H.Res. 1054

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

Mr. Speaker, I yield myself such time as I may consume, and I rise in support of S. 3930, the Military Commissions Act of 2006.

Mr. Speaker, as we debated this bill just a few hours ago, again, I say that I can't think of any 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 civilians and who continue to seek to kill Americans both on and off the battlefield.

Mr. Speaker, I think that Justice Thomas described best the backdrop against which this legislation is being considered when he said, and I quote, ``We are not engaged in a traditional battle with a nation state but with a worldwide hydra-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 beheadings of civilian workers, and has tortured and dismembered captured American soldiers.''

So, Mr. Speaker, we have debated this precisely, this bill, which is precisely the same coming back over from the other body as the bill that we voted on in the full House, where I think we had a robust debate on the issues. But I would just say that this gives us a new body of law that provides a construct under which we can carry out our charge.

And this is an interesting charge to this body and to both Houses of Congress. We were not only requested to do this by the President, but the Supreme Court in the Hamdan case essentially invited, in fact said that we were an essential part of the construct of any tribunal legislation that would set up the new tribunal process; that it had to be a construct that was participated in by

Congress. So you could say, I think, Mr. Speaker, that we have been charged not just by the President but by the Supreme Court with doing our job and putting together this process.

We have pursued the terrorists across the globe. We have captured some, and we have killed many. We have pursued them literally to the ends of the earth. We have caught them at 10,000 foot elevation mountain ranges in caves where they thought they were safe, in so- called safe houses that turned out not to be safe houses. We captured some who, according to our intelligence personnel, helped to design the attack against New York and Washington, DC, and Pennsylvania. And I can think of no more important way to memorialize 9/11 than to produce a justice system that allows us to bring to justice, to bring to the courthouse and show justice to the widows and orphans of 9/11, to the American people, to our fellow citizens and to the world. This system is going to allow us to do this.

This system is a product of extensive negotiations, hundreds of provisions that have been agreed upon and worked and looked at by counsel for both this body, the other body, the U.S. Senate and, of course, the administration. I think it is sound. I think it is solid. I think it will allow for the expeditious prosecution of people who attacked our country.

It gives them a lot of rights. It gives a lot of rights to the terrorists that they would never have in their native land. It also gives them rights that American soldiers don't have. There is no American soldier that has the right to an attorney, to a combatant status review and, if he doesn't like that review, to an appellate court, like the D.C. Circuit Court, to prove that he really was not a combatant in that particular conflict.

So as the American people watch these trials unfold, Mr. Speaker, and they watch the defendants, including some of the people who hurt our country and helped to cause the death of thousands of Americans, they are going to watch them with their taxpayer-paid-for attorneys exercising their rights against self-incrimination, their right to a proof standard beyond a reasonable doubt; they are going to watch a jury system or a commission system that uses a secret ballot so that superior officers can't influence junior officers; they are going to watch all these safeguards that we put in place for justice, and I think the American people are going to say, although there will be some who will say they still didn't have enough rights, but I think the American people will come down on the side of what we have done here in the House.

Mr. Speaker, I rise in support of S. 3930, the ``Military Commissions Act of 2006.'' I can think of no better way to honor the fifth anniversary of September 11th 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.

This is vital legislation important to the national security of the United States.

Our foremost 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 does not wear a uniform. A savage 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, the Geneva Conventions or any of the guarantees which are recognized by civilized nations.

Justice Thomas put it best in Hamdan. He said we are ``not engaged in a traditional battle with a nation-state, but with a world-wide, hydra- 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 beheadings of civilian workers, and has tortured and dismembered captured American soldiers.''

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. On the battlefield we can't have battalions of lawyers. 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. I am not prepared to take that risk.

So what we have done is to develop a military commission process that will allow for the effective prosecution of enemy combatants during this ongoing conflict. Without this action, United States has no effective means to try and punish the perpetrators of September 11th, 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:

First, the government must be able to present its case fully and without compromising its intelligence sources or compromising military necessity; and

Second, the prosecutorial process must be done fairly, swiftly and conclusively.

Who are we dealing with in military commissions? 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 they are the enemy in an ongoing war.

In time of war it is not practical to apply to rules of evidence that we do in civilian trials or court-martials for our troops. Commanders and witnesses can't be called from the frontline to testify in a military commission. We need to accommodate rules of evidence, chain of custody and authentication to fit the exigencies of the battlefield. If hearsay is reliable we should use it. If sworn affidavits are reliable, we should use them. I note that the rules of evidence are relaxed in international war crime tribunals for Rwanda and Yugoslavia.

The Supreme Court has suggested that Congress act here to fill the legal void left by the Hamdan decision, 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 the United States. The Geneva Conventions were written in 1949 and the UCMJ was adopted in 1951. These documents were not written to address the war we are now fighting. In that sense, what we are required to do after Hamdan 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 the 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 the world will acknowledge as 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 them all, here are some of the essential rights we provide.

Right to Counsel, provided by government at trial and throughout appellate proceedings;

Impartial judge;

Presumption of innocence;

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;

Mr. Speaker, since I am inserting my entire text in the Record, I will not 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 a 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 detennined;

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, counselor military judges;

\2/3\ vote of members required for conviction; \3/4\ vote required for sentences of life or over ten 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 of 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. No one can say this is not a fair system.

I know some of my colleagues are concerned about the issue of reciprocity. I ask them to look at the list of rights I just summarized. And also keep in mind, that these are rights for terrorists. 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. 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.C. Code, Chapter 47A. While this new chapter is based upon the Uniform Code of Military Justice, it creates 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.

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 agent or an undercover witness of some sort, are we going to tell Kalid Sheik Mohammad who the informant is? This 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 KSM to learn the identify of the informant, yet provides a fair trial. How do we do this? We address this in Section 949d(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, 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 or the infornant's statement, the just must find: (1) that the sources, methods, or activities by which the U.S. acquired the evidence are classified and (2) 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, yet allows the accused to see the substance of the evidence against him. I think these rules protect classified evidence and yet preserve a fair trial.

Unauthorized disclosures, not only of classified information, but also of our interrogation techniques, are extremely damaging to our intelligence efforts. Our personnel have encountered enemy combatants trained to resist disclosed interrogation techniques thanks to leakers in our media. I'm pleased that with the current Military Commission legislation moving forward, we have reaffirmed our strict adherence to the U.S. anti-torture laws, while at the same time allowing our CIA to move forward with an effective interrogation program whose techniques will not be published in the Federal Register, or God forbid, in another newspaper disclosure. This legislation preserves the necessary flexibility for the President and the CIA to utilize all lawful and effective methods of interrogation. Let me be clear: the bill defines the specific conduct that is prohibited under Common Article 3, but it does not purport to identify interrogation practices to the enemy or to take any particular means of interrogation off the table. Rather, this legislation properly leaves the decision as to the methods of interrogation to the President and to the intelligence professionals at the CIA, so that they may carry forward this vital program that, as the President explained, serves to gather the critical intelligence necessary to protect the country from another catastrophic terrorist attack.

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.'' The 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 an 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 savage 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.

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 currently 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 also prohibits ``outrages upon personal dignity'' and ``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 a list of specific offenses that constitute war crimes punishable as grave violations of Common Article 3. This is something we need now, because of the Hamdan decision.

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, inhuman or degrading treatment or punishment'' prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution, as defined by the U.S. reservations to the UN 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 of 2005.

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

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 soldiers or interrogators to torture someone to death. Let me emphasize this 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.

There is more to this bill than military commissions, however. H.R. 6166 addresses an issue that Supreme Court created in the Hamdan case. The Court in Hamdan decided that Common Article 3 of the Geneva Conventions--a article that many assumed only applied to regular armies--applies to terrorist organizations, like al Qaeda. As a result of this decision, our brave personnel in the military and other national security agencies are faced with an unpredictable legal landscape because the meaning of certain elements of Common Article 3 are vague.

