Providing for consideration of the bill (H.R. 6166) to amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.

Mr. Speaker, pursuant to House Resolution 1042, I call up the bill (H.R. 6166) to amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 6166.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions Act of 2006. I can't think of a better way to honor the fifth anniversary of September 11 than by establishing a system to prosecute the terrorists who on that day murdered thousands of innocent civilians and who continue to seek to kill Americans, both on and off the battlefield.

Our most important consideration in writing this legislation is to protect American troops and American citizens from harm. The war against terror has produced a new type of battlefield and a new type of enemy. How is it different? We are fighting a ruthless enemy who doesn't wear a uniform, an enemy who kills civilians, women and children, and then boasts about it; a barbaric enemy who beheads innocent civilians by sawing their heads off; an uncivilized enemy who does not acknowledge or respect the laws of war.

Justice Thomas put it best in the Hamdan decision. He said, ``We are not engaged in a traditional battle with a nation state, but with a worldwide hydro-headed enemy who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of the beheadings of civilian workers, and has tortured and dismembered captured American soldiers.

So how is the battlefield new? First, it will be a long war. We don't know if this enemy will be defeated this decade, the next decade or even longer than that. Second, in this new war, where intelligence is more vital than ever, we want to interrogate the enemy; not to degrade them, but to save the lives of American troops, American civilians and our allies. But it is not practical on the battlefield to read the enemy their Miranda warnings.

Finally, this is an ongoing conflict, and sharing sensitive intelligence sources, methods and other classified information with terrorist detainees could be highly dangerous to national security, and we are not prepared to take that risk.

So what have we done to develop a military commission process that will allow for the effective prosecution of enemy combatants during this ongoing conflict? Without this action, the United States has no effective means to try and punish the perpetrators of September 11, the attack on the USS Cole and the embassy bombings. We provide basic fairness in our prosecutions, but we also preserve the ability of our warfighters to operate effectively on the battlefield.

I think a fair process has two guiding principles, Mr. Speaker. First, the government must be able to present its case fully and without compromising its intelligence sources or compromising military necessity. Second, the prosecutorial process must be done fairly, swiftly, and conclusively.

Who are we dealing with in military commissions? I have shown the picture of Khalid Sheikh Mohammed, who is alleged to have designed the attack against the United States that was carried out on 9/11. We are dealing with the enemy in war, not defendants in our domestic criminal justice system. Some of them have returned to the battlefield after we let them out of Guantanamo.

Our primary purpose is to keep them off the battlefield. In doing so, we treat them humanely, and, if we choose to try them as war criminals, we will give them due process rights that the world will respect. But we have to remember that they are the enemy in an ongoing war.

In time of war, it is not practical to apply to rules of evidence the same rules of evidence that we do in civilian trials or court martials for our troops. Commanders and witnesses can't be called from the front line to testify in a military commission.

We need to accommodate rules of evidence, chain of custody and authentication to fit what we call the exigencies of the battlefield. It is clear, Mr. Speaker, that we don't have crime scenes that can be reproduced, that can be taped off, that can be attended to by dozens of people looking for forensic evidence. We have in this war against terror a battlefield situation.

If hearsay is reliable, we should use it. And I might add that hearsay is utilized and has been utilized in tribunals like the Rwanda tribunals and the Kosovo tribunals. If sworn affidavits are reliable, we should use them. And, Mr. Speaker, we have not expanded the use of hearsay beyond what is being used in those tribunals, Rwanda and Yugoslavia.

The Supreme Court has tasked us with an adjustment, but in doing so

let's not forget our purpose is to defend the Nation against the enemy. We won't lower our standards; we will always treat detainees humanely, but we can't be naive either.

This war started in 1996 with the al Qaeda declaration of jihad against our Nation. The Geneva Conventions were written in 1949, and the UCMJ was adopted in 1951. In that sense, what we are required to do after the Hamdan decision is broader than war crimes trials. It is the start of a new legal analysis for the long war. It is time for us to think about war crime trials and a process that provides due process and protects national security in this new war.

So what do we do with these new military commissions? We uphold basic human rights and state what our compliance with this standard means for the treatment of detainees. We do this in a way that is fair and in a way that the world will acknowledge is fair.

First, we provide accused war criminals at least 26 rights if they are tried by a commission for a war crime. While I will not read all of them, here are some of the essential rights we provide:

The right to counsel, provided by government at trial and throughout appellate proceedings. An impartial judge. A presumption of innocence. A standard of proof beyond a reasonable doubt. The right to be informed of the charges against him as soon as practicable. The right to service of charges sufficiently in advance of trial to prepare a defense.

And, Mr. Speaker, I am going to insert the balance of those 26 basic and fundamental rights in the Record, so I won't read them all at this point.

The right to reasonable continuances;

Right to peremptory challenge against members of the

commission and challenges for cause against members of the

commission and the military judge;

Witness must testify under oath; judges, counsel and

members of military commission must take oath;

Right to enter a plea of not guilty;

The right to obtain witnesses and other evidence;

The right to exculpatory evidence as soon as practicable;

The right to be present at court with the exception of

certain classified evidence involving national security,

preservation of safety or preventing disruption of

proceedings;

The right to a public trial except for national security

issues or physical safety issues;

The right to have any findings or sentences announced as

soon as determined;

Right against compulsory self-incrimination;

Right against double jeopardy;

The defense of lack of mental responsibility;

Voting by members of the military commission by secret

written ballot;

Prohibitions against unlawful command influence toward

members of the commission, counsel or military judges;

2/3 vote of members required for conviction; 3/4 vote

required for sentences of life or over 10 years; unanimous

verdict required for death penalty;

Verbatim authenticated record of trial;

Cruel or unusual punishments prohibited;

Treatment and discipline during confinement the same as

afford to prisoners in U.S. domestic courts;

Right to review of full factual record by convening

authority; and

Right to at least two appeals including to a Federal

Article III appellate court.

We provide all these rights, and we give them an independent judge, and the right to at least two appeals, including the U.S. Court of Appeals for the District of Columbia and access to the Supreme Court. Nobody can say this is not a fair system.

I know some of my colleagues are concerned about the issue of reciprocity. Look at this list of rights. And we are going to put it up here, Mr. Speaker, so that all the Members can see this. And also keep in mind that these are the rights for terrorists. These are the rights for the people who struck us on 9/11 and killed thousands of Americans. If we are talking about true reciprocity, then we are only concerned about how the enemy will treat American terrorists. These are not our rules for POWs; these are how we treat terrorists. We treat the legitimate enemy differently, and expect them to treat our troops the same.

How do we try the enemy for war crimes? In this act, Congress authorizes the establishment of military commissions for alien unlawful enemy combatants, which is the legal term we use to define international terrorists and those who aid and support them, in a new separate chapter of title 10 of the U.S. Code, chapter 47A. While this new chapter is based upon the Uniform Code of Military Justice, it creates, Mr. Speaker, an entirely new structure for these trials.

In this bill we provide standards for the admission of evidence, including hearsay evidence and other statements, that are adapted to military exigencies and provide the military judge the necessary discretion to determine if the evidence is reliable and probative. And he must find that it is reliable and probative before he allows it to be admitted.

I want to talk a little bit about how we handle classified evidence. We had three hearings on this bill in addition to briefings and meetings with experts. I asked every witness the same question: If we have an informant, either a CIA informant or an undercover witness of some sort, are we going to tell Kalid Sheikh Mohammed who the informant is? The legislation does not allow KSM to learn the identity of the informant.

After several twists and turns in the road, after meeting with the Senate and the White House in marathon sessions over the weekend, we have crafted a solution that does not allow the alleged terrorists to learn the identity of the informant, yet provides a fair trial. And, Mr. Speaker, that is critically important to all of us in this Chamber, because that American agent or informant may have information that saves thousands of lives. He may be of enormous value added to the security of this country. We can't divulge his identity, and we can't divulge it to the alleged terrorist, and doing so would allow that information to go back quickly, as it has on two occasions: one coming out of the first bombing of the World Trade Center where we now have established that Osama bin Laden did come into possession of classified evidence that was moved up through those court proceedings, and once in Guantanamo. So it is very, very important that we protect classified evidence and that we protect the identity of our agents.

We address this in section 949d, subsection (f) of section 3. Classified evidence is protected and is privileged from disclosure to the jury and the accused if disclosure would be detrimental to national security. The accused is permitted to be present at all phases of the trial, and no evidence is presented to the jury that is not also provided to the accused. Section 949d(f) makes a clear statement that sources, methods, or activities will be protected and privileged and not shown to the accused.

However, and this is how you move the essence of an undisclosed agent's testimony to the jury without disclosing the identity of the agent, the substantive findings of the sources, methods, or activities will be admissible in an unclassified form. This allows the prosecution to present its best case while protecting classified information. In order to do this, the military judge questions the informant outside the presence of the jury and the defendant. In order to give the jury and the defendant a redacted version of the informant's statement, the judge must find, one, that the sources, methods, or activities by which the U.S. acquired the evidence are classified; and, two, that the evidence is reliable.

Once the judge stamps the informant as reliable, the informant's redacted statement is given to both the jury and the accused. It removes the confrontation issue. And this, again, to my friends who said we want to follow the UCMJ and we want to give these people all the rights that we give our uniformed servicemen, our analysis is that we would not be able to keep from disclosure the identity of our special agents if we followed the UCMJ. That is designed to protect American uniformed servicemen, and it is not something that we should apply in the case of alleged terrorists.

I think that these rules protect classified evidence and yet preserve a fair trial.

