying
something that I think every Member of this body would agree with:

. . . members of the United States Armed Forces who are
serving or have served in Iraq and their families deserve the
utmost respect and the heartfelt gratitude of the American
people for their unwavering devotion to duty, service to the
Nation, and selfless sacrifice under the most difficult
circumstances.

We start with that. Our troops and their families deserve the very
best in equipment, training, and support, but also in our thinking.
That doesn't mean there is going to be unanimity around. People who
disagree on what the next step should be should not be pilloried in any
way or criticized as being less American than those who support the
administration's policy lock, stock, and barrel. There is a place for
constructive criticism, for different points of view in a democracy.
That is what our troops have always fought for. That is what men and
women have died for, so that we would have an opportunity to have the
kind of debate on policy which is going on now.
First, our heartfelt gratitude to our troops. Second, the sense of
the Senate recognizes that the Iraqi people have made enormous
sacrifices and that the overwhelming majority of Iraqis want to live in
peace and security. There is no disagreement on that. The alternative
amendment that we will be voting on does not differ with that.
The next paragraph there is no difference on either. Both amendments
have the same language. There is no change in our version from the
Frist-Warner version. That is:

. . . calendar 2006 should be a period of significant
transition to full Iraqi sovereignty, with Iraqi security
forces taking the lead for the security of a free and
sovereign Iraq, thereby creating the conditions for the
phased redeployment of United States forces from Iraq.
That is in paragraph 3 of the sense of the Senate. There is no change
in that language to the Frist-Warner language. That is paragraph
(b)(3). Creating the conditions for the phased redeployment of U.S.
forces from Iraq surely ought to be a goal.

(4) United States military forces should not stay in Iraq
indefinitely and the Iraqi people should be so advised.

That is an important statement to the Iraqi people, and it is an
important statement to our people. We should not be staying in Iraq
indefinitely. That is the wrong message to send for a number of reasons
to the Iraqi people.
What the Warner version does is, it strikes the word ``indefinitely''
and says:

United States military forces should not stay in Iraq any
longer than required and the people of Iraq should be so
advised.

The problem with that is, they could be required forever. That is
open-ended. It is unlimited. It is the wrong message. That is a
difference, and it is the first difference.
The next paragraph, there is no difference on:

. . . the Administration should tell the leaders of all
groups and political parties in Iraq that they need to make
the compromises necessary to achieve the broad-based
political settlement that is essential for defeating the
insurgency . . . within the schedule that they have set for
themselves.

By the way, the schedule that they have set for themselves is to
appoint a commission when the new assembly takes office in January, to
appoint a constitutional commission to review the constitution and make
recommendations for changes within 4

[[Page S12758]]

months. That is their schedule. They ought to keep that.
Next--there is no disagreement on this language--

. . . the Administration needs to explain to Congress and the
American people its strategy for successful completion of the
mission in Iraq.

No difference on that language.
Now to paragraph C on the reports.
Mr. WARNER. Mr. President, to help those following, you have now
concluded that section entitled ``Sense of the Senate.'' Both
amendments have it phrased such, not binding on the administration.
Mr. LEVIN. That is correct.
Mr. WARNER. As you carefully pointed out, but I would like to repeat,
the entire section that you have referred to we have accepted--I
accepted and recommended to my colleague--except for that one change of
striking ``indefinitely'' and using ``any longer than required.'' And
when I regain the floor, I will explain why I felt that modest one-word
change was important. Other than that, we have accepted in its entirety
that section entitled ``Sense of the Senate'' accept for a one-word
change.
Mr. LEVIN. The Senator is correct.
On the report section, there is a change from 30 days to 90 days,
which I will not spend time on. I think it is a fairly technical
change, that there is not a particular difference or problem.
After that first report, whether it is 30 days or 90 days--30 days in
our version, 90 days in Senator Warner's version--every 3 months
thereafter, until all U.S. combat brigades have been redeployed from
Iraq, the President shall submit to Congress an unclassified report on
U.S. policy and military operations in Iraq. In our version we say:

Each report shall include the following:

What the Warner version adds is ``to the extent practicable,
unclassified information.'' And by the way, it is clear that there is
classified information that cannot be in a report, and we don't suggest
to the contrary. We just want an unclassified report to the extent you
can have an unclassified report on each of the following items:

. . . The current military mission and the diplomatic,
political, economic, and military measures, if any, that are
being or have been undertaken to successfully complete that
mission.

So far, no difference on that one.

Efforts to convince Iraq's main communities to make the
compromises necessary for a broad-based and sustainable
political settlement.

That is what I referred to before. It is so critically important that
we must convince the communities in Iraq that they must make the
compromises necessary for a broad-based, politically acceptable
settlement. No difference on that language; no proposed change in that.
Next, in our amendment, we need to engage

the international community and the region in the effort to
stabilize Iraq and to forge a broad-based and sustainable
political settlement.

