Floor Statements

Mr. President, I want to echo what the Senator from New Mexico said. He has a very good idea, and I hope the House will act on his recommendations.

Very briefly, I rise in support of the nomination of Dr. Bob Gates for Secretary of Defense. I believe he is the right guy at the right time. He has the background to be successful. I know this body will overwhelmingly confirm him. I wish him well in his very difficult but important task that lies ahead for the country and particularly for Dr. Gates.

Very briefly, here is what I expect from Dr. Gates and really everyone involved in the war on terror: a winning strategy. He said at the hearing in one of the answers to one of the questions I posed to him that he believed the war in Iraq was one of the central battlefronts of the war on terror. If you believe that, as he does and I do and the President stated, then you have to throw everything you have at winning because the outcome in Iraq really will affect the outcome of the war on terror. If you believe that, you fight it to win. He also said something I thought was equally true and very candid: We are not winning. Our military has won every battle, but the extremists are trumping the moderates, and extremism is winning out over moderation in Iraq because we don't have enough security in place to allow moderation to flourish.

My question to the country is, If we all agree we are not winning, can we all agree that we must not lose? I hope the country will rally around the concept that losing in Iraq will be devastating to our efforts in the war on terror. It will be devastating to forces of moderation in the region. It will empower extremists, religious extremists, al-Qaida, and others who have as their goal to topple all forms of moderation in the Middle East, to drive us out of the region-- not just Iraq--and one day

destroy the State of Israel. If you believe it is the central backbone of the war on terror, I hope we can come together as a people in this country to make sure we have the resources on the ground to win.

Dr. Gates said that we did not have enough troops after the fall of Baghdad to bring about security. I think everybody believes that now. If General Shinseki was right and we needed 200,000 to pacify the country and secure the country after the fall of Baghdad, what has happened in the intervening months and years to require less troops? Nothing. It is far worse today in Baghdad than it was a year ago when I last visited. I was there on election day in December. People were walking around voting, very happy, very upbeat. Now people are afraid to go outside, and their children are under attack when they go out for the most simple things.

So I do hope that not only will he take over this job and start over with the Congress and the American people, that he will commit himself to winning this war, and the way to win, in my opinion, is to provide security so the political process can be successful. No Prime Minister, no historical figure or great politicians of the past could bring about a democracy in Iraq with this level of violence. It is chicken-and-egg stuff to me. You cannot have a political solution until you control the violence. When you have a high-crime neighborhood, you don't send in less police, you send in more. Our mistakes in the past have come back to haunt us. We have never had enough troops. The situation on the ground has gotten out of control. I do believe we can control it with a surge of American troops.

The goal is to come home, but the goal is victory. History will judge us not by when we left but what we left behind. The consequences of winning or losing in Iraq are central in the war on terror, and we have no other option, in my opinion, other than to win. The way to win over extremists is you stand boldly with moderates, and the way you win against people who could care less about humanity is to embrace the better parts of humanity and show the people who are trying to drive us out of Iraq that their agenda will lose to a better agenda, that their idea is second to ours.

People in the Mideast are dying for their freedom. People in Iraq are dying for their freedom. If you become a judge in Iraq, they try to kill your family. If you are a politician in Iraq, they don't say bad things about you, they try to kill your family. Let's stand with the moderate forces in Iraq. Let's make sure we win this war which is central to the war on terror, and the only way I know to win a war is to fight it with overwhelming force.

Mr. President, I yield the floor.

Change of Vote

Mr. President, how much time is remaining?

On the Warner side.

Mr. President, this has been a very spirited debate and I am going to give you a spirited answer to what I am proposing with my vote. No. 1, my moral compass is very much intact, and when people mention moral compasses and the conscience of the Senate, I am going to sleep very good casting my vote. I think I have a decent moral compass about what we should be doing to people: What is humane, what is not; what is right, what is wrong. I have tried to balance the interests of our troops and the interests

of our country when it comes to dealing with people who find themselves in our capture.

Why not habeas for noncitizen, enemy combatant terrorists housed at Gitmo? No. 1, the whole Congress has agreed prospectively habeas is not available; the Detainee Treatment Act will be available. The only reason we are here is because of the Hamdan decision. The Hamdan decision did not apply to the Detainee Treatment Act retroactively, so we have about 200 and some habeas cases left unattended and we are going to attend to them now.

Why do we--I and others--want to take habeas off the table and replace it with something else? I don't believe judges should be making military decisions in a time of war. There is a reason the Germans and the Japanese and every other prisoner held by America have never gone to Federal court and asked the judge to determine their status. That is not a role the judiciary should be playing. They are not trained to make those decisions.

Under the Geneva Conventions article 5, the combatant tribunal requirement is a military decision. So I believe very vehemently that the military of our country is better qualified to determine who an enemy combatant is over a Federal judge. That is the way it has been, that is the way it should be and, with my vote, that is the way it is going to be.

What is the problem? Why am I worried about having Federal judges turning every enemy combatant decision into a trial? In 1950 the Supreme Court, denying habeas rights to German and Japanese prisoners, said:

Such trials would hamper the war effort and bring aid and

comfort to the enemy.

I agree with that.

They would diminish the prestige of our commanders not only

with enemies, but wavering neutrals.

I agree with that.

It would be difficult to devise a more effective fettering

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

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.

I agree with that. That is why we shouldn't be doing habeas cases in a time of war. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion-- highly comforting to the enemies of the United States.

These trials impede the war effort. It allows a judge to take what has historically been a military function.

What I am proposing for this body and our country is to allow the military to do what they are best at doing: controlling the battlefield. Let them define who an enemy combatant is under the Geneva Conventions requirements, under the Combatant Status Review Tribunal system, which is Geneva Conventions compliant, in my opinion, and let the Federal courts come in after they made their decision to see if the military applied the correct law, the procedures were followed, and the evidence justifies the decision of the military.

To substitute a judge for the military in a time of war to determine something as basic as who our enemy is is not only not necessary under our Constitution, it impedes the war effort, it is irresponsible, it needs to stop, and it should never have happened. I am confident Congress has the ability, if we choose to redefine the rights of an enemy combatant, noncitizen--what rights they have in a time of war and what has happened.

Mr. President, I will ask unanimous consent to have printed in the Record, if I may, examples of the habeas petitions filed on behalf of detainees against our troops.

What I am trying to stress to the body is that this is a war we are fighting, not crime, and habeas corpus rights have not been given to any other prisoners under U.S. control in the past, for very good reason. It impedes the war effort.

Let me give you a flavor of what is coming out of Guantanamo Bay. This is what is happening to the troops defending America by the people who are incarcerated, determined by our military to be an enemy combatant. A Canadian detainee, who threw a grenade that killed an Army medic in a firefight and who comes from a family with longstanding al- Qaida ties, moved for a preliminary injunction forbidding interrogation of him or engaging in cruel, inhuman or degrading treatment. In other words, he was going to ask the judge to take over running the jail and his interrogation.

A Kuwaiti detainee sought a court order that would provide dictionaries in contravention of Gitmo force protection policy and that their counsel have high-speed Internet access.

Another one applied for a motion that would allow them to change the base security procedures to allow speedy mail delivery medical treatment. He sought an order transferring him to the least onerous condition at Gitmo. He asked the court to allow him to keep any books and reading materials sent to him and report to the court over his opportunities for exercise, communication, recreation and worship.

We are not going to turn this war over to a series of court cases, where our troops are having to account for a bunch of junk by people trying to kill Americans. They will have their day in court, but they are not going to turn this whole war into a mockery with my vote.

I yield back.

Would 15 minutes be OK?

I thank the chairman.

Mr. President, in 15 minutes I will try to explain the processes as I know it to be in terms of how we arrived at this moment.

No. 1, I am glad we are here. I think the country is better off having the bill voted on in the current fashion.

I have gotten to know Senator Warner very well over the last 30 days. I had a high opinion of the Senator before this process started, but I, quite frankly, am in awe of his ability to stand up for the institution as a U.S. Senator, who was a former Secretary of the Navy, who tried to have a balanced approach about what we are trying to do.

It is no secret that Senator McCain is one of my closest friends in this body, and I respect him in so many ways. But unlike myself and most of us, Senator McCain paid a heavy price while serving this country. He and his colleagues in Vietnam were treated very poorly as prisoners of war. When he speaks about the Geneva Conventions, he does so as someone who has been in an environment where the Conventions would not apply. But Senator McCain believes very strongly in the Geneva Conventions. When it comes to the Vietnam war, he has told me more than once that if it were not for the insistence of the United States and the international community that constantly pushed back against the North Vietnamese, he thought the torture would have continued and all of them would eventually be killed. But the North Vietnamese became concerned about international criticism after a point in time.

While the Geneva Conventions were not applied evenly by any means, it did have an effect on the North Vietnamese.