One other point I want to make for the record. As I mentioned earlier, we have modified the rules of evidence to adapt to the battlefield. One of the principles used by the judiciary in criminal prosecutions of our citizens is called the fruit of the poisonous tree

doctrine. This rule provides that evidence derived from information acquired by police officials or the government through unlawful means is not admissible in a criminal prosecution.

I want to make it clear that it is our intent with the legislation not to have this doctrine apply to evidence in military commissions. While evidence obtained improperly will not be used directly against the accused, we will not limit the use of any evidence derived from such evidence.

The deterrent effect of the exclusionary rule is not something that our soldiers consider when they are fighting a war. The theory of the exclusionary rule is that if the constable blunders, the accused will not suffer. However, we are not going to say that if the soldier blunders, we are not going to punish a terrorist. Some rights are reserved for our citizens; some rights are reserved for civilized people.

Mr. Speaker, this is a complicated piece of legislation. In addition to establishing an entire legal process from start to finish, we address the application of common article 3 of the Geneva Conventions to our current laws.

Section 5 clarifies that the Geneva Conventions are not an enforceable source of rights in any habeas corpus or other civil action or proceeding by an individual in U.S. courts. Mr. Speaker, this protects American troops.

Section 6 of the bill amends 18 U.S.C. section 2441, the War Crimes Act, to criminalize grave breaches of common article 3 of the Geneva Conventions. As amended, the War Crimes Act will fully satisfy our treaty obligations under common article 3. This amendment is necessary because section C(3) of the War Crimes Act defines a war crime as any conduct which constitutes a violation of common article 3. Common article 3 prohibits some actions that are universally condemned, such as murder and torture, but it also prohibits outrages upon personal dignity and what is called humiliating and degrading treatment, phrases which are vague and do not provide adequate guidance to our personnel.

Since violation of common article 3 is a felony under the War Crimes Act, it is necessary to amend it to provide clarity and certainty to the interpretation of this statute. The surest way to achieve that clarity and certainty is to define the list of specific offenses that constitute war crimes punishable as grave violations of common article 3.

And, Mr. Speaker, this is very important. This protects our troops, it gives them certainty, it gives them clarity. You don't want to have our troops so paralyzed by what they see as prosecutions arising out of common article 3 that you will have a situation where a female officer in the U.S. military will not interrogate a Muslim male on the basis that she is afraid that that action may be defined or projected as being a humiliation of that particular prisoner being interrogated and therefore subjecting that female American officer to a war crimes accusation.

So what we have done is we have taken the offenses that are considered to be grave offenses under article 3, and then I have enumerated several of those, and we define those as the offenses which will be applicable upon which prosecutions can be brought, and then we give to the President on what I would call infractions of Geneva article 3 or lesser violations of Geneva article 3, we give him the right to put together regulations that account for and treat actions that are defined under those minor offenses.

Section 6 of the bill also provides that any detainee under the custody or physical control of the United States will not be subject to cruel, inhumane, or degrading punishment provided by the fifth, eighth, and fourteenth amendments to the Constitution as defined by the U.S. Reservations to the U.N. Convention Against Torture. This defines our obligations under common article 3 by reference to the U.S. constitutional standard adopted by the Detainee Treatment Act that we passed in 2005. And, Mr. Speaker, all parties, both Houses, decided that it was appropriate that we define this type of treatment, degrading treatment, especially under the reservations to the convention that is mentioned, the U.N. Convention Against Torture. We decided that that was good enough for putting together the Detainee Treatment Act; it should be good enough for this particular body of law.

Section 7 of the bill addresses the question of judicial review of claims by detainees by amending 28 U.S.C. section 2241 to clarify the intent of the Detainee Treatment Act of 2005 to limit the right of detainees to challenge their detentions. The practical effect of this amendment will be to eliminate the hundreds of detainee lawsuits that are pending in courts throughout the country and to consolidate all detainee treatment cases in the D.C. Circuit Court.

However, I want to stress that under this provision detainees will retain their opportunity to file legitimate charges to their status and to challenge convictions by military commissions. Every detainee under confinement in Guantanamo Bay will have their detention reviewed by the U.S. Court of Appeals for the District of Columbia.

So what we are doing here is channeling the suits to a particular court which has great expertise in this area, rather than let them be put in rifle-shot fashion or form-shot fashion to other courts throughout the United States.

Mr. Sensenbrenner and my other colleagues are going to speak on the rest of the bill. But, before I finish, I want to make one point very clear. This legislation does not condone or authorize torture in any way. In fact, we make it a war crime punishable by death for one of our interrogators to torture someone to death.

Let me emphasize that again. In section 6 of this bill, we amend 18 U.S.C. 2441, the War Crimes Act. In this amendment, we explicitly provide that torture inflicted upon a person in custody for the purpose of obtaining information is a war crime for which we may prosecute one of our own citizens. While most of this legislation deals with how we handle the enemy, I want to make it crystal clear that nothing in what we are doing condones or allows torture in any way.

Mr. Speaker, unfortunately, I heard at least one Member on the Democrat side say that this gives the President the right to define what torture is. That is not accurate. Torture is forbidden, and there are specific criminal penalties for torture.

In summary, I think this legislation is the best way to prosecute enemy terrorists and to protect U.S. Government personnel and service members who are fighting them.

Let me make one final statement with respect to the right to Miranda warnings and all of the evidentiary rulings that accompany an application utilizing the UCMJ, the Uniform Code of Military Justice, in battlefield situations if we had done that, which we did not.

In the hearings we had, we had at least one experienced officer in the Judge Advocate Corps state that it was his opinion, having tried hundreds of cases, that if you applied the UCMJ, as a number of Members on the Democrat side said they would like to do, to constitute the body of law under which we are prosecuting terrorists, in this officer's opinion once a corporal had captured a terrorist on the battlefield, maybe seconds after that terrorist had shot at him, and threw that terrorist over the hood of a Humvee, if you used the UCMJ, he would at that point have to give him the Miranda rights and then call up a lawyer and assign that lawyer to that alleged terrorist, and then all of the statements and all of the evidentiary rulings that could flow from that activity would then trigger.

Mr. Speaker, we can't have a battlefield where platoon leaders and company commanders are bringing up fire teams and with those fire teams they are bringing up teams of lawyers. That is why we needed a new type of structure for this new type of battlefield.

Mr. Speaker, I think we have responded to the mandate of the Supreme Court that Congress involve itself in producing this new structure to prosecute terrorists. I think we have done a good job. We have worked hard with the Senate and White House. We have made dozens and dozens and dozens of agreed provisions in here that have been carefully looked over by the Senate, the White House, and the House of Representatives. I think we have a package that will allow us to leave this

body in the next several days having put into place a system under which we can try individuals who are now waiting at Guantanamo, people who are alleged to have designed the attack against the United States on 9/11 and which we can now begin the prosecution of those individuals.

I want to thank everybody who has participated in this long and arduous procedure. We have had lots of hearings in the Senate and in the House. My good colleague, Mr. Skelton, was involved himself in these hearings and on the original markup that we did on the bill.

We have differences of opinions. I think this is a time when we should come together and pass what is an excellent body of law that will be a very important part of fighting this new war against this new type of enemy.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from New Jersey (Mr. Saxton), the chairman of the Subcommittee on Terrorism.

Mr. Speaker, I would like to yield 3 minutes now to the gentleman whose subcommittee oversees the policies for our 2.5 million folks in uniform, Mr. McHugh of New York.

(Mr. McHUGH asked and was given permission to revise and extend his remarks.)

Mr. Speaker, at this time I would like to yield 2 minutes to the gentleman who sits on both the Armed Services Committee and the Intelligence Committee and has put enormous focus on this particular bill, the gentleman from Texas (Mr. Thornberry).

Mr. Speaker, I would like to yield at this time 2 minutes to a gentleman who is himself a veteran and a former JAG officer and the chairman of the Veterans' Affairs Committee and a gentleman who has paid a lot of attention to this important subject, the gentleman from Indiana (Mr. Buyer).

Mr. Buyer, that is correct. It is the intent of the legislation that the detailed military counsel shall act as an associate counsel during the course of self-representation. As you stated, should this right be revoked, the military counsel will then proceed to represent the accused throughout the rest of the trial.

Mr. Speaker, I thank the gentleman. I want to thank him for his valuable contribution.

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, I want to set the gentleman straight who just spoke. Every single person held in Guantanamo has the right and will have the right under this legislation to contest whether or not they are, in fact, combatants and the status of their being swept up on the battlefield inadvertently or being, in fact, true enemy combatants. They will have that right.

That is, in my estimation, an important type of habeas corpus. That is preserved in this bill.

Mr. Speaker, I yield 1 minute to the gentleman from Louisiana (Mr. Boustany).

I want to take 30 seconds, Mr. Speaker, just to remind my friend who just spoke that this bill is largely the product of not only this body but Senator Warner, Senator McCain, and Senator Graham. Shortly, they are going to be introducing the precise same bill in the other body.

And, Mr. Speaker, in this bill, military commissions, if you will check on page 7, to answer the gentleman who just spoke who thought his wife might in some wild circumstance be prosecuted under this bill, this bill gives jurisdiction and military commissions, on line 24, page 7, to alien unlawful enemy combatants. It does not take away the habeas rights of U.S. citizens.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 30 seconds to the gentleman from Indiana (Mr. Buyer).

We just have one other speaker, then I am going to reserve the balance.

Mr. Speaker, I yield 30 seconds to the gentleman from Indiana (Mr. Buyer) for a response.

Mr. Speaker, at this time, I would like to yield 1 minute to the gentlewoman from Texas (Ms. Granger).

Mr. Speaker, at this time I reserve the balance of my time, which I believe is 2 minutes, and move to the Judiciary Committee.

