Restoring the Constitution Act of 2007

Madam President, will the Senator yield for a question?

I had the distinct pleasure of visiting Carrollton, AL, in Pickens County, where they have a museum to maintain the history of a large German prisoner of war camp in the United States. The Senator mentioned that certain legal rights were accorded 50 or so prisoners. But those were prisoners tried in Nuremberg after the war--after the war--for war crimes.

Now, is the Senator aware of any instance in either the German camps or other prisoners who may have been held in the United States during wartime being provided habeas rights?

Madam President, I wish to thank Senator Kyl for his hard work on these important issues. He is a superb lawyer who is a senior member of the Judiciary Committee, on which I serve, and he has been a member of the Intelligence Committee. He understands these issues and, thanklessly, he devotes hours of his time to try to research and study Supreme Court cases to try to make sure we do the right thing here.

The most important thing for us to remember is this, and Senator Kyl just said it, that the refrain we are hearing about restoring habeas rights to prisoners of war, even unlawful combatant detainees, is not so. We have not done that, and it is a matter that is quite clear.

The origin of the great writ--the writ of habeas corpus--can be traced back to the Magna Carta in the 13th century. It is truly a great writ. It is truly a powerful tool for any person who is being detained to demand that someone, somewhere come forward and tell the world why they are being detained. That is what totalitarian and Communist governments do all the time. These kinds of dictators and Communists and Nazis go out and grab people and put them in jail and never charge them, never announce where they are, even. So that is not what we want to do here. However, never in the history of the writ's existence has an English or American court granted habeas to enemy combatants held during a time of war. As early as 1793, the American courts--1793-- recognized that foreign prisoners held by the military during armed conflict have no inherent right to judicial review of their detention. They have no inherent right to that. You do have an inherent right by writ of habeas corpus if you qualify and meet the criteria.

So that year, in 1793, a district court in Pennsylvania said:

Courts will not grant a habeas corpus in the case of a

prisoner of war because such a decision on this question is

in another place being a part of the rights of sovereignty.

In other words, national power.

The Supreme Court of the United States reaffirmed that position in 1950 in a case called Johnson v. Eisentrager. In that case, the Supreme Court made expressly clear that U.S. constitutional protections do not apply to aliens who are detained outside the borders. It was the first case to deal with a habeas petition of enemy combatants detained outside the borders of the United States since the statute was originally enacted as part or the Judiciary Act of 1789. It is now codified as 28 U.S.C. Section 2241.

In that case, German nationals living in China during World War II, having never lived in the United States, were accused of violating the laws of war. They were tried by a U.S. military tribunal in China, convicted, and sent to Landsberg Prison in Germany, then an occupied sector of Germany, to serve their sentences. Some of the convicts, including Eisentrager, questioned the legality of their trials and filed for a writ of habeas corpus to the United States District Court for the District of Columbia, right here in DC, stating that the military's actions violated their rights as guaranteed by several portions of the U.S. Constitution, including article III of the fifth amendment. In denying habeas to these German nationals, the court expressly rejected the argument that enemy combatants detained overseas have a constitutional right to petition U.S. courts for habeas relief, noting that:

Nothing in the text of our constitution extends such a

right.

It rejected the view that the U.S. Constitution applies to enemy war prisoners held abroad. The court claimed:

No decision of this court supports such a view. None of the

learned commentators on our Constitution has ever hinted at

it. The practice of every modern government is opposed to it.

Where do we keep coming up with this idea that habeas is applicable to prisoners of war? I am baffled. The Court explained emphatically that such a constitutional entitlement would hamper the war effort and bring aid and comfort to the enemy.

Habeas proceedings would diminish the prestige of our

commanders, not only with enemies but with wavering neutrals.

It would be difficult to devise a more effective fettering of

a field commander than to allow the very enemies he is

ordered to reduce to submission to call him to account in his

own civil courts and divert his efforts and attention from

the military offensive abroad to the legal defensive at home.

That is a pretty clear statement. How could it be otherwise? Congress authorizes a state of hostilities. We fund it. The President, as the Commander in Chief, the military commanders execute it, and now we have it in our heads somehow that the persons

our commanders are charged with reducing to submission have a right to sue us.

The Court further held--this is in 1950--that the fifth amendment is inapplicable to aliens abroad and, in reasoning fully applicable to the suspension clause, explained ``extraterritorial application of organic law'' to aliens would be inconceivable.

Writing for the majority, Justice Jackson, who was referred to by Senator Dodd and Senator Kyl--a great Justice on the Court--stated:

The Constitution does not confer a right of personal

security or an immunity from military trial and punishment

upon an alien enemy engaged in the hostile service of a

government at war with the United States.

That is pretty plain language, wouldn't you say? I think that is the plain language of the Constitution. It does not give them immunity from military trial.

Even if, as opponents mistakenly argue, this amendment restores a statutory right to habeas, the Supreme Court has also held that Congress may freely repeal habeas jurisdiction if it affords an adequate and effective substitute or remedy. Essentially, if legislation strips habeas, according to the Supreme Court, the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention, does not constitute a suspension of the right of habeas corpus. In other words, if they provide some fair procedure for even prisoners of war that we decide is consistent with our military efforts and consistent with our sense of fairness, that does not confer and give a guaranteed right to a habeas corpus review.

The Military Commission Act of 2006 was drafted with these important Supreme Court precedents in mind. After careful negotiation among our Members and careful analysis of the Supreme Court's decision in Hamdan v. Rumsfeld, Congress went above and beyond what was required by the Constitution and the Geneva Conventions to ensure detainees, even terrorists, at Guantanamo Bay, had an adequate and effective substitute method to test the legality of their detention.

So we did that. We did not fail to respond. We did that. The MCA provides alien enemy combatants far more legal process than has ever been afforded by any country in the history of armed conflict.

I am not aware of a single country in the history of armed conflict that has provided more rights than our procedures that we have established under the Military Act that we passed and the President signed into law last October.

The Combatant Status Review Tribunal for detainees is more robust than those to which lawful combatants, honorable soldiers in organized militaries of a foreign nation, are entitled to under the Geneva Conventions.

Let me repeat that and drive home the importance of that concept. The Geneva Conventions were decided upon by a group of nations that came together and thought that during the course of military conflicts, too many things happened that are not justified and are not necessary and are damaging to people in ways that could not be justified. We wrote the conventions, the nations did, to try to ameliorate some of the problems in warfare. We said that if you have a lawful combatant, as part of the Geneva Conventions, a person who has signed up for his or her country, fighting for the country, who wears a uniform, who carries his weapons openly and does not act in a surreptitious manner, does not act in a terroristic manner but fight battles according to the laws of war--if captured, must be treated and afforded the protections of the Geneva Conventions.

That is a good standard of review and protection. Congress passed a law to provide for the people at Guantanamo, who are not lawful combatants but are unlawful enemy combatants and who have not historically been considered to have been covered by the Geneva Convention. We afforded them privileges that are not required even under the Geneva Conventions on how you handle detainees.

Let's talk about our present conflict, the war on terrorism. Former Attorney General John Ashcroft has made this point. If you think about it, it is worthy of our consideration. John Ashcroft is a great believer in American liberty, the rights of liberty, a key characteristic of the American people. But he points out we ought not to think about restraints that occur as some sort of a balancing test between liberty and control and domination. He says, when you engage in an action that is designed to protect us, the test should be not a balancing test, but the test should be: Does it improve liberty? In other words, if you go to the airport and have to go through one of those checking stations as I did today, the question is: Do you feel more free to fly, having had that inspection occur? Is your liberty to travel, is your liberty to fly safely and securely in an aircraft in America, enhanced because you take a couple of minutes to go through that line? Or not?

If it is, then that is a protection of liberty. We are indeed in a different world than we used to be, when threats fundamentally came from foreign nations. Now, even a few people with dedicated, malicious intent, with modern weapons of mass destruction and death can have tremendous impact on us. So what we are trying to do is execute lawful actions that improve our liberty, not deny liberty but to enhance liberty for all peace-loving and law-abiding American citizens.

I want to talk about Hamdi v. Rumsfeld. As part of the Judiciary Act of 1789, Congress conferred on the Federal courts jurisdiction to hear petitions for habeas corpus. Though the language has gone through minor changes since 1789, current law, now codified at 28 U.S.C. section 2241, is essentially the same grant of habeas corpus as originally enacted. The statutory language has never referred specifically to enemy combatants because such a grant was understood not to apply to those individuals detained during a time of war. Congress understood that detention of enemy combatants during time of war is strictly a military decision, since we do not allow enemy combatants to continue their war against us through the judiciary, through litigation.

Though the Supreme Court has repeatedly held that habeas corpus does not extend to alien enemy combatants detained outside the United States, some argue that Justice O'Connor's plurality decision in Hamdi v. Rumsfeld changed this precedent. In that decision, Justice O'Connor said:

All agree that, absent suspension, habeas corpus remains

available to every individual within the United States.

Proponents of this amendment that we are debating cite this statement by Justice O'Connor as proof that habeas relief is available to all those detained within the United States, regardless of whether they are an alien enemy combatant. Let me note that during World War II, there were 425,000 enemy combatants held within the United States, none of who were allowed relief through habeas petitions. Furthermore, reliance on that statement by Justice O'Connor is wrong, since the question in Hamdi was whether the executive had the authority to detain a U.S. citizen as an enemy combatant and whether that citizen detainee had habeas rights. Focusing on that narrow issue, the plurality referred specifically to the rights, in their opinion, the plurality opinion, of citizens, eight times in the opinion; and in the holding of the case-- and the holding of the case is limited to the circumstances of the cases itself--Hamdi was, after all, a U.S. citizen.

Regardless, some advocates maintain that Justice O'Connor's otherwise inconsequential statement, too tenuous to constitute dicta, reversed years of settled precedent and for the first time granted habeas rights to illegal enemy combatants detained overseas. That proposition flies in the face of the commonsense interpretive rule that one does not hide elephants in mouseholes. Had the Hamdi Court intended to extend habeas rights to all individuals in the United States, not just citizens, including suspected foreign terrorists detained outside U.S. territory, it most assuredly would have articulated such a consequential ruling with more clarity. But Hamdi did not present that question and the Court did not resolve it. Moreover, as the Court aptly noted, quoting Eisentrager:

Such extraterritorial application of organic law would have

been so significant an innovation in the practice of

government that, if intended or apprehended, it could

scarcely have failed to excite contemporary comment.