No difference on that.
We need a report to us every 30 days on what is being done to
strengthen the capacity of Iraq's Government ministries; to accelerate
the delivery of basic services; to secure the delivery of pledged
economic assistance from the international community, and additional
pledges of assistance; to train Iraqi security forces and transfer
security responsibilities to those forces and the Government of Iraq.
No difference on that in terms of what must be in this report.
Next, we need in this report to know

whether the Iraqis have made the compromises necessary to
achieve the broad-based and sustainable political
settlement--

We need to keep the pressure on the Iraqis. We need the
administration to tell us the Iraqis have made the compromises
necessary. Without that kind of keeping the Iraqis' feet to the fire,
it is less likely the Iraqis are going to make the kind of broad-based
compromises that are necessary--the compromises that are necessary to
achieve that broad-based political settlement that is essential, in our
words, to defeat the insurgency in Iraq.
And now we get down to the heart of the matter where there seems to
be a difference, and I want to spend another couple minutes on this.
This report, according to our amendment--not disagreed to with the
Warner amendment--must include specific conditions that were included
in an April 2005 campaign action plan and any subsequent update to that
campaign plan that must be met in order to provide for the transition
of security responsibility to the Iraqi security forces.
There seems to be no objection to that. There is no change in that.
So we want that document, that report from the administration to set
forth any specific conditions that were in the April 2005 campaign
action plan and any updates to that campaign plan that need to be met
in order to provide for transition of security responsibility.
There is an acknowledgement by no change in our language that there
is a report containing conditions, that there is a need for updates to
that campaign plan that need to be met in order to provide for the
transition of security responsibility to the Iraqi forces.
Now we then have language which on this whole next page is not
objected to, which is accepted, which is that to the extent these
conditions are not covered, as I have just outlined, the following
needs to be addressed. We lay out here one, two, three, four
conditions: number of battalions of Iraqi Armed Forces that have to
operate independently or take the lead in counterinsurgency operations;
number of Iraqi police units that have to operate independently or take
the lead in maintaining law and order in fighting the insurgency, the
number of regular police that must be trained and equipped to maintain
law and order; the ability of Iraq's ministries and provincial and
local governments to independently sustain, direct, and coordinate
Iraq's security forces.
Now, so far there is apparently no problem. We have laid out all of
those conditions that need to be set forth in the report that has to
come every 30 days after that first report.
Then in subsection (6) we have a requirement in the report that is
also not objected to, which is a schedule for meeting such conditions.
There is no objection to that in the Warner amendment. There is no
language change in his version.
So we require a schedule for meeting those conditions which I have
outlined and an assessment of the extent to which such conditions have
been met, information regarding variables that could alter that
schedule, and the reasons for any subsequent changes to that schedule.
So far, so good. No change in the language.
Mr. WARNER. Mr. President, if the Senator will yield, for those
following, we covered first the sense of the Senate. The Senator has
now covered very carefully all the other provisions. It seems to me
that there has been no disagreement whatsoever between the two sides.
You pointed out, yes, I asked for 90 days; you have 30. But I don't
think that was particularly troublesome. And I pointed out that one
little change in language, ``to the extent practicable,'' so that the
President could include classified. So in essence there is absolutely
no difference between the two amendments up to the point you are now
addressing, which is the last paragraph; is that correct?
Mr. LEVIN. Not quite, because there was that one change which the
Senator from Virginia made in the sense-of-the-Senate language.
Mr. WARNER. No, I pointed that out.
Mr. LEVIN. I know you said there has been no change other than this.
I said there was a prior one which we agreed was a change.
Mr. WARNER. I was referring to now the statutory report language.
There is no difference until you get to the last paragraph.
Mr. LEVIN. I would agree. Now to the last paragraph, which for
reasons beyond me has been stricken.
We referred to the campaign plan--without objection. There was a
campaign plan we referred to which said, what are the conditions in
that plan that must be met in order to provide for the transition of
security responsibilities to Iraqi security forces? There is the
campaign plan. There are the conditions which have been laid out, which
of those conditions must be met in order to achieve the goal which we
have agreed on in this document--transition of security responsibility
to security forces.
Then we have agreed that the report has to contain a schedule for
meeting those conditions. What are the conditions? What is the schedule
for meeting

[[Page S12759]]

them? Three times we refer to that schedule in that same paragraph. No
objection so far.
But now we say that campaign plan should also contain estimated dates
for the phased redeployment of the United States Armed Forces from Iraq
as each condition is met. The conditions are already laid out. What is
the campaign plan with estimated dates for the phased redeployment as
those conditions are met?

Then we explicitly acknowledge that, with the understanding that
unexpected contingencies may arise.
We have already made reference to the phased redeployment. That is
the first time we have made a reference to phased redeployment.
In the sense of the Senate, paragraph (b)(3), we have said:

Calendar year 2006 should be a period of significant
transition to full Iraqi sovereignty, with Iraqi security
forces taking the lead for the security of a free and
sovereign Iraq, thereby creating the conditions for the
phased redeployment of United States forces from Iraq.