For example, would a female interrogator of a male Muslim detainee be guilty of violating Common Article 3 because the mere scenario constitutes an outrage upon personal dignity? Such a situation is untenable. It is unfair to our personnel out in the field trying to protect lives here at home. It is Congress' responsibility to draw the lines of what conduct will be criminal.

As a result, we need to amend the War Crimes Act to make clear that only grave breaches of Common Article 3 constitutes a war crime under U.S. law. Let me be clear, under international law a party to the treaty is responsible for incorporating only grave breaches of Common Article 3 in its penal code. My point is simple: Today the Congress is complying with our treaty obligations under Geneva Conventions and today the Congress is following the guidance of the Supreme Court in Hamdan (even though many believe that the Court's decision was ill construed).

Now, some have suggested that H.R. 6166 condones torture or that this bill implicitly permits ``enhanced torture techniques''. These suggestions are absolutely false and they fly in the face of the very words that appear on the pages of this bill.

First--it is illegal under U.S. law to torture. This was true before H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a war crime that can result in the death penalty. This means that under the War Crimes Act, any U.S. personnel that engages in Torture will be subject to prosecution for committing a war crime. Additionally, in the context of military commissions, a statement obtained through torture is not admissible.

Second--this bill makes clear that the way we treat our detainees is guided by treatment standards set by the Congress--last year--in the Detainee Treatment Act, also known as the McCain amendment. This standard is based upon the familiar standards of the U.S. Constitution. Thus, ``cruel, inhuman, and degrading treatment or punishment'' under this section means the cruel, unusual, inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as defined by the U.S. reservations to the UN Convention Against Torture.

I believe that the Constitution, which provides the fundamental, underlying protections for the citizens of the United States, provides more than sufficient protections for unlawful enemy combatants. Why should accused terrorist enjoy protections that exceed what the Constitution provides to United States citizens?

Mr. Speaker, in summary, I believe that this legislation is the best way to prosecute enemy terrorists and to protect U.S. Government personnel and service members who are fighting them.

I urge my colleagues to support this vital legislation.

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

Mr. Speaker, I will yield myself such time as I may consume to say, first, that I appreciate the gentleman's participation in the hearings and the briefings and the markup that we had on the initial bill that came out of the Armed Services Committee 52-8, and I would remind my colleagues that, in fact, the appellate route in this particular bill provides for the court of military review, a new court to be set up as a first appellate stop; and secondly, the D.C. Circuit Court. And in channeling all of the actions to the D.C. Circuit Court, we are going to a court that has lots of experience, is building a body of experience in this type of work, and that will keep us from rifle- shooting actions out throughout the country.

I think that makes for an efficient process, and it provides now two appellate reviews, whereas the Democrat substitute had only one appellate review before you would apply for final review by the Supreme Court, which might or might not occur. So instead of one review, we have two reviews. And I think that that is a strengthening, if you will, of this bill that is one more measure to ensure that as we move forward on this process of bringing to justice those who attacked our country, we give them a robust right of appeal.

Having said that, Mr. Speaker, I yield 5 minutes to the gentleman from Indiana (Mr. Buyer), who is the chairman of the Veterans' Affairs Committee and a former JAG officer himself.

Mr. Speaker, I yield 1 minute to the gentleman from Indiana (Mr. Buyer).

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

Mr. Speaker, let me just go to the Detainee Act. It says that review is done by the District of Columbia relating to any aspect of the detention of an alien, and we have expanded it from Guantanamo Bay to anywhere, who has been determined by the United States District Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405. So there is a process whereby the review is made with respect to the status of that alien.

Let me go to a second point. The gentleman spoke about hearsay evidence being allowed. That is true. Hearsay evidence is allowed, with certain restrictions. The judge has to find that it is probative, that it is relevant and that it is reliable.

The war crimes tribunals in Yugoslavia and Rwanda allow hearsay evidence. As I recall, the bill that was offered by Mr. Skelton, that was voted on in the HASC, in the Armed Services

Committee, also allowed for the use of hearsay evidence.

So hearsay evidence, I would say to my friends, is not excluded and has not historically been excluded in war crimes trials in Rwanda, in Yugoslavia.

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

Mr. Speaker, let me just make a comment about the fact that we enumerate the crimes that might be committed, what we call the grave offenses under article III.

I think that it accrues to the benefit of our soldiers, sailors, airmen and marines and our intelligence agents that they know what the crimes are when they have people in custody, and the fact that those grave crimes, and they are enumerated, are defined, gives clarity to our folks so they know what the offenses are. I think that serves the purpose. It does not disserve the purpose.

But the idea that we have also reserved to the President on nongrave offenses, and again, one of the examples that was given by expert testimony was if you use the term ``degrading,'' you could charge that a female colonel JAG officer interrogating a Muslim male is in and of itself degrading, because it is a female interrogating a male, and in their culture that would be considered to be degrading.

I think it is important not to expose that female JAG officer to liability. And it is important, therefore, when you have what you might consider to be minor infractions to not label that person, that American, a war criminal, but to allow the President as Commander in Chief to put forth regulations.

So I think this is a good fit, and it gives the thing that is most important to personnel, and that is clarity.

I yield to the gentleman from Indiana.

I yield myself such time as I may consume, Mr. Speaker. And let me make five points here.

First, there is nothing in this language that directs people to pick up or not pick up people. This is the language. This bill designs and constructs military commissions. On page 8 of the bill it gives the jurisdiction of the commission, and it says: ``A military commission under this chapter shall have

jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.'' That would allow us also to try those folks from the Cole and the Embassy bombings.

With respect to habeas, there is no soldier in the world, no POW in the world from our research who has a habeas right.

And let me go to Mr. Wu's point. Mr. Wu said, when we pointed out the Detainee Treatment Act provided for review, he said that he thought it expired because it was attached to an appropriations bill and expired annually. That is not so. It is a permanent code. So the Detainee Treatment Act is in place. And if the gentleman can show me where it is expired, we will be happy to entertain that.

Secondly, the gentleman also said that it was procedural only. I am referring to the Detainee Treatment Act that says that the court has the jurisdiction to review relating to any aspect, and I am quoting, any aspect of the detention of the person in question, relating to any aspect. And, of course, that would go as to whether he was a combatant. So it was not as you stated, it is not simply a procedural review.

So I just want to go over those points.

I reserve the balance of my time.

Mr. Speaker, I yield the balance of my time to the distinguished chairman of our Veterans Committee and former JAG officer, Mr. Buyer, for our closing remarks.

Let me thank the distinguished ranking member of the Armed Services for his very insightful, instructive messages on the dilemma we face in Iraq and Afghanistan. Let me also acknowledge that there are individuals who have had firsthand experience in the military courts.

Having gone to a law school that had a very outstanding JAG school, I understand the importance of military law and was one time a member of the U.S. Military Court of Appeals.

But I think it is important that we make this argument understandable, because in a few hours the President will give to my friends on the other side of the aisle an opportunity of bragging rights by having signed a bill that has been rushed through this process and has totally ignored the Supreme Court's decision.

Why are we standing here on this side of the aisle seemingly making arguments that don't promote security and safety in the United States? Well, that interpretation is totally wrong, because not one of us wants to take away the tools that would ensure America's security. But what we are concerned about are the faces here who represent those who have lost their lives on the front lines of Iraq and Afghanistan, and they continue over and over again. We have concerns about the life they sacrifice and the soldiers that they left behind. We know that soldiers don't leave comrades on the battlefield, injured or lost in the line of battle.

Today, this military tribunal commission will leave our soldiers on the battlefield, for what it does is it creates the atmosphere, no matter whether we are in a guerilla war or we are in the confrontational wars that we know of World War I and II. It is to ensure that the treatment of our soldiers, if caught by the enemy, will reflect the lack of treatment that we have given here.

Mr. Skelton has made it very clear, we could fix this, because he would have provided an expedited Constitution review of the entire matter to give the opportunity for entry into the courts under habeas. It would also require that these military commissions, because they are eliminating rights, we are not saying releasing people, we are saying eliminating rights, that then get translated to the miserable treatment of those who were incarcerated or taken off the battlefield that are our soldiers.