I have been a military lawyer for over 20 years. I have had the honor of wearing the Air Force uniform while serving my country and being around great men and women in uniform. It has been one of the highlights of my life. I have never been shot at. The only people who wanted to kill me were probably some of my clients. But I do appreciate why the Geneva Conventions exist and the fact that the law of armed conflict is a body of law unique to itself and has a rich tradition in our country and throughout the world and it will work to make us safe and live within our values if we properly apply it.

The reason we are here is because the Supreme Court ruled in the Hamdan case that the military commissions authorized by the President were in violation of Common Article 3 of the Geneva Conventions. They were not regularly constituted courts.

It surprised me greatly that the Supreme Court would find that the Geneva Conventions applied to the war on terror. It was President Bush's assumption and mine, quite frankly, that humane treatment would be the standard. But this enemy doesn't wear a uniform; it operates outside the Conventions, doesn't represent a nation, and, therefore, would not be covered. But the Supreme Court came to a different conclusion. Thus, we are here.

I say to my fellow Americans, it is not a weakness, it is strength that we have three branches of government. It is not healthy for one branch of government to dominate the other two at a time of stress.

I have pushed back against the administration when I believed they were pushing the executive power of the inherent authority of the President too far. Even though we are in a time of war, there is plenty of room for the Congress and the courts.

What I tried to do in helping draft this bill, working with the President and working with our friends on the other side, is come up with a product that would create a balance that I think would serve us well.

My basic proposition that I have applied to the problem is we are at war, that 9/11 was an act of war, and since that moment in time our Nation has been at war with enemy combatants who do not wear a uniform, who do not represent a nation but are warriors for their cause, just as dedicated as Hitler was to his cause, and they are just as vicious and barbaric as any enemy we have ever fought.

But we don't need to be like them to win. As a matter of fact, we need to show the world that we are different than them.

When the Geneva Conventions were applied to the war on terror, we had a problem. We had to renew the Military Commission Tribunal in line with Common Article 3. Common Article 3 is a mini-human-rights tree that is common to all four Convention articles. You have one about lawful combatants and unlawful combatants, civilians and wounded people. Common Article 3 is throughout all of the treaties regarding the Geneva Conventions. It says you would have to have a regularly constituted court to pass judgment or render sentences against those who are in your charge during time of war; that is, unlawful combatants.

The problem with the military commission order authorized by the President was that it deviated from the formal Code of Military Justice, the court-martial model, without showing a practical reason. Within our Uniform Code of Military Justice, it says military commissions are authorized, but they need to be like the court-martial system to the extent practicable.

What I am proud of is we have created a new military commission based on the UCMJ and deviations are there because of the practical need. A court martial is not the right forum to try enemy combatants--non- citizen terrorists--the military commission is the right forum, but we are basing what we are doing on UCMJ, and the practical differences, I think, will be sustained by the Court.

The confrontation rights that were originally posed by the administration gave me great concern. I do not believe that to win this war we need to create a trial procedure where the jury can receive evidence classified in nature, convict the accused, and the accused never knows what the jury had to render a

verdict upon, could not answer that accusation, rebut or examine the evidence.

That was the proposal which I thought went too far and that would come back to haunt us. As a result of this compromise, it has been taken out.

We have a national security privilege available to the Government to protect that prosecutor's file from being given over to the defense or to the accused so our secrets can be protected. But we will now allow the prosecutor to give that to the jury and let them bring it out on the side of the accused and the accused never knowing what he was convicted upon. That could come back to haunt us if one of our soldiers falls into enemy hands.

We would not want a future conviction based on evidence that our soldiers and CIA operative never saw. I think we have a military commission model that affords due process under the law of war that our Nation can be proud of, that will work in a way to render justice, and if a condition is abstained, it will be something we can be proud of as a nation. I am hopeful that the world would see the condition based on evidence, not vengeance.

My goal is to render justice to the terrorists, even though they will not render justice to us. That is a big distinction.

People ask me, Why do you care about the Geneva Conventions? These people will cut our heads off and they will kill us all. You are absolutely right. Why do I care?

Because I am an American. And we have led the way for over 50- something years when it comes to the Geneva Conventions applications.

I am also a military lawyer, and I can tell every Member of this body--some of them have served in combat unlike myself; some know better than I. But we have had downed pilots in Somalia. A helicopter pilot was captured by militia in Somalia. We dropped leaflets all over the city of Mogadishu. We told the militia leaders, ``If you harm a helicopter pilot, you will be a war criminal.'' We blared that throughout town on loudspeakers with helicopters. After a period of time, they got the message, and he was released.

We had two pilots shot down over Libya when Reagan bombed Qadhafi. I was on active duty in the Air Force. We told Qadhafi directly and indirectly, if they harm these two pilots, they will be in violation of the Geneva Conventions, and we will hunt you down to the ends of the Earth.

I want to be able to say in future wars that there is no reason to abandon our Geneva Conventions obligations to render justice to these terrorists.

So not only do we have a military commission model that is Geneva Conventions compliant; we have a model that I think we should be proud of as a nation.

The idea that the changes between the committee bill and the compromise represents some grave departure, quite frankly, I vehemently disagree with. I didn't get into this discussion and political fight to take all the heat that we have taken to turn around and do something that undercuts the purpose of being involved in it to begin with. The evidentiary standard that will be used in a military commission trial of an enemy combatant was adopted from the International Criminal Court.

I will place into the Record statements from every Judge Advocate General in all four branches of the services that have certified from their point of view that the evidentiary standard that the judge will apply to any statements coming into evidence against an enemy combatant are legally sufficient, will not harm our standing in the world, and, in fact, are the model of the International Criminal Court which try the war criminals on a routine basis.

The provision I added, along with Senator McCain, dealing with the provisions of the Detainee Treatment Act, 5th, 8th, and 14th amendment concepts within the Detainee Treatment Act, will also be a standard in the future designed to reinforce the relevance of the Detainee Treatment Act in our national policy, in our legal system, not to undermine anything but to enforce the concept the Detainee Treatment Act and the judicial standard that our military judges will apply to terrorists accused is the same that is applied in International Criminal Court.

I have been a member of the JAG court for over 20 years. I have had the honor of serving with many men and women who will be in that court- martial scene. The chief prosecutor, Moe Davis, I met as a captain. There is no finer officer in the military than Colonel Davis. He is committed to render justice. I am very proud of the fact that the men and women who will be doing these military commissions believe in America just as much as anybody I have ever met, and they want to render justice.

What else do we try to accomplish?

We reauthorize the military commissions in a way to be Geneva Conventions-compliant to afford the defendants accused due process in the way that will not come back to haunt us.

What else did we have to deal with? A CIA program that is classified in nature that needs to continue. There is a debate in this country: Should we have a CIA interrogation program classified in nature that would allow techniques not in the Army Field Manual to get good intelligence from high value targets? The answer, from my point of view, is yes, we should, but not because we want to torture anybody, because we want to be inhumane as a nation. The reason we need a CIA program classified in nature to get good information is because in this war information saves lives.

Mutual assured destruction was the concept of the Cold War, where if the Soviet Union attacked us, they knew with certainty they would be wiped out. That concept doesn't work when your enemy doesn't mind killing themselves when they kill you. The only way we will protect ourselves effectively is to know what they are up to before they act. The way you find that out is to have good intelligence. But you have to do it with your value system.

Abu Ghraib was an aberration, but it has hurt this country. Anytime the world believes America has adopted techniques and tactics that are not of who we are, we lose our standing. So what we did regarding the CIA, we redefined the War Crimes Act to meet our Geneva Conventions obligations. The test for the Congress was, how can you have a clandestine CIA program and then not run afoul of the Geneva Conventions? What are the Geneva Conventions requirements of every country that signs the treaty to outlaw domestically gray areas of the treaty?

In Article 129 and 130 of the Geneva Conventions, it puts the burden on each country to do it internally, to create laws to discipline their own personnel who may violate the treaty in a grave way. It lists six offenses that would be considered grave breaches of the treaty under the conventions. Those six offenses were taken out of the treaty and put in our domestic law, title 18, the War Crimes Act, and anybody in our Government who violates that War Crimes Act is subject to being punished as a felon.

We added three other crimes we came up with ourselves.

Torture has always been a crime, so anyone who comes to the Senate and says the United States engages in torture, condones torture, that this agreement somehow legitimizes torture, you don't know what you are talking about. Torture is a crime in America. If someone is engaged in it, they are subject to being a felon, subject to the penalty of death. Not only is torture a war crime, serious physical injury, cruel and inhumane treatment mentally and physically of a detainee is a crime under title 18 of the war crimes statute.

Every CIA agent, every military member now has the guidance they need to understand the law. Before we got involved, our title 18 War Crimes Act was hopelessly confusing. I couldn't understand it. We brought clarity. We have reined in the program. We have created boundaries around what we can do. We can aggressively interrogate, but we will not run afoul of the Geneva Conventions. We are not going to let our people commit felonies in the name of getting good information, but now they know what they can and cannot do.