So in subparagraph (7), the last paragraph, which makes reference to
the campaign plan--we have already described what that is, with no
objection to it--are the estimated dates for the phased redeployment of
the United States Armed Forces from Iraq--we have already made
reference to the goal of phased redeployment of United States Armed
Forces--as each condition is met. We already have agreement on
everything up to now, talking about all those conditions and the need
that they be met, with the understanding that unexpected contingencies
may arise, which I can't imagine anybody would object to because there
are unexpected contingencies that always arise. We have acknowledged
this.
But why it is there is objection to acknowledging what is obvious,
that a campaign plan needs to have dates, estimated dates for the
phased redeployment we have already agreed is desirable, as conditions
allow and as each condition is met? Why that would be objectionable is
frankly a mystery to me unless there is a reluctance to do what we do
in an earlier paragraph, which is to say, folks, we can't stay there
forever, we have a plan for success, where there is a takeover of the
major security operations by the Iraqis so we can in a phased way
redeploy our forces. Eliminating that part of the plan, it seems to me,
is eliminating what is essential, what clearly follows from everything
that precedes it, which has been agreed to, and I think it would send
exactly the wrong message, to agree to all of the pieces that come up
to that conclusion, including the conditions which need to be met, the
desirability of phased redeployment, the fact that there is a campaign
plan, the fact that that campaign plan has conditions in it that need
to be met in order to provide for the transition of security
responsibility.
It is all there. It is all there in the pieces leading right up to
paragraph (7). Suddenly in the Warner version, paragraph (7) is
stricken.
Again, I close with this emphasis. We have not said in this document
that there should be a date for withdrawal. We said there should be a
plan. What are the conditions for phased redeployment? What would it
take for this to happen? What number of battalions need to be brought
up to capability on the part of the Iraqis in order for there to be a
number of our forces that are reduced and under what conditions? What
are those circumstances and conditions which will allow us to reduce
our forces?
For the administration to resist stating to the American people what
are the conditions that need to exist for us to reduce our forces in
Iraq it seems to me is wrong. It means there is no plan, there is no
strategy that they are willing to lay out for the American people and
for the Iraqi people as well so that there is no misunderstanding as to
where this responsibility must fall ultimately, which is on the people
of Iraq to come together politically and to take over their own
military security.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, again I commend my colleague. I think I
have fairly clearly stated, and I believe there has been concurrence,
the document prepared by the Senator and others is virtually accepted
in our amendment. The changes that I put out, the one simple change in
the sense of the Senate, you understood that. Then we get to the
conditions, which is changing 120 days instead of 30. So I say to my
colleague--and I think the Senator has been very fair and objective
about it--the amendments are parallel in every respect except the last
paragraph.
I say to my good friend, I say to all Senators, the next 120 days are
critical. If this is to become law, the President would have to start
every 90 days addressing the estimated dates for the phased
redeployment of United States Armed Forces from Iraq. No mention about
the other coalition forces.
I say that few words can be interpreted by all as being the
timetable, and we do not in this 120 days, in my judgment, want to have
any hint whatsoever of a timetable. It is so critical, with all the
progress thus far by the Iraqi people--elections and a series of
transitional governments, then acceptance of the constitution by
referendum, then the election of a new legislative body, and then they
have to stand up and begin to strengthen the ministries and take hold
in such a way that it is clear to the Iraqi people and the world that
that government is in control. To put any language such as this in
there, to suggest any timetable by which we begin to withdraw forces,
would undermine entirely and make highly risky the next 120 days.

I yield the floor.
Mr. LEVIN. Will the Senator yield for a correction? I inadvertently
said the report would be every 30 days after the first report. I
misspoke. It would be every 90 days, as the Senator from Virginia
correctly has stated. It would be every 90 days after the first report.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, this is one of those quiet moments in
the Senate with very few people in the Chamber when, in my opinion,
something very important is happening. It is happening in good measure
because of the two good men, my colleagues from Virginia and Michigan,
who lead the Armed Services Committee, of which I am privileged to be a
member. They are two gentlemen, two patriots, two people who have known
each other for a long time, who work closely together, respect each
other, even seem to like each other and, most important of all, trust
each other.
Those qualities of personal trust and personal relationship have been
too absent from our Nation's consideration of the ongoing war in Iraq
among our political leadership. We have, I am convinced, suffered from
it.
It is no surprise to my colleagues that I strongly supported the war
in Iraq. I was privileged to be the Democratic cosponsor, with the
Senator from Virginia, of the authorizing resolution which received
overwhelming bipartisan support.
As I look back on it and as I follow the debates about prewar
intelligence, I have no regrets about having sponsored and supported
that resolution because of all the other reasons we had in our national
security interest to remove Saddam Hussein from power, a brutal,
murdering dictator, an aggressive invader of his neighbors, a supporter
of terrorism, a hater of the United States of America. He was for us a
ticking timebomb that if we did not remove him I am convinced would
have blown up, metaphorically speaking, in America's face. I am
grateful to the American military for the extraordinary bravery and
brilliance of their campaign to remove Saddam Hussein.
I know we are safer as a nation, and to say the obvious that the
Iraqi people are freer as a people, and the Middle East has a chance
for a new day and stability with Saddam Hussein gone. We will come to
another day to debate the past of prewar intelligence. But let me say
briefly the questions raised in our time are important. The
international intelligence community believed Saddam Hussein had
weapons of mass destruction. Probably most significant, and I guess
historically puzzling, is that Saddam Hussein acted in a way to send a
message that he had a program of weapons of mass destruction. He would
not, in response to one of the 17 U.N. Security Council resolutions
that he violated, declare he had eliminated the inventory of weapons of
mass destruction that he reported to