Secondly, it refuses to give reauthorization language to the military commissions. We don't know where we will be in 3 years. We don't know how negatively this will impact our soldiers on the battlefield, which next conflict that, God forbid, we may have to be engaged in.

Also, the language that my friends have go beyond the scope of the Supreme Court's decision in Hamdan to decide whether or not detainees have habeas rights. The court already decided they do. Or whether or not the habeas provisions in the Detainee Treatment Act are constitutionally legal. The habeas provisions in the legislation are contrary to congressional intent in the Detainee Treatment Act. In that act, Congress did not intend to strip the courts of jurisdiction over the pending habeas.

In addition, although my friends say they fixed it, they also deny the rights which I had an amendment to to utilize the Geneva Conventions language to say that you were tortured or not tortured, even if you would put that defense in a classified presentation.

So in concluding, let me say we owe them a debt of gratitude. Let's vote down this tribunal to save future lives.

I rise in strong opposition to S. 3930, the Military Commissions Act. I oppose this bill because I stand strong for our troops. I stand strong for the Constitution. I stand strong for the values that have made our country, the United States of America, the greatest country in the history of the world. I oppose this legislation because it is not becoming a nation that is strong in its values, confident of its future, and proud of its ancient heritage.

Mr. Speaker, let us be crystal clear: All Americans, and Democrats especially, want those responsible for 9/11 and other terrorist acts to be tried fairly and punished accordingly, and we want those convictions to be upheld by our courts.

Democrats want the President to have the best possible intelligence to prevent future terrorist attacks on the United States and its allies.

Democrats agreed with the President when he said ``whether the terrorists are brought to justice or justice brought to the terrorists, justice will be done.'' But Democrats understand that justice requires the Congress to establish a system for trying suspected terrorists that not only is fundamentally fair but also consistent with the Geneva Convention.

We should abide by the Geneva Convention not out of some slavish devotion to international law or desire to coddle terrorists, but because adherence to the Geneva Convention protects American troops and affirms American values.

S. 3930, the compromise before us, includes some improvements that I strongly support. For example, evidence obtained through torture can no longer be used against the accused. Similarly, the compromise bill provides that hearsay evidence can be challenged as unreliable.

Perhaps the most important improvement over the bill passed by the House is that accused terrorists will have the right to rebut all evidence offered by the prosecution. As is the case in the existing military justice system, classified evidence can be summarized, redacted, declassified, or otherwise made available to the accused without compromising sources or methods. This change to the bill goes a long way toward minimizing the chance that an accused may be convicted with secret evidence, a shameful practice favored by dictators and totalitarians but beneath the dignity of a great nation like the United States. As Senator John McCain said:

I think it's important that we stand by 200 years of legal

precedents concerning classified information because the

defendant should have a right to know what evidence is being

used.

However, I am concerned that there is reason to believe that even with this compromise legislation, this system of military commissions may lead to endless litigation and get struck down by the courts. Then we would find ourselves back here again next year, or five years from now, trying to develop a system that can finally bring the likes of Khalid Sheik Mohammed to justice. Why would we want to give terrorist detainees a ``get out of jail free'' card when we can avoid that by establishing military commissions that work. As currently written, the compromise bill has provisions that could lead to the reversal of a conviction.

Specifically, the bill contains a section that strips the federal courts of jurisdiction over habeas corpus petitions filed prior to the passage of the Detainee Treatment Act last December on behalf of detainees at Guantanamo Bay. Mr. Speaker, nine former federal judges were so alarmed by this prospect that they were compelled go public with their concerns:

Congress would thus be skating on this constitutional ice

in depriving the federal courts of their power to hear the

cases of Guantanamo detainees. . . . If one goal of the

provision is to bring these cases to a speedy conclusion, we

can assure from our considerable experience that eliminating

habeas would be unconstitutional.

Mr. Speaker, common Article 3 of the Geneva Convention requires that a military commission be a regularly constituted court affording all the necessary ``judicial guarantees which are recognized as indispensable by civilized peoples. Notwithstanding the provision in the House bill that the military commissions established therein satisfy this standard, the fact is that other nations will agree. Simply saying so does not make it so. Moreover, they may well be right. Consider this, Mr. Speaker:

The compromise allows statements to be entered into

evidence that were obtained through cruel, inhuman and

degrading treatment and lesser forms of coercion if the

statement was obtained before passage of the Detainee

Treatment Act last December.

To provide limited immunity to government agents involved

in the CIA detention and interrogation program, the bill

amends the War Crimes Act of 1996 to encompass only ``grave

breaches'' of the Geneva Conventions. U.S. agents could not

be tried under the War Crimes Act of 1996 to encompass only

``grave breaches'' of the Geneva Convention. U.S. agents

could not be tried under the

War Crimes Act for past actions that degraded and humiliated

detainees. The bill also limits any use of international law

such as the Geneva Convention in interpreting the War Crimes

Act.

Mr. Speaker, what is sometimes lost sight of in all the tumult and commotion is that the reason we have observed the Geneva Conventions `` since their adoption in 1949 is to protect members of our military. But as the Judge Advocate Generals pointed out, the compromise bill could place United States servicemembers at risk by establishing an entirely new international standard that American troops could be subjected to if captured overseas. As Rear Admiral Bruce McDonald testified:

I go back to the reciprocity issue that we raised earlier,

that I would be very concerned about other nations looking in

on the United States and making a determination that, if it's

good enough for the United States, it's good enough for us,

and perhaps doing a lot of damage and harm internationally if

one of our servicemen or -women were taken and held as a

detainee.

What's more, Mr. Speaker, the Geneva Conventions also protect those not in uniform--special forces personnel, diplomatic personnel, CIA agents, contractors, journalists, missionaries, relief workers and all other civilians. Changing our commitment to this treaty could endanger them, as well.

We can fix these deficiencies easily if we only we have the will. What we should do is recommit the bill with instructions to add two important elements: (1) expedited constitutional review of the legislation; and (2) a requirement that these military commissions be reauthorized after three years.

Under expedited review, the constitutionality of the military commission system could be tested and determined quickly and early-- before there are trials and convictions. And it would help provide stability and sure-footing for novel legislation that sets up a military commissions system unlike anything in American history.

Such an approach provides no additional rights to alleged terrorists. All it does is give the Supreme Court of the United States the ability to decide whether the military commissions system under this act is legal or not. It simply guarantees rapid judicial review.

requiring reauthorization in three years

Second, any system of military commissions to deal with detainees should be required to be reauthorized in three years. There are several good for requiring Congress to reaffirm its judgment that such tribunals are necessary:

The Military Commissions Act of 2006 is a far-reaching measure that implements an entirely new kind of military justice system outside the Uniform Code of Military Justice. It has many complex provisions.

This legislation has been rushed to the floor. It has numerous provisions that are still poorly understood by many in Congress. By requiring a reauthorization in three years, we give Congress the ability to carefully review how this statute is working in the real world.

Providing for a reauthorization in three years is the best way to ensure congressional oversight. This reauthorization requirement will allow Congress to evaluate the effectiveness of the military commission provisions and decide whether they need any modifications in the future.

The reauthorization requirement in the PATRIOT Act has worked well-- compelling Congress to review how various provisions in the PATRIOT Act have worked. As a result of congressional review, important modifications in the PATRIOT Act were signed into law in January 2006 when 16 provisions were reauthorized.

Mr. Speaker, even Republicans on the House Judiciary Committee admitted that the only way Congress was able to get information out of the Justice Department about the operation of the PATRIOT Act was that Congress had to reauthorize it--similarly, the only way Congress will be able to perform proper oversight on military commissions is this similar requirement that the program must be reauthorized. The reauthorization requirement is a critical tool in Congress' ability to hold the Administration accountable and review the military commission program's performance.

Mr. Speaker, I cannot recall being asked to render final judgment on a matter of such scope, consequence, and moment in so short a period of time with such a sparsely developed legislative record. Now is not the time to rush blindly forward. Rather, now more than ever, it is important to take our time and make the right decision and establish the right policy. And the right policy is not to jettison the Geneva Convention.