Accordingly, had such a consequential holding been made in Eisentrager, it would have been met with prolific commentary from the legal community, from other Justices. It would have been an event, but that event did not occur--because it had no such meaning, of course, as evidenced by the lack of contemporary discussion. No decision subsequent to Eisentrager has reversed its holding that alien enemy combatants have no right to habeas protections guaranteed to American citizens by the U.S. Constitution.

Therefore, its holding remains governing law. Moreover, the issue now, if it ever could have been considered ambiguous, has been definitively resolved by the same judge who earlier granted Salim Ahmed Hamdan's habeas petition. Judge James Robertson, of the U.S. District Court for the District of Columbia, issued an opinion on December 13 in which he relied, in large part, on Eisentrager to justify his ruling that enemy alien combatants have no constitutional right to habeas corpus.

Judge Robertson, appointed to the bench by President Clinton, dismissed Hamdan's petition for habeas relief on the grounds that the MCA effectively denied his court's jurisdiction to hear the case; recognizing that Congress had removed Hamdan's statutory right to petition the D.C. Circuit Court for habeas relief.

Judge Robertson also held:

Hamdan's connection to the United States lacked the

geographical and volitional predicates necessary to claim a

Constitutional right to habeas corpus.

Well, then, the Rasul case came along. Proponents of this amendment argue that they seek only to restore the right to habeas corpus as found by the Supreme Court in the 2004 case of Rasul v. Bush. Rasul took great pains to emphasize that its extension of habeas to Guantanamo Bay was based not on the Constitution, which clearly is a historic right we talked about on habeas, but it was based on some statute passed by Congress.

Some Justices may have wanted to make Rasul a constitutional holding, but there clearly was no majority for such a position. Supreme Court cases such as Eisentrager are still the governing law on the constitutional reach of habeas and the Congress's ability to limit its statutory application.

These precedents hold that aliens who are either held abroad or held here but who have no substantial connection to this country are not entitled to invoke the U.S. Constitution.

Rasul was an unprecedented decision which effectively and truthfully seemed to fly in the face of all previous Supreme Court and English case law. Several Justices in this case engaged in what I would submit to my colleagues is activism.

The Court extended the reach of the Federal habeas statute to Guantanamo Bay detainees. To my knowledge, this decision was the first time in recorded history that any court of any nation at war held that those whom its military had determined to be enemies had a right of access to its domestic courts and could sue the Commander in Chief to challenge their detention.

The Court based its analysis on the phrase, ``within their respective jurisdictions,'' as used in the Federal habeas statute and various decisions construing that particular provision.

Moreover, the Court expressly distinguished between the statutory and suspension clause holdings of Eisentrager and limited its analysis to only the statutory grant of habeas. The Court determined that the measure of the Guantanamo lease agreement between the United States and Cuba allows for the jurisdiction of habeas claims since the United States exercises plenary and exclusive jurisdiction over the land on which the naval base is situated, although it does not have ``ultimate authority.''

Furthermore, the majority, I think and others think, mischaracterized the congressional statute as meaning that the writ of habeas corpus could be issued if ``the custodian can be reached by service of process'' and not the detainee.

As Justice Scalia accurately pointed out in his dissent, the majority:

springs a trap on the executive, subjecting Guantanamo Bay to

the oversight of the Federal courts even though it has never

before been thought to be within their jurisdictions and thus

making it a foolish place to have housed alien wartime

detainees.''

Furthermore, the decision opens a veritable Pandora's Box since it ``permits an alien captured in a foreign theater of active combat to bring a section 2241 petition against the Secretary of Defense.''

This case was a clear-cut example of, I believe, Supreme Court overreach. They seemed determined to do something about this. They wanted to do something about it. Apparently, they did not like it. So in straining to grant U.S. courts jurisdiction over terrorists held outside the United States, the Supreme Court determined, for the first time in history, that a simple lease agreement brought Guantanamo Bay within the jurisdiction of the court.

Read broadly, the majority opinion could be used to bring U.S. military bases and detention facilities across the world within the jurisdiction of the U.S. courts. Fortunately, in that opinion, Justice Kennedy did limit the application of the holding to Guantanamo Bay, Cuba.

Congress, however, addressed the issue because, remember, this was based on the Supreme Court's interpretation of a statute Congress passed and which Congress changed, not on the Constitution ratified by the American people.

So less than a year ago, Congress addressed the issue when it passed the Military Commissions Act, which precluded detainees from challenging their detention through habeas petitions.

Now, if the Court relied on the statute as we wrote it before, we can change that statute, and we did. In doing so, Congress adhered to Supreme Court precedent and created an effective and adequate substitute in the form of a Combatant Status Review Tribunals and allowing detainees an opportunity to challenge the determinations made by the tribunals, even in the district court in the District of Columbia.

So it set up a Combatant Status Review Tribunal so they can bring and make their argument, and if they do not like the military's determination on that, they can get to a Federal court. That is not habeas, but it is a pretty good procedure, more than ever has been given before to prisoners of war. So it seems we finally worked this thing out.

On February 20 of this year, the DC Circuit Court dismissed all pending habeas cases from the Guantanamo Bay detainees for lack of jurisdiction. Furthermore, on April 2 of this year, the Supreme Court denied a certiorari petition from the petitioners in Boumediene v. Bush and Al Odah v. United States, refusing to review their claims that the Military Commissions Act--that last year we passed--does not deprive courts of jurisdiction to hear their habeas corpus claims and that it would be unconstitutional to do so, for Congress to pass it. They rejected that.

The Court did not find it was unconstitutional, what Congress passed, and, in fact, found that Congress did what Congress intended to do, creating a substitute appellate process so prisoners could have a review of their detention but not give them the full panoply of habeas corpus rights provided to American citizens.

The Supreme Court, however, reversed itself on June 29 of this year and agreed to review both the Boumediene and Al Odah cases. This review could very well address the constitutionality of the habeas bars in the Military Commissions Act, and, much like this amendment, further undermine the executive's constitutional authority to detain enemy combatants in a time of war.

I hope the Supreme Court will not do that, but they have agreed to hear that case and give it one more final review. Certainly, as of this date, the case authority is clear, that the Constitution does not provide habeas protection to noncitizen enemy combatants on foreign territory not part of the United States.

I say that because people have come in on several points along the way and accused President Bush or the Attorney General or others of taking improper positions.

In most instances, the courts have ruled in favor of the executive in these cases, on a few cases they found those procedures not to be statutory or pass muster. But what I will say to you is, in these cases, in almost each instance

they have reversed previous law. So the executive branch and our military was operating under what they had every right to consider to be the settled law of the land.

So the Court comes in and changes that law. I do not believe our military should be condemned or criticized for taking action they felt, and had every right to believe, was legitimate when they took it.

Now, it is important to remember that the detainees at Guantanamo Bay are the most dangerous people who we have captured on the battlefield pursuant to executive war-making power. They have been determined to be ``alien enemy combatants'' and the courts have absolutely no role to play, in my view, in trying to second-guess the wartime decisions made by the executive branch, especially where Congress has given their stamp of approval to the process. It is not the Supreme Court's role to micromanage this war by making decisions that fall outside the scope of congressional authority.

The decisions made by the Supreme Court have long-lasting effect and are not easily undone. If we are unhappy with present foreign policy, Congress can cut off funds for the war or people can vote the President out of office. I would note President Bush was reelected on a promise to continue to pursue with vigor the war against terrorism and the war in Iraq.

Supreme Court Justices are appointed for life and are supposed to adjudicate the constitutionality of laws passed by Congress, not to legislate from the bench or to set foreign policy. This setting of foreign policy and conducting military operations are powers squarely within the purview of the executive branch not nine individuals with lifetime appointments sitting on a Court with black robes.

It is not within the court's jurisdiction to decide on war-making decisions but simply the constitutional power. It is important to note the Justices lack the knowledge, in many cases, to address the matter, or have any experience to make these decisions. Have any of them ever served on the frontlines during war, or if they have, have they ever served in a war on terrorism or been a JAG officer or been a company commander, someone who captured enemy prisoners?

A Court's opinion or personal views about this are not a matter that is impressive to me. We expect them to rule and to find Congress's statutes--we expect them to enforce the Constitution. But just to flip- flop around and try to decide that they do not like the way something is done at Guantanamo, and to issue an opinion, would be troubling to me. Hopefully, we will not get to that.

It has to be clear, as I have shown, that if we apprehend enemy combatants in the theater of war, it is within the executive branch's power to detain them until the hostilities are over. This is a separation of powers issue, and the courts should recognize that. Congress has already addressed what should be done with those detained at Guantanamo Bay. Last October, we granted those detainees unprecedented rights that have never before been provided to prisoners detained during war.

Under the current system that we have provided them, detainees have essentially five layers of protection when challenging detention or determinations made by the Government. All of this is already covered by current law. It was never the intent of Congress, however, to endow the statutory guarantee of habeas corpus to alien enemy combatants held during a time of war.

So if we proceed with the amendment that is before us, we are not restoring the right of habeas corpus; we are effectively overturning 800 years of legal authority and precedent in this area. To quote the distinguished ranking member of the Judiciary Committee, I submit that 800 years of American and English court history certainly constitutes ``super duper'' precedent.

Allowing terrorists to challenge their detention through habeas petitions filed in the DC Circuit courts would undermine military decisions made by the Executive and essentially put wartime decisions regarding the detention of those apprehended while engaged in hostilities toward this country in the hands of judges who are not qualified to make the decisions. They are not empowered to make the decisions. This is exactly why the Founders vested the Executive with this type of decisionmaking authority--decisiveness and ability to act quickly--and to undermine this power would be to trample on the Constitution we are sworn to defend.

Voting in favor of this amendment would be undermining the Executive authority in times of war by making it virtually impossible for the military to detain dangerous terrorists affiliated with al-Qaida and with the Taliban during the war on terror and allowing Federal judges to force the release of detainees whom the military have determined to be extremely dangerous. It is just that simple.

I am disappointed the Senate is proceeding forward with this amendment. I do not believe it is the right thing. It would result in an unprecedented grant of constitutional protection to those suspected of being terrorists.

This further indicates to me that our Congress is not in full comprehension of the seriousness of the war we are engaged in and the determination of those who are determined to kill us. It shows this body is, frankly, often unable to execute a military operation. We cannot get 535 people to execute a military operation and decide who ought to be detained and who ought not to.