Mr. Speaker, I yield myself 2\1/2\ minutes.

Mr. Speaker, I want to thank all my colleagues on both sides of this debate.

This great Nation, this shining city on a hill, was attacked on 9/11. We undertook aggressive action against the terrorists who attacked us. We killed a lot of them. We found them in places where they never thought we would find them, in caves at 10,000-foot elevation mountain ranges, in deserts, in cities, and we captured some of them. And some of those who designed the attack against the United States and New York and Pennsylvania and Washington have been captured. And they are now in Guantanamo or going to Guantanamo. And the Supreme Court of the United States has charged this body with building a system with which to prosecute these terrorists, and we are responding with that system.

Now, I would say to those who say that this is not fair, that we haven't given them enough rights, I think we have given them plenty. We have enumerated those. The chairman of the Judiciary Committee went over many basic rights. But the world is going to see these trials. And as I watch these defendants, these people, including those who designed the attack on 9/11, being presumed innocent; being given lawyers by the United States; being set against a standard of proof beyond a reasonable doubt; being protected against self-incrimination; being given the right to exculpatory evidence; being given the right to two appeals, not one appeal, as the minority had in the initial markup coming out of the Armed Services Committee, the American people will have an opportunity to see whether or not they think that the alleged terrorists have been given enough rights. So let's do what the Supreme Court asked us to do.

We have put together an excellent product. It is agreed on. It will be introduced shortly in the U.S. Senate. For those who say they want to see the product of Mr. Warner and Mr. McCain and Mr. Graham, they have had a great deal of input into this, and they will be introducing this piece of legislation in the other body. So let's get on with this. It is our duty to pass this bill, to construct this system, construct this court, and bring justice before the eyes of the widows and orphans of 9/11, our fellow citizens, and the world. Let's do it.

Mr. Speaker, I yield the balance of my time to the majority leader, Mr. Boehner.

Yes, Mr. Speaker.

Mr. Speaker, I do rise to oppose this motion.

First, let me thank my colleague, Mr. Skelton, an outstanding gentleman and friend and a guy who cares about our country, and all the folks

who have really worked this issue and participated in the hearings and the briefings that we have had and the discussions with military experts.

Let me tell you why I oppose this. First, Mr. Speaker, the Supreme Court not only gave permission but invited the Congress to put together this new system to try terrorists. And I want to direct my colleagues to the opinion of Justice Breyer, where he said: ``Nothing prevents the President from returning to Congress to seek the authority he believes necessary.''

So the point is the Supreme Court has not only given us permission. They have given us the obligation of putting this together. The American people have given us the obligation of putting this together.

The idea that we are going to pass this legislation with an uncertainty, with a lack of confidence, sending a message that somehow we need two permissions, is, I think, exactly the wrong message to send to the world.

And I just remind my colleague Mr. Skelton that when we had our initial hearings and our initial markup, Mr. Skelton, you held up Senator Graham in the Senate and Senator McCain as having the gold standard with respect to this legislation and you offered their legislation. Let me tell you that this legislation will be introduced by them. The gentlemen that you said had the gold standard and judgment on what is fair, they will be introducing this in the other body very shortly.

So, my colleagues, this is not a time to seek a second permission before we have passed the first legislation that actually sets into force and effect this important structure with which to try terrorists.

Let me just go to the second problem with what Mr. Skelton has. Mr. Skelton has a sunset provision. This sunsets a very important part of the bill. It sunsets the commission. So it says we have to go back and redo it, that we don't have confidence in what we have done, and we have to redo it after 3 years.

The other bad part about this motion to recommit is it sunsets section 5 and section 6 which protect American troops. They say that you cannot sue American troops under Geneva article 3. You can't sue them civilly. Now that is a bad thing. That means that you would have, if this sunset goes into place that Mr. Skeleton is asking for, that you will have American troops exposed to civil suit by terrorists in American courts for alleged violations of Geneva article 3.

It also does away with this distinction that we have made between grave offenses under Geneva article 3. The real grave offenses, the murder, the torture, all of those things, goes away with the cleavage between that. And maybe an American female colonel interrogating a male Muslim, and therefore being construed as having degraded him and his culture by having an American female interrogate him, that distinction between that and a bad offense would now be erased and American troops would be exposed to civil liability and civil suits under Geneva article 3.

I would just ask my colleagues, if you have confidence in what we have done, and this has been a product of this body, of the other body, and of the administration working night and day to put together a solid package, if you have confidence in that, and you have confidence in this list of rights that we have enumerated, that we give to the defendants, that we give to the people who designed the attack on 9/11: the right to counsel, the right to proof beyond a reasonable doubt, the right to a secret vote in the jury so that a colonel cannot lean on a lieutenant to get a guilty verdict, the right against self- incrimination, all of the basic rights. If you look at that package of rights and you think that is enough for the terrorists, then vote ``yes'' on this bill, vote ``no'' on this motion to recommit.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, this is a very important discussion today, and we have an opportunity to consider whether we are willing to respect the ideals of law and human dignity in actuality rather than just in rhetoric. This legislation goes to the core of who we are as a nation.

So I begin the Judiciary Committee's discussion of this matter on two points simply. The first is the point on habeas corpus. Because, you see, we have determined that detainees will not have the ability to challenge the conditions of their detention in court unless and until the administration decides to try them before a military commission. Those who are not tried will have no recourse to any independent court at any time.

So because people have been encouraging each other to read the bill, I want to turn to page 93, line 12, where the habeas corpus matters are included. Here is what it says: ``No court shall hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant.''

There is where 62 law professors from dozens of universities tell us that what we are doing is changing the hallowed writ of habeas corpus so that it will not apply by law. We are by law changing a constitutional provision.

The other important part of our discussion on the Judiciary Committee, and, by the way, I hope that the ranking member of the Armed Services Committee can serve on the Judiciary Committee, because he has made some excellent legal arguments today, the other point that I would bring to your attention is that the President will now, under these provisions in the bill, be allowed to interpret the Geneva Conventions, especially common article 3, the way that he wants and to exclude it from other review by the courts. By eliminating the judicial review of executive acts as significant as detention and domestic surveillance, this cannot be squared with the principles of transparency and the rule of law on which our constitutional democracy rests.

Congress would gravely disserve our global reputation as a law- abiding country by enacting bills that seek to combat terrorism by stripping judicial review. I refer my colleagues to page 83, section 6, relating to treaty obligations. Here it is. This is the bill:

``(3) Interpretation by the President. As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

``The President shall issue interpretations that will be published in the Federal Register.''

So what we have done now is give to the President, and I think it is about time somewhere in the proceedings that this be made public knowledge, give the President exclusive power to interpret the common article 3 of the Geneva Conventions and that it would be unreviewable.

It is upon these two points that I would urge that the Members of the House of Representatives on this day go on record as refusing to accede to these onerous provisions of a bill that would change the course of America's relationship, historic relationship, with international treaties.

Written Testimony of Jonathan Hafetz Before the U.S. Senate Committee

on the Judiciary, September 25, 2006

Dear Senator Specter, Senator Leahy, and Members of the

Committee: Thank you for the opportunity to submit this

statement in connection with today's hearing. (``Examining

Proposals to Limit Guantanamo Detainees Access to Habeas

Corpus Review''). My comments focus on the historical

foundations of habeas corpus that are relevant to the

Committee's consideration of the proposed legislation, S.

3930. As the United States Supreme Court has repeatedly made

clear, the Constitution, at a minimum, protects the writ of

habeas corpus as it existed in 1789. Eliminating habeas

corpus for prisoners held at Guantanamo Bay would be

inconsistent with centuries of tradition and would fall below

the review required by the Constitution.

I am currently Counsel at the Brennan Center for Justice at

New York University School of Law. The Brennan Center is a

nonpartisan institution dedicated to safeguarding access to

justice and the rule of law through scholarship, public

education, and legal action. One of the Brennan Center's

primary goals is to ensure accountability, transparency, and

checks and balances in the formulation and implementation of

national security policy.

During the past decade, I have focused extensively on the

history of habeas corpus. My scholarly articles and amicus

curiae briefs on habeas have been cited by the Supreme Court

and federal courts of appeals. I hold a J.D. from Yale Law

School and a Masters Degree in History from Oxford

University.

My comments are organized as follows. First, I describe the

historical roots of habeas corpus as a check against unlawful

executive detention and how those protections are guaranteed

under the Constitution and laws of the United States. Second,

I explain the writ's broad territorial scope and guarantee of

a searching examination of the factual and legal basis for a

prisoner's detention. Third, I show that habeas corpus

secures another fundamental requirement of the common law and

due process--the right to be free of detention based on

evidence gained by torture. Finally, I explain why appellate

review under the Detainee Treatment Act of 2005 of a

Combatant Status Review Tribunal determination does not

provide an adequate and effective substitute for

constitutionally mandated habeas. To the contrary, such

review would foreclose any meaningful inquiry into the

factual and legal basis for a prisoner's detention and

sanction evidence secured by torture and other coercion.

I. Habeas Corpus Provides A Check Against Unlawful Executive Detention

For centuries, the writ of habeas corpus has provided the

most fundamental safeguard against unlawful executive

detention in the Anglo-American legal system. William

Blackstone praised habeas as the ``bulwark'' of individual

liberty, while Alexander Hamilton called it among the

``greate[st] securities to liberty and republicanism.'' The

writ

has since been described as ``the most important human

right in the Constitution.