[[Page S12760]]

the U.N. after the end of the gulf war in 1991.
I do not want to go off on that issue. I want to say that the debate
about the war has become much too partisan in our time. And something
is happening here tonight that I believe, I hope, I pray we will look
back and say was a turning point and opened the road to Republican and
Democratic cooperation, White House and congressional cooperation, to
complete the mission. As Senator Levin said, no matter what anyone
thinks about why we got into the war and whether we should have been in
there, it is hard to find anybody around the Senate--I have not heard
anybody--who does not want us to successfully complete our mission
there. I feel that deeply. If we withdraw prematurely from Iraq, there
will be civil war, and there is a great probability that others in the
neighborhood will come in. The Iranians will be tempted to come in on
the side of the Shia Muslims in the south. The Turks will be tempted to
come in against the Kurds in the north. The other Sunni nations, such
as the Saudis and the Jordanians, will be sorely tempted, if not to
come in at least to aggressively support the Sunni Muslim population.
There will be instability in the Middle East, and the hope of creating
a different model for a better life in the Middle East in this historic
center of the Arab world, Iraq, will be gone.
If we successfully complete our mission, we will have left a country
that is self-governing with an open economy, with an opportunity for
the people of Iraq to do what they clearly want to do, which is to live
a better life, to get a job, to have their kids get a decent education,
to live a better life.
There seems to be broad consensus on that, and yet the partisanship
that characterizes our time here gets in the way of realizing those
broadly expressed and shared goals.
Politics must end at the water's edge. That is what Senator Arthur
Vandenberg of Michigan said, articulating the important ideal that we
seem to have lost too often in our time.
I found a fuller statement of Senator Vandenberg's position, the
ideal. I found it to be in some ways more complicated and in other ways
much more compelling. I want to read from it. Senator Vandenberg said:

To me ``bipartisan foreign policy'' means a mutual effort,
under our indispensable two-Party system, to unite our
official voice at the water's edge so that America speaks
with maximum authority against those who would divide and
conquer us and the free world.

If that doesn't speak to us today--the threat of Islamist terrorism,
the desire they have to divide us and, in that sense, to conquer us in
the free world. Senator Vandenberg continued in his definition of what
he meant by bipartisanship in foreign policy:

It does not involve the remotest surrender of free debate
in determining our position. On the contrary, frank
cooperation and free debate are indispensable to ultimate
unity--

Of which I speak.

In a word, it simply seeks national security ahead of
partisan advantage.

I felt again in recent days and recent months how far we have strayed
down the partisan path from Vandenberg's ideals. The most recent
disconcerting evidence of this was the lead story from the Washington
Post--it was in papers all over the country--last Saturday, November
12. I read from that story:

President Bush and leading congressional Democrats lobbed
angry charges at each other Friday in an increasingly
personal battle over the origins of the Iraq war. Although
the two sides have long skirmished over the war, the sharp
tenor Friday resembled an election year campaign more than a
policy disagreement.

That from Saturday's Washington Post. Campaign rhetoric over policy
debate, and what about? About how we got into the war 2\1/2\ years ago,
not about how we together can successfully complete our mission in
Iraq.
The questions raised about prewar intelligence are not irrelevant,
they are not unimportant, but they are nowhere near as important and
relevant as how we successfully complete our mission in Iraq and
protect the 150,000 men and women in uniform who are fighting for us
there.
I go back to Vandenberg's phrase; the question is how Democrats and
Republicans can ``unite our . . . voice at the water's edge . . .
against those who would divide and conquer us and the free world'' in
Iraq, I add, and beyond.
The danger is that by spending so much attention on the past here, we
contribute to a drop in public support among the American people for
the war, and that is consequential. Terrorists know they cannot defeat
us in Iraq, but they also know they can defeat us in America by
breaking the will and steadfast support of the American people for this
cause.
There is a wonderful phrase from the Bible that I have quoted before:

If the sound of the trumpet be uncertain, who will follow
into battle?