The military could go out and conduct a raid, and a firefight could break out, and eight people be killed and eight people captured. Thirty seconds before, they could have killed all 16. Now, if we detain them, we have to bring soldiers from the war field, present evidence of some kind, gather evidence to try to justify the detention. We all know quite a large number of those who have been released from Guantanamo have reappeared and been captured again on the battlefield trying to kill us. That is a fact. We are not making that up.

I wish these people in Guantanamo were the kind of people who would not go back to the battle. I wish they were all wrongly held so we could let them go home. But what if their determination is to continue to attack American soldiers, and it is your son out there, your daughter out there on the battlefield, and somebody says in the U.S. Congress, ``We don't think you have enough evidence to hold them''? What do we know about what happened?

We have given that power to the executive branch to conduct the war. That is who is supposed to be making those decisions. That is who is required to preserve and protect the security of the American people. I do not think that makes sense. It is not a little matter. It will set a precedent for future times. We are eroding the ability of the leadership of this country to execute and carry out a military operation, which by its very nature involves death and destruction of an enemy.

So I have to say to my colleagues, we need to think this issue through. This may be a political deal now that we can use to beat up President Bush, but let me say to my colleagues, you had your victory in the last election, if not in 2004. We will have a new President soon. We need to get away from this personal and political perspective. We need to be thinking about the long-term history of the United States. We need to be thinking about other wars we may be involved in in the future. We need to be asking ourselves: Are we creating a circumstance in which a devious, skillful, malicious enemy can utilize our very laws to destroy us, place at risk our own soldiers, place at risk American citizens, place at risk our people serving in military bases around the world?

Let's be careful about that. We have provided them, by statute last year, a procedure to contest their detention. Large numbers of those who have been detained have already been released, and quite a number of those have been recaptured on the battlefield attempting to destroy America and what we stand for, attacking our own sons and daughters.

I urge my colleagues to be careful. To say we need to restore the right of habeas corpus is not correct. We have never provided habeas corpus to enemies of the United States, for heaven's sake. I share again the overall concept that we are in a difficult new world. The Constitution provides for reasonable searches and seizures and such things as that.

Our country is threatened, and our people's liberties are threatened. Liberty is important. Freedom is important. We in Congress do not need to be curtailing significantly liberty in America. We certainly do not need to be eroding constitutional protections that are provided to American citizens. We are not doing that. The Supreme Court has never held the Constitution provides protection in this fashion to enemy combatants. So we are not eroding the Constitution.

What we have come up with is a realistic process that will, in the end, provide more liberty, more freedom to American citizens than if we were subjected to a system by which we are releasing terrorists again and again who are out to kill and destroy us. That is all I would say on the fundamental question of liberty and freedom and law.

Let's get our thinking straight. Let's look at this issue carefully. Let's be sure we know that no country has ever provided such protections to enemy combatants. The fact that 50 out of 400,000 German prisoners who were tried after the war in Nuremberg had certain legal provisions and rights provided them in no way whatsoever should be construed to say we provided habeas rights to other prisoners during the course of a war. They were not provided to the 400,000 German prisoners held in the United States, that is for sure.

Mr. President, I thank the Chair and yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I understand some effort is being made to pursue the amendment offered by Senator Specter, which is very troubling to me because if it were to pass, it would reverse the Military Commissions Act of 2006 that we passed last September on final passage, 65 to 34. Passage of this amendment would result in a veto of the Defense authorization bill by the President of the United States.

The first amendment we have up that is being pushed to a vote against the pleas of people on this side would result in a veto of the Defense authorization bill. The second amendment may well raise the same issue, I understand. Not only that, we have very controversial amendments that are being made filed to this bill and that have been offered for a vote on this bill which are very controversial and are not related to the defense of America--for example, the hate crimes amendment. People have differing views on that. They have offered an amendment on hate crimes on this bill. There is also the amendment on the DREAM Act, which is an immigration amendment that would provide citizenship to people who come here in our education system at a certain age, and even though they are illegally in the country, they would be provided in-state tuition and student loans subsidized by the Federal Government. That is a very controversial matter too. So that is all going to be put on this piece of legislation, apparently.

It raises questions in my mind whether there is any serious desire on the part of the Democratic leadership to see the Defense authorization bill passed. The bill came out of the Armed Services Committee, of which I am a member, and it didn't have the reversal of the Military Commissions Act of 2006 and the grant of habeas corpus to illegal enemy combatants, noncitizens on foreign soil. It didn't have that or hate crimes or the DREAM Act.

I just say to my colleagues that we need to do the right thing for our soldiers, sailors, airmen, marines, and guardsmen who are serving our Nation now. They are in the field this very moment. They are out walking the streets somewhere in Iraq--160,000 of them--executing this very complex and very important and, so far, effective counterinsurgency strategy that was devised by General Petraeus. They are living with Iraqi soldiers and Iraqi police and doing the things they were asked to do. This bill has a pay raise for them and wounded warrior language that provides additional care for those who are wounded while serving our country. We owe them every single benefit we have to give them. We have military construction to make sure we are able to carry through on the BRAC process. It has acquisition reform. We need to do a better job with the money we spend in acquiring new weapons systems and aircraft and ships and all the things that go with it.

I just say to my colleagues, let's remember now that everything is not required to be placed on this bill. If we pass this amendment to provide habeas corpus protection to illegal enemy combatants, not citizens, not on American soil, not required by the Constitution of the United States, according to decided case authority of Federal courts, that is going to result in a Presidential veto even if it passes. Hopefully, we won't pass that. Why do we want to do that? We need to be spending our time thinking about how we can help those whom we have sent into harm's way to execute a policy that has been decided upon by the Congress of the United States. That is what we need to be doing-- not creating more and more lawsuits, not engaging in more and more political flapdoodle and emotional arguments about restoring habeas corpus, when we have never provided habeas to prisoners of war in the history of the Republic, nor has any other advanced nation provided those kinds of rights.

I urge my colleagues to push back from this brink. Let's don't take action that could result in the failure of a defense authorization bill. It would be the first time we have failed to pass a defense authorization bill since 1961, 46 years ago. Let's don't break that record while we have soldiers in harm's way serving our national interests, attempting to execute the policies and assignments we have given to them. Let's don't do that. Let's don't pass a bill that is going to come back like a ball off of the wall because it will be vetoed by the President. What good is that? Why are we obsessed with this? It wasn't passed in the Armed Services Committee, and it doesn't need to be pushed now.

I urge my colleagues to become fully aware of the dangerous territory which we are entering. We are entering a circumstance in which, if we continue to pursue issues unrelated to the core responsibilities of the Congress to deal with the war we are confronting, we will have failed in our responsibilities and actually fail to pass this important legislation.

In addition, we need to finish up with the Defense bill and go on to the Defense appropriations bill. The fiscal year ends September 30. We need to pass the Defense authorization bill so that we can get to the Defense appropriations bill by next week. That needs to move. We do not need to still be arguing over the DREAM Act, arguing over hate crimes, arguing over providing habeas corpus rights to illegal enemy combatants held somewhere around the world by the American military, a privilege that has never been provided by any nation to people it captures on the battlefield. That is not the right way for us to go. This Congress, if it is a responsible Congress, should move forward this week on the authorization bill and do the appropriations bill next week.

What are the core issues? We have some core issues we ought to debate about the defense of America and our military. Let's stay on those issues, not on extraneous issues.

There is no doubt that we have heard the report of GEN Jimmy Jones's commission, the Government Accountability Office report the week before last, and then last week we heard from General Petraeus and Ambassador Crocker. We need to have time to discuss seriously--and this side has certainly agreed to that and it is contemplated that we will have a generous time to discuss our commitment in Iraq, what it is, what our goals are, how we can achieve those goals, what the troop levels should be, how they are going to be drawn down, are they being drawn down fast enough, and what other issues are relevant. Those are legitimate issues on which we should spend time.

I am very concerned these other issues will be distracting us from those issues, that we will be utilizing time that ought to be on the core issues of

defense of this country, and I hope those leaders, particularly our Democratic leadership, are not going to put us in a position where we will not meet our responsibilities.

For the past 46 years, we have passed a Defense authorization bill. At the rate we are headed, even if we pass it, it is going to be vetoed because of amendments wholly unrelated to the Defense of this country. We need to pass a Defense appropriations bill, and we need to get on that quickly because the fiscal year is ending. For my colleagues' information, we are going to have to do something to continue to fund defense because if we do not pass a Defense authorization bill, the fact is that no money can be spent in the whole Department of Defense unless we are being attacked. It is very troubling, and it could have tremendous disruptive impacts throughout the entirety of our defense establishment.

Under the Antideficiency Act, if Congress does not appropriate money, the executive branch cannot spend it. It cannot spend what has not been appropriated. That is the Constitution, and that is what the Antideficiency Act says. The budget and last year's appropriations end September 30. We need to pass a new bill so we can go forward into next year.

We have a pretty good bill that came out of committee. There will be some disagreement here, there, and on a few other matters. We will bring those up, and good people will disagree. I certainly understand that point. We need to be working on those issues, not being distracted on matters unrelated to the core of defending America in this time of terrorism.

I share those thoughts and hopefully our colleagues in the leadership can continue to work and some way we can avoid the end toward which it appears we are heading.

I yield the floor and suggest the absence of a quorum.

Mr. President, I thank the chairman and Senator Warner. Let me read a portion of a letter from the Department of Justice first, and I will include it for the Record at the conclusion of its reading. This letter is addressed to Chairman Pat Leahy of the Judiciary Committee. It begins by saying--it is dated June 6 of this year.

This letter presents the views of the Department of Justice

on S. 185, the ``Habeas Corpus Restoration Act of 2007,'' as

introduced in the U.S. Senate. If enacted, S. 185 would

remove the habeas corpus restrictions included in the

``Military Commissions Act of 2006.''

After a full and open debate, a bipartisan majority of Congress passed the MCA just last fall. The MCA's restrictions on habeas corpus codified important and constitutional limits on captured enemies' access to our courts. The DC Circuit upheld MCA's habeas restrictions in--the name of the case is Boumediene v. Bush--I will omit the citation--decided in 2007.

The provision of S. 185 that seeks to remove these

important limits ignores their history and their role in

protecting our Nation's security. As the Supreme Court

recognized in Johnson v. Eisentrager, a 1950 case, the

extension of habeas corpus to alien combatants captured

abroad ``would hamper the war effort and bring aid and

comfort to the enemy,'' and the Constitution requires no such

thing. The United States already provides alien enemy

combatants detained at Guantanamo Bay, Cuba, with an

unprecedented degree of process, which includes judicial

review of decisions regarding their detention before the

Federal appeals court in Washington, DC. Repealing the MCA's

limitations on habeas would simply burden our courts with

duplicative and unnecessary litigation. For this reason, and

because repeal of the MCA's habeas provisions would delay and

disrupt the vital work of bringing enemy combatants to

justice, the President's senior advisors would recommend that

he veto S. 185 if the bill is presented to him for signature.