Today habeas is typically used by convicted prisoners to

collaterally attack their criminal sentences. At its

historical core, however, the writ provides a check against

executive detention without trial, and it is in this context

that its protections have always been strongest. Above all,

habeas guarantees that no individual will be imprisoned

without the most basic requirement of due process--a

meaningful opportunity to demonstrate his innocence before a

neutral decisionmaker.

Habeas corpus was part of colonial law from the

establishment of the American colonies, and the common law

writ operated in all thirteen British colonies that rebelled

in 1776. The Framers enshrined habeas corpus in the

Suspension Clause of the Constitution, which states that

Congress ``shall not'' suspend the writ of habeas corpus

``unless when in Cases of Rebellion or Invasion the public

Safety may require it.'' The First Congress codified this

constitutional command in the Judiciary Act of 1789, making

the writ available to any individual held by the United

States who challenges the lawfulness of his detention. For

the Framers of the Constitution, restricting Congress's power

to suspend habeas corpus was never controversial: the only

debate concerned what conditions, if any, could ever justify

suspension of the Great Writ, and the Framers concluded that

Congress could exercise its suspension power only under the

most exceptional circumstances. The constitutional guarantee

of habeas corpus stands apart and perpetually independent

from the other guarantees of the Bill of Rights enacted two

years later in 1791.

Under the influence, if not the command of the Suspension

Clause, Congress has always felt itself obligated to provide

for the writ in the most ample manner. Since the Nation's

founding, the writ has been suspended on only four occasions:

during the middle of the Civil War in the United States;

during an armed rebellion in several southern States after

the Civil War; during an armed rebellion in the Philippines

in the early 1990s; and in Hawaii immediately after the

attack on Pearl Harbor. Each suspension was not only a

response to an ongoing, present emergency, but was limited in

duration to the active rebellion or invasion that

necessitated it.

II. Habeas Corpus Extends To Any Territory Within The Government's Exclusive Jurisdiction And Control And Guarantees A Searching Inquiry

Into The Factual And Legal Basis For A Prisoner's Detention

As the Supreme Court has recognized, the writ of habeas

corpus has an `` `extraordinary territorial ambit.' '' Habeas

has always reached any territory over which the government

exercised sufficient power and control to compel obedience to

the writ's command. As Lord Mansfield wrote in 1759, ``even

if a territory was `no part of the realm [of England],' there

was `no doubt' as to the court's power to issue writs of

habeas corpus if the territory was `under the subjection of

the Crown.' '' At common law, therefore, habeas was

available not only in territories beyond the borders of

England, such as the mainland American colonies and West

Indies, but also in territory over which England exercised

exclusive control and jurisdiction but lacked sovereignty.

The right to habeas corpus has always extended to aliens as

well as citizens. The writ has been available in time of

peace as well as in time of war. Even alleged enemy aliens

have had access to habeas to demonstrate their innocence,

including by submitting evidence to a court. Indeed, in one

case Chief Justice Marshall, on circuit, required an enemy

alien to be produced in court and ordered his release. As the

Supreme Court observed in Rasul v. Bush, detainees at

Guantanamo have the right to habeas review because they are

imprisoned in territory over which the United States has

complete jurisdiction and control and because, unlike the

World War II-era prisoners in Johnson v. Eisentrager, they

have never been convicted of any crime and maintain their

innocence.

Common law courts did not simply accept the government's

factual response to a prisoner's habeas petition; instead,

they routinely probed that response and examined additional

evidence submitted by both sides to ensure the factual and

legal sufficiency of a person's confinement. The writ's

guarantee of a searching judicial inquiry crystallized in

response to the Crown's efforts to detain individuals

indefinitely without due process. In 1592, English judges

protested that when they ordered the release of individuals

unlawfully imprisoned by the Crown, executive officials

transported them to ``secret [prisons]'' to place them beyond

judicial review. As a result, the judges issued a resolution

affirming their power to release prisoners if a response to

the writ was not made.

The Crown, nevertheless, continued to avoid a judicial

examination into a prisoner's detention by providing a

general response (or return) that did not specify the cause

of commitment. This issue came to a head in the seminal

Darnel's Case. There, the Attorney General asserted that it

was the king's prerogative to detain suspected enemies of

State by his ``special command,'' without a judicial inquiry

into the factual and legal basis for their detention. He

emphasized the Crown's overriding interest in national

security and insisted that judges defer to the king's

judgment.

When the court upheld the Crown by finding its response

sufficient, it sparked a constitutional crisis that led to

the establishment of habeas corpus as the pre-eminent

safeguard of common law due process and personal liberty.

This was entrenched through the enactment of the Petition of

Right or 1628, the Habeas Corpus Act of 1641, and the

Habeas Corpus Act of 1679. By the late 1600s habeas corpus

had become--and would remain--``the great and efficacious

writ, in all manner of illegal confinement'' and the most

``effective remedy for executive detention.''

At common law, courts consistently engaged in searching

review on habeas corpus to probe the factual and legal basis

for a prisoners commitment, including by conducting hearings

and taking evidence. In the United States, courts have

exercised the same searching review of executive detention.

Indeed, in one its first habeas cases, the Supreme Court

affirmed the writ's historic function at common law; to

determine whether there was an adequate factual and legal

basis for the commitment,'' fully examining and considering

the evidence and finding it insufficient to justify the

prisoners' detention on allegations of treason.

Habeas also has always guaranteed review of the lawfulness

of a newfangled tribunal established to try individuals

before that trial takes place. This review has been exercised

in time of war and in time of peace, and over all categories

of alleged offenders. To deny that review would jeopardize a

longstanding protection of habeas.

By contrast, habeas review has always been more limited in

post-conviction cases--which today make up the bread and

butter of a federal court's habeas docket. But that is

precisely because the prisoner had already been convicted at

a trial that provided fundamental due process, including the

opportunity to see the government's evidence and to confront

and cross-examine its witnesses, a right that Justice Scalia

has said is ``founded on natural justice,'' Absent that

process, a federal judge with jurisdiction over a habeas

corpus petition has the power to examine the factual and

legal basis for the prisoner's detention in the first

instance, including the power to take evidence and conduct a

hearing, where appropriate. At issue in the Guantanamo habeas

cases is executive detention without any judicial process--

precisely the situation that lies at the Great Writ's core

and that mandates a searching examination of the government's

allegations.

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

Gained By Torture.

Habeas corpus also vindicates another core guarantee of the

common law--the categorical prohibition on the use of

evidence obtained by torture. During the sixteenth century,

crown officials occasionally issued warrants authorizing the

torture of prisoners. Pain was inflicted by a variety of

ingenious devices, including thumbscrew, pincers, and the

infamous rack. The use of torture dec1ined after an

investigation showed that a suspected traitor had been

``tortured upon the rack'' based upon false allegations.

Shortly thereafter the king asked the common law judges

whether another alleged traitor ``might not be racked'' to

make him identify accomplices, and ``whether there were

any law against it.'' The judges' answer was unanimous:

the prisoner could not be tortured because ``no such

punishment is known or allowed by our law.''

The Framers of the Constitution also abhorred torture,

which they viewed as a mechanism of royal despotism. As the

Supreme Court has repeatedly held, reliance on evidence

obtained by torture is forbidden not merely because it is

inherently unreliable but also because such ``interrogation

techniques [are] offensive to a civilized system of

justice.'' Without the availability of habeas corpus to

provide a searching inquiry into the basis for a prisoner's

detention, and to determine whether, in fact, evidence

justifying that detention has been obtained by torture or

other coercive methods, this fundamental common law

protection would be jeopardized.

IV. The Proposed Legislation Would Violate the Suspension Clause

The proposed legislation would markedly depart from

historical precedent and the Constitution's command that the

writ be made available. This legislation, moreover, would

sweep under the jurisdictional bar only non-citizens, raising

serious questions under the Constitution's guarantee of equal

protection as well.

The Committee may ask whether review by the District of

Columbia Circuit established under the Detainee Treatment Act

of 2005 (``DTA'') obviates any problem under the

Constitution. It does not. Such review falls far short of the

minimum review guaranteed under the Suspension Clause because

it would deny prisoners any meaningful inquiry into the

factual and legal basis for their detention and would

sanction the use of evidence secured by torture and other

coercion. Since others have explained the flaws of this

review scheme in greater detail, I describe them below only

briefly.

The Guantanamo detainees are all held pursuant to a finding

by the Combatant Status Review Tribunal (``CSRT'') that they

are ``enemy combatants.'' The CSRT was established by the

President only nine days after the Supreme Court's ruling in

Rasul that Guantanamo detainees have the right to challenge

their executive detention in federal district court by habeas

corpus. The order creating the CSRT pre-judged the detainees,

declaring that they had already been

found to be enemy combatants based on multiple levels of

internal review. Rather than affording the detainees a

meaningful opportunity to prove their innocence, the CSRT

denied them fundamental rights, including the right to

counsel; the right to see the evidence against them; and the

right to a neutral decisionmaker. Moreover, as the government

itself acknowledges, the CSRT permits the use of evidence

gained by torture. In short, as District Judge Joyce Hens

Green found, the CSRT denies the core protections of

elementary due process that habeas provides: a searching

factual inquiry to determine whether a prisoner's

detention is unlawfu1, including whether it is based on

evidence secured by torture.

Review of CSRT determinations under the DTA would not

provide detainees with any opportunity to challenge the

factual and legal basis for their detention. The DTA, on its

face, limits review to whether the CSRT followed its own

procedures. No detainee, as the government argues, can ever

present evidence to a federal court even if that evidence

shows he is innocent or that he was tortured. In short, DTA

review of a CSRT finding would deny prisoners precisely the

meaningful factual inquiry provided by habeas corpus and

secured under the Suspension Clause.