In our time, I am afraid that the trumpet has been replaced by public
opinion polls, and if the public opinion polls are uncertain, if
support for the war seems to be dropping, who will follow into battle
and when will our brave and brilliant men and women in uniform in Iraq
begin to wonder whether they have the support of the American people?
When will that begin to affect their morale?
I worry the partisanship of our time has begun to get in the way of
the successful completion of our mission in Iraq. I urge my colleagues
at every moment, when we do anything regarding this war, that we
consider the ideal and we are confident within ourselves. Not that we
are stifling free debate. Free debate, as Vandenberg said, is the
necessary precondition to the unity we need to maximize our authority
against those who would divide and conquer us. But the point is to make
sure we feel in ourselves that the aim of our actions and our words is
national security, not partisan advantage.
Now we come to today. After reading that paper on Saturday, I took
the original draft amendment submitted by Senator Warner and Senator
Frist--it actually wasn't offered, but it was around--and Senator Levin
and Senator Reid. I took the amendments back to Connecticut, and last
night I looked them over. Neither one expressed fully what I hoped it
would, but as I stepped back, I said that these two amendments--one
Republican, one Democrat, unfortunate in a way breaking by parties--
these amendments are not that far apart.
I like the way in which the Warner amendment recited again the
findings that led us to war against Saddam Hussein and, quite
explicitly, cited the progress that has been made. I do think Senator
Levin's amendment doesn't quite do this part enough, about the
progress, particularly among the political leaders of Iraq. They have
done something remarkable in a country that lived for 30 years under a
dictator who suppressed all political activity, encouraged the
increasing division and bitterness among the Shia's, the Sunnis, the
Kurds. These people, with our help and encouragement, have begun to
negotiate like real political leaders in a democracy. It is not always
pretty. What we do here is not always most attractive. That is
democracy. Most important of all, 8 million Iraqis came out in the face
of terrorist threats in January to vote on that interim legislation.
Almost 10 million came out to vote on a constitution, which is a pretty
good document, a historically good document in the context of the Arab
world.
What happened when the Sunnis felt they were not getting enough of
what they wanted in a referendum? They didn't go to the street, most of
them, with arms to start a civil war; they registered to vote. That is
a miraculous achievement and a change in attitude and action. They came
out to vote in great numbers, and they will come out, I predict, again
in December in the elections and elect enough Sunnis to have an effect
on the Constitution next year.
So I wish that some of that had been stated in Senator Levin's
amendment.
Mr. LEVIN. Would the Senator yield on that point?
Mr. LIEBERMAN. I would.
Mr. LEVIN. My amendment is exactly the same as Senator Warner's
amendment in that regard. Senator Warner has adopted my amendment with
two minor changes. He has not made any change in terms of the progress
that has been made or the reference to the great work of our troops. I
thought I heard the Senator from Connecticut--and I have no dearer
friend in the Senate--suggest that he had wished that my amendment
would be more fulsome relative to progress. I

[[Page S12761]]

just wanted to assure the Senator that there is no change in that
language in the version which was subsequently filed by the Senator
from Virginia.
Mr. LIEBERMAN. I thank my friend from Michigan. What I said, and I
know the Senator from Michigan was involved in a conversation, I was
actually going back and quoting the draft of the Warner amendment that
was circulating at the end of last week which had statements about why
we went to war and marked the progress that had been made politically
and economically since then. But the Warner amendment did not raise
questions about what our plan is now and how to successfully complete
the mission. It did not raise the questions Senator Levin's amendment
rightly raises for progress reports from the administration about how
we are doing and in that sense did not create an opportunity for a
dialogue that can get us beyond the partisan gridlock in our
discussions about the war. I wrote a statement last night expressing my
frustration on that.
I had other concerns about Senator Levin's amendment, including
particularly the last paragraph which I believe creates a timetable for
withdrawal, and I think that is a mistake, particularly in the next 3
to 6 months as the Iraqis stand up a new government. It may not be the
intention of the sponsors, but it does send a message that I fear will
discourage our troops because it seems to be heading for the door. It
will encourage the terrorists, and it will confuse the Iraqi people and
affect their judgments as they go forward.
Incidentally, I do thank the Senator from Michigan because I know he
and others in the Democratic caucus worked very hard to make this
amendment an inclusive amendment. I had the opportunity to make a few
suggestions, some of which were accepted, some of which were not. Then
I arrive back in Washington today and I find that the Senator from
Virginia has decided not to put in that amendment, has seen some real
strengths in the amendment of the Senator from Michigan, has cut out a
few points as enumerated, that I personally--and Senator Warner and I
had no conversation about this--thought weakened or at least I found
objectionable. I think it is better to strike the word
``indefinitely,'' that our troops will not stay there indefinitely. Of
course they will not stay there indefinitely but to make the telling
point that we will stay there as long as conditions require and no
longer. I fear that if a timetable is put in at the end, ask for a
series of dates of phased deployment, even though they are based on
those conditions that were cited, it looks like a withdrawal plan and
does not send a sound of strength, the sound of a certain trumpet.
The point that I wish to make is that Senator Warner has now taken
most of Senator Levin's amendment. The Republican leader, if I could
talk in partisan terms, has said to the Democratic leader: We accept
most of his amendment with these few changes. I think this is a turning
point. It is a significant development in terms of the Senate's
consideration of the war in Iraq and hopefully in terms of the
administration's consideration as well.
The distrust, the lack of dialogue between the executive branch and
Democrats in Congress is so deep and complicated now that I cannot even
begin to describe how we got to this point. I know it is a bad place to
be, particularly when we are at war.
I remember the words of the Secretary of War during the Second World
War, Henry L. Stimson--this was actually after the war. He said:
Sometimes the best way to make a person--and he really meant a nation--
trustworthy is to trust them. That has been lacking in the relations
between the executive branch and the Democrats in Congress.
I believe Senator Warner, the Republican chairman of the Armed
Services Committee, in accepting almost all of the Democratic
amendment, has in some sense expanded the trust he feels for the
ranking Democrat on the committee and created a process where the
administration does have to report to us every 90 days, and if the
administration--let me put it another way, respectfully. I hope the
White House, the Pentagon, sees this also as a moment of opportunity to
engage with the Congress so that we will achieve, after free debate--
and that is exactly what we have heard on the floor tonight--the result
Senator Vandenberg spoke to, which is that we will, under our
indispensable two-party system, unite our official voice at the water's
edge so that America speaks with maximum authority against those who
would divide and conquer us in the free world.