Who complies with that treaty? Who is it within our Government who would implement our obligations under the treaty? The Congress has decided what a war crime would be to prohibit grave breaches of the treaty. The President, this President, like every other President, implements treaties. So what we

said in this legislation, when it comes to nongrave breaches, all the other obligations of the Geneva Conventions, the President will have the responsibility constitutionally to comply with those obligations, not to rewrite title 18, not to sanction torture, not to violate the Detainee Treatment Act, but to fulfill the treaty the way every other President has in our constitutional history. That is all we have done. To say otherwise is just political rhetoric. Not only have we allowed the CIA program to go forward in a way not to violate the Geneva Conventions, we have delegated to the President what was already our constitutional responsibility to enforce the treaty--not to rewrite it but to enforce it and fulfill it.

My concern was that in the process of complying with Hamdan, we would be seen by the world as redefining the treaty for our own purposes. We have not redefined the Geneva Conventions. We have, for the first time in our domestic law, clearly defined what a crime would be against the Geneva Conventions, and we have told the President, as a Congress: It is your job to fulfill the other obligations outside of criminal law. That is the way it should be, and it is something of which I am extremely proud.

We have been at war for over 5 years. Here we are 5 years later trying to figure out the basic legal infrastructure. It has been confusing. It has been contentious. We have had two Supreme Court cases where the Government's work product was struck down.

My hope is that our homework will be graded by the Supreme Court, that this bill eventually will go to our Federal courts, as it should, and the courts will say the following: the military commissions are Geneva Conventions compliant and meet constitutional standards set out by our country when it comes to trying people.

I am confident the court will rule that way. I am confident the Supreme Court will understand that the power we gave the President to fulfill the treaty is consistent with his role as President and the war crimes we have written to protect the treaty from a grave breach from our own people is written in a way to sustain legal scrutiny.

I am also confident that Congress has finally cleared up what has been a huge problem. What role should a judge have in a time of war? Who should make the decision regarding enemy combatant status?

In every war we have been in up until now, the military has decided the battlefield issues. Under the Geneva Conventions, it is a military decision to consider who an enemy combatant is. The habeas cases that have existed in our courts from the last 3 or 4 years have led to tremendous chaos at Guantanamo Bay. Our own troops are being sued by the people we are fighting. They are bringing every kind of action you can think of into Federal courts. Over 200 cases have been filed. It is impeding the war effort.

A judge should not make a military decision during a time of war. The military is far more capable of determining who an enemy combatant is than a Federal judge. They are not trained to do that.

We have replaced a system where the judges of this country can take over military decisions and allow judges to review military decisions, once made, for legal sufficiency. That is the way every other country in the world does it. Habeas has no place in this war for enemy prisoners. The Germans and the Japanese--no prisoner in the history of the United States has ever been able to go to a Federal court and sue the people they are fighting who are protecting us against the enemy.

We are allowing the Federal courts to review every military decision made about an enemy combatant as to whether they made the right decision based on competent evidence and whether the procedures they used are constitutional. We have rejected the idea as a Congress of allowing the courts to run the war when it comes to defining who an enemy combatant is. That was a decision which needed to be made. It is not destroying the writ of habeas corpus. It is having a rational, balanced approach to where the judges can play a meaningful role in time of war and not play a role they are not equipped to play. This will mean nothing if it does not withstand court scrutiny.

I hope soon we will have an overwhelming vote for the final product after the amendments are disposed of. My goal for 2 years has been to try to find national unity, to have the Congress, the executive branch, and eventually the courts on the same sheet of music where we can tell the world at large that we have detention policies, interrogation policies, and confinement policies that not only are humane and just but will allow us to protect ourselves from a vicious enemy and live up to our obligations as a nation. We are very close to that day coming.

I thank every Member of this Senate who has worked to make this product better. When you cast a vote, please remember, we are at war, we are not fighting crime.

Mr. President, today I wish to call attention to the good work of the Columbia, SC, Urban League and the Department of Veterans Affairs, VA. On September 11, 2006, the Columbia Urban League and the VA cohosted a training seminar for church leaders in South Carolina to help address the growing population of troubled military veterans returning from combat zones. This Veterans Ministry Workshop was led by a panel of 10 physicians from the Dorn VA Medical Center in Columbia, each of whom explained the various psychological challenges that face veterans returning from conflict. The panelists discussed methods for dealing with veterans' children and spouses while offering practical tips for church members to follow. Around 100 church leaders attended the event.

I salute the VA, the Columbia Urban League, and in particular its president, Mr. James T. McLawhorn, for their initiative in organizing the Veterans Ministry Workshop. It was Mr. McLawhorn, a member of the VA Advisory Committee on Minority Affairs, who originally proposed the idea in response to studies released by the Journal of the American Medical Association, JAMA. Without his leadership and the cooperation of VA officials on the ground in South Carolina, the Veterans Ministry Workshop may have never happened. I am confident that the workshop will have a tremendous impact on the veteran community in South Carolina, and I hope that the Columbia Urban League and VA will build on its success.

Mr. President, I would like to return the compliment that Senator Levin gave to myself, Senator McCain, and Senator Warner. I have found Senator Levin and his staff to be very good to work with. Sometimes we reach agreement and sometimes we don't, but all the time we try. As to my staff, I appreciate the tons of time they have spent trying to give us the best product we can get in the legislative process that will adhere to our values and allow the war effort to move forward in an effective way.

As to the difference between the committee bill, which we wrote and supported, and the compromise we reached

with the White House, which we wrote and support, there are some differences. I think some of them we have addressed with Senator Levin's staff. They were very helpful. He found some language which was dropped inadvertently which made the bill stronger.

I would just like to suggest that whatever military experience I have had pales in comparison to the men and women who are in charge of today's military legal system. I am a reservist. I come in and out of military law. I spent 6\1/2\ years on active duty, and I really enjoyed my time. I dealt a lot in the court-martial process as a prosecutor and a defense attorney. But as a reservist and Guard member, it has been a part-time job. But those who do this full time supported the administration's proposal when it came to the admission of evidence by the military judge. I will, at an appropriate time, introduce that into the Record.

I believe the JAGs are a good source of advice. That doesn't mean they are the only source of advice. That doesn't mean that because the Judge Advocate Generals of all four branches say so, we need to do what they say. It would be wise to just listen, and I have tried to listen. Sometimes I agree; sometimes I don't. But they have said unanimously, it is my understanding, that the evidentiary standards in terms of admission of evidence, where the judge will determine whether the evidence is reliable and probative using the totality of circumstances to create justice, was a sufficient legal standard, and they were supportive of that standard. So this idea that we are going to allow coerced evidence into a trial purposely, that we made a conscious decision from the committee bill to the compromise to change course and take everything we had said before and just throw it over in a ditch, quite honestly, makes no sense.

Whatever motives you would like to attribute to the effort here, I can assure my colleagues I want to create a process that would be acceptable if our troops found themselves subject to it. And every military Judge Advocate, every admiral, and every general, believes the evidentiary standard in this committee bill is legally acceptable and appropriate.

Why the difference between December 30, 2005, and before? The reason we have a two-tiered system is because in 2005, due to the hard work of Senator McCain and Senator Levin--who was a champion in trying to bring this about on the Democratic side--we were able to make a policy statement of the United States that says: Cruel and inhumane and degrading treatment as a policy will be forbidden. And we referenced the 5th, 8th, and 14th amendments standard called ``shock the conscience'' that existed in the convention on torture. All bills have excluded evidence that violates the torture statute. It is a per se exclusion. If the military judge, in their discretion, believes that the conduct in front of the court amounts to torture, in violation of the torture statute, it does not come into evidence.

The committee bill had a per se exclusion for a violation of the Detainee Treatment Act, and it has been changed, and here is why: The Detainee Treatment Act is a policy statement, not an evidentiary standard. The Detainee Treatment Act says that the Government and its agents and agencies will not engage in cruel, inhumane, and degrading treatment. I would argue that to exclude evidence in a military commission that may run afoul of degrading treatment would create a higher standard for a terrorist than our own military members have in their own courts-martial. So I think the policy statement ``cruel and inhumane and degrading'' should not be an evidentiary standard, and it is not.

But what we did do to bolster that policy statement is we took the 5th, 8th, and 14th amendment ``shock the conscience test'' and said: From the date of the Detainee Treatment Act forward, that will be an area that the judge has to make an inquiry into regarding the admission of evidence. The reason we didn't want to go backward is because before the Detainee Treatment Act passed in 2005, no one had recognized the 5th, 8th, and 14th amendment concepts applying to enemy combatants. So what we are trying to do is start over after Hamdan and incorporate into the military commission model as many protections as we can that also protect America. So going forward, from the Detainee Treatment Act forward, any evidence gathered after the Detainee Treatment Act will have to comply with the 5th, 8th, and 14th amendments requirements that make up the heart and soul of the Detainee Treatment Act. To make it retroactive and exclude statements where that concept was not known, was not part of our legal system regarding enemy combatants, in my opinion, was unwise.

