Madam President, just for purposes of advising colleagues, there remains on the Specter amendment 16 minutes under the control of the Senator from Virginia. I desire to allocate about 4 minutes to Senator Kyl, 2 to 3 minutes to Senator…
Madam President, just for purposes of advising colleagues, there remains on the Specter amendment 16 minutes under the control of the Senator from Virginia. I desire to allocate about 4 minutes to Senator Kyl, 2 to 3 minutes to Senator Sessions, and to wrap it up, 2 to 3 minutes to Senator Graham. But we will alternate or do as the Senator from Michigan--you have 33 minutes, I believe, under the control of Senator Specter and those in support of his amendment.
Madam President, we will proceed on Specter's amendment. In due course, I will find the time to comment on my colleague's 30 seconds. I want to keep this thing in an orderly progression. I would like to add the Senator from Texas, Mr. Cornyn, in the unanimous consent agreement to be recognized as one of the wrap-up speakers on those in opposition to the amendment.
I yield the floor.
Madam President, we have colleagues on this side who are ready to proceed. Now, there is a great deal of time left on the other side, but in order of preference, I say to Senator Sessions, if you are ready to proceed.
Madam President, might I inquire of the amount of time under my control for those in opposition to the amendment?
Eleven minutes.
Yes. And following that, Senator Cornyn for such time as he may need.
Mr. President, we are anxious to move to a vote on the Specter amendment to accommodate a number of colleagues. Therefore, I urge that the remaining time on the Specter amendment under the control of Senator Specter, and the time in opposition under my control, be now utilized by colleagues, such that we can move to that vote.
No.
I recognize that. It is in our mutual interests to the move ahead on the bill. There will be time after the vote for Senators to speak. You have 18 minutes on the bill. I have 47 under my control on general debate.
Mr. President, the time for the Senator from California is under which category?
Mr. President, I yield that to the Senator from South Carolina.
Mr. President, very definitely. As soon as all time on this amendment is allocated or yielded back, my intention is to move to a vote.
Mr. President, may I inquire, the distinguished Senator from Michigan seeks a little additional time on leader time, is that correct?
At this time I would like to yield to the Senator from South Carolina 3 minutes off of the time under my control on the bill.
Mr. President, I believe there is no time remaining?
I ask for the yeas and nays.
I move to reconsider the vote.
Mr. President, the managers of the bill have been notified there are still three amendments remaining, one by Senator Rockefeller, one by Senator Kennedy, one from Senator Byrd. If I understand from my distinguished ranking member, we will proceed to the amendment of Senator Rockefeller.
Mr. President, the ranking member is about to advise the Senator with regard to which amendment might be forthcoming.
Mr. President, I yield 5 minutes to our colleague from Missouri.
Mr. President, at this juncture, I ask unanimous consent that we step off of this amendment and allow the distinguished Senator from New Mexico to speak for up to 10 minutes regarding the bill.
Mr. President, I yield to the chairman of the Intelligence Committee, the Senator from Kansas, such time as he needs.
Mr. President, I wonder if I may engage my distinguished chairman in a colloquy. I am privileged to serve on his committee. Some years ago I served on the committee and at one time was vice chairman of the committee. So I draw on, if I may say
with some modesty, a long experience of working with the Intelligence Committee, and, as the chairman knows, the chairman and ranking member of the Armed Services Committee have always had a role of participation in his committee. I guess if I can add up all the years as chairman and ranking, it is about 12 or 15, I think, of my 28 years on the Armed Services Committee. I have watched this committee and have been a participant for many years.
As I read through the amendment offered by our distinguished colleague from West Virginia--he has the title of vice chairman. That came about because the chairman and the vice chairman traditionally on this committee work to achieve the highest degree--I guess the word is the committee working together as an entity.
I say to the chairman, it is my judgment that this amendment is really in the nature of a substitute for the oversight responsibilities of the committee.