We should not try to redefine the Geneva Convention. We should not do anything to alter our international obligations in an election-year rush. We cannot use international law only when it is convenient and expedient. Our commitment to the Geneva Conventions gives us the moral high ground. This is true in both a long war against radical terrorists and a war for the hearts and minds of people from every religion and every nation. If we compromise our values, the terrorists win. As Senator McCain has said: ``This is not about the terrorists are, this is about who we are.''

The United States was one of the prime architects of the Geneva Conventions and other international laws. Our goal was to protect prisoners of war in all kinds of armed conflicts and insure that no one would be outside the law of war. Coming shortly after World War II, they knew the horrors of war but they still chose to limit the inhumanity of war by establishing minimum protections of due process and humane treatment, even for those accused of grave breaches of the Conventions.

Mr. Speaker, our nation has the finest military in the world. Our nation also deserves to have the finest military justice system in the world. I oppose S. 3930 because it departs significantly from the tried and true procedures established in the UCMJ.

The United States has long served as the model for the world of a civilized society that effectively blends security and human liberty. When we refuse to observe the very international standards for the treatment of detainees, which we were so instrumental in developing, we provide encouragement for others around the world to do the same. Our British allies have demonstrated that these traditional principles can be adhered to without distinguishing the ability to provide for the security of its citizens. We must do likewise.

Mr. Speaker, the treatment and trials of detainees by the United States is too important not to do it right. In the words of Jonathan Winthrop, often quoted by President Reagan, ``for we must consider that we shall be as a City upon a hill. The eyes of all people are upon us.'' Let us act worthy of ourselves and our nation.

So Mr. Speaker, I stand in opposition to this legislation. But I do not stand alone. I stand with former Secretary of State Colin Powell. I stand with former Chairman of the Joint Chiefs John Vesey. I stand with the 911 Families Opposed to Administration Efforts to Undermine Geneva Conventions. I stand with the retired federal judges and admirals and Judge Advocate Generals.

The bill before us is not the right way to do justice by the American people. I therefore cannot support it and I urge my colleagues to reject it. We have time to come up with a better product and we should. The American people deserve no less. The eyes of the world are upon us. Let us act worthy of ourselves.

If the gentlewoman would yield just for a moment. I thank you for your comments. I think it should be clear that the framework for soldiers may not be habeas in civilian language, but there is a procedure that soldiers would have to be able to petition their detention, and it is a military term. And what we are seeing in the military tribunals commission language is that doesn't exist.

Mr. Speaker, I thank the distinguished gentleman. He has waged a powerful argument.

My good friend from California is arguing, if we had taken the time to clarify this bill. Let me tell you what is really in the bill.

First of all, as I continue to acknowledge the existence of the lost lives of our soldiers, the bill does not clarify this whole definition. We have 11,000 non-U.S. citizens serving in the United States Army. We have individuals who are U.S. legal aliens, United States citizens. There is no clarification that they could not be defined as an unlawful enemy combatant. The definition of ``alien'' is unclear. In some places it is defined; in some places it is not.

In addition, the Geneva Conventions is not respected. We have taken this away from the McCain-Warner compromise, and we have destroyed it because what we have done is given the President, not this President, any President, the ability to adjudge what the Geneva Conventions, how to interpret it, how to utilize it.

This is a wrong way to ago. This should have more time. This is not a political opportunity. This is not a campaign speech. These are the lives of our soldiers.

Mr. Speaker, at this time I will insert into the Record a letter from admirals and, as well, the 9/11 families opposing the military tribunal commission.

September 12, 2006.

Senator John Warner,

Chairman, U.S. Senate Committee on Armed Services, Russell

Office Building, U.S. Senate, Washington, DC.

Senator Carl Levin,

Ranking Member, U.S. Senate Committee on Armed Services,

Russell Office Building, U.S. Senate, Washington, DC.

We find it necessary yet again to communicate with you

about issues arising out of our policies concerning detainees

held at Guantanamo Bay. It would appear that each time the

U.S. Supreme Court speaks, efforts are taken to reverse by

legislation the decision of the Court. We refer, of course,

to the Supreme Court's Rasul and Hamdan decisions and to the

provision in the Administration's proposed Military

Comissions Act of 2006 that would strip the federal courts of

jurisdiction over even the pending habeas cases that have

been brought by the detainees at Guantanamo to challenge the

basis for their detention. We urge you to reject any such

habeas-stripping provision.

As we have argued and agreed since 9/11, it is necessary

for Congress to enact legislation to create military

commissions that recognize both the basic notions of due

process and the need for specialized rules and procedures to

deal with the new paradigm we call the war on terror. This

effort must cover those already charged with violating the

laws of war and those newly transferred to Guantanamo Bay.

But the military commissions we are now fashioning will

have no application to the vast majority of the detainees who

have never been charged, and most likely never will be

charged. These detainees will not go before any commissions,

but will continue to be held as ``enemy combatants.'' It is

critical to these detainees, who have not been charged with

any crime, that Congress not

strip the courts of jurisdiction to hear their pending habeas

cases. The habeas cases are the only avenue open for them to

challenge the bases for their detention--potentially life

imprisonment--as ``enemy combatants.''

We strongly agree with those who have argued that we must

arrive at a position worthy of American values, i.e., that we

will not allow military commissions to rely on secret

evidence, hearsay, and evidence obtained by torture. But it

would be utterly inconsistent, and unworthy of American

values, to include language in the draft bill that would, at

the same time, strip the courts of habeas jurisdiction and

allow detainees to be held, potentially for life, based on

CSRT determinations that relied on just such evidence. The

effect would be to give greater protections to the likes of

Khalid Sheikh Mohammed than to the vast majority of the

Guantanamo detainees, who claim that they had nothing to do

with al Qaeda or the Taliban.

We are on a course that should have been plotted and

navigated years ago, and we might be close to consensus. We

ask that, in the closing moments of your consideration of

this vital bill, you restore the faith of those who long have

been a voice for simple commitment to our longstanding basic

principles, to our integrity as a nation, and to the rule of

law. We urge you to oppose any further erosion of the proper

authority of our courts and to reject any provision that

would strip the courts of habeas jurisdiction.

As Alexander Hamilton and James Madison emphasized in the

Federalist Papers, the writ of habeas corpus embodies

principles fundamental to our nation. It is the essence of

the rule of law, ensuring that neither king nor executive may

deprive a person of liberty without some independent review

to ensure that the detention has a reasonable basis in law

and fact. That right must be preserved. Fair hearings do not

jeopardize our security. They are what our country stands

for.

Sincerely,

John D. Hutson,

Rear Admiral, JAGC, USN (Ret.).

Donald J. Guter,

Rear Admiral JAGC, USN (Ret.).

David M. Brahms,

Brigadier General, USMC (Ret.).

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1054 and ask for its immediate consideration.

Mr. Speaker, for the purpose 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.

Mr. Speaker, the rule before us today will provide for consideration of three measures of vital importance to our Nation: The conference report for Fiscal Year 2007 Homeland Security Appropriations bill, the Private Property Rights Implementation Act of 2006 and the Military Commissions Act of 2006. This rule will enable the House to consider these bills and complete this important work on behalf of the American people.

Mr. Speaker, I rise today in strong support of this rule and the underlying legislation. These three bills address some of our Nation's most pressing priorities. First, the Homeland Security Appropriations Conference Report funds our most important Federal programs aimed at securing the Nation against terrorist attacks. It provides $34.8 billion for the operations and activities of the Department of Homeland Security in fiscal year 2007, an increase of $2.3 billion over fiscal year 2006 and $2.7 billion above the President's request.

The conference agreement aggressively addresses our most critical homeland security needs, including border and immigration security; nuclear detection; port, cargo and container security; transportation security; natural disaster preparedness and response; and support to State and local first responders.

This legislation secures our homeland first and foremost by protecting our borders and revitalizing immigration enforcement, because border security is homeland security. It provides over $21 billion for border protection, immigration enforcement and related activities. It includes an increase of $2.1 billion over funding in 2006. This includes $5.2 billion for the Secure Border Initiative and additional funding to support technology, personnel and infrastructure to prevent terrorists and other criminals from exploiting our borders and immigration system.