So we are going forward, reinforcing the Detainee Treatment Act, and the standard of admission of evidence of reliable and probative meets the standards of justice and totality of the circumstances test, stays in place, covers all statements before and after. Our Judge Advocate Generals, to a person, have said that if you take the Detainee Treatment Act out of the equation, what is left still is acceptable. And the courts will make that decision.

I am confident that the standard that we had, the administration had when it came to the admission of evidence, was acceptable, and the judge advocates who have objected to many things did not object to that.

So the idea that we made a conscious decision to allow cruel and inhumane treatment to become a player defies what we did in totality.

The title 18, War Crimes Act, was rewritten. One of the crimes that we put in title 18 that would constitute a grave breach of the Geneva Conventions, a felony under our own law, is cruel or inhumane treatment: The act of a person who commits or conspires or attempts to commit an act intended to inflict severe or serious physical or mental pain or suffering, other than pain or suffering incidental to lawful sanctions, including serious physical abuse upon another within his custody or control. And we defined those terms. It is a felony in U.S. law to engage in cruel or inhumane treatment, not just torture. It is a felony in U.S. law to mutilate or maim.

What we did--intentionally causing serious bodily harm, rape, sexual assault or abuse, taking hostages--what we did is we took what the Geneva Conventions have defined as being a grave breach of the conventions, we put it in title 18 of the War Crimes Act, and made it a felony. So if you are a military member or CIA agent and you run afoul of the title 18 War Crimes Act, you can be prosecuted. When it comes time for the military judge to rule upon the admissibility of evidence in a military commission, the standard that we will be using has been blessed by every Judge Advocate General that we have, those in charge of our military legal system.

So I think it is a good standard. I think the fact that we put the DTA 5th, 8th and 14th amendment standard into the statute in a perfective way enhances and emboldens what we are trying to do with the DTA and will make us a better nation.

The other areas of concerns: enemy combatant definition. The enemy combatant definition that is changed from the compromise and committee bill allows us to, subject to military commission, try those people who intentionally and knowingly aid terrorism; materially support terrorism. To me, that makes sense. I want to prosecute the person who sells the guns to al-Qaida as much as the people who use the weapons. I want to go after the support network that supports terrorism. To me, that makes perfect sense. I am glad we expanded the definition because those who are assisting terrorists in a knowingly purposeful way should be held accountable for their actions.

Under no circumstance can an American citizen be tried in a military commission. The jurisdiction of military commissions does not allow for the trial of American citizens or lawful combatants, and those who say otherwise, quite frankly, have not read the legislation because there is a prohibition to that happening.

The hearsay rules that are in the compromise very much mirror the committee bill, but that we are allowing a burden shift, to me, makes sense given the global nature of the war. I can spend a lot of time explaining the differences between the two bills, but I will basically summarize by saying that the purpose of the committee bill has been met by the compromise. If it were not so, I would not vote for it. We are not allowing into evidence coerced

statements unless the judge makes the decision they are reliable, probative, and in the totality of circumstances they meet the ends of justice.

At the end of the day you are going to have a judge applying a legal standard to a request to admit evidence. The administration, in my opinion, in their first product, was trying to legislate a conviction. In many ways they were trying to set up the rules when it came to the military commission format that would allow evidence to go to the jury never seen by the accused. That would make it very hard to defend yourself.

We have changed that. Anything the jury gets to convict, the accused can examine and rebut. To me, that was a huge accomplishment that put the trials back on sound footing within our value system, and legally I think they will pass muster now.

So at the end of the day, in my opinion we do not need to try to legislate how the judge should rule. Everybody has their pet peeve about where the administration has failed or succeeded, about how the CIA has conducted its business. I have found an effort to tie the judges' hands to the point that we have no flexibility when it comes to admitting evidence. The judge is in the best place--better than anybody here--to make a decision as to what should come into that trial. What are we asking the judges to do? To use their experience, their knowledge of the law, their sense of right or wrong to determine: Is that statement reliable? Is it probative? Given everything around it, would the interests of justice be met if it came into the trial?

That is an acceptable legal standard, not only to every Judge Advocate General who serves today in our military, it should be a standard that every American is proud of because I am proud of it.

I bet you dollars to doughnuts when the Supreme Court gets hold of our work product they are going to approve it.

Finally, Hamdan is about applying the Geneva Conventions to the war on terror. Everybody I know of in the administration believed that the Geneva Conventions did not apply to these unlawful enemy combatants. I shared that belief. We were wrong. The Supreme Court--whether I agree or not--ruled. After their ruling, we had two things that we had to accomplish to get this country back on track within the rule of law. We had a challenge: to take the CIA interrogation program that existed and will exist and make sure that it was Geneva Conventions compliant.

What do the Geneva Conventions require of every country that signs the document? It requires that, domestically, that country will outlaw, within its own domestic law, grave breaches of the treaty. Every country has an affirmative duty to set out within their laws and prosecute their own people for grave breaches of the Geneva Conventions.

Title 18 is the War Crimes Act. Under title 18 we have listed nine crimes that would be considered grave breaches of the Geneva Conventions. To the CIA: Your program, whatever it may be in classified form, must comply with the War Crimes Act. And the War Crimes Act runs the gamut from torture to cruel, inhumane treatment, intentional infliction of serious bodily injury, or mental pain.

We have taken nine well-defined felonies and told the CIA and every other agency in the country: Whatever you do, if you violate these statutes you will be subject to being prosecuted.

I want a CIA program to be classified when it comes to interrogating high-value terrorist targets. I think it would be foolhardy to tell the terrorist community everything that comes your way when you join al- Qaida or some other terrorist organization. But it is important to tell every American, every CIA agent, their family, and the international community what we do will not only be within the Geneva Conventions, it is going to be beyond what the Conventions require, and I think we have accomplished that.

There are six specified events in article 129 and article 130 of the Geneva Conventions that constitute grave breaches. We have adopted all six, and we have added to that list. Whatever the CIA is doing and wherever they do it, whatever the Department of Defense is doing and wherever they do it, they now have the notice and the clarity that they did not have before to do their job within the law.

This idea that we have rewritten the statute and given immunity to people who have violated the statute is absurd. There is nothing in the compromise or the committee bill that would give immunity or amnesty to someone who violated the felony provisions. But what we did do, that I am proud of, is that we took a 1997 War Crimes Act that was so ill- defined that no one understood it and gave clarity and purpose to it so those whom we are asking to defend us from the most vicious people in the world will have a chance to know the law.

Abu Ghraib was about policies that cut legal corners, that migrated from one side of the Government to the other, that got everybody involved confused as to what you could and could not do. It was a mixture of individual deviance and bad policy, poorly trained people, not enough folks to do the job, and not trained well enough to understand what the job was. It was a mess. For 2 years we have been trying--and I have been as helpful as I know how to be--to create some sense of balance to bring order out of chaos, and we are on the verge of doing it.

This is a product, not only that I support, that I had but one that I am proud of. Every military lawyer who sits on the top of our military legal system has had input on every issue. They have had the guts to go to the House and Senate and say some things about the President's proposal are flat wrong. That took a lot of guts, and I am here to tell you the final product took their input and what their concerns were and has been changed.

But if you want a CIA program that is not classified, you lost. I want the program to be classified. But I want it to run within the obligations of the Geneva Conventions, and we have accomplished that.

Finally, what did we do in the compromise that we didn't do in the committee bill? We said that every obligation under the Geneva Conventions that our country has, outside of the War Crimes Act, will be fulfilled by our President. Under our constitutional democracy, it is the obligation of the executive branch to implement and interpret treaties. This whole debate, what I have been working on for 2 weeks and getting beat up on in every talk radio show in the country, was about how can you comply with the Geneva Conventions in a way that will be seen by the world as not getting out of the Conventions.

The proposal for the Congress to redefine the treaty terms, in my opinion, would have created a precedent for every other country, in a war that they are in the middle of, to change the treaty in the middle of a war. The conventions have been closed for years. It would have been wrong, ill-advised for the Congress to sit down with the President and rewrite the treaty obligations for domestic purposes because clearly then we would have been changing the treaty terms without notifying the other parties.

What we did to avoid that is we, Congress, defined nine crimes that would constitute grave breaches, honoring our commitment under the Geneva Conventions, to outlaw grave breaches, felonies. We have done our job, and we turned to the Executive and said in this legislation: It is your job, Mr. President, consistent with our constitutional democracy, to implement and fulfill the obligations of the treaty outside of title 18. And when you make a decision, publish what you have decided. And any decision you make cannot take power away from the courts or the Congress that we have in the same arena.

Those people who want to overturn the election, who do not like President Bush, are upset that we recognized he has a role to play. Let me tell you, he does have a role to play. Any President has the same role that we are going to give President Bush--to implement a treaty, not change a treaty.

So I think we have done a very good job of putting into law our obligations under the Geneva Conventions defining, constitutionally, who has what responsibility so that no reasonable person could say the United States has abandoned its longstanding obligations to the Geneva Conventions because we have not. And that is what we have

been sweating over for weeks. No reasonable person can say that this compromise condones torture, cruel, or inhumane treatment because we make it a felony. What we have done is given the military judge the tools he or she will need to render justice. And I have tried to embolden and strengthen the Detainee Treatment Act in a way that I think makes sense.