As we both know, the world environment changes overnight. This business of trying to operate on the basis of reports is simply, in my judgment, not an effective way for the committee to function. The Senator from Kansas, as chairman, in consultation with the vice chairman, has to call hearings and meetings and briefings in a matter of hours in order to keep the committee currently informed about world situations.
I say with all due respect to my colleagues here and to our vice chairman of the Intelligence Committee, this amendment is a substitute for the committee's responsibilities, the basic responsibilities to be performed by this committee. It is for that reason I oppose the amendment. But I would like to have the chairman's views.
Yes.
Mr. President, I thank my colleague. Another observation of all of us who have had the responsibility of being a chairman and ranking member of committees, I know it is sometimes difficult to get witnesses to appear, but I found thus far, certainly with General Hayden--and I have known him for a number of years--I have a high degree of confidence in his ability to administer this Agency, the CIA. It is of great importance to this Senator because it is in Virginia, if I may say. I view the agency and each and every one of its employees as someone for whom I have an obligation to speak on their behalf when necessary.
I find that General Hayden is very forthcoming, very responsive. When the Chair and ranking member desire to see him, my understanding is he makes himself available. It is not as if we have to wait until a report comes, read it, and then decide to bring him down. The Chair, in consultation with the ranking member--he and his team are quite responsive; am I not correct in that?
Mr. President, I thank my distinguished colleague. I think we have framed for the full Senate the parameters of what I regard are the points to be considered at such time we vote on this amendment.
On that matter, I see the distinguished vice chairman and my colleague. How much time remains under the control of the Senator from Virginia?
I thank the Chair.
I yield the floor.
Mr. President, in consultation with my distinguished ranking member, I would like to inquire if there is further debate desired on this amendment. If not, my understanding is the leadership will select a time--joint leadership--for votes on this amendment and others at some point this afternoon and with the full expectation that this matter will be voted on final passage.
So at this time, could I inquire as to the time for the Senator from Virginia and the Senator from Michigan?
Mr. President, I would make a similar request that the balance of my time be allocated to me for use on the bill.
Therefore, I believe all time has been yielded back on both sides, and we can prepare the floor now for the receiving of an amendment
from the distinguished Senator from Massachusetts.
I yield the floor.
Mr. President, at this moment I suggest the absence of a quorum, with the time not chargeable to either side.
Mr. KENNEDY addressed the Chair.
I beg your pardon. I thought my colleague yielded the floor.
No, I said charged to neither side.
Mr. President, I suggest the absence of a quorum, and I ask unanimous consent that it not be charged to either side.
I suggest the absence of a quorum and that it not be chargeable to either side.
Mr. President, reserving the right to object, and I will not object, I would simply like to make it clear in laying aside the amendment
the times remaining under the control of the Senator from Virginia and the Senator from Michigan remain in place. We will now, to accommodate our distinguished senior colleague, go off of the Kennedy amendment and proceed to address his amendment.
Mr. President, we are about to receive a copy of the amendment. But I listened very carefully to my distinguished colleague's remarks. As he well knows, in my relatively short 28 years in the Senate, I have listened to him and I have the highest respect for his judgment, and particularly as it relates to how the legislative body should discharge its constitutional responsibilities and how, also, it should not try to discharge its constitutional responsibilities. And I guess my opposition falls, most respectfully, in the latter category because I find this Congress has a very high degree of vigilance in overseeing the exercise of the executive powers as it relates to the war against those whom I view as jihadists, those who have no respect for, indeed, the religion which they have ostensibly committed their lives to, and those who have no respect for human life, including their human life.
It is a most unusual period in the history of our great Republic. The good Senator, having been a part of this Chamber for nearly a half century, has seen a lot of that history unfold. The Senator and I have often discussed the World War II period. That is when my grasp of history began to come into focus. And, indeed, the Senator himself was engaged in his activities in the war effort, as we all were in this Nation.
The ensuing conflicts, while they have been not exactly like World War II, have been basically engaging those individuals acting in what we refer to as their adhering to a state, an existing government that has promulgated rules and regulations, such as they may be, for the orders issued to their troops, most of whom wore uniforms, certainly to a large degree in the war that followed right after World War II, the Korean war. Most of those individuals in that conflict had some vestige of a uniform, conducting their warfare under state-sponsored regulations. I had a minor part in that conflict and remember it quite well.