It is a different kind of enemy, but the extremist Islamist
terrorists who face us, as Senator Warner said, from Spain to
Indonesia, it is their plan for conquer. They struck us on 9/11. They
are preparing to strike us again. If we cannot pull together across
party lines to defeat this enemy to our security and our way of life,
shame on us, particularly if we are stopped from doing so by momentary
partisan political ambitions.
So I am going to vote for the Warner amendment--I believe it is a
significant step forward--for the reasons I have said, because of the
timetable at the end particularly. I am going to respectfully vote
against the Levin amendment. I hope the Levin amendment comes up first,
and if it is not passed, I hope there is an overwhelming bipartisan
vote for the Warner amendment.
I cannot resist one final quote from the great Vandenberg--succeeded
by another great Senator, I might say, from Michigan, Mr. Levin--and
this is that famous speech on January 10, 1945, when he abandoned his
long-time isolationism and embraced an internationalist foreign policy,
and, boy, did his words speak directly to us in our circumstances in
Iraq and around the world today. I hope they give us pause. I hope in
some sense--frankly, they give us a bit of discomfort about some of the
things that have happened in the political consideration of the war.
Here is what Vandenberg said:

There are critical moments in the life of every nation,
which call for the straightest, the plainest and most
courageous thinking of which we are capable. We confront such
a moment now. . . .

And we do today, as well.
Vandenberg continued:

. . . It is not only desperately important to America, it
is important to the world. It is important not only to this
generation, which lives in blood . . .

As ours sadly does, as the people who were in the Trade Towers and
the Pentagon and Jordan over the weekend and so many other places
around the world.

. . . It is important to future generations if they shall
live in peace. No man in his right senses will be dogmatic in
such an hour.

I digress to thank the Senator from Virginia for coming across the
aisle a long way. I thank the Senator from Michigan for the work he did
to make his amendment as inclusive and broad as it was so that it
enabled the Senator from Virginia to do that.
Vandenberg ended:

Each of us can only speak according to his little lights--
and pray for a composite wisdom that shall lead us to a high,
safe ground.

That is exactly what we need with regard to Iraq today. We have to do
what is best for our country. We have to do what is best for the
150,000 Americans who are there. We have to do what best enables us to
do what we say we all want to do, which is to successfully complete
America's mission in Iraq. The sooner we do that, what is best for our
country and our great military, the sooner we will succeed in Iraq, and
the sooner we will be able to bring our brave soldiers home.
This compromise amendment offered by Senator Warner, building on the
excellent work Senator Levin has done, is an enormous step forward
toward that higher ground. I thank them both for the work they have
done.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, there are rare moments in the life of the
Senate that one shall never forget. I thank the Senator not just
because he has indicated support for my amendment but for the Senator's
very extraordinary observations about the times, the difficulty, and
the need to have bipartisanship and to leave our politics at the
water's edge. As I said earlier, I take responsibility for adopting
this course rather than the earlier draft I had prepared.
I say to my colleagues on both sides of the aisle, it is an
expression of how close we really are on the fundamental things. The
sole point of difference is how each Senator shall read the last

[[Page S12762]]