There is more of the letter, but I will submit it for the Record at this point.

I note that the amendment offered by Senator Leahy is virtually the same, if not the same, as the bill introduced. I am presuming that the President's senior advisers would, as a result, also recommend a veto of the bill if it included this provision.

Now, the Defense authorization bill is extraordinarily important to our troops. To add a totally extraneous provision amending a different bill to the Defense authorization bill, especially one which carries the suggestion of a Presidential veto, would be the height of irresponsibility on the part of the Senate. The substantive arguments of the Department of Justice with respect to habeas are correct, and the Senate should not, therefore, seek to amend another statute in the Defense authorization bill, thus inviting a veto of the bill.

Related to the habeas corpus provision is the amendment that is now pending offered by Senator Graham of

South Carolina. That amendment would strike a provision of the Defense authorization bill--section 1023--that also relates to the subject of treatment of detainees. Unfortunately, the way the committee bill was written, the bill that is before us right now, if we retain that language and we don't strike it, as the Graham amendment would do, we would essentially be returning to a law enforcement approach to terrorists that, frankly, failed us before 9/11 and obviously does not work in the post-9/11 context. We can't deal with all of the enemy combatants as criminal defendants. These people who are picked up on the battlefields of Iraq and Afghanistan cannot be dealt with in the same way as criminal defendants in our court system. Senator Graham's amendment would strike these harmful provisions of the bill.

I wish to begin by reminding my colleagues of the evil nature of these terrorists and then go through the three particular parts of this provision that require removal.

First, a requirement that al-Qaida terrorists held in Iraq and Afghanistan be given lawyers--I mean, just imagine that; second, the authorization to demand discovery and compel testimony from servicemembers; and third, the requirement that al-Qaida and Taliban detainees be provided access to classified evidence. To state these three provisions of the bill is to recognize immediately why it is so harmful that they be included in this bill and why they need to be stricken, but focus for just a moment on the people we are talking about held at Guantanamo Bay and picked up in Iraq and Afghanistan.

At least 30 of the detainees released already from Guantanamo Bay have since returned to waging war against the United States and our allies. Of course, the provisions of section 21 are all designed to effectuate the release of some of these prisoners--some of these detainees. So 30 have already been released because we no longer deemed them to be a threat to the United States or our forces, but after their release, 12 of the released detainees have been killed in battle by U.S. forces or--well, by U.S. forces; others have been captured. In other words, we released them, they went right back to the battlefield, 12 of them have been killed in battle, others have been recaptured, 2 released detainees became regional commanders for Taliban forces, and 1 attacked U.S. and allies' soldiers in Afghanistan, killing 3 Afghan soldiers.

One released detainee killed an Afghan judge. One released detainee led a terrorist attack on a hotel in Pakistan and a kidnapping raid that resulted in the death of a Chinese civilian, and this former detainee recently told Pakistani journalists that he planned to ``fight America and its allies until the very end.''

Even under the procedures today, which give due process to these detainees and allow them to be released if we can no longer demonstrate they are a threat to U.S. forces--even under these provisions, at least 30 of the detainees have gone right back to the battlefield and are attacking us and our forces.

The provisions of section 1023 would make it very difficult, if not impossible, for the United States to detain committed terrorists such as this, people who have been captured while waging war against us. No nation in the history of armed conflict has imposed the kinds of limits this bill would impose on its ability to detain enemy war prisoners. War prisoners released in the middle of an ongoing conflict, such as members of al-Qaida, will return to waging war. That is the whole point of prisoners of war. In the war you capture people and hold them so they cannot return to the battlefield to kill your troops. We have already seen this happen 30 times with the detainees released from Guantanamo, as I said.

If section 1023 were to be enacted, we could expect more civilians and Afghans and Iraqis will be killed, and it may be inevitable that even our own soldiers will be killed by such released terrorists. This is a price our Nation should not be forced to bear.

I mentioned three specific general problems with section 1023. The first has to do with a requirement of the bill that al-Qaida terrorists who are held in Iraq and Afghanistan must be provided with lawyers. I cannot imagine that the details of this were known to the members of the committee when they put it into the bill. This could never be executed. It would require the release of the detainees; either they get lawyers or they have to be released. And here is why. The Defense bill requires that counsel be provided and trials be conducted for all unlawful enemy combatants held by the United States, including, for example, al-Qaida members captured and detained in Iraq and Afghanistan, if they are held for 2 years. We hold approximately 800 prisoners in Afghanistan and tens of thousands in Iraq. None are lawful combatants; all would arguably be entitled to a lawyer and a trial under this bill. This procedure would at least require a military judge, a prosecutor, and a defense attorney, as well as other legal professionals.

This scheme is totally unrealistic. The entire Army JAG Corps only consists of about 1,500 officers, and each is busy with their current duties. Moreover, under the bill, each detainee would be permitted to retain private or volunteer counsel. Our agreements with the Iraqi Government bar the United States from transferring Iraqi detainees out of Iraq. As a result, the bill would require the United States to train, transport, house, and protect potentially thousands, or tens of thousands, of private lawyers in the middle of a war zone during ongoing hostilities. That is impossible.

Think about this in the context of other conflicts, not just in Iraq or Afghanistan. In the context of World War II, anybody hearing this would think it is nuts. But the bill before us literally requires us to provide attorneys to these captured detainees in Iraq--tens of thousands of them. This proposal would likely force the United States to release thousands of these enemy combatants in Iraq, as I said, because there is no way you could provide all of the lawyers to them. Obviously, that would further jeopardize our military. By requiring a trial for each detainee, this provision would also require U.S. soldiers to offer statements to criminal investigators, needing later to prove their case after they captured someone. In other words, unlike today, when you are on the battlefield and you capture somebody and you hold them because they are a threat, but you are not putting them on trial, now you are going to put them on trial and you have to have the kind of evidence that would stand up in court. You have watched the TV shows with the clever defense lawyers. You know about, ``I object, Your Honor; that is not relevant,'' or ``that is hearsay.'' On the battlefield, who walks around with lawyers making sure Miranda rights are read and evidence is collected and statements are taken that will hold up in court when they are later tried? And they would need to carry evidence kits and cameras, means of identifying the person later on. Two years after you capture someone, the defense lawyer could say: Is that the person you captured? And if he says, ``Well, those guys all kind of looked alike to me when they were shooting at me, so I cannot be sure,'' well, the case will get thrown out of court. Or was there a chain of custody of the evidence? You would have to do that with the evidence taken on the battlefield or it would be thrown out in court. They would need to spend hours after each trial writing after-action reports, which would need to be reviewed by commanders. Valuable time, in other words, would be taken from combat operations and soldiers' rest whenever they capture somebody on the battlefield.

A horrible precedent would be set for the future. Aside from the war in Iraq, this provision would make fighting a major war in the future simply impossible. In World War II, we detained over 2 million enemy prisoners of war. It would have been impossible for the United States to have conducted a trial and provided counsel to 2 million captured enemy combatants. The bottom line, with respect to this provision, section 1023, the requirement of counsel for these detainees held in Iraq and Afghanistan, is that it would be impossible to implement. It is patently absurd and, as a result, it should be stricken.

The second point is authorizing al-Qaida detainees to demand discovery and compel testimony from American soldiers. I alluded to that a second ago. The underlying bill would actually authorize unlawful enemy combatants, including al-Qaida detainees in Iraq and Afghanistan, to demand discovery

and compel testimony from witnesses, just as we do in our criminal courts in the United States. These witnesses would all be the U.S. soldiers who captured the prisoner. Under the bill, an American soldier could literally be recalled from his unit at the whim of an al-Qaida terrorist in order to be cross-examined by him, or his lawyer, or a judge.

Newspaper columnist Stuart Taylor describes the questions such a right would raise:

Should a Marine sergeant be pulled out of combat in

Afghanistan to testify at a detention hearing about when,

where, how, and why he had captured the detainee? What if the

northern alliance or some other ally made the capture? Should

the military be ordered to deliver high-level al-Qaida

prisoners to be cross-examined by other detainees and their

lawyers?

It goes on and on. The questions abound. As the Supreme Court itself observed in Johnson v. Eisenstrager, which is the law on this subject:

It would be difficult to devise a more effective fettering

of a field commander than to allow the very enemies he is

ordered to reduce to submission to call him to account in his

own civil court and divert his efforts and attention from the

military offensive abroad to the legal defensive at home.

This is the U.S. Supreme Court talking not long after World War II, when a question similar to this arose, and a Justice of the Supreme Court says it ``would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him into account in his own civil court and divert his efforts and attention from the military offensive abroad to the legal defensive at home.''

It would be difficult to conceive of a process that would be more insulting to our soldiers.

In addition, many al-Qaida members captured in Afghanistan were captured by special operators whose identities are kept secret for obvious reasons. This would force them to reveal themselves to al-Qaida members and expose themselves, or simply forgo the prosecution of the individual, which is obviously more likely to happen. You simply could not do all of this, so you would have to forgo the prosecution and release the prisoner.

Clearly, Americans should not be subject to subpoena by al-Qaida. Think about that. That brings me to the last point--the requirement that al-Qaida and Taliban detainees be provided with access to classified evidence. You would have to give the enemy your classified evidence, the sources and methods of your intelligence operations, in order to prosecute them, which is what would be required by the bill.

Here is the exact language. The bill requires that detainees be provided with ``a sufficiently specific substitute of classified evidence'' and that detainees' private lawyers be given access to all relevant classified evidence.

When this bill was brought up in the Senate, some Members questioned whether this bill requires us to share classified information with al- Qaida detainees and their lawyers. I will direct this to specific pages and lines of the bill to show what it does.

On page 305, lines 16 through 21, the bill expressly provides that ``the detainee'' must be provided--I am quoting now--access to a ``sufficiently specific'' summary of ``the classified evidence that is submitted against the detainee.'' This language appears to mirror the Classified Information Procedures Act rules that apply to the use of classified information in Federal courts. Like CIPA, these procedures give a detainee a right to the substance of classified evidence. The Government might be able to redact some names or other information, but only if it still gives the detainee the substance of the evidence. And if the United States is not willing to compromise the evidence in this way, it cannot use the evidence.