Vietnam came along, and there we saw the beginning of the blurring of state sponsored. Nevertheless, it was present. The uniforms certainly lacked the clarity that had been in previous conflicts. And on the history goes.
But this one is so different, I say to my good friend, the Senator from West Virginia. And I think our President, given his duty as Commander in Chief under the Constitution, has to be given the maximum flexibility as to how he deals with these situations. We see that in a variety of issues around here. But, nevertheless, it is the exercise of executive authority, and that exercise of executive authority must also be subject to the oversight of the Congress of the United States.
But I feel that in the broad powers conferred on the executive branch to carry out its duty to defend the Nation in the ongoing threat against what we generally refer to as terrorism--but more specifically the militant jihadists--we have to fight with every single tool we have at our disposal, consistent with the law of this Nation and international law. And, therefore, we are here in this particular time addressing a bill which provides for meting out justice, a measure of justice, to certain individuals who have been apprehended in the course of the war against this militant jihadist terrorist group.
I find it remarkable, as I have worked it through with my other colleagues, that they are alien, they are unlawful by all international standards in the manner they conduct the war. Yet this great Nation, from the passage of this bill, is going to mete out a measure of justice as we understand it.
Now, the Senator's concern is--and it always should be; it goes back to the time of George Washington and the Congress at that time--the fear of the overexercise of the authorities within the executive branch. But I think to put a clause and restriction, such as the Senator recommends in his amendment, into this bill would, in a sense, inhibit the ability of the President to rapidly exercise all the tools at his disposal.
I say to the Senator, your bill says:
The authority of the President to establish new military
commissions under this section shall expire. . . . However,
the expiration of that authority shall not be construed to
prohibit the conduct to finality of any proceedings of a
military commission established under this section before
that date.
That could be misconstrued. This war we are engaged in, most notably on the fronts of Afghanistan and Iraq today, we see where it could spread across our globe and has--not to the degree of the significance of Iraq or Afghanistan, but it has spread. Other nations have become the victims, subject to the threats, subject to the overt actions such as took place in Spain and other places of the world. We should not have overhanging this important bill any such restriction as you wish to impose by virtue of what we commonly call a sunset. I think that would not be correct. It could send the wrong message. We have to rely upon the integrity of the two branches of the Congress to be ever watchful in their oversight, ever unrestrained in the authority they have under the Constitution. As we commonly say around here, what the Congress does one day, it can undo the next day.
If, in the course of exercising our authority under the doctrine of the separation of powers--how many times have I heard the distinguished Senator from West Virginia discuss the doctrine of the separation of powers? So often. I remember when we were vigilantly trying to protect those powers reserved unto the Congress from an encroachment by the executive branch.
So for that reason I most respectfully say that I do not and I urge other colleagues not to support this amendment but to continue in their trust in this institution, in the Senate and in the House, to exercise their constitutional responsibilities in such a way that we will not let the executive branch at any time transcend what we believe are certain parameters that we have set forth in this bill regarding the trials and the conduct of interrogations.
I think an extraordinary legislation that I was privileged to be involved in, which garnered 90-some votes, was the Detainee Act, sponsored by our distinguished colleague, Mr. McCain. That was landmark legislation. From that legislation has come now what we call the Army Field Manual, in which we published to the world what America will do in connection with those persons--the unlawful aliens who come into our custody by virtue of our military operations, and how they will be dealt with in the course of interrogation. That was an extraordinary assertion by the Congress, within the parameters of its powers, as to what they should do, the executive branch.
But a sunset date for the authority to hold military commissions, in my judgment, is not in the best interests, at this time in this war, of our country.
I know there are other speakers. How much time do I have remaining?
I thank the Chair, and I yield the floor.
May I reply at the appropriate time?