The military court-martial system will be the model. The military commission will deviate. And the authority given to the Secretary is the same authority given to the President: to make differences between the district courts and the military justice system as a whole. It is compliant with article 36 of the Uniform Code of Military Justice. This compromise is compliant with Hamdan. It is compliant with the values we are fighting for. And it has the flexibility we need to fight an enemy that knows no bounds.

The work product is the result of give and take, is the result of being more than one branch of Government, is the result of having to deal with a court decision that was new and novel. I can say from my point of view that not only will I vote for the compromise, I am very proud of it.

I yield the floor.

Mr. President, this debate is a strength, not a weakness, in our country.

In my opinion, the fundamental question for the Senate to answer when it comes to determining enemy combatant status is, Who should make that determination? Should that be a military decision or should it be a judicial decision?

I am firmly in the camp that when it comes to determining who an enemy of the United States is, one who has taken up arms and who presents a threat to our Nation, that is not something judges are trained to do, nor should they be doing. That is something our military should do.

For as long as I have been a military lawyer, Geneva Conventions article 4, where it talks about a competent tribunal to decide whether a person is a civilian--lawful, unlawful, combatant--that competent tribunal has been seen in terms of military people making those decisions.

I have a tremendous respect for our courts. We will follow whatever they tell Congress to do because we are a rule-of-law nation, but this Congress has a role to play.

Unlike my chairman, Senator Specter, I believe the question before the Congress is not whether an enemy combatant noncitizen alien has a constitutional right to habeas corpus because I don't believe that is what the court has said. The issue for the Congress is whether habeas corpus rights should be given to an enemy combatant noncitizen under section 2241 and whether the military should make the determination of who an enemy combatant is versus judiciary.

What happens now is that when someone is brought to Guantanamo Bay, very shortly after they arrive, the military will create a combat status review tribunal that is supposed to be compliant with article 4 of the Geneva Conventions, a competent tribunal.

When we look at the history of competent tribunals, normally they are one person. We will have three people. Of the three people will be a military intelligence officer--and it could be other officers within our military who have expertise in determining what the battlefield situation is and who is involved with the enemy forces and who is not. That tribunal has an evidentiary standard to meet. The tribunal must make a finding by a preponderance of the evidence that the person before them indeed fits within the definition ``enemy combatant.'' There is a rebuttal of presumption in favor of the Government's evidence.

Our Federal courts will have the opportunity shortly to determine whether the combat status review tribunal is constitutional due process. The reason I say that is because under the Detainee Treatment Act we passed last year, every detainee at Guantanamo Bay will have their day in Federal court.

After the military renders their decision that they are an enemy combatant, as a matter of right each person can go to the DC Circuit Court of Appeals, and the Federal DC Circuit Court of Appeals will look at that case with two issues before them: Does this CSRT process, the annual review board, does it constitutionally pass muster as being adequate due process not only under the Geneva Conventions but under our Constitution to the extent it applies? Second, was the decision rendered by that board finding the person enemy combatant by the preponderance of the evidence--the standards and procedures involved, do they pass muster? And in the individual case, did they get it right? That is the structure for them to decide the issue set up in a constitutionally sound manner.

The reason I oppose my chairman, for whom I have great respect, is because the habeas process is a doctrine that is normally associated with criminal law, and we are in a war. The Japanese and German prisoners we interred in World War II never had access to our Federal courts to bring lawsuits against the people who confined them--our own troops--for a reason: it was a right not given in international law to an enemy prisoner, and it was not a right we gave to any prisoner we have held in the history of our country consciously as Congress.

The problem in this case is the Government argued that Guantanamo Bay was outside the jurisdiction of the United States. Why is it important? It is clear that our habeas statutes do not apply overseas. The Government lost that argument. Chairman Specter is absolutely right. The court said that for legal purposes, Guantanamo Bay falls within the confines of the United States. Section 2241, the habeas statute, unless Congress says otherwise, will apply to this environment.

Now it is time for Congress to decide, in its wisdom, whether the Federal courts should be determining who an enemy combatant is through a habeas action. Do we want that to reside in the military, where it has been for our whole history, and allow Federal courts to review the military decision, not substitute their judgment for the military?

It is not about who loves America and who is un-American. Mr. Sullivan came to my office yesterday. He is a lawyer representing detainees at Guantanamo Bay. He is a great American. He gave me four or five stories about how his client appeared before the Combat Status Review Tribunal, and he had nothing but bad things to say about the way his client was treated and the procedures in place.

Once a week, I get a call from somebody from South Carolina who says their family member was screwed in court. And then what I try to do is to make sure we listen to them respectfully but understand that there are a lot of complaints about any system.

Mr. Sullivan's complaints got me thinking, and I think there is a way to provide some remedies that do not exist now without substituting judges for military officers when it comes to wartime decisions. I will privately talk to him about that.

I urge this Senate to think in broad terms. Do we really want to allow the Federal judiciary to have trials over every decision about who an enemy combatant is or is not, taking that away from the military? Do we really want the people who have been housed by our military to bring every known lawsuit to man against the people fighting the war and protecting us?

I compliment Senator Specter because in this new version they take the conditions of confinement lawsuits off the table. There are 400- something cases that have been filed arising from Guantanamo Bay detention. There is a $300 million lawsuit against Secretary Rumsfeld. There are allegations that people do not get enough exercise. It goes on and on and on. Never in the history of warfare has the host country allowed an enemy prisoner to bring a court case against those people who are fighting the enemy on behalf of the host country. That needs to stop.

I am urging this Senate to dismiss under 2241 the right of habeas actions by enemy prisoners so that judges will not take the role of the military. Adopt anew what we did last year, allowing the military to use a process that I believe is Geneva Conventions compliant, and then some, and have as a backstop judicial review, where the DC Circuit Court of Appeals can review the military's decision. That way, we will have due process unknown to any other war. That will keep the roles of the responsible parties intact. The role of the military in a time of war, I earnestly believe, is to control the battlefield and to designate who is in bounds and out of bounds when it comes to the battlefield. The role of the courts in a time of war is to pass muster and judgment over the processes we create--not substituting their judgment for the military but passing judgment over the infrastructure the military uses to make these decisions.

The problem with this war--there is no capital to conquer, no navy to sink, no army to defeat. The people we are fighting owe an allegiance to an idea, not to a piece of property. They have no home to defend. They have an idea they would like to sell, and they are

selling that idea, whether you want to buy it or not. They are selling it in a very brutal way. They are trying to get good and decent people accepting their view of the world because they are terrified of the way the enemy behaves. This is a war unlike other wars in this regard. People do not wear uniforms, but the ideas the terrorists represent are not unknown to mankind. Hitler wore a uniform. He had the same view of mankind as these people do: there are some people not worth living because they are different.

We have to adjust, but we do not need to change who we are. I am not asking this Senate to change who America is because we are fighting barbarians. Quite honestly, we will never win this war if we move in their direction. Our goal is to get the world to move in our direction by practicing what we preach.

I believe the way to balance the interests of our need to protect ourselves and to adhere to the rule of law is to apply the law of armed conflict, not criminal law.

The act of 9/11, in my opinion, was an act of war, not a crime. And the problem with this country is the people we are fighting were at war with us a long time before we knew we were at war with them. Now we are at war.

This administration, on occasion, in my opinion, has tried to cut the corners of the law of armed conflict. I embrace the law of conflict. I want to fully apply the actions of the United States. I embrace the Geneva Conventions. I want to apply it fully to the war we are fighting even though our enemy will not. But I am insistent, with my vote and with my time in this Senate, that we fight the war and not criminalize the war.

No enemy prisoner should have access to Federal courts--a noncitizen, enemy combatant terrorist--to bring a lawsuit against those fighting on our behalf. No judge should have the ability to make a decision that has been historically reserved to the military. That does not make us safer.

There is due process in place for the enemy combatants at Guantanamo Bay, Afghanistan, and Iraq that I believe is Geneva Conventions compliant. There is judicial review consistent with the military being the lead agency. I urge this Senate to adopt that and to reject this amendment.

I yield the floor.

I will try.

Yes. I will try my best.

Mr. Chairman, I guess one could make that argument. I have been assuming something from the beginning--that the Court's decision in Rasul and Hamdi is a statement by the Court that because Guantanamo Bay falls within the jurisdiction of the United States, it is section 2241 that we are dealing with. It is a statutory right of habeas that has been granted to enemy combatants. And if there is a constitutional right of habeas corpus given to enemy combatants, that is a totally different endeavor, and it would change in many ways what I have said.

I do not know what the Court will decide, but if the Court does say in the next round of legal appeals there is a constitutional right to habeas corpus by those detained at Guantanamo Bay, then the Senator is absolutely right. We would have to make a different legal determination. We would have to make a different legal analysis. And if the Court does that, I will sit down with the Senator and we will figure out how to work through that.