Similarly, at page 305, line 5, the bill expressly requires that under its provisions, ``counsel for the detainee is provided access to the relevant classified evidence.'' I don't know how you can be any more specific than that. His lawyer gets to see relevant classified evidence.

Foreign and domestic intelligence agencies are already very hesitant to divulge classified evidence to the CSRT hearings we already conduct. These are part of the internal and nonadversarial military process today. Intelligence agencies will inevitably refuse to provide sensitive evidence to detainees and their lawyers. They will not risk compromising such information for the sake of detaining one individual terrorist.

In addition, the United States already has tenuous relations with some of the foreign governments, particularly in the Middle East, that have been our best sources of information about groups such as al- Qaida. If we give detainees a legal right to access such information, these foreign governments would simply, I presume, shut off all further supply of information to the United States. Why would they do otherwise? They don't want to expose their own sources, compromise their evidence, or expose even the fact that they have cooperated with the United States. By exposing our cooperation with these governments, the bill perversely applies a sort of ``stop snitching'' policy toward our Middle Eastern allies, which is likely to be as ruthlessly effective as when applied to criminal street gangs to potential witnesses to a crime in the United States.

Some of our best information is gained from foreign intelligence services who, like us, are trying to find out everything they can about these terrorists. Once they know we have to turn the information they gave us over to the terrorists, they are going to stop cooperating with us.

The argument I presented--that sharing classified evidence with al- Qaida detainees and their lawyers would badly damage America's efforts in the war with al-Qaida--was recently reinforced by several declarations that were recently introduced in the ongoing Bismullah litigation. These declarations were filed by the Director of National Intelligence, the Director of the CIA, and by the Director of the Federal Bureau of Investigation, our three top intelligence agencies. Together, these statements confirm that sharing classified information with detainees and their lawyers would not only inevitably lead to leaks of sensitive information, but that it would violate American intelligence agencies' agreements with foreign governments and with confidential human sources--violations that would inevitably undermine these organizations and individuals' willingness to cooperate with the United States in the future.

The final point is that we already know, from hard experience, that providing classified and other sensitive information to al-Qaida members is a bad idea. During the 1995 Federal prosecution in New York of the ``blind sheikh,'' Omar Rahman, prosecutors turned over the names of 200 unindicted coconspirators to the defense. They were required to do so under the civilian criminal justice system of discovery rules, which require that large amounts of evidence be turned over to the defense. The judge warned the defense that the information could only be used to prepare for trial and not for other purposes. Nevertheless, within 10 days of being turned over to the defense, the information found its way to Sudan and into the hands of Osama bin Laden. As the district judge who presided over the case said, ``That list was in downtown Khartoum within 10 days, and bin Laden was aware within 10 days that the Government was on his trail.''

That is what happens when you provide classified information in this context.

In another case tried in the civilian criminal justice system, testimony about the use of cell phones tipped off terrorists as to how the Government was monitoring their networks. According to the judge, ``There was a piece of innocuous testimony about the delivery of a battery for a cell phone.'' This testimony alerted terrorists to the Government surveillance and, as a result, their communication network shut down within days and intelligence was lost to the Government forever--intelligence that might have prevented who knows what.

This particular section of the bill, 1023, repeats the mistakes of the past. Treating the war with al-Qaida similar to a criminal justice investigation would force the United States to choose between compromising information that could be used to prevent further terrorist attacks on one hand and on the other letting captured terrorists go free. As I said before, this is not a choice our Nation should be required to make.

Let me read a couple of the quotations I alluded to earlier from the

Director of the Central Intelligence Agency, GEN Michael Hayden, relative to the damage that would be caused by requiring this classified information to be turned over to the defendant or his lawyers:

. . . [M]uch of the information that is potentially

discoverable was provided to the CIA by foreign intelligence

services or discloses the specific assistance provided by the

CIA's global partners in the global war on terror. If the CIA

is compelled to comply with the Court's decision, the CIA

will be obligated to inform its foreign liaison partners that

a court order requires that the CIA provide this information

to the Court and detainee counsel. There is a high

probability that certainly liaison services will decrease

their cooperation with the CIA because of the extent that

their information has become enmeshed in U.S. legal

proceedings. . . .

He goes on:

[S]ome information discoverable under the Court's decision

originated with, or pertains to, clandestine human

intelligence sources. These individuals provide information

or assistance to the CIA only upon the condition of absolute

and lasting secrecy. Revealing this information--even to the

Court or to cleared counsel--would expressly violate these

agreements, and would irreparably harm the CIA's ability to

utilize current sources and to recruit sources in the future.

. . .

Let me read one other comment from General Hayden, the Director of the CIA:

. . . With over 300 detainees at Guantanamo Bay, Cuba, it

appears that compliance with the Court's decision will

require disclosure to several hundred--perhaps more than one

thousand--private attorneys who are not employees of the U.S.

Government and who are not trained in handling classified

information. With so many untrained individuals allowed

access to such sensitive information, I believe that

unauthorized disclosures, even if inadvertent, are not only

probable, but inevitable. The regulations controlling access

to classified information recognize that limiting the number

of people with access is a necessary step in safeguarding

sensitive information. The Court's decision would eviscerate

the U.S. Government's carefully conceived plan to keep its

most highly sensitive information compartmentalized and would

increase the likelihood of public disclosure.

I quote a comment from Robert Mueller, the Director of the Federal Bureau of Investigation, in his affidavit to the court in the case I mentioned:

Disseminating human source information could reasonably

lead to the disclosure of their identities because often the

information provided by human sources is singular in nature.

In other words, he is the only person who knows about it, so when the information is divulged, then the other side knows exactly where it came from.

Back to Director Mueller:

The disclosure of singular information could endanger the

life of the source or his/her family or friends, or cause the

source to suffer physical or economic harm or ostracism

within the community. These consequences, and the inability

of the FBI to protect the identities of its human sources,

would make it exceptionally more difficult for the FBI and

other U.S. intelligence agencies to recruit human sources in

the future.

These are the kinds of irreparable harm that would result if the language of section 1023 remains in the bill. Not my words, but Director Mueller of the FBI, General Hayden, the Director of the CIA, and now I quote from the Director of National Intelligence, Michael McConnell. Admiral McConnell had this to say:

. . . [T]he Intelligence Community has many sources of

information that must be protected. For example, much of the

information at issue was provided by foreign intelligence

services or would reveal the specific assistance provided by

foreign partners in the global war on terror. Certain liaison

services will likely decrease their cooperation with the U.S.

Government if their information is caught up in U.S. court

proceedings.

One final comment.

. . . Human sources also provide the Intelligence

Community with critical information, but only upon the

condition of absolute secrecy. Revealing this information

would violate the sources of confidentiality we provide these

sources and would likely result in their minimizing or

ceasing altogether their cooperation. Such a disclosure would

harm the Intelligence Community's ability to retain current

sources and recruit new ones, and if we cannot recruit and

retain sources, the Intelligence Community simply cannot

conduct its business.

That is the point of Senator Graham's amendment to strike these provisions from the bill. They would irreparably harm our intelligence collection capability, which is the first defense against these terrorists. That is why the Graham amendment striking section 1023 should be adopted.

We have already bent over backward to provide the detainees at Guantanamo the ability to contest their detention and to have their detention reviewed and eventually even have it reviewed in the U.S. Supreme Court, and before that the Circuit Court of Appeals.

This is a very fair system, more fair than has ever been provided by any other nation in any other circumstance and more than our Constitution requires. So we are treating the people we capture in a very fair way.

What we cannot do is to take those same kinds of protections and apply them anywhere we capture someone in the foreign theater. And as I said before, never in the history of warfare have they been subjected to the criminal justice system of our country. To take that system and try to transport it to the fields of Afghanistan and Iraq would obviously not only be breaking precedent but is a horrible idea for all the reasons I indicated.

I ask my colleagues to give careful attention to the dangerous return to the pre-9/11 notion that these terrorists are, after all, only common criminals and we have to treat them that way. They have made no secret that they are actually at war with us, and we ignore this point at our peril.

I remind my colleagues that the Statement of Administration Policy on this bill says the President will be advised to veto the bill if section 1023 remains in the bill and refer again to a similar statement from the Department of Justice with respect to the habeas corpus provisions that would be added to the bill in the amendment of Senator Leahy.

I hope my colleagues will take all of this information into account when they consider voting on these amendments in this very important Defense authorization bill which we need to pass and the President will want to sign so we can do what is necessary to support our troops whom we have sent into harm's way.

I urge my colleagues to support the Graham amendment to strike section 1023 and not to support the additional habeas corpus rights to terrorists who attack our troops.

Madam President, I, too, wanted to echo the comments of the distinguished Senator from Connecticut. I am sure Senator Warner will be recognized many times between now and the time he finally takes his last vote in this Chamber, and as he pointed out, he has a long way to go before that time comes over the course of the next several months. But so many of us respect what he has done over the years as ranking member and chairman of the Armed Services Committee, and his work will, in fact, be greatly recognized.

Madam President, I wish to make one quick point in response to what the Senator from Connecticut pointed out, recalling his very famous father, somebody who served in this body and served our Nation well in other capacities, including at Nuremberg, and his friend, Justice Jackson, the same Justice Jackson whom I quoted.

The Senator wasn't on the floor, but I quoted Justice Jackson in the Eisentrager case to point out that nothing could fetter our commanders more than to require habeas corpus rights for the German prisoners of war or the prisoners who were at issue in the Johnson v. Eisentrager case. Justice Jackson himself recognized that the procedures that were awarded to the 50-some war criminals at Nuremberg were not the same kinds of procedures that were being sought in the Eisentrager case. And the habeas corpus rights that would be granted under the Leahy amendment are far different from the rights that were granted to the Nuremberg war crimes defendants.

I think one question that would be interesting to ask of the proponents of the legislation is, if we simply took the rights that were granted to the war criminals tried at Nuremberg and gave those rights to the detainees at issue here, would that be a satisfactory result? I suspect the answer would be no because they are nowhere near the rights that would be included in the amendment that is pending.

So to cite Justice Jackson is to refer back to what he said in Eisentrager and recognize that nothing, according to him--and I agree-- would more fetter our commanders and our troops than granting habeas rights to prisoners or enemy detainees.

Madam President, I might make one further point. I am trying to recall how many defendants there were at Nuremberg. My recollection of the number tried for war crimes is that there were approximately 50. I may be off by a few on that number, but I think my point would still remain, which is that it is one thing to try 50 war criminals out of over 2 million POWs, and it is quite another to grant all 2 million the rights of war criminals. We have tried some of the detainees as the equivalent of war criminals in our courts--Padilla is one of them--but that is not to say we should hold the same criminal trials for all of the tens of thousands of detainees being held in Iraq or Afghanistan.