Many times, the two of us have stood right here and had our debates together. It is one of those rich moments in the history of this institution when two colleagues, without all of the prepared text and so forth, can draw upon their experience and knowledge and their own love for the Constitution of the United States and engage.
I say to my good friend, 3 weeks ago, there were headlines that three Senators were in rebellion against their President, three Senators were dissidents, and on and on it went. Well, the fact is, the three of us-- and there were others who shared our views, but somehow the three of us were singled out--believed as a matter of conscience we were concerned about an issue.
The concern was that the bill proposed by the administration, in our judgment, could be construed as in some way--maybe we were wrong-- indicating that America was not going to follow the treaties of 1949-- most particularly, Common Article 3. Common Article 3 means that article in each of these three treaties. As my good friend knows--and we draw on our own individual recollections about the horrors of World War II. I was involved in the foreign battlefield. We certainly knew about it back here at home and studied it. I was a youngster, a skinny youngster in my last year in the Navy. So much for that. But we were very conscious of what was going on, and the frightful treatment of human beings as a consequence of that war.
The world then came together--and I say the world--after that and enacted these three treaties. The United States was in the lead of putting those treaties in. Those treaties were for the purpose of ensuring that future mankind, generations, hopefully, would not experience what literally millions of people experienced by death and maiming--not only soldiers but civilians.
Mr. President, we believed that the administration's approach to this could be interpreted by the world as somehow we were not behind those treaties. If we were to put a sunset in here after all of the deliberation and all of the work on the current bill that is before this body, it could once again raise the specter that, well, if in fact the United States was trying to not live up to the treaties that brought on this debate in the Senate, then at the end of 5 years we go back to where we were. That could happen. We do not want to send that message. We want to send a message that this Nation has reconciled, hopefully, this body, as we vote this afternoon, and will send a strong bipartisan message that we are reconciled behind this legislation to ensure that in the eyes of the world we are going to live fully within the confines of the treaties of 1949.
I respectfully say that our bill does, in my judgment. Clearly, it constitutes an affirmation of the treaties. I would not want to send a message at this time that there could come a point, namely, December 31, 2011, that such assurances as we have given about those treaties might expire. That is what concerns me.
I say to my friend, Mr. President, from a technical standpoint, he is correct. He is going in there and incising out regarding commissions. But the whole debate has been focused around how those commissions will conduct themselves in accordance with the common understanding of Article 3, particularly.
So while the Senator, in his very fine and precise way of dealing with the legislation, takes out just that, it might not be fully understood beyond our shores. The headline could go out that there is going to be an expiration.
I say to my good friend, it is just not wise to go in and try and put any imprint on this that expiration could occur. It could raise, again, the debate, and I do not think that is in the interest of the country. I think this debate, this legislation has been settled, and I don't think it was ever the President's intention in the course of the preparation of his legislation, but some fear it could.
Mr. President, charged against the allocation under the proponent of the amendment.
We are under fairly rigid time control, but I will give the Senator from Illinois a minute.
I am going to give the Senator more than 10 seconds. I have to do a unanimous consent request on behalf of the leadership.
Order Vitiated--S. 295
I ask unanimous consent that the order with respect to S. 295 be vitiated.
I understand there is no objection. Will the Chair kindly rule?
Mr. President, I yield such time as Mr. Byrd wishes to take.
Mr. President, I say to my good friend, I fully understand what you endeavor to do here, and I respectfully strongly disagree with it. I think many of us share this. This is going to be a very long war against those people whom we generically call terrorists. In the course of that war, this President and his successor must have the authority to continue to conduct these courts-martial--these trials under these commissions--and not send out a signal to terrorists: If you get under the time limit and you don't get caught, this thing may end.
If you are not caught within this period of time, when this went into effect, then you are no longer going to be held accountable. I, and I think every Member of this body, regret that this Nation or other nations or a consortium of nations have not captured Osama bin Laden. There is a debate going on about that, and I am not going to get into that debate, but the fact is he is still at large. There could be other Osama bin Ladens, and it may take years to apprehend them, no matter how diligently we pursue them. We cannot send out a signal that at this definitive time, it is the responsibility of the President, of the executive branch, to hold those accountable for crimes against humanity. They would not be held accountable if this provision went into power.