Among other security-enhancing measures, this funding includes $2.77 billion for Border Patrol, adding 1,500 new Border Patrol agents, for a total of 14,800. It includes $1.2 billion for border fencing, vehicle barriers, technology and infrastructure; $4.2 billion for immigration and customs enforcement; $1.38 billion for Immigration and Custody Enforcement custody operations, adding 6,700 detention beds, for a total of 27,500; and $28.2 million to assist State and local efforts to enforce immigration laws.

This conference report also recognizes the need to enhance port, container and cargo security by providing the funds necessary to secure our ports and inbound cargo in order to prevent terrorists and criminals from exploiting the international commerce system.

It supports our first responders by paying attention to the needs of high-threat areas, firefighters and emergency management. It supports ongoing efforts to enhance the current inventory of our Nation's critical infrastructures, develop secure communication systems with Federal, State and local entities, and it continues to work with the private sector to implement protective measures around the Nation's infrastructure.

This agreement continues ongoing efforts to enhance security for all modes of transportation, including ports, rails and aviation with a focus on developing and installing next-generation technology to inspect cargo, baggage and passengers. And it supports traditional missions, such as drug interdiction, law enforcement, maritime safety and Presidential protection.

Finally, this conference report provides for the necessary and appropriate oversight of the Department of Homeland Security. It fences off $1.6 billion from being spent until DHS meets certain planning and management requirements. Under these requirements, DHS must develop a comprehensive strategy and plan for port, cargo, container security, and for the Secure Border Initiative. Department of Homeland Security must also provide expenditure plans for the border security system, U.S.-VISIT, Federal Protective Service, business transformation for CIS, explosive detection systems in airports, Customs information technology systems, and overall better financial data throughout the department, and in particular, science and technology.

Finally, the agreement directs the preparedness Directorate and FEMA to improve its capacities in communications, training and other capacity assessments, including management logistics, emergency housing, debris removal and victim registration.

Second, this rule provides for consideration of the Military Commissions Act of 2006 as modified by the other body. The House version of this legislation passed the House on Wednesday by a vote of 253-168 and was sent to the other body. Today's legislation again provides congressional authorization for military commissions to try alien unlawful enemy combatants for war crimes committed before, on or after 9/11/2001. It amends the War Crimes Act to criminalize grave breaches of Common Article 3 of the Geneva Conventions, while fully satisfying U.S. treaty obligations. It also authorizes the establishment of military commissions to try alien unlawful enemy combatants, which is the legal term used to define international terrorists and those who aid and support them, for war crimes. While this new chapter is based upon the Code of Military Justice, it also creates an entirely new structure for these trials.

These commissions will only be used to try alien terrorists for war crimes. Any U.S. citizen will be tried within the Federal United States judiciary. These alien terrorists acquitted of a war crime will still be detained as enemy combatants according to the principle in international law that there exists an undisputable right to keep the enemy from returning to the battlefield. Thus, an acquittal at a war crime trial will not result in terrorists being released. This legislation also provides for an independent certified military judge to preside over all proceedings.

This agreement creates the process necessary to prosecute terrorists effectively and fairly, while also protecting American troops and intelligence agents fighting the global war on terror.

I would like to thank Chairman Duncan Hunter and Chairman Sensenbrenner for all of their hard work in reaching an agreement with the other body that keeps Americans safe while observing the rule of law.

Third, this rule provides for the consideration of legislation to give private property owners the ability to litigate cases in Federal court when local and State regulations deprive owners the use of their own land.

Although this legislation already passed the House this week with the support of the majority of its Members, it did not achieve the support of the super majority needed to pass under the suspension of the rules.

So, today, the House will once again have the opportunity to support this commonsense bill to ensure that property owners have the same access to Federal courts as other plaintiffs claiming a violation of their constitutional rights.

It removes the judicial detour of forcing claimants raising solely Federal claims to first pursue their litigation in State court on the very same case and dramatically reduces the amount of time that property owners must spend in negotiation and litigation before takings claims that can be heard on their merits.

I congratulate the gentleman from Ohio (Mr. Chabot) for all of his hard work in constructing and perfecting this legislation, and I look forward to supporting his efforts on the floor later this afternoon.

Mr. Speaker, I am proud of this work product that the majority has brought to the floor today. I encourage all of my colleagues to support this rule and the underlying legislation that will keep Americans safer, uphold the rule of law and protect the private property rights of citizens. I encourage each of my colleagues to join me in supporting this rule and the three underlying bills.

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

Mr. Speaker, during the last few years, Members of Congress have spoken very plainly and openly to this administration about our thoughts and ideas and hopes and dreams, about how we can better protect not only this country and our borders but the rule of law, and this administration has been very open to hearing from Members of Congress about these thoughts and concerns.

Our next speaker is a gentleman who has engaged the administration, has talked about how important border initiatives are, to make sure that not only are we secure on our border but to make sure that we deal effectively and carefully with people who have come to this country, to make sure that they are safe, to make sure that they are not harmed in that process. If they have broken the law, they will take the full measure of law as it is given, but that we do so in a compassionate way.

Our next speaker is the chairman of the Rules Committee, the gentleman from California (Mr. Dreier), and I yield to him such time as he may consume.

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

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

Mr. Speaker, in the month of August, I had an opportunity with several other Members to go to Laredo, Texas, to visit our border to see the border operations and to see the things that were happening there. I had a chance to run across Texas Army National Guard personnel who were attempting to not only work but work successfully with Border Patrol and other Customs and Immigration enforcement personnel.

I wanted to draw attention to how important our National Guard has been from each of our States in protecting our borders, working on border security and doing those things that are necessary. This came as a result of a plan that happened with input from Congress, that happened through the great work that was done not only with the President but also with local Governors and people who are interested in doing this.

I had a chance to go with the Honorable Jo Bonner from Alabama down to Laredo. And both he and I together had a chance to see firsthand how the Army National Guard worked with Border Patrol. We went out that night to see firsthand their needs.

Mr. Speaker, that is what is in this bill, the ability that we have to protect our border, to provide the necessary resources, to make sure that our men and women who are with official law enforcement and also those who are with the Guard are able to make sure that this country is protected.

That is what is in this bill. I am proud of it. I am going to ask for everyone's vote for not only the rule but also the underlying legislation.

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

Mr. Speaker, here we are talking about the rule for Homeland Security, and yesterday, the Rules Committee had an opportunity to speak very plainly with the appropriators who were responsible for this Homeland Security appropriations bill. We spoke with them about several matters. One of them was about the air marine operation under the CBP, Customs and Border Protection.

I would like for my colleagues to know, who have joined me and others in the effort to talk about the air interdiction program that we have about drugs that come into this country, that this bill provides $600 million for their border and air space protection.

Secondly, we had an opportunity to talk about the fugitive operation teams that nationwide are gathered together under Customs and Border Protection to make sure that the apprehension of those people who are illegal aliens that are in our country here who are fugitives and who are dangerous are picked up and dealt with by our judicial system in this country.

Over and over and over, the things that we have talked about that were necessary and needed throughout the years are contained with funding in this bill. I am very happy to say that I am proud of what this administration has done by listening to us, and perhaps more importantly, our appropriators, like Hal Rogers who brought this bill, who listened and who have done something about it.

Mr. Speaker, I yield 5 minutes to the gentleman from Georgia (Mr. Gingrey).

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

Our previous speaker has just hit on probably one of the most important aspects of freedom in America, and that is the right of a person to be able to own property, the ability that we have to have our house to be our castle. Yet as we talk about the issue, I would like to add my dimension to it.

The bottom line is that we are engaged in this on behalf of people who own property, people who own property who have grown weary of having local government take their property without due compensation for the benefit of local government, and we are going to protect the private property owner. We believe private property rights are very important, and that is why we are getting engaged, because we have seen local communities do for their own best interest those things that they wanted to do by taking private property from a person.