I am just being as honest with the Senator as I know how to be. I think this is a statutory problem, not a constitutional problem.

If I may, I would invite the chairman--I cannot remember what paragraph the language is in, but Justice O'Connor gave some guidance to the military--I think it is Army Regulation 190-dash- something--that she indicated would be a proper mechanism or at least a guide of how to set up due process rights for this administrative determination. So after that decision, I know the military looked at the Army regulation that she cited and built the CSRT process off that concept. I am of the opinion that the Combat Status Review Tribunal does afford the rights Justice O'Connor indicated and is more than the Army regulation would allow that she cited, and it is fully compliant with article 5 of the Geneva Conventions--competent tribunal--but if you look in that decision, she mentions an Army regulation as a guide as to how to do this. I think the military, the Department of Defense, has gone beyond that.

Mr. President, I appreciate that, and I am sorry to interrupt. But I went back to the Hamdi decision that referenced the exchange we had with the chairman in reference to the point the Senator just made.

Justice O'Connor said:

Hamdi has received no process. An interrogation by one's

captor, however effective an intelligence-gathering tool,

hardly constitutes a constitutionally adequate factfinding

before a neutral decisionmaker.

When you turn to the next page, she says:

There remains the possibility that the standards we have

articulated could be met by an appropriately authorized and

properly constituted military tribunal. Indeed, it is notable

that military regulations already provide for such process in

related instances, dictating that tribunals be made available

to determine the status of enemy detainees who assert

prisoner-of-war status under the Geneva Convention.

She is referring to Army regulation 190-8. And my question to Senator Cornyn is, do you agree that Justice O'Connor was telling the Department of Defense that if you will model a tribunal on Army regulation 190-8, you will have met your obligation to have a competent tribunal under the Geneva Conventions to make an enemy combatant status determination?

Mr. President, I thank the Senator from California, Mrs. Boxer, for bringing this amendment to the floor at a very important time in our relationship with Iraq.

In relation to Iraq and as to what people in Iraq in political office have said, you can't judge everyone in the country by the statement of one political leader, but the fact that a political leader said the things that Senator Boxer has just described is unnerving.

I would like the Iraqi people to know that when it comes to disciplining American service men and women serving overseas, we are a nation committed to following the rule of law and that we have status of forces agreements with Germany, Japan, and other countries where our troops have been stationed for decades. Under those status of forces agreements, we have an agreement with a host country that if a military man or woman commits a crime, the United States will retain jurisdiction to prosecute that person who is a military member under the Uniform Code of Military Justice.

I served in Germany for 4\1/2\ years and prosecuted many cases where American service men and women committed crimes against German nationals and civilians in general, and I can assure you that the American military takes very seriously misconduct by its own.

This idea that Prime Minister Maliki suggests that immunity has been given to international forces is, quite frankly, wrong. There is no immunity for an American service man or woman from prosecution for crimes committed in Iraq. But we have an understanding and an agreement at this point in time that when the prosecutions are had, we will do them. We will be the ones responsible for disciplining our troops, just as we do in almost every other country throughout the world. The idea that the U.S. military will retain jurisdiction over crimes committed by service men and women in foreign lands is nothing new. It is the normal course of business.

Given some of the rhetoric coming out of Iraq, it is very important that we need to reaffirm that we will be there to help the Iraqi people achieve democracy, if that is what they want, and to gain their freedom. We have lost 2,500 lives and have been spent $400 billion. So America is very serious about helping the Iraqi people. But we need to be serious--the Senate, the House, and the administration--we need to understand that as part of our commitment to the Iraqi people, there is no need or requirement for us to turn over jurisdiction regarding our soldiers' conduct to the legal system in Iraq. That would be a mistake. We don't do it in any other place, nor should we do it in Iraq.

I can assure you that when people have engaged in misconduct in Iraq and we have found out about it, the soldier, airman, sailor, marine, or whoever is involved is given a trial under the Uniform Code of Military Justice, they are provided a vigorous defense, and the trial is something I think we should be proud of in terms of the legal procedures in the military. But when found guilty, they are severely punished. There are a lot of high-profile cases now, alleging murder and rape, against U.S. service men and women, and they will be prosecuted to the fullest extent of the law because we as a nation believe very deeply in the rule of law.

Those who serve in the military believe very much in duty, honor, and country. When a service member commits a crime while wearing the uniform, it is a stain on all those who wear the uniform. That is why the military comes down so hard on misconduct by our own, because you cannot win a war without good order and discipline.

I can assure the Iraqi people and every other nation where we have troops stationed that when our troops misbehave and commit crimes, which happens in any society, we take the obligation to punish those people seriously, and at the same time making sure they have a full and fair trial.

I join the Senator from California. I urge every Member of this body to get on record now before these treaties have to be renegotiated and get ahead of this rhetoric to let everyone know that we are going to be in Iraq trying to help the cause of freedom, but we are not going to turn our soldiers and military personnel over to a legal system that is, quite frankly, not very mature yet. We have never done it in any other country. There is no need do it.

We can with a great deal of assurance tell the Iraqi people-- politicians included--that we have a great track record of having people stationed all over the world for decades and that track record is that when our people engage in misconduct found to have been proven in a court law, they are severely punished. I can assure every Iraqi citizen that if something goes wrong on our watch by our military, we will handle it. We have a great track record of handling it. But under no circumstances, in my opinion, should we ever go down the road of changing the rules that now exist. It would be unwise for this Nation to abandon what has worked for over 50 years; that is, retaining jurisdiction over misconduct by military members serving abroad. We have a system that works and, quite frankly, I do not want to change that because the men and women in Iraq have enough to worry about. They do not need to be worried about some court in some province that is not really well constituted coming after one of them.

I yield the floor and urge an absolute 100-to-0 vote.

Mr. President, I rise today to correct the public record with regard to a matter raised by the U.S. Supreme Court's decision in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). In part II of its opinion, the majority in Hamdan addressed whether the Detainee Treatment Act barred Hamdan's lawsuit from proceeding in its then-present form. As the court noted, the DTA provides that ``no court, justice, or judge shall have jurisdiction to hear or consider'' claims filed by Guantanamo detainees, except under the review standards created by that act.

In the course of drafting the DTA conference language regarding jurisdiction, Senator Kyl, myself, and several others we consulted, specifically relied on the Bruner line of cases for guidance. In that line of cases, we had taken particular note of Justice Stevens's opinion in Landgraf, where, in discussing the Bruner line, he wrote that the Court had a consistent practice of ordering an action dismissed when the jurisdictional statute under which that action had been filed was subsequently repealed. Since that was precisely what we were doing in the DTA, reversing the Rasul finding of jurisdiction through the habeas statute, we were very comfortable with how our language addressed the jurisdictional change.

Likewise, the Bruner/Landgraf line of cases informed the enactment language regarding the substantive law changes we were making. Because of Justice Stevens's explanation in Landgraf, we felt we had to make those provisions specifically apply to pending cases. However, for everything else, including the requirements for the executive branch to do certain things within certain time periods, having a single enactment statement saying everything applied retroactively did not make sense. So, with that and other concerns, we ended up with what emerged from the conference process between passage of the amendment in November and adoption of the conference product in December. It was complicated and merged a number of concepts.

You see, as the author of that part of the Detainee Treatment Act, it was never my intent to carve out pending cases from the effect of that act. As I have detailed above, we knew the governing law and expected the courts to apply it. And I never hid this intent or understanding. My statements regarding this intent were consistent from the beginning of the debate on November amendment until final passage of the conference report on December 21. This is why I issued a joint statement with Senator Levin in early January of this year which stated, ``[t]he intent of the language contained within the Graham- Levin-Kyl amendment is that Courts will decide in accord with their own rules, procedures and precedents whether to proceed in pending cases.''

In reviewing the record, Justice Scalia and the other dissenters recognized this consistency. Justice Scalia stated that, ``[s]ome of the statements of Senator Graham, a sponsor of the bill, only make sense on the assumption that pending cases are covered.'' Thus, they correctly concluded that the jurisdictional removal language included all pending cases.

Indeed, when the final version of the DTA passed the Senate, I and some of the cosponsors of my November amendment included a colloquy in the Record in which we made clear that we were perfectly aware of the Supreme Court's previous holdings governing jurisdiction-removing statutes and that we had not chosen the language of the amendment by accident. We had initially intended to explain our provisions of the DTA on the floor, but with time growing short, and rather than forcing our colleagues to listen as we droned on, we dropped the statement into the Record and everyone went home for the Christmas break.

The Hamdan majority addressed this statement in footnote 10 of its opinion. First, the Court noted that on November 15, ``Senator Levin urged adoption of an alternative amendment [the final version of my amendment] that `would apply only to new habeas cases filed after the date of enactment.' '' The Court then dismissed my own statement of views in the following passage:

While statements attributed to the final bill's two other

sponsors, Senators Graham and Kyl, arguably contradict

Senator Levin's contention that the final version of the Act

preserved jurisdiction over pending habeas cases, see 151

Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements

appear to have been inserted into the Congressional Record

after the Senate debate. See Reply Brief for Petitioner 5, n.