Need I remind this institution of the most elementary fact that every Senator understands, that what we do one day can be changed the next. If there comes a time when we feel this President or a subsequent President does not exercise authority consistent with this act, Congress can step in, and with a more powerful action than a sunset, a very definitive action.
Mr. President, it is my understanding I have a few minutes left under this amendment.
I would like to have that time transferred under my time on the bill as a whole. I hope Senator Cornyn, who has expressed an interest in this, gets the opportunity to use that time to address this amendment.
Now, Mr. President, as I look at the number of Senators who are desiring to speak on my side--and I think perhaps it would be helpful if you could, I say to my colleague, the ranking member, check on the other side--we still have some debate, and we are prepared to get into debate on the Kennedy amendment now. Therefore, I will undertake to do that just as soon as I finish.
But then we are in that time period where all time has expired or utilized or otherwise allocated on the several amendments. We will soon receive an indication from the leadership as to the time to vote on the stacked votes. But under the time reserved for the bill, I have, of course, the distinguished Senator from Arizona, Mr. McCain, and Senator Graham are going to be given by me such time as they desire, and then subject to the time utilized by those two Senators, I would hope to have time for Senator Hutchison, Senator Chambliss, and again Senator Cornyn, Senator Grassley, and Senator McConnell, the distinguished majority whip.
So I am going to manage that as fairly and as equitably as I can. That is what we propose to do. I will go into the subject of the Kennedy amendment right now.
Mr. President, I would now like to address the amendment offered by the senior Senator from Massachusetts.
I have read this very carefully and I have studied it, I say to my good friend. There are certain aspects of this amendment that are well- intentioned. But I strongly oppose it, and I do encourage colleagues to oppose it, because the question of the separation of powers is involved here, and that is the subject on which this Chamber has resonated many times. But here I find the amendment invades the authority of the executive branch in the area of the conduct of its foreign affairs by requiring the Secretary of State to notify other state parties to the Geneva Conventions of certain U.S. interpretations of the Geneva Conventions, in particular Common Article 3 and the law of war.
It is up to the executive branch in its discretion to take such actions in terms of its relations with other several states in this world--not the Congress directing that they must do so--such communications with foreign governments. But in the balance of powers, it is beyond the purview of the Congress to say to the Secretary of State: You shall do thus and so.
This bill speaks for itself by defining grave breaches of Common Article 3 that amount to war crimes under U.S. law. Any congressional listing of specific techniques should be avoided simply because Congress cannot foresee all of the techniques considered to maybe fall within the category of cruel and inhuman conduct, and therefore, they would become violations of Article 3. We can't foresee all of those situations. Again, it is the responsibility of this body to administer, to see that this bill becomes law in a manner of oversight.
Senator Kennedy's amendment, depending on how the vote comes--and I am of the opinion that this Chamber will reject it--I don't want that rejection to be misconstrued by the world in any way as asserting that the techniques mentioned in the amendment are consistent with the Geneva Conventions or that they could legitimately be employed against our troops or anyone else. We must not leave that impression as a consequence of the decision soon to be made by way of a vote on the Kennedy amendment.
The types of conduct described in this amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill. Rather than listing specific techniques, Congress has exercised its proper constitutional role by defining such conduct in broad terms as a crime under the War Crimes Act. The techniques in Senator Kennedy's amendment are not consistent with the Common Article 3 and would strongly protest their use against our troops or any others.
So I say with respect to my good friend, this is not an amendment that I would in any way want to be a part of this bill.
Mr. President, my distinguished colleague used two phrases just now. He said: Burden. He used the word burden. He then said the word bother. Senator, you walk straight into the constitutional separation of powers in your language and you say: The Secretary of State shall--that is a direct order--notify other parties to the Geneva Conventions. You are putting a direct order to the executive branch. I say that is a transgression of the long constitutional history of this country and the doctrine of separation of powers.