V. Conclusion

Habeas corpus has aptly been described as ``the water of

life to revive from the death of imprisonment.'' For

centuries, the Great Writ has prevented the Executive from

imprisoning individuals based upon mere suspicion and without

a meaningful examination of its allegations. Habeas corpus

demands that individuals have a fair opportunity to

demonstrate their innocence before a neutral decisionmaker.

Eliminating habeas at Guantanamo would flout this long

tradition and would gut the core protections guaranteed under

the Suspension Clause.

Thank you for the opportunity to provide this statement. My

colleagues and I are happy to provide the Committee with any

further information.

Jonathan Hafetz,

New York, NY, September 25, 2006

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, before yielding to the gentlewoman from California, I would just like to respond to the comments that I have heard.

Never before has a President of the United States had the exclusive power to interpret the Geneva Conventions and publish what he has interpreted in the Record. And never before has a President had the power to eliminate judicial review of executive acts as significant as detention and domestic surveillance. And that can't be squared with the principles of transparency and the rule of law.

I would refer all of my colleagues to 62 professors of law, not lawyers, professors of law, who have explained why section 83 and section 6 are very problematic and are going to lead us right back into the court, because for 5 long years after the 9/11 tragedy, not a single detainee has been brought to justice because this administration insists on unilaterally pursuing secret, unconstitutional strategies that cannot pass judicial muster.

I yield 2 minutes to the gentlewoman from California (Ms. Zoe Lofgren), member of the Judiciary Committee.

Mr. Speaker, I now yield 2\1/2\ minutes to the gentleman from Virginia, a member of the Judiciary Committee, Mr. Scott.

Mr. Speaker, I am proud to yield to the gentleman from California (Mr. Schiff), who has worked diligently on this issue, 2 minutes.

Mr. Speaker, I am pleased to yield to the gentleman from New York (Mr. Nadler), a distinguished member of the Committee on the Judiciary, 2 minutes.

Mr. Speaker, I yield to the gentleman from Maryland (Mr. Van Hollen), an excellent member of the Committee on the Judiciary, 2 minutes.

Mr. Speaker, I include for the Record a letter dated September 27 from the American Civil Liberties Union and 41 other organizations.

September 27, 2006.

Dear Representative: We are writing to strongly encourage

you to reject the ``compromise'' Military Commissions Act of

2006 and to vote no on final passage of the bill. More than

anything else, the bill compromises America's commitment to

fairness and the rule of law.

For the last five years the United States has repeatedly

operated in a manner that betrays our Nation's commitment to

law. The U.S. has held prisoners in secret prisons without

any due process or even access to the Red Cross and has

placed other prisoners in Guantanamo Bay in a transparent

effort to avoid judicial oversight and the application of

U.S. treaty obligations. The Federal government has operated

under legal theories which dozens of former senior officers

have warned endanger U.S. personnel in the field and has

produced legal interpretations of the meaning of ``torture''

and ``cruel, inhuman and degrading'' treatment which had to

be abandoned when revealed to the public. Interrogation

practices were approved by the Department of Defense which

former Bush Administration appointee and General Counsel of

the Navy Alberto Mora described as ``clearly abusive, and . .

. clearly contrary to everything we were ever taught about

American values.'' According to media reports the CIA has

used a variety of interrogation techniques which the United

States has previously prosecuted as war crimes and routinely

denounces as torture when they are used by other governments.

Instead of finally coming to grips with this situation and

creating a framework for detaining, interrogating and

prosecuting alleged terrorists which comports with the best

traditions of American justice, the proposed legislation will

mostly perpetuate the current problems. Worse, it would seek

to eliminate any accountability for violations of the law in

the past and prevent future judicial oversight. While we

appreciate the efforts various members of Congress have made

to address these problems, the ``compromise'' falls far short

of an acceptable outcome.

The serious problems with this legislation are many and

this letter will not attempt to catalogue them all. Indeed,

because the legislation has only just been made available,

many of the serious flaws in this long, complex bill are only

now coming to light. For instance, the bill contains a new,

very expansive definition of enemy combatant. This definition

violates traditional understandings of the laws of war and

runs directly counter to President Bush's pledge to develop a

common understanding of such issues with U.S. allies. Because

the proposed definition of combatant is so broad, the

language may also have potential consequences for U.S.

civilians. For instance, it may mean that adversaries of the

United States will use the definition to define civilian

employees and contractors providing support to U.S. combat

forces, such as providing food, to be ``combatants'' and

therefore legitimate subjects for attack. Yet, there has been

no opportunity to consider and debate the implications of

this definition, or other parts of the bill such as the

definitions of rape and sexual abuse.

We strongly oppose the provisions in the bill that strip

individuals who are detained by the United States of the

ability to challenge the factual and legal basis of their

detention. Habeas corpus is necessary to avoid wrongful

deprivations of liberty and to ensure that executive

detentions are not grounded in torture or other abuse.

We are deeply concerned that many provisions in the bill

will cast serious doubt on the fairness of the military

commission proceedings and undermine the credibility of the

convictions as a result. For instance, we are deeply

concerned about the provisions that permit the use of

evidence obtained through coercion. Provisions in the bill

which purport to permit a defendant to see all of the

evidence against him also appear to contain serious flaws.

We believe that any good faith interpretation of the

definitions of ``cruel, inhuman and degrading'' treatment in

the bill would prohibit abusive interrogation techniques such

as waterboarding, hypothermia, prolonged sleep deprivation,

stress positions, assaults, threats and other similar

techniques because they clearly cause serious mental and

physical suffering. However, given the history of the last

few years we also believe that the Congress must take

additional steps to remove any chance that the provisions of

the bill could be exploited to justify using these and

similar techniques in the future.

Again, this letter is not an attempt to catalogue all of

the flaws in the legislation. There is no reason why this

legislation needs to be rushed to passage. In particular,

there is no substantive reason why this legislation should be

packaged together with legislation unrelated to military

commissions or interrogation in an effort to rush the bill

through the Congress. Trials of the alleged ``high value''

detainees are reportedly years away from beginning. We urge

the Congress to take more time to consider the implications

of this legislation for the safety of American personnel, for

U.S. efforts to build strong alliances in the effort to

defeat terrorists and for the traditional U.S. commitment to

the rule of law. Unless these serious problems are corrected,

we urge you to vote no.

Sincerely,

Physicians for Human Rights.

Center for National Security Studies.

Amnesty International USA.

Human Rights Watch.

Human Rights First.

American Civil Liberties Union.

Open Society Policy Center.

Center for American Progress Action Fund.

The Episcopal Church.

Jewish Council for Public Affairs.

National Religious Campaign Against Torture.

Presbyterian Church (USA), Washington Office.

Friends Committee on Nat'l Legislation.

Maine Council of Churches.

Pennsylvania Council of Churches.

Wisconsin Council of Churches.

Brennan Center for Justice at NYU Law School.

Center for Constitutional Rights.

Robert F. Kennedy Memorial Center for Human Rights.

The Bill of Rights Defense Committee.

Unitarian Universalist Service Committee.

Leadership Conference of Women Religious.

Center for Human Rights and Global Justice, NYU School of

Law.

The Shalom Center.

Washington Region Religious Campaign Against Torture.

The Center for Justice and Accountability.

Center of Concern.

Justice, Peace & Integrity of Creation Missionary Oblates.

Rabbis for Human Rights--North America.

Humanist Chaplaincy at Harvard University.

No2Torture.

Maryland Christians for Justice and Peace.

American Library Association.

Churches Center for Theology and Public Policy.

Disciples Justice Action Network (Disciples of Christ).

Equal Partners in Faith.

Christians for Justice Action (United Church of Christ).

Reclaiming the Prophetic Voice.

Baptist Peace Fellowship of North America.

Pax Christi USA: National Catholic Peace Movement.

Fellowship of Reconciliation.

Maryknoll Office for Global Concerns.

Mr. Speaker, I turn now to the gentleman from Massachusetts (Mr. Frank), a former member of the committee, 1 minute.

Mr. Speaker, I yield myself the balance of my time.

The last reason for the many that have been brought forward as to why this legislation is dangerous and unwise is that it endangers our troops because it has the effect of lowering the standards set forth in the Geneva Conventions. By allowing the President to unilaterally interpret the Geneva Conventions and then exempting his interpretations from any scrutiny, we are creating a massive loophole to this time- honored treaty and endangering our own troops.

As the head of Army intelligence, Lieutenant General Kimmons warned us, no good intelligence is going to come from abusive practices. I think history tells us that. And if you don't believe him, just ask Maher Arar, an innocent Canadian national, who was sent by our Nation, I am sorry to report, to Syria where he was tortured.

This legislation decimates separation of powers by retroactively cutting off habeas corpus. Let us not approve this legislation in the House of Representatives this evening.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, we need to be tough on the terrorists, but we also need to be tough with certainty. I oppose this legislation because it lacks the certainty that we require.

As a former prosecuting attorney from yesteryear, Mr. Speaker, I remember the specter that hangs over every prosecutor's head after successfully prosecuting a criminal, and that specter is that the Supreme Court will reverse that hard-won conviction.

I am terribly concerned that this is not tough enough because it does not bring about the certainty of a conviction being upheld and standing the scrutiny of our Supreme Court.

This is a constitutional issue. The debate today will undoubtedly go down in the annals of our country as being one that stands out as a study in constitutional law and duty thereunder. Our duty as Members of Congress is to uphold the Constitution. That is what I intend to do in my speech and in my vote.

But also it is our duty to pass legislation that is constitutional. I have serious questions as to whether this is constitutional or not.