We believe it is a simple part of what the Constitution is about. We believe that private property rights are important. I do understand the argument, and it is related to a person who cannot fight government even in their own local community when that is what government wants to do.

We are going to give a level playing field to those individuals because we believe that the individualist who owns his own property should have equal rights also, not just to be taken advantage of by local communities.

Mr. Speaker, that is also in this rule. We support the underlying legislation.

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

Mr. Speaker, I want to thank the gentleman for bringing this up as an issue, because I think, once again, it shows clearly the differences between our parties and the way we think about this.

It is true that the Republican Party would be accused of having a balanced approach not only to making sure that these chemical companies have taken care of their responsibility for security but making sure also that we protect the jobs that come with those and the security of the towns in which they are located in.

We heard the gentleman use words like stronger, tougher, harder and making it more difficult. Everything he talked about was to simply make it harder for these companies to operate in America. Tougher sanctions, more rules, more regulations and being tough on the chemical companies. Yes, we get it, run them out of town. Run them out of the country. Take the jobs and leave.

Mr. Speaker, we are not going to do that in this bill. We are going to bring a balance, a balance that says that these chemical companies are a natural asset to the United States of America. As a part of our ability not only to make sure that we can receive the things that we need, technology and these things which chemical companies provide, that make our lives better every day, we are not going to run them out of town and we are not going to run them out of the country.

They have a responsibility to make sure that their internal elements are safe and the controls they put in place are doing the right thing. They want to take care of their responsibilities, and we are going to make sure that that is balanced. So we are not going to allow the tougher sanctions, the tougher things that our friends on the other side of the aisle want to do. We are going to strike a balance, a balance for safety, a balance for comprehension that what we want is to make sure that they are good corporate citizens and that they look closely at where their own frailties exist.

That is why this bill is going to pass today, because we are not going to run them out of town. We are not going to speak from a position of weakness; we are going to speak from a position of strength. That is another one of the differences between the Republican Party. We are going to balance it out and do the right thing.

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

Mr. Speaker, I want to join my colleagues in thanking the

Honorable Martin Sabo for his service to this House and for his additions of the things he has brought forth in this legislation, not only working in a bipartisan basis but also his leadership on behalf of making sure that the next generation understands things like port security and other things which the gentleman has specialized in.

Mr. Speaker, I would also like to thank our Speaker, Dennis Hastert, and majority leader, John Boehner, for their vision and hard work to bring this bill forward today. They worked very closely with Chairman Hal Rogers and Chairman Jerry Lewis of the Appropriations Committee, Duncan Hunter of the Armed Services Committee, Chairman Jim Sensenbrenner of the Judiciary Committee, and certainly Steve Chabot of the Judiciary Committee.

This bill we bring forward today is a negotiated product, one where we have worked hard with not only members of the administration, but we have taken, as Members of Congress, trips to see our borders wherever they might be, the northern border or the southern border. We have our appropriators, who have taken time to understand the intricate details and the needs of this great Nation. We have engaged with the Department of Defense to talk about those things that will be necessary to protect our men and women on the battlefield. We have taken time to make sure that we have talked to our CIA, Central Intelligence Agency, about the way that they need to do business and those attributes about who they engage across the world and how we can treat fairly, yes, but treat properly those who would engage in killing Americans and bringing down reigning terror in our cities.

Mr. Speaker, I want to say that this underlying legislation is very important to America's learning lessons from the prior years and bringing those lessons to bear to protect this great Nation. We will speak from a position of strength, not fear. We will not worry about the things that we cannot get done but the things that we can get done. We will learn from our mistakes, and we will learn that, as terrorism in the 21st century evolves, we will, too. That is what these bills are all about.

I am proud of our country, and I say God bless America. Mr. Speaker, I ask for all the Members to support this bill.

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

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

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

Mr. Speaker, I thank the gentleman from Texas for yielding me this time.

Mr. Speaker, these are not the circumstances under which we should be considering this legislation. The bills before us deal with nothing less than the security of our homeland and the fundamental nature of our Nation. Our citizens deserve better than to have their elected representatives rush to pass all of these bills in one day, bills that say a great deal about who we are as a society and where we are headed as a country.

The Homeland Security Appropriations Conference Report and the Military Commissions Act before us are manifestations of how this country has chosen to respond to the challenges that confront us, challenges to our safety and our peace of mind.

Will we respond with flawed acts that undermine our economic vitality and sacrifice the very liberties we are theoretically fighting to protect? Or will we be measured in our response and do what is necessary to preserve our liberty from both threats abroad and the consequences of fear and mistrust here at home?

Mr. Speaker, this homeland security legislation means a great deal to my constituents in western New York and to the tens of millions of Americans who live in northern border communities throughout our country.

Our relationship with Canada is truly a unique one. Ours is the longest unguarded border in the world, a demonstration of the spirit of trust and openness shared by our two great nations. That spirit has produced and sustained a thriving cross-border tourism industry and hundreds of billions of dollars in trade between our two countries every year.

Border economies on both sides of the divide depend on that trade and tourism. So it would be shortsighted and self-destructive to permit a flawed border security plan to cut off such a lifeline. Unfortunately, the Western Hemisphere Travel Initiative, put forth with so much fanfare by the Department of Homeland Security and the Department of State, threatens to do just that. In the name of heightened security, this plan, if implemented in its current form, will mean that millions of tourists from both countries will stay home and businesses will stop shipping their goods across the border. In its current form, this plan is a disaster waiting to happen. And considering that Canada is our largest trading partner, we have no choice but to fix it before it is too late. And what we need first is an extension of the WHTI implementation deadline, which I am relieved to see is still in this bill. Backing up the implementation until June or at least January of 2009 will give us the time we need to fix this program where it is broken.

My colleague and good friend from New York Representative McHugh and I have fashioned a bipartisan, commonsense bill that will correct the most egregious failings of WHTI and make it work for our constituents instead of against them. The Protecting American Commerce and Travel Act, or PACT Act, has gained the support of a wide range of Representatives in this body. It will ensure border security while at the same time keeping it open to travel and trade. I urge all of my colleagues to consider and pass the PACT Act in the months ahead. We don't have to choose between economic security and physical security. We can and we must have both.

Mr. Speaker, the Western Hemisphere Travel Initiative was a flawed reaction to a perceived threat and today threatens the liberty and prosperity of our country more than those it supposedly protects us from.

In the same way, the Military Commissions Act before us represents a shocking assault on the fundamental

freedoms and liberties that we have been told we are fighting to defend. This bill will dramatically increase the President's right to detain men and women the world over and to hold them indefinitely without charge. What is more, it will serve as a backdoor legalization of all but the most brutal of interrogation methods, taking our Nation down a path that we have chastised so many other countries for following.

Yesterday in the Senate, my friend and New York delegation colleague, Senator Hillary Clinton, told a story about our country's first great military leader, a man who went on to become our first great political leader.

On Christmas Day in 1776, in the midst of the Revolutionary War, General George Washington launched a daring raid that culminated in the capture of numerous Hessian soldiers. They were foreign mercenaries known for their brutality and who were fighting for the British. Despite what they had done to American soldiers, he ordered his men to treat them humanely. He said, ``Let them have not reason to complain of our copying the brutal example of the British Army.''

George Washington, the man who so influenced our national consciousness, who was so deeply responsible for who we are as a people, wanted the world to know that the new American Army did not abuse its prisoners of war. He also wanted to do whatever he could to win the hearts and minds of the Hessians. If even one came to see the virtue of America and lay down his arms, that would be a victory in the fight for our Nation's freedom and independence.

Mr. Speaker, I think we have heard some of the best arguments against this bill from General Washington's successors: the men and women who have held top positions of responsibility in our Armed Forces. They have told us over and over again that if we ignore our country's longstanding commitment to the rules of war and international treaties like the Geneva Conventions, we will be putting our own soldiers and our own Nation at risk. Opening the door to detainee abuse and indefinite detention will make our soldiers more likely to be tortured and dehumanized so that they fall into enemy hands, and that means our own country will be less safe.