6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl)

(``I would like to say a few words about the now-completed

National Defense Authorization Act for fiscal year 2006''

(emphasis added)). All statements made during the debate

itself support Senator Levin's understanding that the final

text of the DTA would not render subsection (e)(1) applicable

to pending cases. See, e.g., id., at S14245, S14252-S14253,

S14274-S14275 (Dec. 21, 2005).

There are three misstatements of fact in footnote 10 of Hamdan that I would like to publicly correct. First, the colloquy that Senator Kyl and I submitted for the Record was not submitted after the Senate's consideration of the bill. It was submitted well before the final vote on the conference report, and was necessary due to the substantial changes we made between the adoption on the amendment on November 15 and the adoption of the conference report on December 21.

Second, I have had a member of my staff view the tapes of the Senate's deliberations on November 15 that were prepared by the Senate Recording Studio. These tapes confirm that the statement from Senator Levin that the Supreme Court quoted from that day was not made live, but instead appears to have been submitted for the Record.

And third, my staff has viewed the tapes of the Senate's deliberations on December 21. These tapes confirm that the statements to which the Supreme Court cites from that day, statements by Senators Leahy, Durbin, and Feingold, also were not spoken live on the Senate floor but were instead submitted for the Record. As I will discuss later, it generally doesn't matter to me if a statement is live or not, but it does bear noting the distinction given the Court's focus on it in this case.

The Supreme Court appears to have been misled about the nature of the

legislative statements regarding the Detainee Treatment Act. The court dismissed my and Senator Kyl's statements on the basis that they were submitted for the Record. Instead, it relied on statements where it thought Senator Levin had publicly ``urged'' other members to accept his view, and on statements that it believed had been spoken live ``during the debate itself' on December 21.

In reality, there was no ``debate itself' on the Detainee Treatment Act on December 21.

The final Defense authorization conference report was adopted by a voice vote at 10 p.m. Of the 35 pages of the Congressional Record accompanying the final passage of that Act, virtually none of it was spoken live on the Senate floor. Nothing regarding the DTA was said live on December 21. In other words, the statements that Senator Kyl and I submitted for the Record and that the Hamdan majority dismissed are identical in nature to all of the statements from November 15 and December 21 that the Hamdan majority quoted and cited in support of its construction of the DTA.

I should emphasize that although the Supreme Court was misled, I do not believe that it was misled by any of my colleagues. I believe that Senators Levin, Leahy, Durbin, and Feingold acted entirely appropriately by submitting statements for the Record regarding their interpretation of the DTA. As I mentioned, the Senate considered the final Defense bill that contained the DTA late in the evening four days before Christmas. Although the Senators who submitted statements for the Record had every right to delight their colleagues with 6 hours of speeches and debate at that hour, I am certain that every member of the Senate appreciated the fact that these statements were submitted for the Record instead.

Where does the Court's mistake spring from then? The Supreme Court's mistake about the legislative history of the DTA appears to have been created by briefs filed by Mr. Neal Katyal, the counsel of record for Mr. Hamdan in the Supreme Court. Much of the Hamdan majority's analysis of the DTA and its legislative history appears to have been adopted verbatim from these briefs. Mr. Katyal's brief, for example, wrongly asserts that the colloquy between Senator Kyl and me was ``inserted into the Record after the legislation passed.'' Although statements for the Record must be submitted on the same day that they are to appear in the daily edition of the Record, no public record is kept of when exactly a particular statement was submitted. Mr. Katyal could not possibly have known whether my colloquy with Senator Kyl was submitted before or after final passage of the bill, unless he had asked me or my staff, which he did not do. Had he done so, we would have happily informed him that our statement was submitted hours before final passage. Yet he asserted to the Supreme Court that it was submitted ``after the legislation passed,'' a misstatement that the Supreme Court apparently believed and that it repeated in its majority opinion.

Mr. Katyal's brief also asserts that my colloquy with Senator Kyl was ``entirely post hoc,'' and that Senator Kyl and I ``waited until the ink was dry'' to submit our views. However, his brief's extensive citations to those December 21 statements that favored petitioner Hamdan are not accompanied by similar bold disclaimers.

Indeed, the very statements of Senators Leahy, Durbin, and Feingold that the Supreme Court believed had been made ``during the debate itself' appear to have been brought to the court's attention by Mr. Katyal's brief. That passage of the brief makes no mention of the fact that these statements were not spoken live on the Senate floor. The brief also quotes at length from the same statement by Senator Levin on November 15 from which the Supreme Court later quoted in its opinion. Not only does the brief fail to warn the reader that this statement was not spoken live, the brief even asserts that ``[e]vidence of reliance on Senator Levin's statement was immediate,'' and it cites to a statement by Senator Reid that refers to Senator Levin's views.

I can see how a reasonable person would understand this passage to mean that Senator Levin's and Senator Reid's statements were spoken live on the Senate floor. The brief conjures up a scene of one Senator listening to another Senator speak and then ``immediately'' rising to express his agreement. Yet that scene never took place. Neither Senator Levin's nor Senator Reid's remarks were made live on the Senate floor.

In the usual case, I do not think that an attorney would have a duty to tell a court whether the Senate floor statements that he is citing are live or not. Indeed, most attorneys would have no way of knowing whether a particular statement is live. Under Senate rules, submitted statements that pertain to pending Senate business are presumed to be live statements and are automatically included in the Record among live debate. In my opinion, this is critical to the effective and efficient functioning of the Chamber. I am confident that my colleagues would agree with me.

Here, however, Mr. Katyal made a point of seeking to discredit statements in the Congressional Record on the basis that they had not been spoken live. Given that he stressed the introduction of some statements, I believe it was incumbent on him to inform the Court that the statements on which he relied also were not spoken live.

I should again emphasize that I do not criticize any of my colleagues in the Senate. Senators Levin, Leahy, Durbin, and Feingold's actions were entirely honorable and aboveboard. Indeed, Senators Leahy, Durbin, and Feingold, as well as others who opposed the DTA had every right to have their opinions, thoughts, and intent recorded, both in November and in December.

In closing, I would also like to express my concern about the soundness of the distinction that the Hamdan majority drew between live and submitted statements. Although the reality of Senate floor debate is not quite as unflattering as what Justice Scalia suggests in his dissent, it is true that live speeches made by Senators are not always heard by other Members. Senate floor debate is only one of the many sources of information on which Senators rely when deciding how to cast their votes. Other than when Senators express agreement with one another through a colloquy or by expressly referring to each other's views, Senate floor statements should not be understood to represent the understandings and intentions of anyone other than the Member making the statement. Nor should the courts assume that Senators are unaware of court precedent and rules of construction.

I hope that this statement will prevent further mischaracterization of the legislative record of the Detainee Treatment Act. Senators Levin, Leahy, Durbin, and Feingold's December comments on the act are all entitled to consideration, but no more so than mine or Senator Kyl's. The Supreme Court was misled in Hamdan, and it appears to have based its decision, at least in part, on a simple mistake of fact. That is a result that all those who respect the democratic process and the rule of law should regret.

Mr. President, I take this opportunity to comment on S. 3711, the Gulf of Mexico energy bill. I believe this legislation strikes an appropriate balance between our need for new sources of oil and natural gas, with the concerns of the coastal States.

I do support passage of S. 3711, but I do not support the bill passed by the House of Representatives earlier this year. The careful compromise that is the Senate bill cannot be found in the version passed by the House. I will not support any legislation that opens South Carolina's coast to drilling for oil.

I am supporting the Senate bill, but I wish that it went further to address our energy dependency issues. According to the International Atomic Energy Agency, IAEA, the world's demand for energy is expected to double in the coming years. This should be a call to intensify our efforts to become energy independent as soon as possible. We must continue to fund research into alternative sources of energy such as hydrogen. Where suitable we need to use solar power and potentially wind. We must expand production of ethanol beyond corn so that all regions of the country can produce ethanol efficiently.

As a cochair of the Senate Manufacturing Caucus, I voted for this legislation to increase our supply of natural gas for manufacturers. According to a study by the Congressional Research Service, 24 percent of our natural gas is consumed to generate electricity. While it is very easy to generate electricity from gas, it is a very inefficient use of the resource. Instead of electricity generation, natural gas should be utilized for industrial and home heating use.

For electricity generation, we need to continue encourage a renaissance in nuclear power. This involves reducing the regulatory redtape involved in constructing new plants, opening Yucca Mountain, and proceeding with spent nuclear fuel recycling. Nuclear power is an efficient zero-emission source of energy that can address both our energy and climate concerns.

I applaud the ongoing work of Senator Domenici and others to help increase the supply of critical energy resources. This bill is a small step in the right direction, and I look forward to working to further this effort beyond what we are accomplishing today. I also encourage my colleagues in the House that if they are truly serious about passing a bill to increase the supply of natural gas and oil this year, S. 3711 needs to be passed by the House as soon as possible.