I will yield, yes.

Madam President, that is a great question, and the answer is that there have never been, in the history of the world, habeas rights granted to enemy detainees or prisoners of war in order to challenge the fact of their detention by either the United States or by the other country from which the great writ came--England. They have never been granted. So the answer is there is no precedent whatsoever. That is why, when colleagues say we want to restore habeas rights, that is an incorrect characterization. Enemy combatants and POWs have never had habeas rights to challenge their detention as a matter of being provided by our Constitution. Never has our Constitution been interpreted as requiring those rights.

I yield the floor.

Mr. President, today I introduce the Water Resources Planning and Modernization Act of 2007. I am pleased to be joined in introducing this legislation by the senior Senator from Arizona, Mr. McCain. We have worked together for some time to modernize the U.S. Army Corps of Engineers and I thank Senator McCain for his continued commitment to this issue.

I was pleased that the Senate made significant progress last Congress and included many key reforms in the Senate-passed Water Resources Development Act. I again thank my colleagues who cosponsored a successful independent peer review amendment: the Senator from Delaware, Mr. Carper; the Senator from Connecticut, Mr. Lieberman; the former Senator from Vermont, Mr. Jeffords; and the Senators from Maine, Ms. Collins and Ms. Snowe. I also want to acknowledge the Senator from California, Mrs. Boxer, for her support for this amendment. In addition, I appreciate the efforts to include reform provisions in the underlying bill by the then-Environment and Public Works Committee Chairs and Ranking Members: the former Senator from Vermont, Mr. Jeffords; the Senator from Montana, Mr. Baucus; the Senator from Oklahoma, Mr. Inhofe; and the Senator from Missouri, Mr. Bond. After six years of efforts on this issue, we made significant progress. However, negotiations between the House and Senate stalled and no conference report was agreed to.

By introducing this bill today, I am renewing my efforts to ensure that the Corps of Engineers' water resources planning is brought into the 21st century. As we all know, Hurricane Katrina produced one of the most tragic and costly natural disasters in our Nation's history. Water resources projects authorized by Congress and planned by the Corps of Engineers contributed to the loss of vital coastal wetlands (which can provide natural buffers from storm surge), intensified the storm surge into New Orleans, and encouraged development in flood-prone areas.

The flawed project planning, however, did not end there. Floodwalls and levees that the Corps built to protect New Orleans failed catastrophically during Hurricane Katrina. It is now well recognized and indeed, the Corps has acknowledged--that flawed engineering and construction led to those failures and the flooding of much of New Orleans.

Over the past decade, dozens of governmental and scientific studies have documented other flaws in Corps of Engineers' project planning. Most recently, the Government Accountability Office (GAO) testified that recent Corps studies ``did not provide a reasonable basis for decision-making'' because they were ``were fraught with errors, mistakes, and miscalculations, and used invalid assumptions and outdated data.'' The GAO found that the recurring problems at the agency were ``systemic in nature and therefore prevalent throughout the Corps' Civil Works portfolio.''

We can, and must, do better.

Congress should not authorize additional Army Corps projects until it has considered and passed the reforms included in the Water Resources Planning and Modernization Act. From ensuring large projects are sound to using natural resources to protect our communities, modernizing water resources policy is a national priority.

The Water Resources Planning and Modernization Act of 2007 represents a sensible effort to increase our environmental stewardship and significantly reduce the government waste inherent in poorly designed or low priority U.S. Army Corps of Engineers projects. It represents a way to both protect the environment and save taxpayer dollars. With support from Taxpayers for Common Sense Action, National Taxpayers Union, Council for Citizens Against Government Waste, American Rivers, Association of State Wetland Managers, Defenders of Wildlife, Earthjustice, Environmental Defense, Friends of the Earth, National Wildlife Federation, Republicans for Environmental Protection, Sierra Club, Surfrider Foundation, and the World Wildlife Fund, the bill has the backing of a committed and diverse coalition.

The Water Resources Planning and Modernization Act of 2007 can be broadly divided into five parts: ensuring sound projects and responsible spending, valuing our natural resources, focusing our resources, identifying vulnerabilities, and updating the Army Corps of Engineer's planning guidelines.

To ensure that Corps water resources projects are sound, the bill requires independent review of those projects estimated to cost over $40 million, those requested by a Governor of an affected state, those which the head of a federal agency has determined may lead to a significant adverse impact, or those that the Secretary of the Army has found to be controversial. As crafted in the bill, independent review should not increase the length of time required for project planning but would protect the public--both those in the vicinity of massive projects and those whose tax dollars are funding projects. The Director of Independent Review can also require independent review of the technical designs and construction of flood damage reduction projects to ensure public safety and welfare. The independent review provision is identical to that supported by a majority of my colleagues last Congress and included in the Senate-passed WRDA.

We must do a better job of valuing our natural resources, such as wetlands, that provide important services. These resources can help buffer communities from storms, filter contaminants out of our water, support vibrant economies, and provide vital fish and wildlife habitat. Recognizing the role

of these natural systems, the Water Resources Planning and Modernization Act of 2007 brings the Corps' 1986 mitigation standards into line with their regulatory program by requiring Corps water resources projects to meet the same mitigation standard that is required of all private citizens and other entities under the Clean Water Act. Where States have adopted stronger mitigation standards, the Corps must meet those standards. I feel very strongly that the Federal government should be able to live up to this requirement. Unfortunately, all too often, the Corps has not completed required mitigation. This legislation will make sure that mitigation is completed, that the true costs of mitigation are accounted for in Corps projects, and that the public is able to track the progress of mitigation projects.

Our current prioritization process is not serving the public good. To address this problem, the bill reinvigorates the Water Resources Council, originally established in 1965, and charges it with providing Congress a prioritized list of authorized water resource projects within one year of enactment and then every two years following. The prioritized list would also be printed in the Federal Register for the public to see. The Water Resources Council described in the bill, comprised of cabinet-level officials, would bring together varied perspectives to shape a list of national needs. In short, the prioritization process would be improved to make sure Congress has the tools to more wisely invest limited resources while also increasing public transparency in decision making--both needed and reasonable improvements to the status quo.

Taking stock of our vulnerabilities to natural disasters must also be a priority. For this reason, the bill also directs the Water Resources Council to identify and report to Congress on the nation's vulnerability to flood and related storm damage, including the risk to human life and property, and relative risks to different regions of the country. The Water Resources Council would also recommend improvements to the nation's various flood damage reduction programs to better address those risks. Many of these improvements were discussed in a government report following the 1993 floods so the building blocks are available; we just need to update the assessment. Then, of course, we must actually take action based on the assessment. To help speed such action, the legislation specifies that the Administration will submit a response to Congress, including legislative proposals to implement the recommendations, on the Water Resources Council report no later than 90 days after the report has been made public. We cannot afford to have this report, which will outline improvements to our flood damage reduction programs, languish like others before it.

The process by which the Army Corps of Engineers analyzes water projects should undergo periodic revision. Unfortunately, the Corps' principles and guidelines, which bind the planning process, have not been updated since 1983. This is why the bill requires that the Water Resources Council work in coordination with the National Academy of Sciences to propose periodic revisions to the Corps' planning principles and guidelines, regulations, and circulars. Updating the project planning process should involve consideration of a variety of issues, including the use of modern economic analysis and the same discount rates as used by all other Federal agencies. Simple steps such as these will lead to more precise estimates of project costs and benefits, a first step to considering whether a project should move forward.

Modernizing all aspects of our water resources policy will help restore credibility to a Federal agency historically rocked by scandal and currently plagued by public skepticism. Congress has long used the Army Corps of Engineers to facilitate favored pork-barrel projects, while periodically expressing a desire to change its ways. Back in 1836, a House Ways and Means Committee report referred to Congress ensuring that the Corps sought ``actual reform, in the further prosecution of public works.'' Over 150 years later, the need for actual reform is stronger than ever.

My office has strong working relationships with the Detroit, Rock Island, and St. Paul District Offices that service Wisconsin, and I do not want this bill to be misconstrued as reflecting on the work of those district offices. What I do want is the fiscal and management cloud over the entire Army Corps to dissipate so that the Corps can better contribute to our environment and our economy--without wasting taxpayer dollars or endangering public safety.

I wish the changes we are proposing today were not needed, but unfortunately that is not the case. In fact, if there were ever a need for the bill, it is now. We must make sure that future Corps projects produce predicted benefits, are in furtherance of national priorities, and do not have negative environmental impacts. This bill gives the Corps the tools it needs to do a better job and focuses the attention of Congress on national needs, which is what the American taxpayers and the environment deserve.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to cosponsor the Restoring the Constitution Act of 2007, which was introduced today by Senator Dodd. It amends the deeply flawed Military Commissions Act of 2006 to restore basic due process rights and to ensure that no person is subject to indefinite detention without charge based on the sole discretion of the President.

Let me be clear: I welcome efforts to bring terrorists to justice. This administration has for too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.

Last year, the President agreed to consult with Congress on the makeup of military commissions only because he was essentially ordered to do so by the Supreme Court in the Hamdan decision. Congress should have taken that opportunity to pass legislation that would allow these trials to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, would have had the potential to demonstrate to the world that our democratic, constitutional system of government is not a hindrance but a source of strength in fighting those who attacked us.

Instead, we passed the Military Commissions Act, legislation that violates the basic principles and values of our constitutional system of government. It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity for them to challenge their detention in court. And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death.

The checks and balances of our system of government and the fundamental fairness of the American people and legal system are among our greatest strengths in the fight against terrorism. I was deeply disappointed that Congress enacted the Military Commissions Act. The day that bill became law was a stain on our Nation's history.

It is time to undo the harm caused by that legislation.

The Restoring the Constitution Act amends the Military Commissions Act to remedy its most serious flaws, and I am pleased to support it.

First of all, this legislation would restore the great writ of habeas corpus, to ensure that detainees at Guantanamo Bay and elsewhere-- people who have been held for years but have not

been tried or even charged with any crime--have the ability to challenge their detention in court. Senator Dodd's bill would repeal the habeas stripping provisions of both the Military Commissions Act and the Detainee Treatment Act.

Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

As a group of retired judges wrote to Congress last year, habeas corpus ``safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully.''

The Military Commissions Act fundamentally altered that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it eliminated the right of habeas corpus.