I received a letter from the Chief Counsel of the tribunals that exist, Colonel Dwight Sullivan, who said, ``If the new military commission system is constitutionally permissible, allow it to proceed with the judiciary's imprimatur. If, as I believe, it is constitutionally deficient, then allow the judiciary to quickly identify its faults so they can be corrected.''

I offered an amendment to the Rules Committee that would provide for expedited review by the court system, and it was turned down.

What is so bad is that a case goes cold, witnesses disappear, witnesses die. It would be an absolute injustice for a despicable terrorist, once convicted, to have that conviction overturned, and you can't try it again. Some of these people are absolutely the worst of the worst. That is why we need certainty in the law, and that is what we do not have here.

There are numerous constitutional challenges regarding this legislation. I will mention them:

The provisions that strip the Federal courts of jurisdiction over habeas corpus.

Second, article I of the Constitution prohibits ex post facto laws. That is what this creates.

Third, it is questionable as to whether under article III of the Constitution the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention.

Fourth, the provisions regarding coerced testimony may be challenged under three amendments to our Constitution.

Fifth, the right to confront witnesses and evidence. It also, among other things, has legislation containing the broadest of hearsay rules.

Sixth, the violation of the exceptions clause under article III.

Seventh, the challenges on equal protection and other constitutional grounds.

We want certainty, Mr. Speaker. We want these people, once tried, to be convicted and that conviction upheld. If we pass a law full well knowing that there are provisions in here that would allow them a get- out-of-jail-free card or to have a death sentence reversed, we are doing wrong. We are doing wrong according to our duty, and we are doing wrong in representing the people of our country.

We need certainty as well as toughness. Without certainty, we will not be tough on these terrorists.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Ortiz).

(Mr. ORTIZ asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 4 minutes to the distinguished gentlewoman from California (Ms. Harman), ranking member of the Intelligence Committee.

(Ms. HARMAN asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield 2 minutes to the very distinguished gentleman from Texas (Mr. Reyes).

Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Andrews).

Mr. Speaker, I yield 5 minutes to the gentleman from Maryland (Mr. Hoyer).

Mr. Speaker, I yield 1 minute to the distinguished gentleman from New York (Mr. Crowley).

Mr. Speaker, I yield 1 minute to the gentleman from Washington (Mr. Inslee).

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from New Jersey (Mr. Holt).

(Mr. HOLT asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentleman from Oregon (Mr. Wu).

(Mr. WU asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 4 minutes to the distinguished gentleman from Ohio (Mr. Kucinich).

Mr. Speaker, I yield 3\1/2\ minutes to the gentleman from California (Mr. Schiff).

Mr. Speaker, at the request of the Democratic leader, I submit for the Record a letter from various religious organizations dated September 27.

September 27, 2006.

Dear Representative: We are writing to strongly encourage

you to reject the ``compromise'' Military Commissions Act of

2006 and to vote no on final passage of the bill. More than

anything else, the bill compromises America's commitment to

fairness and the rule of law.

For the last five years the United States has repeatedly

operated in a manner that betrays our nation's commitment to

law. The U.S. has held prisoners in secret prisons without

any due process or even access to the Red Cross and has

placed other prisoners in Guantanamo Bay in a transparent

effort to avoid judicial oversight and the application of

U.S. treaty obligations. The federal government has operated

under legal theories which dozens of former senior officers

have warned endanger U.S. personnel in the field and has

produced legal interpretations of the meaning of ``torture''

and ``cruel, inhuman and degrading'' treatment which had to

be abandoned when revealed to the public. Interrogation

practices were approved by the Department of Defense which

former Bush Administration appointee and General Counsel of

the Navy Alberto Mora described as ``clearly abusive, and * *

* clearly contrary to everything we were ever taught about

American values.'' According to media reports the CIA has

used a variety of interrogation techniques which the United

States has previously prosecuted as war crimes and routinely

denounces as torture when they are used by other governments.

Instead of finally coming to grips with this situation and

creating a framework for detaining, interrogating and

prosecuting alleged terrorists which comports with the best

traditions of American justice, the proposed legislation will

mostly perpetuate the current problems. Worse, it would seek

to eliminate any accountability for violations of the law in

the past and prevent future judicial oversight. While we

appreciate the efforts various members of Congress have made

to address these problems, the ``compromise'' falls far short

of an acceptable outcome.

The serious problems with this legislation are many and

this letter will not attempt to catalogue them all. Indeed,

because the legislation has only just been made available,

many of the serious flaws in this long, complex bill are only

now coming to light. For instance, the bill contains a new,

very expansive definition of enemy combatant. This definition

violates traditional understandings of the laws of war and

runs directly counter to Pres. Bush's pledge to develop a

common understanding of such issues with U.S. allies. Because

the proposed definition of combatant is so broad, the

language may also have potential consequences for U.S.

civilians. For instance, it may mean that adversaries of the

United States will use the definition to define civilian

employees and contractors providing support to U.S. combat

forces, such as providing food, to be ``combatants'' and

therefore legitimate subjects for attack. Yet, there has been

no opportunity to consider and debate the implications of

this definition, or other parts of the bill such as the

definitions of rape and sexual abuse.

We strongly oppose the provisions in the bill that strip

individuals who are detained by the United States of the

ability to challenge the factual and legal basis of their

detention. Habeas corpus is necessary to avoid wrongful

deprivations of liberty and to ensure that executive

detentions are not grounded in torture or other abuse.

We are deeply concerned that many provisions in the bill

will cast serious doubt on the fairness of the military

commission proceedings and undermine the credibility of the

convictions as a result. For instance, we are deeply

concerned about the provisions that permit the use of

evidence obtained through coercion. Provisions in the bill

which purport to permit a defendant to see all of the

evidence against him also appear to contain serious flaws.

We believe that any good faith interpretation of the

definitions of ``cruel, inhuman and degrading'' treatment in

the bill would prohibit abusive interrogation techniques such

as waterboarding, hypothermia, prolonged sleep deprivation,

stress positions, assaults, threats and other similar

techniques because they clearly cause serious mental and

physical suffering. However, given the history of the last

few years we also believe that the Congress must take

additional steps to remove any chance that the provisions of

the bill could be exploited to justify using these and

similar techniques in the future.

Again, this letter is not an attempt to catalogue all of

the flaws in the legislation. There is no reason why this

legislation needs to be rushed to passage. In particular,

there is no substantive reason why this legislation should be

packaged together with legislation unrelated to military

commissions or interrogation in an effort to rush the bill

through the Congress. Trials of the alleged ``high value''

detainees are reportedly years away from beginning. We urge

the Congress to take more time to consider the implications

of this legislation for the safety of American personnel, for

U.S. efforts to build strong alliances in the effort to

defeat terrorists and for the traditional U.S. commitment to

the rule of law. Unless these serious problems are corrected,

we urge you to vote no.

Sincerely,

Physicians for Human Rights; Center for National Security

Studies; Amnesty International U.S.A.; Human Rights

Watch; Human Rights First; American Civil Liberties

Union; Open Society Policy Center; Center for American

Progress Action Fund; The Episcopal Church; Jewish

Council for Public Affairs; Presbyterian Church (USA),

Washington Office; Maine Council of Churches;

Pennsylvania Council of Churches; Wisconsin Council of

Churches; Brennan Center for Justice at NYU Law School;

Robert F. Kennedy Memorial Center for Human Rights;

Center for Constitutional Rights; The Bill of Rights

Defense Committee; Unitarian Universalist Service

Committee; Leadership Conference of Women Religious;

Center for Human Rights and Global Justice, NYU School

of Law; The Shalom Center; Washington Region Religious

Campaign Against Torture; The Center for Justice and

Accountability; Center of Concern; Justice, Peace &

Integrity of Creation Missionary Oblates; Rabbis for

Human Rights--North America; Humanist Chaplaincy at

Harvard University; No2Torture.

Mr. Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Lee).

Mr. Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Moran).

Mr. MORAN of Virginia . I thank my good friend, an inspirational leader on the Armed Services Committee.

I oppose this bill. It would send a message to the world that the United States can disregard international treaties and law and, instead, do as it pleases. For generations, we have been the beacon to guide the actions of other nations. If we descend from the high moral ground, we are, in effect, losing ground to the terrorists.

Secretary of State Colin Powell was so accurate when he said, part of this war on terrorism is an ideological and political struggle. Our moral posture is our best weapon to prevail in that struggle.

Mr. Speaker, this is not a good bill. Since the inception of the Geneva Conventions 60 years ago, no other country in the world has tried to undermine and negate its provisons its spirit as this bill would.

For enemy combatants, the bill eliminates the right of habeas corpus. This is a right enshrined in our Constitution that may be abandoned only, and I quote, ``when in cases of rebellion or invasion the public safety may require it.'' The elimination of habeas is not just illegal, it is flat out wrong.

The purpose of habeas corpus is simple. It is to avoid injustice, to avoid the detention by government of any individual that is erroneous, unwarranted, or in violation of law. This purpose and the values from which it stems do not distinguish among individuals or circumstances. They seek to avoid any injustice to any detained individuals.

All Americans want to hold terrorists accountable, but if we try to redefine the nature of torture, whisk people into secret detention facilities and use secret evidence to convict them in special courts, our actions do, in fact, embolden our enemies more than any extremist rhetoric could ever do.

This bill needs to be defeated.

Mr. Speaker, I yield 30 seconds to the gentleman from Virginia (Mr. Moran).

Mr. Speaker, I yield an additional 30 seconds to the gentleman from Oregon (Mr. Wu).

Mr. Speaker, may I inquire as to the amount of time remaining?

May I inquire, Mr. Speaker, does the gentleman choose to close?