A world based on the rule of law is more safe, not less safe, than a world based on power alone. To argue that those who oppose this detainee bill want to let terrorists roam free is both wrong and illogical. Suspected terrorists who have evidence against them will be convicted by courts of law. They will stay behind bars. At the same time, a steadfast commitment to due process will both defend our most cherished freedoms and free the innocent from unwarranted punishment. Doing so will protect our liberty and deprive our enemies of one of the main tools that they are using to recruit their new followers.

We will show the world that the United States practices what it preaches about freedom and democracy and human dignity. We will bring others over to our side and make them less likely to take up arms against us.

There is a reason why Colin Powell recently warned us that the world is beginning to doubt the moral basis of our fight on terrorism. He said it because it is true and because such a reality is a truly dangerous one. What is more, humane interrogation methods will prevent us from chasing after ghosts, from following the fleeting leads of false confessions born not from knowledge but from desperation.

General Washington saw the value of a world based on law and principle over 200 years ago, and he saw it at a time when his fledgling Nation was truly in a fight for its very survival. And for us to pass a bill today that abandons some of the most fundamental principles of the civilization that we have sworn to defend would be an insult to all those who came before us, to all those who fought and struggled so that we could live free.

Mr. Speaker, it is such a respect for law and eternal principles that this administration and far too many in this Republican leadership lack. The proof lies in a provision of this bill which has received so little notice it is shameful but that is profoundly revealing about its true nature.

Ten years ago Congress passed a law called the War Crimes Act. Under that bill violating the Geneva Conventions is a crime in the United States. The administration argued that the Convention does not apply to enemy combatants, a term of its own invention. But the Supreme Court disagreed. In other words, the administration officials who have spent the last 5 years creating and directing our torture policy, as well as the government employees who have carried it out, could be liable for criminal prosecution for violating the War Crimes Act.

And so they have decided in this bill to go back in time to 1997 and to rewrite the War Crimes Act to make their actions legal. And that is exactly what this bill does. To call this strategy cynical and self- serving, Mr. Speaker, is an understatement. When President Bush signs this bill, he will be signing away any responsibility for the potentially criminal policies that he and those in his administration have enacted during the past 5 years. When he signs this bill, he will be signing a pardon for himself and for all other architects of these disastrous, self-defeating, and immoral policies.

But we have a choice here today. We can take a principled stand on behalf of the principles that make us great. We can choose to reject a future in which America can no longer honestly claim that it respects human rights, a future in which our own shortsighted, selfish, and immoral retreat into fear and suspicion has left us less safe and more isolated than ever before. We can choose to embrace our true nature and, in so doing, take a great step toward the creation of a world led by law and free from fear.

It is our choice, Mr. Speaker. And I implore all of my friends in this body, please, let us today make the right one.

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

Mr. Speaker, I yield 6 minutes to the gentleman from Minnesota (Mr. Sabo).

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

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

Mr. Speaker, I am pleased to yield 5\1/2\ minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I will use my remaining time to close, but, first, I wish to insert for the Record an editorial from this morning's New York Times called, ``More Comfort for the Comfortable.'' That is the way they describe the Private Property Rights Implementation Act. They say it is a deeply misguided giveaway for big real estate developers.

[From the New York Times, Sept. 29, 2006.]

More Comfort for the Comfortable

Congress, which has done so little this session to address

the nation's real problems, is expected to vote today on a

deeply misguided giveaway for big real estate developers. The

bill would create new property rights that could in many

cases make it difficult, if not impossible, for local

governments to stop property owners from using their land in

socially destructive ways. It should be defeated.

The Private Property Implementation Act would make it

easier for developers challenging zoning decisions to bypass

state courts and go to federal court, even if there was not a

legitimate federal constitutional question. Zoning

regulations are quintessentially local decisions. This bill

would cast this tradition aside, and involve the federal

government in issues like building density and lot sizes.

The bill would also make it easier for developers to sue

when zoning decisions diminished the value of their property.

Most zoning does that. Developers would make more money if

they could cram more houses on small lots, build skyscrapers

200 stories tall, or develop on endangered wetlands. The bill

would help developers claim monetary compensation for run-of-

the-mill zoning decisions on matters like these. It would

also make it easier for them to intimidate local zoning

authorities by threatening to run to federal court.

Zoning is not an attack on property rights. It is an

important government function, and most Americans appreciate

that it helps keep their own neighborhoods from becoming more

crowded, polluted and dangerous. If more people knew the

details of this bill, there would be wide opposition. As it

is, attorneys general from more than 30 states, of both

parties, have joined the U.S. Conference of Mayors, the

National Conference of State Legislatures and leading

environmental groups in opposing it.

The bill does a lot of things its supporters claim to

abhor. House Republicans were elected on a commitment to

states' rights and local autonomy, and opposition to

excessive litigation and meddling federal judges. It is

remarkable how quickly they have pushed these principles

aside to come to the aid of big developers.

Mr. Speaker, I will be asking Members to vote ``no'' on the previous question. If the previous question is defeated, I will offer an amendment to the rule to instruct the enrolling clerk to strike from the conference report several last-minute provisions that may compromise chemical plant security.

Mr. Speaker, I ask unanimous consent that the text of the amendment be printed in the Record immediately before the vote on the previous question.

Mr. Speaker, these provisions were not in either the House or Senate-passed versions of the Homeland Security bill. They were drafted in secret and slipped into the conference report without the input of any Democrats in the conference. Even worse, these provisions may make chemical facilities more vulnerable to security problems and not less.

When we talk about balance, I think Homeland Security was supposed to be about rules and regulations. The new language weakens the Homeland Security Secretary's ability to enforce chemical facility site security plans. It takes the authority away. It allows the Secretary to preempt tougher State laws to ensure chemical facility security, and it severely restricts the rights of citizens to take any legal action to enforce chemical facility security requirements. Securing our chemical plants is far too important to be compromised by a secretive and inadequate security plan.

I want to stress that a ``no'' vote on the previous question will not stop consideration of the conference report, but a ``no'' vote will allow the House to remove these inadequate and dangerous provisions. Again, please vote ``no'' on the previous question.

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

Mr. Speaker, I object to the vote on the grounds that a quorum is not present and make the point of order that a quorum is not present.

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

Mr. Speaker, I thank the gentleman for yielding.

I want to, first, thank the gentleman from Wisconsin for his leadership and his cosponsorship of this bill, also the 35 other cosponsors and the 234 Members of this body that voted for it. It passed just the other day by a margin of 60 votes. Now, it needed two- thirds, so that is the reason for our being here today. But there is really overwhelming support. I also want to thank the gentleman from Tennessee, Bart Gordon, for his leadership as well in support of this legislation.

Just to address a couple of the points that were made before I get into the bulk of my speech here, the gentleman from Michigan mentioned that this elevates property owners above all other constitutional rights and individuals who are trying to establish their constitutional rights. It doesn't do that at all. It puts them on the same level as other people who have a constitutional right that they are trying to enforce. And they should under existing law already have their constitutional rights. This is a fifth amendment right in the Bill of Rights. A person cannot have their property taken without just compensation, without due process of law, and this is just putting them on the same level with all the other constitutional rights that we enjoy in this country.

The gentleman from New York said that this is radical and dangerous. I would venture to say there aren't too many things that this side has tried to pass in the 12 years that I have served with the gentleman that the gentleman hasn't considered to be radical and dangerous, with some exceptions where we have been on the same side. But I think this is not radical nor is it dangerous.

I would be happy to yield to the gentleman from New York.

Reclaiming my time, Mr. Speaker, as I had indicated, there have been times when the gentleman has not said things we are doing are radical and dangerous, and I agree with that part of what we just talked about.

But the gentleman talks about this being only for big developers and not the little guy, so to speak. I would just note that H.R. 4772, this particular legislation, levels the playing field for small and middle- class property owners and retirees. The expense of bringing a Federal takings claim through the labyrinth of procedures in place today is disproportionately borne by private citizens who cannot draw on the public treasury to defend their rights. This bill, more than any big developer, helps small developers and the middle class, whose finances are particularly strained by the costs of defending their fifth amendment property rights.