Under the Military Commissions Act, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial, without due process, without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation. Under the Dodd bill, we would not have to wait. We would restore the right to habeas corpus now. We can provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice, without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.

Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular--the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless it can be said with absolute certainty that every person detained as an enemy combatant was correctly detained--and there is ample evidence to suggest that is not the case-- then we should make sure that people can't simply be locked up forever, without court review, based on someone slapping a ``terrorist'' label on them.

We must return to the great writ. We must be true to our Nation's proud traditions and principles by restoring the writ of habeas corpus, by making clear that we do not permit our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.

But the Restoring the Constitution Act does far more than restore habeas corpus. It also addresses who can be subject to trial by military commission.

The Military Commissions Act was justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men transferred to Guantanamo Bay in 2006. Yet if you look at the fine print of that legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of planning the September 11 attacks, but also individuals, including legal permanent residents of this country, who are alleged to have ``purposefully and materially supported hostilities'' against the United States or its allies.

This is extremely broad. And by including hostilities not only against the United States but also against its allies, the Military Commissions Act allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.

Not only that, but the Military Commissions Act would also define as an unlawful enemy combatant subject to trial by military commission, anyone who ``has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.'' This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.

Senator Dodd's bill makes clear that the President cannot unilaterally decide who is eligible for trial by military commission. Under the Dodd bill, in order to be tried by military commission, an individual must have directly participated in hostilities against the United States in a zone of active combat, or have been involved in the September 11 attacks, and cannot be a lawful enemy combatant.

Senator Dodd's bill also addresses the structure and process of the military commissions themselves. It ensures that these military commission procedures hew closely to the long-established military system of justice, as recommended by countless witnesses at congressional hearings last summer.

Some examples of the ways in which the Dodd bill improves the military commission procedures include: It prevents the use of evidence in court gained through torture or coercion. It ensures that any evidence seized within the United States without a search warrant cannot be introduced as evidence. It empowers military judges to exclude hearsay evidence they deem to be unreliable. It authorizes the existing U.S. Court of Appeals for the Armed Forces to review decisions by military commissions, rather than the newly created ``Court of Military Commission Review,'' whose members would be appointed by the Secretary of Defense. And it provides for expedited judicial review of the Military Commissions Act to determine the constitutionally of its provisions before anyone is tried by military commission, so that we will not face even more delays in the future.

Many of these provisions were included in the bill passed by the Senate Armed Services Committee in September 2006, but then stripped out or altered in backroom negotiations with the Administration. The bill also improves changes to the War Crimes Act and emphasizes the importance of compliance with the Geneva Conventions.

In sum, Senator Dodd's legislation addresses many of the most troubling and legally suspect provisions of the Military Commissions Act. Congress would be wise to make these changes now, rather than wait around while the Military Commissions Act is subject to further legal challenge, and another 4 or 5 years are squandered while cases work their way through the courts again.

In closing let me quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: ``Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him.'' How sad that Congress passed legislation about which the same cannot be said. We can and must undo this mistake.

Mr. President, I rise today to introduce the Restoring the Constitution Act of 2007--a bill to provide for the effective prosecution of terrorists and guarantee due process rights. I am pleased to be joined by Senators Leahy, Feingold, and Menendez as original cosponsors. This bill would make significant important changes to the Military Commissions Act of 2006 which became law last October.

I have served in this body for more than a quarter-century, but I remember few days darker than September 28, 2006, the day the Senate passed President Bush's Military Commissions Act. Let me be honest with you, I believe this body gave in to fear that day. I believe we looked for refuge in the rule of men, when we should have trusted in the rule of law.

Restoring the Constitution Act of 2007 is more than mere tinkering with provisions of the Military Commissions Act. This legislation, which is similar to the bill that I introduced in the last Congress, makes major and important changes to that law in order to ensure we have the essential legal tools to achieve a lasting American victory without violating American values.

What does this proposed legislation do?

It restores the writ of habeas corpus for individuals held in U.S. custody.

It narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in a zone of active combat, who are not lawful combatants.

It requires that the United States live up to its Geneva Convention obligations by deleting a prohibition in the law that bars detainees from invoking Geneva Conventions as a source of rights at trial.

It permits the accused to retain qualified civilian attorneys to represent them at trial.

It prevents the use of evidence in court gained through the unreliable and immoral practices of torture and coercion.

It charges the military judge with the responsibility for ensuring that the jury is appropriately informed as to the sources, methods and activities associated with developing out of court statements proposed to be introduced at trial, or alternatively that the statement is not introduced.

It empowers military judges to exclude hearsay evidence they deem to be unreliable.

It authorizes the U.S. Court of Appeals for the Armed Forces to review decisions by the military commissions.

It limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight.

It clarifies the definition of war crimes in statute to include certain violations of the Geneva Conventions.

Finally, it provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.

To be clear--I absolutely believe that under very clearly proscribed circumstances military commissions can be a useful instrument for bringing our enemies to justice. But those who ask us to choose between national security and moral authority are offering us a false choice, and a dangerous one. Our Nation has been defeating tyrants and would-be tyrants for more than two centuries. And in all that struggle, we've never sold our principles--because if We did, we would be walking in the footsteps of those we most despise.

In times of peril, throwing away due process has been a constant temptation--but that is why we honor so highly those who resisted it. At Nuremberg, America rejected the certainty of execution for the uncertainty of a trial, and gave birth to a half-century of moral authority. Today I am asking my colleagues to reclaim that tradition, to put the principles of the Constitution above the passion of the moment. That reclamation can begin today--if we remedy President Bush's repugnant law. We can do it--and keep America Secure at the same time.

Freedom from torture. The right to counsel. Habeas corpus. To be honest, it still amazes me that we have to come to the floor of the Senate to debate these protections at all. What would James Madison have said if you told him that someday in the future, a Senator from Connecticut would be forced to publicly defend habeas corpus, the defendant's right to a day in court, the foundation of Our legal system dating back to the 13 century? What have we come to that such long- settled, long-honored rights have been called into question?

But here we are. And now it is upon us to renew them. I'd like to talk in detail about several key components of my legislation. The Military Commissions Act eliminated habeas corpus. Habeas corpus allows a person held by the government to question the legality of his detention. In my view, to deny this right not only undermines the rule of law, but damages the very fabric of America. It is not who we are, and it is not who we aspire to be. My bill reopens the doors to the Court house by restoring the writ of habeas corpus for individuals held in U.S. custody.

By approving the Military Commissions Act, Congress abdicated its constitutionally-mandated authority and responsibility to safeguard this principle and serve as a co-equal check on the executive branch. This law confers an unprecedented level of power on the president, allowing him the sole right to designate any individual as an ``unlawful enemy combatant'' if he or she engaged in hostilities or supported hostilities against the United States. In my view and in the view of many legal experts, this definition of ``unlawful enemy combatant'' is unmanageably vague. As we have all seen, ``unlawful enemy combatants'' are subject to arrest and indefinite detention, in many cases without ever being changed with a crime, let alone being found guilty. My bill would curtail potential abuse of the unlawful enemy combatant designation by narrowing the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in ``a zone of active combat'', and who are not lawful combatants. This correction is desperately needed to restore America's standing in the world and to right injustices that have recently been documented by international human rights organizations.

According to the Pentagon, last October, only 70 out of the 435 detainees housed at U.S. prison camps were expected to face a military trial, leaving hundreds of others to be held indefinitely. And while the Pentagon acknowledges that at least 110 of these detainees were labeled ``ready to release,'' for some reason they have been kept under lock and key. Then there are stories such as the one about Asif Iqbal, a British humanitarian aid volunteer who, according to a January 10, 2007 Associated Press story, was mistakenly captured in Afghanistan and subjected to isolation, painful positioning, screeching music, strobe

lights, sleep deprivation, and extreme temperatures. After three months, of enduring such treatment, Iqbal was released in 2004 without any charges brought against him.

Such sordid episodes have gravely undermined our apparent commitment to the Geneva Conventions and damaged our status both at home and in the global community. By failing to reaffirm our obligations under these vital treaties, the Military Commissions Act has only further eroded America's moral authority and perhaps ceded our nation's status as the leading proponent of international law and human rights. For this reason, the legislation I am offering today will reaffirm our obligations under the Geneva Conventions in several key ways. First, it would allow detainees to invoke the Geneva Conventions as a source of rights in their trials, overturning a ban put in place by the Military Commissions Act. Second, this legislation will limit the authority of the President to interpret and redefine the meaning and application of the Geneva Conventions by subjecting this authority to Congressional and judicial oversight. Lastly, my bill would statutorily define certain violations of the Geneva Conventions as war crimes. These provisions are all vitally important in allowing the United States to effectively wage the war on terror. The war that we are currently waging requires increasing international cooperation, but the President's plan puts us on a path of increasing isolation from even our staunchest allies.

Furthermore, this path is undermining our government's commitments to fundamental tenets of the American legal system. One of these tenets entails the right of the accused not only to confront his/her accuser but also to retain an attorney to represent him/her at trial. This is a basic right afforded to even the most egregious criminals under domestic law. And yet, under the administration's plan, this measure is being abandoned. In response, my bill sets standards for legal representation and allows for civilian legal counsel in military commission proceedings.

Even more importantly, my bill improves on these proceedings by prohibiting the use in court of any evidence that was gained through the unreliable and immoral practices of coercion. Incredibly, the Military Commissions Act lacks this blanket ban on evidence gained through torture. This is critically important for two very different reasons. Torture has been proven to be ineffective in interrogations, yielding highly unreliable information because a detainee, hoping to end the pain, will simply say whatever he believes an interrogator wants to hear. Second, torture allows foreign militaries to mistreat future American prisoners of war and use U.S. actions as an excuse. No one has said it with more authority than our colleague, Senator John McCain.

As he stated last year, ``the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women . . . the cruel actions of a few to darken the reputation of our country in the eyes of millions,''

To address these concerns, my bill restores to military judges the responsibility of ensuring that information introduced at trial has not been obtained through methods defined as cruel, inhuman, or degrading treatment by the Detainee Treatment Act of 2005. Sadly, the Military Commissions Act shows disrespect for and mistrust of the highly trained professionals on our military's bench by stripping them of autonomy and authority. The legislation I am proposing today empowers military judges to exclude hearsay evidence they deem to be unreliable. In addition, this bill will grant military judges discretion in the event that classified evidence has a bearing on the innocence of an individual but is excluded due to national security concerns and declassified alternatives are insufficient. America's military judges have been fully trained and prepared to handle classified information. The Bush administration's failure to recognize this fact is an insult to the men and women of our military's bench and an affront to our military's justice system.