paragraph. It is as simple as that. I read it as lending to the world
an interpretation of what we have done and what we will do in the
future as embracing some definitive timetable, and the President will
have to every 90 days address those key words and in doing so could
well complicate and jeopardize the next 120 days, which this Senator
thinks is so critical.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, first let me thank my good friend from
Connecticut, particularly for his repeated reference to a Senator from
Michigan whom we all hold in such huge esteem--particularly Michigan,
but it is not limited, obviously. We just put his portrait out in the
reception room, one of the two Senators we have added in that reception
room. I believe there are only seven Senators whose portraits are
there. One of them is now Senator Vandenberg. I quote him often for
many purposes, including the bipartisan foreign policy that he
espoused.
As the Senator from Connecticut pointed out, he also urged us to give
our very best thinking and not to worry about being mischaracterized or
being challenged in terms of patriotism because all of us, I believe,
agree that when we give our best assessment of the path forward, the
success in Iraq, that we are all acting in the best of faith.
I know every colleague I either know of or do not know of is
operating in the best of faith, total support for our troops, total
support for their families, and how we can best succeed in Iraq. I
believe we have to make some changes in our course. This amendment
explicitly suggests some of those changes in course. It will hopefully
make it more likely that we will succeed in Iraq.
One thing I know for sure, and that is that unless the Iraqis take
hold, unless they put their political house in order, unless they do
what this amendment says in both versions, that they make the political
compromises and the tough political decisions that are necessary for
them to be unified against the insurgency, unless they do that, there
is no chance that they are going to succeed against this insurgency.
They must come together politically. That is what this amendment says.
This amendment provides that they also must understand that we are
not there for an unlimited period of time, because if they do believe
that we are there for an unlimited period of time, they are less likely
to make the political compromises which must be made for them to unite
against the insurgency. That is the reason the message is so important.
Are we there for an unlimited period of time, as long as you need us?
Is that the right message? Or is the right message that we are not
there for an unlimited period of time, we are not setting a date for
departure, but we are putting you on notice, folks, you need to get
your political house in order so that you can defeat, with our
assistance, that insurgency. And without that kind of coming together,
that military success is either unachievable or far more difficult.
That is the purpose of this amendment, and that is why the few words
that were in this version, which the Senator from Virginia would
change, are important words, to let the Iraqis know that the American
military forces are not going to be there indefinitely, because, again,
if they think we are there as long as they need us, which is the way
the administration has phrased it, it is less likely that they are
going to make the very difficult compromises that need to be made in
order to put together a modified constitution around which all Iraqi
factions can rally.
That is one of the purposes of this amendment. The other purpose is
on the reports, which already, in this amendment which has been agreed
to by my friend from Virginia, this amendment as written and as agreed
to--there is no change to this--requires a schedule for meeting
conditions. It requires a listing of variables that could alter a
schedule. It requires that reasons be provided for any subsequent
changes to that schedule.
What is one of the conditions? One of the conditions is that there be
a campaign plan that must be met to provide for the transition of
security responsibility to Iraqi security forces. So that is one of the
stated conditions, that there be this campaign plan provided to the
Congress, and that plan provide for the transition of security
responsibility to Iraqi security forces.
Three times we make reference to a schedule and we make very clear
the conditions which must be laid out as to which conditions need to be
met when, including what are the number of the battalions in the Iraqi
Armed Forces that can operate independently or take the lead in
counterinsurgency operations--all that seems to be agreed to. We have a
schedule. We have to lay out the conditions. One of the conditions is
how many battalions of Iraqi Armed Forces need to be able to operate
independently. We lay all of that out.
But then in the last paragraph, when we use the words ``estimated
dates'' rather than ``schedule,'' for some reason the use of the words
``estimated dates'' creates a problem. Maybe it is not the words
``estimated dates,'' maybe it is the words ``phased redeployment,'' but
I would again remind my colleagues that, in our sense of the Senate, we
set forth a goal that, in order to succeed in Iraq, we have to have
significant transition in the year 2006, with Iraqi security forces
taking the lead, thereby creating the conditions for the phased
redeployment of the United States forces. That is a goal stated and
apparently agreed to by my good friend from Virginia.
There is much in common here. I think the Senator from Connecticut is
right. There is clearly a sense we have to do some things here to make
it more likely that we are going to succeed in Iraq. That has to be
everybody's goal, regardless of what our positions were going in or how
critical we are of the way this war is run. Our goal is to maximize the
chances for success in Iraq.
But our amendment does have some differences. We should not paper
over those differences. There are two differences, which the Senator
from Virginia has pointed out and I have pointed out. I guess that is
where it is going to rest when the Senate votes tomorrow.
Mr. WARNER. Mr. President, our magnificent service men and women,
along with allies and partners, are supporting the Iraqis as they
develop their own concepts of democracy. Jointly we are improving
infrastructure, improving the internal security, and together
confronting the extremists.
By any fair objective political measure, the people of Iraq are
making progress. In 1 year, the Iraqis elected a transitional
government, ratified a constitution, and are preparing to elect a
permanent parliamentary government on December 15th.
During many hearings and briefings, the senior military commanders,
particularly General Abizaid has stressed that the extremist militant
jihadists are focusing on dominating a geographic area that extends
from Spain to Indonesia. The tragic events in Jordan underscore the
accuracy of that military analysis.
The al-Qaida group in Iraq claimed responsibility for the tragic
attacks in Jordan against innocent Arab civilians. While portions of
Iraq remain focal points for terrorist attacks, the threat extends far
beyond.
This enemy seeks neither compromise nor coexistence with the United
States or others who do not share their world vision. The United
States, along with partners and allies, must continue their strong
resolve and effectively address this threat. The civilized world has no
choice.
Of equal importance to the military mission in Iraq is the
development of political structures and reconstruction of the
infrastructure. I, like many of you, have made a number of trips to
Iraq: I have seen progress.
Now I would like to specifically address the pending amendments
related to our policy to achieve our military, political, and
reconstruction goals in Iraq. While there are similarities, the
amendments differ on several major points.
Both amendments recognize the magnificent work being done by our
Armed Forces; the unwavering support of their families at home; the
importance of political developments to take place in Iraq next year;
the necessity to put Iraqi Security Forces in the lead in securing
Iraq; and the requirement to keep the American people well informed of
all aspects of the military, political, and reconstruction efforts in
Iraq.