This bill helps, for example, elderly retirees who may have all their savings tied up in their home that the government is trying to take away from them for whatever. When their home is unjustly taken by the government, the elderly should not have to spend 10 years paying for expensive lawyers to defend themselves in court. And that is what happens in communities all over this country right now. They should be allowed to go right to the Federal court and defend their federally protected property rights, and this bill would allow them to do just that.

On February 16 of this year, when I authored this, along with the gentleman from Tennessee (Mr. Gordon), this Private Property Rights Implementation Act, and I want to thank the gentleman, as I already did, we introduced this legislation as a result of recent Supreme Court decisions last term, Kelo and San Remo. They, quite frankly, ignored the constitutional rights of property owners.

The fifth amendment to the Constitution, as I stated before, states: No person shall be ``deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.'' And that is exactly what we are talking about remedying by this bill.

The House of Representatives acted to correct the Kelo decision by passing a bill, H.R. 4128, by a bipartisan vote of 376-38. Today, Congress has an opportunity to restore the rights taken away by the San Remo decision by passing this bill which will correct that decision.

Now, here is the problem. Strange as it sounds, under current law, property owners are now blocked from raising a Federal fifth amendment takings claim in Federal court. And here is why: The Supreme Court's 1985 decision in Williamson County v. Hamilton Bank requires property owners to pursue to the end all available remedies for just compensation in State court before the property owners can file suit in Federal court under the fifth amendment.

Then just last year, in the case of San Remo Hotel v. City and County of San Francisco, the Supreme Court held that once a property owner tries their case in State court, the property owner is prohibited from having their constitutional claim heard in Federal court, even though the property owner never wanted to be in State court with their Federal claim in the first place. The combination of these two rules means that those with Federal property rights claims are effectively shut out of the Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, such as those asserting free speech or freedom of religion or other rights that could be established under the Constitution.

The late Chief Justice Rehnquist commented directly on this unfairness, observing in his concurring opinion in San Remo that ``the Williamson County decision all but guarantees that claimants will be unable to utilize the Federal courts to enforce the fifth amendment's just compensation guarantee.'' The Second Circuit Court of Appeals has also stated that ``it is both ironic and unfair if the very procedure that the Supreme Court requires property owners to follow before bringing a fifth amendment takings claim, a State court takings action, also precluded them from ever bringing a fifth amendment takings claim in Federal court.

H.R. 4772, the Private Property Rights Implementation Act, will correct the unfair legal bind that catches all property owners in what amounts to a catch-22. This bill, which is based on Congress's clear authority to define the jurisdiction of the Federal courts and the appellate jurisdiction of the United States Supreme Court, would allow property owners raising Federal takings claims to have their cases decided in Federal court without first pursuing a wasteful and unnecessary litigation detour, and possibly a dead end, in State court.

H.R. 4772 would also remove another artificial barrier blocking property owners' access to Federal court. The Supreme Court's Williamson County decision also requires that before a case can be brought for review in Federal court, property owners must first obtain a final decision from the State government on what is an acceptable use of their land. This has created an incentive for regulatory agencies to avoid making a final decision at all by stringing out the process and thereby forever denying a property owner access to the court. Studies of takings cases in the 1990s indicate that it took property owners nearly a decade of litigation, which most property owners, let us face it, especially a small property owner, can't afford, before takings claims were ready to be heard on the merits in any court, whether it is State or Federal.

To prevent that unjust result, this bill would clarify when a final decision has been achieved and when the case is ready for Federal court review. Under this bill, if a land use application is reviewed by the relevant agency and rejected, a waiver is requested and denied, and an administrative appeal is also rejected, so they have gone through this long process, then a property owner can bring their Federal constitutional claim, and, again, this is a Federal constitutional claim, in a Federal court. The bill would not change the way agencies resolve disputes; rather, H.R. 4772 simply makes clear the steps the property owner must take to make their case ready for court review.

This bill also clarifies the rights of property owners raising certain types of constitutional claims in other ways.

First, it would clarify that conditions that are imposed upon a property owner before they can receive a development permit must be proportional to

the impact a development might have on the surrounding community.

Second, it would clarify that if property units are individually taxed under State law, then the adverse economic impact the regulation has on a piece of property should be measured by determining how much value the regulation has taken away from the individual lot affected, not the development as a whole.

Third, the bill would clarify that due process violations involving property rights should be found when the government has been found to have acted in an arbitrary and capricious manner.

This legislation also applies these same clarifications to cases in which the Federal Government is taking the private property. This legislation is endorsed by a number of organizations: the National Association of Homebuilders; the National Association of Realtors; the U.S. Chamber of Commerce; the National Federation of Independent Businesses, which is oftentimes small businesses, most of the time; the United States Farm Bureau; and the Property Rights Alliance.

Again, this legislation passed. A majority of more than 60 votes for this legislation, as opposed to against it just a couple of days ago.

Again, I want to thank the gentleman from Wisconsin (Mr. Sensenbrenner) for his leadership and also the gentleman from Tennessee (Mr. Gordon) for his leadership.

It is your time.

Mr. Speaker, I thank the gentleman for yielding. We have the same zoning laws that are in many other places around the country. There is an appeals process that we go through, and there is a three- step process under this particular legislation: You have to be denied. You have to then appeal. You have to go a third level. And if you lose at all of those, then the owner has the option to go to either State court or Federal court under this legislation, which seems perfectly reasonable.

Of course there are. We have various zoning boards. We have various agencies. We have the same basic things in our community that most of the other communities have. And I was on the community commission. We have appeals of all kinds of nature at all times.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, if the gentleman is bringing up statewide office holders in Ohio for credibility purposes, I think the gentleman should probably review the political situation in Ohio and some of the stature that some of those folks hold right now. If you are making an argument to support your side of the case, there are a number of them that are let's say not at the height of popularity as we speak here today.

But just to mention a couple of things that the gentleman touched upon, especially the environmental concerns, for example. There is nothing in this bill that would prohibit the protection of land for environmental, health and safety reasons.

However, if the land is so regulated as to deny the owner any use of it, then, yes, the owner needs to be paid just compensation. The fifth amendment does not have an exemption for environmental laws or any other laws. In fact, the best approach would be to purchase the land, possibly through eminent domain, rather than trying to pull a fast one and harm the property owner or take that person's property without just compensation.

The basic idea is that individual property owners should not bear all of the costs of protecting our communities. A few land owners should not have to sacrifice their own land and economic well being for the betterment of a town or a city; rather, the town should give them just compensation. That is what we are supposed to do in this society.

If we are taking it from a particular individual, and they cannot use their land as they want to see fit, the rest of us, through the appropriate way, should give them just compensation.

The fifth amendment should apply in all taking cases, and we should not be carving out exceptions when it comes to public health and safety, just like in the Kelo legislation we passed; we did not carve out exceptions for the private use of eminent domain because some property is not as desirable to the community at large. All property should be treated the same.

And if there is public health or environmental needs to take the land, owners should be compensated for its taking. There are limits to what the government can do. And that limit is called the Bill of Rights. When the government takes private property, owners must be fairly compensated for their land.

Mr. Speaker, I thank the gentleman for yielding. I just make two quick points.

The gentleman from Oregon disparages the reputation of the gentleman who testified at the committee, Mr. Trauth, who was an attorney, on the types of cases that he takes. I would just note that I oftentimes agree with people who come and testify, disagree. They are lawyers. They represent various sides.

I yield to the gentleman from Oregon.

Reclaiming my time, I happen to know that he also represents people that are at lower income levels that maybe are having their houses taken away by somebody. As all lawyers do, they represent a whole range of cases.

And the other gentleman from Washington talked about how awful this legislation the Republicans are trying to pass is. I would just note to the gentleman that there were 37 Democrats that voted for this legislation just the other day.

I thank the gentleman for yielding.

Mr. Speaker, will the gentleman yield?

I agree that this is not directly related to Kelo, although there is, I think in many people's minds, some connection, and I think rightfully so.