Unlike the current administration, I trust our courts to be able to handle the delicate legal and national security issues inherent in the cases involving so-called unlawful enemy combatants. This legislation therefore provides for appeals of the military commissions' decisions to be heard by the U.S. Court of Appeals for the Armed Forces. In my view, the right to an appeal is one of the most fundamental rights granted to anyone in our justice system. We 3 grant appeals to people accused of some of the most heinous crimes imaginable. We do this because we know that courts are not infallible. They can err in their decisions, and in order for these mistakes to be rectified and to avoid punishing innocent men and women, appeals must be allowed.

All of these provisions are important. But perhaps none is more urgent than the final measure in my bill, which requires expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions. I believe that the United States Congress made a crucial mistake--that is why we must ensure that each provision of the Administration's Military Commissions Act is quickly reviewed by our Nation's courts. I believe that upon such review, those best qualified to make these judgments--members of our esteemed judiciary--will see to it that the most egregious provisions of this act will be overturned.

All 100 members of this body have been given the gravest of responsibilities. The people of this country have entrusted us with this Nation's security; and they have entrusted us with this Nation's principles. But those who argue that our principles stand in the way of our security are sadly, sorely mistaken: They are the source of our strength.

Five months ago, we departed from that source. But it is not too late to turn back. It is not too late to redeem our error. I implore my colleagues to join me.

Mr. President, I rise today to introduce the Restoring the Constitution Act of 2007--a bill to provide for the effective prosecution of terrorists and guarantee due process rights. I am pleased to be joined by Senators Leahy, Feingold, and Menendez as original cosponsors. This bill would make significant important changes to the Military Commissions Act of 2006 which became law last October.

I have served in this body for more than a quarter-century, but I remember few days darker than September 28, 2006, the day the Senate passed President Bush's Military Commissions Act. Let me be honest with you, I believe this body gave in to fear that day. I believe we looked for refuge in the rule of men, when we should have trusted in the rule of law.

Restoring the Constitution Act of 2007 is more than mere tinkering with provisions of the Military Commissions Act. This legislation, which is similar to the bill that I introduced in the last Congress, makes major and important changes to that law in order to ensure we have the essential legal tools to achieve a lasting American victory without violating American values.

What does this proposed legislation do?

It restores the writ of habeas corpus for individuals held in U.S. custody.

It narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in a zone of active combat, who are not lawful combatants.

It requires that the United States live up to its Geneva Convention obligations by deleting a prohibition in the law that bars detainees from invoking Geneva Conventions as a source of rights at trial.

It permits the accused to retain qualified civilian attorneys to represent them at trial.

It prevents the use of evidence in court gained through the unreliable and immoral practices of torture and coercion.

It charges the military judge with the responsibility for ensuring that the jury is appropriately informed as to the sources, methods and activities associated with developing out of court statements proposed to be introduced at trial, or alternatively that the statement is not introduced.

It empowers military judges to exclude hearsay evidence they deem to be unreliable.

It authorizes the U.S. Court of Appeals for the Armed Forces to review decisions by the military commissions.

It limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight.

It clarifies the definition of war crimes in statute to include certain violations of the Geneva Conventions.

Finally, it provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.

To be clear--I absolutely believe that under very clearly proscribed circumstances military commissions can be a useful instrument for bringing our enemies to justice. But those who ask us to choose between national security and moral authority are offering us a false choice, and a dangerous one. Our Nation has been defeating tyrants and would-be tyrants for more than two centuries. And in all that struggle, we've never sold our principles--because if We did, we would be walking in the footsteps of those we most despise.

In times of peril, throwing away due process has been a constant temptation--but that is why we honor so highly those who resisted it. At Nuremberg, America rejected the certainty of execution for the uncertainty of a trial, and gave birth to a half-century of moral authority. Today I am asking my colleagues to reclaim that tradition, to put the principles of the Constitution above the passion of the moment. That reclamation can begin today--if we remedy President Bush's repugnant law. We can do it--and keep America Secure at the same time.

Freedom from torture. The right to counsel. Habeas corpus. To be honest, it still amazes me that we have to come to the floor of the Senate to debate these protections at all. What would James Madison have said if you told him that someday in the future, a Senator from Connecticut would be forced to publicly defend habeas corpus, the defendant's right to a day in court, the foundation of Our legal system dating back to the 13 century? What have we come to that such long- settled, long-honored rights have been called into question?

But here we are. And now it is upon us to renew them. I'd like to talk in detail about several key components of my legislation. The Military Commissions Act eliminated habeas corpus. Habeas corpus allows a person held by the government to question the legality of his detention. In my view, to deny this right not only undermines the rule of law, but damages the very fabric of America. It is not who we are, and it is not who we aspire to be. My bill reopens the doors to the Court house by restoring the writ of habeas corpus for individuals held in U.S. custody.

By approving the Military Commissions Act, Congress abdicated its constitutionally-mandated authority and responsibility to safeguard this principle and serve as a co-equal check on the executive branch. This law confers an unprecedented level of power on the president, allowing him the sole right to designate any individual as an ``unlawful enemy combatant'' if he or she engaged in hostilities or supported hostilities against the United States. In my view and in the view of many legal experts, this definition of ``unlawful enemy combatant'' is unmanageably vague. As we have all seen, ``unlawful enemy combatants'' are subject to arrest and indefinite detention, in many cases without ever being changed with a crime, let alone being found guilty. My bill would curtail potential abuse of the unlawful enemy combatant designation by narrowing the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in ``a zone of active combat'', and who are not lawful combatants. This correction is desperately needed to restore America's standing in the world and to right injustices that have recently been documented by international human rights organizations.

According to the Pentagon, last October, only 70 out of the 435 detainees housed at U.S. prison camps were expected to face a military trial, leaving hundreds of others to be held indefinitely. And while the Pentagon acknowledges that at least 110 of these detainees were labeled ``ready to release,'' for some reason they have been kept under lock and key. Then there are stories such as the one about Asif Iqbal, a British humanitarian aid volunteer who, according to a January 10, 2007 Associated Press story, was mistakenly captured in Afghanistan and subjected to isolation, painful positioning, screeching music, strobe

lights, sleep deprivation, and extreme temperatures. After three months, of enduring such treatment, Iqbal was released in 2004 without any charges brought against him.

Such sordid episodes have gravely undermined our apparent commitment to the Geneva Conventions and damaged our status both at home and in the global community. By failing to reaffirm our obligations under these vital treaties, the Military Commissions Act has only further eroded America's moral authority and perhaps ceded our nation's status as the leading proponent of international law and human rights. For this reason, the legislation I am offering today will reaffirm our obligations under the Geneva Conventions in several key ways. First, it would allow detainees to invoke the Geneva Conventions as a source of rights in their trials, overturning a ban put in place by the Military Commissions Act. Second, this legislation will limit the authority of the President to interpret and redefine the meaning and application of the Geneva Conventions by subjecting this authority to Congressional and judicial oversight. Lastly, my bill would statutorily define certain violations of the Geneva Conventions as war crimes. These provisions are all vitally important in allowing the United States to effectively wage the war on terror. The war that we are currently waging requires increasing international cooperation, but the President's plan puts us on a path of increasing isolation from even our staunchest allies.

Furthermore, this path is undermining our government's commitments to fundamental tenets of the American legal system. One of these tenets entails the right of the accused not only to confront his/her accuser but also to retain an attorney to represent him/her at trial. This is a basic right afforded to even the most egregious criminals under domestic law. And yet, under the administration's plan, this measure is being abandoned. In response, my bill sets standards for legal representation and allows for civilian legal counsel in military commission proceedings.

Even more importantly, my bill improves on these proceedings by prohibiting the use in court of any evidence that was gained through the unreliable and immoral practices of coercion. Incredibly, the Military Commissions Act lacks this blanket ban on evidence gained through torture. This is critically important for two very different reasons. Torture has been proven to be ineffective in interrogations, yielding highly unreliable information because a detainee, hoping to end the pain, will simply say whatever he believes an interrogator wants to hear. Second, torture allows foreign militaries to mistreat future American prisoners of war and use U.S. actions as an excuse. No one has said it with more authority than our colleague, Senator John McCain.

As he stated last year, ``the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women . . . the cruel actions of a few to darken the reputation of our country in the eyes of millions,''

To address these concerns, my bill restores to military judges the responsibility of ensuring that information introduced at trial has not been obtained through methods defined as cruel, inhuman, or degrading treatment by the Detainee Treatment Act of 2005. Sadly, the Military Commissions Act shows disrespect for and mistrust of the highly trained professionals on our military's bench by stripping them of autonomy and authority. The legislation I am proposing today empowers military judges to exclude hearsay evidence they deem to be unreliable. In addition, this bill will grant military judges discretion in the event that classified evidence has a bearing on the innocence of an individual but is excluded due to national security concerns and declassified alternatives are insufficient. America's military judges have been fully trained and prepared to handle classified information. The Bush administration's failure to recognize this fact is an insult to the men and women of our military's bench and an affront to our military's justice system.

Unlike the current administration, I trust our courts to be able to handle the delicate legal and national security issues inherent in the cases involving so-called unlawful enemy combatants. This legislation therefore provides for appeals of the military commissions' decisions to be heard by the U.S. Court of Appeals for the Armed Forces. In my view, the right to an appeal is one of the most fundamental rights granted to anyone in our justice system. We 3 grant appeals to people accused of some of the most heinous crimes imaginable. We do this because we know that courts are not infallible. They can err in their decisions, and in order for these mistakes to be rectified and to avoid punishing innocent men and women, appeals must be allowed.

All of these provisions are important. But perhaps none is more urgent than the final measure in my bill, which requires expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions. I believe that the United States Congress made a crucial mistake--that is why we must ensure that each provision of the Administration's Military Commissions Act is quickly reviewed by our Nation's courts. I believe that upon such review, those best qualified to make these judgments--members of our esteemed judiciary--will see to it that the most egregious provisions of this act will be overturned.

All 100 members of this body have been given the gravest of responsibilities. The people of this country have entrusted us with this Nation's security; and they have entrusted us with this Nation's principles. But those who argue that our principles stand in the way of our security are sadly, sorely mistaken: They are the source of our strength.

Five months ago, we departed from that source. But it is not too late to turn back. It is not too late to redeem our error. I implore my colleagues to join me.