Mr. Speaker, I yield 15 seconds to the gentleman from Oregon (Mr. Wu).

Mr. Speaker, this is a day in constitutional history that will stand out like Mars at perihelion. We want tough, but we also want certainty in any conviction that comes from this tribunal; and I am fearful, Mr. Speaker, that this legislation is an invitation for reversal by the Supreme Court.

We want to be tough on those despicable people, but we also want a conviction to withstand the scrutiny of our Supreme Court and our judicial process.

Mr. Speaker, I yield back.

Mr. Speaker, I offer a motion to recommit.

I am, Mr. Speaker.

Mr. Speaker, it is our obligation in this body to fix the deficiencies in this system in order to bring terrorists to justice. My motion to recommit with instructions would add two important elements to the bill that address this basic concern. First, it would require an expedited constitutional review of the entire matter. That is what we need. Second, it would require reauthorization of these military commissions after 3 years.

Expedited judicial review is a well-known way to improve legislation for which legal challenges can be anticipated, and we can be sure that the military commissions system created by this bill will be subject to change. We can provide for expedited review of civil actions challenging the legality of this act by creating a three-judge panel of the D.C. District Court that would hear the actions. The U.S. Supreme Court would then review a judgment or review an order of the panel on an expedited basis.

This type of provision is routinely placed in novel legislation. It was part of the McCain-Feingold campaign finance bill, part of the Voting Rights Act, and part of the Communications Decency Act.

The motion to recommit would also require that Congress reauthorize these military commissions after 3 years and would allow any action before a military commission begun before 2010 to go forward, but it would require an educated debate on reauthorizing this system after we have had some real-world experience with this new judicial process.

There is ample precedent for requiring reauthorization for controversial measures passed in a hurry in times of conflict. Most recently, Mr. Speaker, the PATRIOT Act contained reauthorization, or sunset, provisions. And taken together, Mr. Speaker, these two provisions will significantly improve the flawed legislation that we have before us today.

We need not only to be tough. We need to be certain. And my motion to recommit would make this more certain that those despicable terrorists would be brought to justice.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1042 and ask for its immediate consideration

Mr. Speaker, for the purposes of debate only, I yield the customary 30 minutes to the gentlewoman from New York (Ms. Slaughter), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

General Leave

Mr. Speaker, I ask unanimous consent that all Members may have 5 days within which to revise and extend their remarks and insert tabular and extraneous material in the Record.

Mr. Speaker, on Tuesday, the Rules Committee met and reported a closed rule for consideration of H.R. 6166, the Military Commissions Act of 2006. The rule provides 2 hours of debate, with 80 minutes equally divided and controlled by the chairman and ranking minority member of the Committee on Armed Services, and 40 minutes equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. It waives all points of order against consideration of the bill.

Additionally, it provides that the amendment printed in the Rules Committee report accompanying the resolution shall be considered as adopted, and it provides one motion to recommit with or without instructions.

Mr. Speaker, I rise today in support of the resolution and the underlying bicameral compromise legislation. This critical legislation ensures that we align the procedural protections for captured terrorists with our Constitution. In doing so, we are extending unprecedented legal and procedural protections to enemies who provide no protections to their captives and victims, and who have neither signed nor operate by the Geneva Convention.

To further ensure American Security and to ensure that terrorist detainees are not released to once again wreak havoc, it is necessary to move this legislation and develop a clear set of standards for military commissions.

Mr. Speaker, make no mistake, time is of the essence in moving forward with this legislation. These commissions will provide an important tool for our servicemen and women in obtaining operationally sensitive information from terrorists captured on the battlefield. However, the reform of the tribunal system to ensure certain procedural rights for these terrorists will also provide an impetus and an opportunity for those currently in our detainee system to cooperate more fully.

Mr. Speaker, as I know you are aware, the underlying legislation was developed after intense negotiations between both the legislative and executive branches of government. Furthermore, its development has been supported by senior Members of both parties and has largely received bipartisan support in both the House and the Senate. Indeed, I predict once the legislation is actually presented, it will be passed by a strong bipartisan majority in this House.

Indeed, when an earlier, stronger and more restrictive version of this same bill moved through the House Armed Services Committee, it passed by a vote of 52-8, with one member voting present. This strong bipartisan majority on the primary committee of expertise and jurisdiction should be taken as a sign of its importance and the support for moving forward with the prosecution of those terrorists who, if set free, would resume killing American civilians and our servicemen and women as a matter of course and a tactic of terror.

Mr. Speaker, today we may well hear several concerns about the way in which the bill was brought forward to the floor. As we all know, when you can't win a debate on the merits of a piece of legislation, process attacks are the best way of slowing down and obstructing progress of that legislation. But the fact remains that within the last 2 weeks, both the House Armed Services Committee and the House Judiciary Committee passed legislation even stronger than the legislation we are voting on today. Since then, bicameral negotiations have resulted in even more modifications to the underlying legislation ensuring even more rights for the terrorists accused of war crimes. But, Mr. Speaker, time is of the essence. We must move this legislation to the President's desk. It does much to enhance America's security and to create an equitable system for prosecuting terrorists captured on the battlefield.

Lastly, Mr. Speaker, before I close, I would like to speak to what protections the underlying legislation provides to those who would like to kill Americans. It provides: The right to counsel, provided by the government at trial throughout the appellate process; an impartial military judge; a presumption of innocence; a standard of proof beyond a reasonable doubt; the right to be informed of the charges against the accused as soon as practicable; the right to service of charges sufficiently in advance of trial to prepare a defense; the right to reasonable continuances; the right to peremptory challenge against members of the commission and challenges for cause against members of the commission and the military judge; witnesses must testify under oath; judges, counsel, and members of the military commission must take an oath; a right to enter a plea of not guilty; the right to obtain witnesses and other evidence; the right to exculpatory evidence as soon as practicable; the right to be present in court with the exceptions of certain classified evidence involving national security, preservation of safety or preventing disruption of proceedings; the right to a public trial except for national security issues or physical safety issues; the right to have any findings or sentences announced as soon as determined; the right against compulsory self-incrimination; the right against double jeopardy; the defense of a lack of mental responsibility; prohibitions against unlawful command influence toward members of the commission, counsel, or military judges; it requires a two-thirds vote of members for conviction, three-fourths vote required for sentences of life or over 10 years, and unanimous verdict required for the death penalty; it requires a verbatim authenticated record of the trial; cruel or unusual punishments are prohibited; treatment and discipline during the confinement the same as afforded to prisoners in U.S. domestic courts; the right to review the full factual record by the convening authority; and the right to at least two appeals, including a Federal article 3 appellate appeal.

Mr. Speaker, with that said, all these protections that we are willing to provide terrorists are the very same protections that they ignore when beating, mutilating, and killing our civilians and servicemen. These terrorists have no respect for the rule of law. They are not signatories to the Geneva Convention. They do not fight in uniforms, and they kill innocent civilians of all faiths and all nationalities routinely, yet we are willing to grant to them substantive legal protections that I honestly believe go beyond the actual requirements of the Geneva Convention.

With that said, I would urge my colleagues to support both the rule and the underlying legislation.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I just quickly want to note, I am very proud of my country. I am proud that we extend protections to our adversaries that they do not extend to us. I am proud that in the few cases where there are transgressions, those are vigorously prosecuted and exposed by this country. So I have great pride in the United States of America.

Mr. Speaker, I am pleased to yield such time as he may consume to the

gentleman from California (Mr. Dreier), the distinguished chairman of the Rules Committee.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

I yield 30 seconds to the gentleman.

Mr. Speaker, I am pleased to yield 2 minutes to the gentlewoman from Michigan (Mrs. Miller).

Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from California, my good friend, Mr. Lungren.

Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. Hunter), chairman of the Armed Services Committee.

Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Gingrey).

Mr. Speaker, I just want to say quickly for the record I think we are operating by the Golden Rule. I wish our opponents were. I wish they extended to American soldiers the same rights that they are given under this legislation.

With that, Mr. Speaker, I would like to yield 2 minutes to the distinguished gentleman from Florida, my fellow Rules Committee member, Mr. Lincoln Diaz-Balart.

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert).

Mr. Speaker, today in closing, I want to again draw the attention of Members to the strength of the underlying bicameral compromise legislation, H.R. 6166. We have had a vigorous and good debate on the rule which I believe will help convince the House to support this vital measure.

I honestly believe when Members sit back and consider the underlying legislation carefully, they know we must move forward and pass both the rule and the bill. This is not an issue that we can take lightly, and we must act to enhance and secure America's security by providing the proper legal tools for our forces.

I believe that my colleagues on the other side of the aisle who have spoken against this measure are very sincere and are very honorable in their intentions. But I want to conclude by adding a personal perspective on this particular issue. I had an uncle who served in the United States Navy during the Second World War.

He was captured in the Philippines in 1942, did the Bataan Death March, served throughout the war, first in the Philippines and then in the mainland of Japan as a prisoner of war.

During that process, he suffered enormous abuse. The first speech I gave on the floor of this House when I was privileged to serve was in support of a resolution that was presented in a bipartisan fashion that we would hold the then-Iraqi government of Saddam Hussein accountable for their treatment of any American POWs that might fall into their hands.

And, frankly, when we had the discussion on the Armed Services Committee about Abu Ghraib, I was probably as tough as anybody certainly on my side of the aisle in pointing out where I thought we had had inconsistencies, shortcomings and failures, and that those needed to be corrected.

But I have also had the opportunity, serving in this body, to go to Guantanamo and to talk to our interrogators and talk to our guards and talk to them about the nature of the enemy with which we deal. I need to remind my good friends, we are not dealing with criminals. We are dealing with terrorists.