Senator, I am not in the business of trying to amend your amendment.
Mr. President, at this point I wish to have such time as remains under the control of the Senator from Virginia accorded to me under the control of the time on the bill.
Mr. President, I wish to inform the Chamber that we are at that juncture where we will consider the statements of others, very important statements to be made. I listed them in a recitation of those who have indicated their desire to speak. But I also bring to the attention of the body that I have just been told by the leadership they are anxious to proceed to the votes.
At this time I would ask--if I can get my colleague's attention--that there be yeas and nays on all of the pending amendments remaining.
Surely.
Mr. President, we will now put in a quorum call to accommodate the ranking member, such that the time is not charged to either side.
Mr. President, I ask unanimous consent the order for the quorum call be rescinded.
Mr. President, the managers, together with the guidance from their respective leaders, are endeavoring to do the following. There are three amendments to be voted on and then final passage. We hope to have as much time used on the bill as we can, to be consumed prior to the initiation of the votes. But then subsequent to the three votes, there will be a block of time. A Senator on this side has reserved 12 minutes. I intend to reserve, on my side, time to Senator McCain. I am trying to work in that category of time following the votes. But until we are able to reconcile this, I ask that we now proceed.
Let me allow the Senator from Georgia to proceed. He has indicated a desire to speak for 5 or so minutes at this time. But I hope Senators are following what the two managers are saying. Those desiring to speak on the bill, with the exception of Senator McCain, would they kindly come down and utilize this time before the amendments start?
I yield the floor.
Mr. President, I thank our distinguished colleague from Georgia, a very valued member of the Armed Services Committee who has from time to time participated in the extensive deliberations and consultations with regard to how the original bill which we worked on should be shaped and finally amended. I thank him.
Again, I call to the attention of colleagues that I shall put in a quorum for the purpose of trying to accommodate Members on my side who desire to speak.
I now see the distinguished Senator from South Carolina. We are prepared to allocate to him such time as he may desire. How much time does he need?
Yes.
Mr. President, we now have an additional speaker, the Senator from Texas.
As the Senator from South Carolina has just completed his remarks, I have to say it has been an unusual experience for all of us these past weeks. Working together with Senator McCain and the Senator from South Carolina has enabled this Senate to proceed in a way that is consistent with Senate practices: namely, have a committee go through a bill, have a markup, and then proceed to work on a product. It brought together the consensus.
I say to my friend from South Carolina, although I have had some modest experience as Secretary of the Navy dealing with court-martials, and, indeed, when I was a young officer in the Marines, I was involved in court-martials, the Senator brought together in this bill, in this deliberation, a very special expertise of the years he has had.
Now he is a full colonel in the U.S. Air Force and a Judge Advocate General recognition. I thank the Senator for his invaluable contribution to putting the series of bills we have had--putting into those bills matters which he believed were in the best interests of the men and women of the Armed Forces and, indeed, his consultation throughout this process with the Judge Advocate Generals and other past and present Judge Advocates and some of the younger officers who will be future Judge Advocate Generals. I thank the Senator from South Carolina for his strong contribution to this deliberative process in the Senate.
Now I yield the floor to our last speaker before we proceed to the votes. As I understand, we will be voting at the conclusion of this statement?
We are finishing a unanimous consent request, but I alert the Senate that it is my strong hope and prediction we will soon be voting in sequence on three amendments.
I yield the floor.
If I may, I thank the Senator from Texas. Several times we came to the Senator's office in the course of the deliberations on this bill because the Senator, too, brings to the debate a vast experience, having risen through the ranks of the legal profession to become a judge in his State. The Senator is very well equipped and did provide a very valuable input into this debate.
Mr. President, I thank my distinguished colleague from Texas. He has been a valuable addition to those who are trying to structure this piece of legislation.
Momentarily, I will seek a unanimous consent request ordering the votes and the allocation of such time as remains between Senators.
So at this point in time, I will suggest the absence of a quorum, unless the Senator from Massachusetts would like to take the additional 3 minutes that he has at this time on his amendment.