[[Page S12763]]

Both amendments call for the President to submit a quarterly report
on our progress in Iraq. While Congress already receives a number of
reports and Members and committees in both bodies receive briefings
from civilian and military leaders, this report from the President
would become the most comprehensive report on the situation in Iraq.
These are the three important differences between the two amendments.
No. 1 the reporting timeline--section c. The Warner-Frist amendment
calls for the first report 90 days after the enactment of the Act.
Ninety days allows the President sufficient time to assemble this very
wide-ranging report. A report of this scope will require close
consultation with all departments and agencies of the Federal
Government; American diplomats in Iraq and in the region; United States
allied and partnered nations; and our military leaders here and in the
theater of operations.
The Levin amendment would allow for just 30 days of coordination and
consultation before submitting the initial report. I believe that is
insufficient time to produce a report as comprehensive as this.
No. 2 is section c. The Levin-Reid amendment calls for a completely
unclassified report. The Warner-Frist amendment directs that the report
be unclassified to the extent possible. This is an important
distinction. Some information on international negotiations and
agreements, and plans for Iraq's domestic security will be an integral
part of the development of Iraqi security forces, this may be too
sensitive to be presented in an unclassified forum. The Warner-Frist
amendment allows the President to produce a classified annex if the
President and his advisors believe it is necessary.
No. 3 is a campaign plan with estimated dates for phased withdrawal--
section c(7). The Levin-Reid amendment asks for a campaign plan with
estimated dates for the phased withdrawal of U.S. forces to be
published in the unclassified report. I believe that any program for
the withdrawal of American combat forces must be conditions-based, and
linked to specific, responsible benchmarks not just dates on a
calendar, per se. While I agree that we must continue to make it clear
to the Iraqis that a program for withdrawal is a common goal, any
announcement of immediate withdrawal or even speculation of withdrawal
before a secure and democratic Iraq is in place is simply not prudent.
I am concerned that the release of a timeline such as that in the
last paragraph of the Levin-Reid amendment now that announces our
withdrawal plans, even with estimated dates, could promote speculation
and send an erroneous message to our troops, the Iraqi people, our
coalition partners, and the terrorists.
I urge you to vote for Warner-Frist amendment and that we follow
Levin and Reid, rather than an entire new amendment to show how much we
do agree on and that this is an effort to seek partisanship.
We are down to two differences: the word ``indefinite,'' which to me
precludes the chance--could be construed as we would not leave a very
small unit there to facilitate the logistic transfer, the need to bring
up to a level of acceptability the armaments the Iraqis have; and the
continuation of some security work as well as training. But I will not
belabor the point. I was very specific in the careful choice of words
substituted for ``indefinite.''
The last paragraph--every Senator has to decide for himself or
herself the clear meaning of the English language and whether that
cannot be construed by many to invoke the thought of a timetable.
I say to my good friend, we have had a very good debate tonight. How
fortunate we are that our distinguished colleague, a long-time member
of the committee, the Senator from Connecticut, joined us.
I think we have done a good service to our colleagues who, in a very
brief period tomorrow, will be required to focus on this and cast their
votes accordingly.
Mr. LEVIN. Mr. President, I hope we have performed that service. I
know we all tried in good faith to do it. I am perfectly content, as
the Senator from Virginia is, that our colleagues read that last
paragraph, read the paragraph before that making reference three times
to schedules, read the entire resolution we have written, and then
determine as to which is the better message to send to the Iraqis.
I am perfectly content to leave it rest there.
Mr. WARNER. Mr. President, I think the matter now is that the Senate
should go off the bill and I will proceed to do morning business.
Mrs. DOLE. Mr. President, I thank Chairman Warner and ranking Member
Levin for their leadership in bringing the fiscal year 2006 Defense
authorization bill, S. 1042, to the floor and shepherding it through to
final passage after months of unfortunate delays.
Due to procedural limitations associated with the managers' amendment
which included my amendments, it was impossible to have original
cosponsors added. The following Senators are cosponsoring certain of my
amendments:
Senators Chafee and DeWine would like to cosponsor my amendment to
provide for mental health counselors under TRICARE, S.A. 2456; Senators
Nelson of Florida, Talent, Roberts and Harkin would like to cosponsor
my amendment to require a report on predatory lending directed at
members of the Armed Forces and their dependents, S.A. 2468.

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