We are not dealing with people who have broken our law, we are dealing with people that want to kill our citizens. We are dealing with an enemy that is very unlike any we have confronted before in the history of our country.

These are not uniformed combatants in the service of a foreign country; these terrorists are not uniformed; they are not under the supervision of legitimate governments; they do not recognize the Geneva Convention; they do not extend to the prisoners that they take of all faiths, of all nationalities, any rights, any privileges, any protections whatsoever.

We can be enormously proud as Americans that we have not stooped to that standard, that this legislation has been carefully crafted and negotiated, ensures the rights, ensures protections, sets up standards. And I have no doubt that our courts, our military, our judicial system, our legal system, will hold anybody who violates those rights to very high standards, as indeed we have done in the past.

Mr. Speaker, this is a very good rule and a very good bill. It offers us the opportunity for an up-or-down vote, which, as the chairman of the Rules Committee pointed out earlier, we have heard a great deal about this morning, the need for up and down votes and clarity. We have got that here.

Mr. Speaker, I predict at the end of the day we will have an exceptionally strong bipartisan vote in support of this resolution.

Mr. Speaker, I intend to vote for the rule and the underlying legislation--and I would urge my colleagues to do the same.

Mr. Speaker, I yield back the balance of my time and move the previous question on the resolution.

Mr. Speaker, I thank the gentleman for yielding, and I yield myself such time as I may consume.

(Ms. SLAUGHTER asked and was given permission to revise and extend her remarks.)

Mr. Speaker, the critically important legislation before

us today is being presented as a bipartisan compromise, but nothing could be further from the truth. It was authored by the administration and by the Republican leaders of this Congress.

As Chairman Hunter testified in the Rules Committee yesterday, no Democrats were involved in any way in the negotiations that were conducted over the weekend to produce this bill, nor did the Rules Committee make in order any of the 15 amendments that Democrats offered to address the sections of the bill that most offend our democratic values and violate our most fundamental traditions.

The closed rule governing this bill means this Republican Congress is turning its back on a real debate here today. It is a reality made all the more egregious by the historic importance of this moment. We are at a crossroads today, and I fear we will not be judged kindly by future Americans for what my Republican friends want to do to us today.

The bill sends a clear message to both our friends and our enemies about what kind of people we are. It shows them whether or not we are really willing to practice what we preach about freedom and democracy and human dignity.

It is moments like this one when we reveal our true colors and even our true values. Sadly, Mr. Speaker, those watching today will conclude that when the going gets tough, America's leaders are willing to abandon our values, abandon them in favor of thuggish tactics that they hope might make them safer for a little while.

In his second inaugural address, our President used noble words to describe America's role in the world and its duty as a beacon of hope for all nations. He said, ``From the day of our founding, we have proclaimed that every man and woman on this Earth has rights, and dignity, and matchless values.''

That might be disputed by the generations of persons held in slavery and by the women of America who had no say in anything or standing anywhere, but, nonetheless, it sounds good. They are inspirational words.

But here is the reality: For years, this administration has circumvented our Constitution in the name of security. Its officials have dismissed even the most important of our legal documents, such as the Geneva Convention, as being nothing more than ``quaint.'' It was described that way by the present Attorney General, the chief law officer, I might add.

This administration and Republican Congress have allowed detainees to sit in prison for years without charging them with any crime. They are willing to deprive people of even the most basic due process rights that our country has always afforded those held by the government. They are willing to convict people of crimes without giving them any opportunity to review the evidence the government is using against them. They are willing to try to convict people based on unreliable evidence acquired through cruel, inhumane and degrading treatment that the rest of the world recognizes as torture.

They are willing to allow government officials to degrade and torment other human beings in ways that civilized nations outlawed 60 years ago. They are even willing to take any new legislation that we pass today and make it retroactive to protect people who have already committed torture, so that past abuses will be forgotten instead of being sincerely addressed.

What this Congress is showing the world today is that they are willing to trade our national birthright for a false and temporary sense of security.

Let me emphasize that, because it is indeed a false sense of security, Mr. Speaker. After 5 years of secret detentions, torture, warrantless surveillance, hyped up stories about weapons of mass destruction, are we any safer today from the threat of terrorism? The answer is no, we are not. In fact, as we learned earlier this week, our country's intelligence agencies informed the President a few months ago that we are actually less safe than we were in 2001.

Mistreating our prisoners and depriving them of the basic due process rights of our legal system is not making us any safer. All it is doing is slowly wearing away at the fabric of our democratic society, undermining the essential nature that made us different from other countries. When we degrade and mistreat our prisoners, we degrade ourselves and the democratic values we have inherited from generations of brave and decent Americans.

We are ceding the moral high ground those who founded this country, and the men and women who served it ever since, won with their blood, sweat and tears.

What is more, legislation like this puts our soldiers at risk. During the course of the national debate on this issue, a number of prominent admirals, generals and other military leaders have spoken out against this bill. They have told us time and time again that ignoring our American values puts our U.S. military personnel deployed overseas in danger. That falls on deaf ears here. They have said that respect for the rules of military engagement and prisoner treatment are more than just important parts of our American heritage. They also protect Americans who are captured and imprisoned by foreign powers.

Mr. Speaker, how is endangering our troops making us any safer? How is undermining our moral standard helping us win allies in the war of ideas that we face?

The answer is simple. It is not. At this very moment, there are hundreds, if not thousands of people held in facilities whose fate will depend on this legislation. I want to take a moment to talk about one of them.

Bilal Hussein is an Iraqi who worked as a photographer for the Associated Press. He is also a Pulitzer Prize winner. He has been held in Iraq by American forces for 5 months. He was accused of aiding and abetting the insurgency, but he has yet to be charged with any crime. He has been given no access to a lawyer or to a court and has not been able to see any evidence against him. The Associated Press has stood by him and repeatedly defended his innocence. We want to make sure he is alive. We will be writing the Secretary of Defense today to give us some information on his case.

But under this bill, Mr. Speaker, Bilal Hussein could be declared to be an enemy combatant, sent to an American detention facility and kept there indefinitely. No charges would ever have to be brought against him. His permanent detention would never have to be defended in a court of law.

Imagine if another nation held an American citizen without charging him of a crime. Imagine if it refused to even let him see the evidence against him. What would we say about such a country?

So, I ask my friends on the other side of the aisle, what are we supposed to say about our country today? Again, in his inaugural address of 2 years ago, the President had this say about the soul of America: ``When the Declaration of Independence was first read in public and the Liberty Bell was sounded in celebration, a witness said it rang as if it meant something. In our time, it means something still.''

This bill gives the lie to that speech and it gives the lie to what should be our Nation's greatest asset, our greatest weapon in the fight against terrorism and oppression, and that is our values.

I ask everyone in the House to reject this bill. I ask everyone here to chart a new course for America. If we reject torture, if we stand up for a legal system and fundamental rights that are the basis for liberty and the only real source of security that we have, then we will have come a long way in our battle against the threats our Nation faces in the world today.

My friends and colleagues, please don't turn your back on the past. It is in its lessons and principles that we will find the key to a safer and more just future.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I want to remind the Chair of the Rules Committee that Democrats brought 15 amendments up last night, including amendments by the ranking members of Armed Services and Intelligence, that were not allowed.

I yield to the gentleman from California.

I reclaim my time.

You negotiated with yourselves. We were completely shut out.

Mr. Speaker, I yield 4 minutes to the gentleman from Florida (Mr. Hastings).

I yield 4 minutes to the gentlewoman from California (Ms. Matsui).

(Ms. MATSUI asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I think it is a proven fact that people have been imprisoned for several years without any due process.

I am pleased to yield 3 minutes to the gentleman from Missouri (Mr. Skelton) who did not have an opportunity to have his amendment made in order.

(Mr. SKELTON asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from California (Mrs. Tauscher).

Mr. Speaker, I am pleased to yield 1 minute to the gentlewoman from California (Ms. Pelosi), the minority leader.

Mr. Speaker, I yield 5 minutes to the gentleman from Massachusetts (Mr. McGovern).

Mr. Speaker, I will be asking for a ``no'' vote on the previous question so that I can amend this closed rule and allow the House to consider three critical amendments that were rejected by the Rules Committee last evening.

Mr. Speaker, I ask unanimous consent to insert the text of the amendments and extraneous materials immediately prior to the vote on the previous question.

Mr. Speaker, the first amendment offered by Representative Meehan would restore habeas corpus, one of the most basic principles in our legal system which allows a person detained by the Government to have a judge review his or her case.

The next amendment, which was offered by Mrs. Tauscher, strikes the provision in the bill that would reinterpret and weaken our commitment to the Geneva Conventions. The last amendment, by Representative Loretta Sanchez, would modify the appeals process by providing that the existing and experienced U.S. Court of Appeals for the Armed Forces, and then the Supreme Court would be used instead of creating a brand new court system that is untested and untried.

Mr. Speaker, the bill we will be considering shortly makes very extraordinary changes to the way we deal with interrogation and treatment of prisoners of war, and those incarcerated from the war on terror.

It is undoubtedly one of the most deadly serious issues we will deal with in this Congress. The impact of this legislation is not just about the effect that it will have on those individuals that our Nation apprehends in wartime and in the War Against Terror.

Every bit as important are the far-reaching implications that it will have for our soldiers and citizens who may be captured. This is about protecting them from torture and other inhumane treatment. The three amendments are critical components in this process. They need to be a part of the process today.

Let's do the right thing and vote ``no'' on the previous question so that we may consider these issues today. The lives of the brave men and women protecting our great Nation depend on it. Again, I urge a ``no'' vote.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.