That is correct, I say to the Senator.
Mr. President, I may have misunderstood my colleague. That is the 3 minutes remaining on your amendment held in abeyance.
Mr. President, at this time we are waiting for clearance by the leadership of the UC. But I will ask at this time we get the yeas and nays on all the votes, the amendments and final passage.
Mr. President, the UC, as presently drafted, gives 2 minutes to each side for the purpose of addressing amendments.
Mr. President, I once again restate the request for the yeas and nays on the amendments and final passage. I ask unanimous consent that it be in order to ask for the yeas and nays on the amendments and final passage.
Mr. President, I ask for the yeas and nays on the amendments and final passage.
Mr. President, 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 ask unanimous consent that any remaining time be yielded back, other than as noted below, and that the Senate proceed to votes in relation to the amendments in the following order:
The Rockefeller amendment No. 5095, the Byrd amendment No. 5104, and the Kennedy amendment No. 5088.
I further ask unanimous consent that there be 4 minutes for debate, equally divided, prior to each of the above votes.
I further ask unanimous consent that prior to passage of the bill, Senator Leahy be recognized for his remaining 12 minutes and, as set forth in the initial unanimous consent request, which was provided for under the original consent order, Senator Levin be in control of 4 minutes, Senator Warner in control of 16 minutes, to be followed by closing remarks by the two leaders and, following that time, the Senate proceed to passage of the bill; further, that there then be 5 minutes equally divided prior to the vote on invoking cloture on the border fence legislation; provided further that with respect to the border fence bill, it be in order to file second degrees at the desk no later than 5 p.m. today under the provisions of rule XXII.
Can the Senator repeat that?
I will repeat it.
It reads as follows: Following that time, the Senate proceed to passage of the bill; further, there then be 5 minutes equally divided prior to the vote on invoking cloture on the border fence legislation; provided further that with respect to the border fence bill, it be in order to file second degrees at the desk no later than 5 p.m. today under the provisions of rule XXII.
Mr. President, I renew the unanimous consent request.
Mr. President, I spoke in strong opposition to this amendment. Again, I think it tries to displace the oversight that is performed by the Intelligence Committee. I would like to add the following bit of information.
On September 28 of this year, GEN Michael V. Hayden, who is the current Director of the CIA, wrote a letter to Chairman Pat Roberts of the Intelligence Committee in the Senate. In it he said:
On September 6, 2006, I briefed the full SSCI membership on
key aspects of the detainee program, providing a level of
detail
previously not made available to SSCI members. I made clear
to the committee that upon passage of the new detainee
legislation, I would brief the SSCI on how CIA would execute
the future program, and I agreed to promptly notify the
committee when any modifications to the program were
proposed, or when the status of any individual detainee
changed.
I think that is dispositive of a very clear indication by the executive branch to allow the Senate to perform its oversight through the properly designated committee, the Senate Committee on Intelligence.
Mr. President, I ask unanimous consent that this letter be printed in the Record.
Mr. President, are we prepared to move to a vote?
Mr. President, I say to our most distinguished senior colleague that this amendment was well debated on the floor, but I would bring to the attention of all Senators that we do not have any estimates of how long the war on terrorism against the jihadists is going to take place. We may be having those who commit crimes today not apprehended until after this sunset provision. Then they go free. They are not subject, unless the Senate at that time somehow restores the importance of the next President to continue--to continue, Mr. President--bringing to justice and trial under our rules these individuals who are committing war crimes. So I urge all Senators to oppose this amendment.
Mr. President, I move to reconsider the vote.
Mr. President, this is an amendment that requires close attention by all colleagues.
In the preparation of this bill, we defined in broad terms the conduct that is regarded as a grave breach of Common Article 3. These are war crimes. We the Congress should not try to provide a specific list of techniques. We don't know what the future holds. That is not the responsibility of the Congress. We are not going to direct. We try to make a list of techniques, that the United States describe every technique that violates Common Article 3. We cannot foresee into the future every technique that might violate Common Article 3. We should not step on that situation. It is not ours to do.
Under the separation of powers, it is reserved to the executive branch to work this out. But if at any time it is the judgment of any Member of this body, or collectively, that we are not abiding by this law, I am confident that this institution's oversight will correct and quickly remedy the situation.
I yield the floor.
I move to reconsider the vote.
I ask the Presiding Officer to read the unanimous consent that is in place so all Members understand what is to take place.
The Chair will now recognize Senator Leahy?
Mr. President, at the appropriate time, I will allocate 14 minutes to the distinguished Senator from Arizona, Mr. McCain.
At this point in time, I recognize the extraordinary contributions of the staff persons who worked on this bill, and I shall include the entire list.
We worked under the direction of Charlie Abell, Scott Stucky, David Morriss, Rick DeBobes, Peter Levine, Chris Paul, Pablo Chavez, Richard Fontaine, Jen Olson, Adam Brake, James Galyean, and legislative counsel Charlie Armstrong.
I assure Members it was a challenge from beginning to end. I cannot recall seeing a more professional group of staffers serving their Members in the Senate.
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
I concur with the Senator from Arizona.
The purpose of this legislation is to strengthen, not to weaken or modify, the Detainee Treatment Act. For the first time, this legislation is required to ``take action to ensure compliance'' with the DTA's prohibition on cruel, inhuman, or degrading treatment, as defined in the U.S. reservation to the Convention Against Torture. He is directed to do so through, among other actions, the establishment of administrative rules and procedures. Nothing in this legislation authorizes the President to modify the requirements of the DTA, which were enshrined in a law passed last December. I would point out as well to the distinguished ranking member that the President himself never proposed to weaken the DTA. Rather, he proposed to make compliance with the DTA tantamount to compliance with Common Article 3 of the Geneva Conventions. That proposal is not included in this legislation.
I agree.
I would associate myself with the comments from the Senator from Arizona.
The executive branch has the authority to modify the Army Field Manual on Intelligence Interrogation at any time. I welcomed the new version of the field manual issued last
month and agree that it provides critical guidance to our solders in the field. That said, the content of the field manual is an issue separate from those at issue in this bill, and it was not my intent to effect any change in the field manual through this legislation.
That is my understanding and intent as well, and I agree with the Senator's other clarifying remarks.
In the same section, the term ``serious physical pain or suffering'' is defined as a bodily injury that involves one of four characteristics: ``a substantial risk of death,'' ``extreme physical pain,'' ``a burn or physical disfigurement or a serious nature,'' or ``significant loss or impairment of the function of a bodily member, organ or mental faculty.'' I do not believe that the term ``bodily injury'' adds a separate requirement which must be met for an act to constitute serious physical pain or suffering.
I agree with both of my colleagues.
Mr. President, I ask unanimous consent to have printed in the Record a joint statement regarding alleged violations of the Geneva Conventions.
Mr. President, at this point in time I yield to the distinguished Senator from Arizona 14 minutes.
I would say that I have been privileged to be a Member of this institution for now 28 years, and I first met John McCain through his father when I was Secretary of the Navy. So that goes back 28 plus another 5 years that I have known of John McCain.
This Chamber, and indeed all of America, knows full well about the extraordinary record that this man has in the service of his Nation, showing unselfishness, showing courage, showing foresight.
I am proud to have worked with him as a partner in these past weeks, indeed, months now, on this piece of legislation.
I just want to express my gratitude, and I think the gratitude of many people across this country, for the service he is rendering the Senate and hopefully will continue to render the Senate in the coming years.
When I step down under the caucus, it is my hope that John McCain is elected to succeed me as chairman of the Senate Armed Services Committee.
But at this point in time, I am proud to yield, as manager, my time to the Senator from Arizona.
Mr. President, I wish to commend our distinguished colleague on an excellent summary of the bill and his heartfelt expressions and interpretations of this bill, which I share.
Mr. President, I move to reconsider the vote.
Mr. President, I thank the Presiding Officer.
This matter has now been brought to conclusion.
I yield the floor.