Mr. President, I am very pleased to support the nomination

of Jerome Holmes to be a judge on the Tenth Circuit Court of Appeals. Due to a scheduling conflict, I am unable to be here to vote for Mr. Holmes, though I would have cast my vote to confirm him. In any event, with his stellar qualifications, I doubt my vote will be needed. President Bush made a great choice in nominating Mr. Holmes, and I look forward to great things from him during his tenure on the Tenth Circuit.

Thank you, Mr. President.

I wish to take a few moments to add my voice to the Senate debate in terms of why I will vote for the Voting Rights Act reauthorization.

No. 1, I am a member of the Judiciary Committee, and I wish to congratulate our chairman, Senator Specter, and our ranking member, Senator Leahy, for getting the bill out of committee. It was an 18-to-0 vote. I have enjoyed that committee in many ways, and one of the highlights of my time on that committee is getting this piece of legislation to the floor for a vote. I anticipate an overwhelming vote for the Voting Rights Acts.

There are so many ways to say why, and so many approaches to explain the continued need. But the best I can say, in terms of my voice being added to the debate, is that I recognize it is just a voice, that I am in the Senate--I just turned 51 years old, a child of the South. I grew up in the 1950s and 1960s, and I went to segregated schools until, I think, the fifth or sixth grade.

My life is better because of the civil rights movement.

It has enriched the country. I have been able to interact with people in ways that would have been impossible if segregation had stood and, as Senator Obama indicated, his career in the Senate is possible. I would argue that most Americans' lives are better because in America you can interact in a meaningful way now. And one of the interactions is to be able to vote.

But it is just a voice I add. To get here, literally, to get the Voting Rights Act passed back in the 1960s, people died. They shed their blood, their sweat. They put their hopes and dreams for their children on the line. They were willing to die for their insistence that they play a meaningful role in American society. And the most meaningful way you can participate is to be able to vote without fear.

Dr. King is a fascinating historical figure now. He was a fascinating man while he lived. I have been in the military for quite a while. I have been around a lot of brave people--pilots who take off and fly in harm's way. I sort of have an affinity for military history. I always admired the people who would go up the hill in the face of overwhelming force or stand with their comrades when it looked as though all hope was lost because that was the right thing to do.

They were willing to sacrifice their life not only for their country but for their fellow service members, the people in their unit. How hard that must have been. Some people rise to the occasion and some don't. Those who rise to the occasion are called heroes, rightly so. Those who fail to rise to the occasion are called human beings.

All human beings, me included, should celebrate the heroes. The thing that I admire most about Dr. King and his associates is that it is one thing to put your own life at risk. It is another thing to put your family at risk. I would imagine, never having met Dr. King, that one of his biggest fears was not about his personal safety but about what might happen to his family. To me that is the ultimate act of bravery, to know that if you do nothing, your family is going to be locked into a system where life is very meaningless. And to do something so heroic and so challenging that you put your family at risk had to be a very hard decision.

So as we reauthorize the Voting Rights Act, we need to remember, all of us who vote, that it is not that big a deal. There is no one in the Senate. Hardly anyone is listening. We have some visitors here in the Capitol. It is going to pass pretty quickly. Everybody knows the outcome. In the 1960s, people did not know the outcome. I argue that the fact we reauthorized this without a whole lot of discussion and rancor is the best testament to its success. All the fears and all the playing on people's prejudices that would come from integration, if it came about, or allowing everyone to vote, if it came about, they were just that--baseless fears. As you look back from 2006 over the history of the Voting Rights Act, there is nothing to fear. Allowing Americans to fully participate in a democracy has been a wonderful thing. Allowing people to go to the movie they went to go to and go to the restaurant they want to eat at and play on the same sports teams as every other person in their neighborhood, regardless of race, creed, or color, is a wonderful thing. At the time it was a frightful thing.

That says nothing about this generation being good and the last generation being evil. It speaks to the weakness of humanity. Within all of us there is a fear that can be tapped into. We have to guard against that. We have to be on constant guard not to let the issues of our day play on our fears.

I argue that one of those issues we are dealing with today that is playing on the fears of the past and the weaknesses of humanity is the immigration issue. I hope as we move forward on the immigration issue, we can understand that obeying the law is an essential part of America, and people need to be punished when they break it. But America's strength has been absorbing people from all over the world, from different backgrounds, races, and creeds, and allowing them to share in the American dream. We should do it in an orderly way, not a chaotic way.

To the issue at hand, the Voting Rights Act will be extended. I believe it is for 25 years. Some of the data in the act is based on 1968, 1972 turnout models. The act does not recognize the progress particularly in my region of the country. I think it should have, but it didn't. So we will just move on.

South Carolina has made great strides forward in terms of African American voting participation and minority African American representation at all levels of State government and local government. My State is better for that. I am proud of the progress that has been made. To those who made it happen, those who risked their blood, sweat and tears, I owe you a debt, as everyone of my generation does. When I cast my vote today, it will be in your honor and your memory.

I hope 25 years from now it can be said that there will be no need for the Voting Rights Act because things have changed for the better. I can't read the future or predict what the world will be like 25 years from now or what America will be like. But if we keep making the progress we have in the last 25 years, it can happen.

It is incumbent upon each Member of this body--regardless of political differences, party affiliation, or personal background--to try to bring out the

best in our country no matter how hard the issue might be, no matter how emotional it might be, and no matter how much people play on our fears. Just as those who came before us rejected the desire to play on fears and prejudices and risked their personal safety, I hope this generation of political leaders that I am now a part of will live up to the ideals demonstrated by Americans in the past who were brave, who risked it all for the common good.

I will close with this thought: As Senator Obama said, if we can embrace the spirit that led to the Voting Rights Act--a sense of fair play, fair treatment--and apply it to other areas and other issues facing our Nation, we will be much stronger. It is with that sense of purpose and hope that I will vote to reauthorize the Voting Rights Act.

To my fellow South Carolinians, you have come a long way. You have much to be proud of. But we, like every other part of this country, still have a long way to go.

I yield the floor.

Mr. President, whether it would ever be a crime to write on the flag or wear it at a concert, who knows? This whole debate is about restoring the power of elected officials to be able to manage such events. The Supreme Court, in a 5-to-4 decision, took the power away from everyone who is elected to have any say about the flag. This happened in 1989.

We have lived here free, open, safe, and secure of being able to regulate conduct toward disrespecting the flag for most of our life. Only since 1989 and a 5-to-4 decision have we had this problem.

I stand here wanting every elected official to have the constitutional power that we previously possessed before the 5-to-4 decision. And we will decide among ourselves what a good statute might be or may not be. Everybody can go through that process and be answerable to the people.

I do not believe it is a burden to place on our citizens at large not to disrespect the flag. It is a burden we can bear as a people. If you do not like me, there are a million ways you can show your displeasure with my time in the Senate. But the fact is, I am an elected representative. All I am asking citizens as a whole is that we have one thing in common--that we are able to talk with each other and debate issues without destroying the flag.

To me, that is a burden that we can bear. Freedom without responsibility is chaos. So it doesn't bother me one bit to turn to my worst enemy and say: This one thing is out of bounds. Have your say, have your fun, do what you are going to do, speak as loudly as you want to speak, but this is one thing I ask of you: please don't destroy the flag.

To the few citizens who feel a need to do that, it doesn't bother me one bit for them to be told no. That is what is wrong with our country today. Nobody is afraid to tell anybody else no. I am not afraid at all; to the few who want to destroy the flag, I am gladly willing to tell you no. That doesn't make me any less free or you any less free.

Mr. President, if it is acceptable to the chairman, I would like about 10 minutes, maybe less, to talk about a managers' amendment that has been accepted by the chairman and ranking member, to put in the record how important I think this is regarding military retirement, Guard and Reserves.

I apologize.

I will be very brief.

One, I thank the chairman and ranking member for their willingness to help Senator Chambliss and Senator Clinton and myself with a package of reforms that would be very beneficial to the Guard and Reserves regarding Reserve retirement.

Right now, the current system will not allow you to retire until you are 60. You can serve your 20 years, 30 years, but you have to wait until you are 60 to get your retirement. We are trying to incentivize those Guard and Reserves to take part in active-duty operations, and if you are called up to active duty involuntarily, for every 90 days a member spends on active duty, from September 11 forward, you will get a day-for-day credit in terms of retirement. If you serve a whole year on active duty, voluntarily or involuntarily, you could retire at 59.

We have had this scored. It is minimum cost. But I can assure you it will go a long way in the Guard and Reserve community as a much needed reform.

It will be well received by our troops. It will be good for them and their families. Quite honestly, the level of commitment, the level of Active Duty service is on par with World War II among the Guard and Reserves, and it is the least we can do. This will certainly benefit our guardsmen and reservists and their families. I appreciate the chairman and ranking member putting it in the managers' package.

I have enjoyed working with Senators Chambliss and Clinton on this issue. The reduced retirement provision was from Senator Chambliss. It was his amendment. And we used his amendment also to improve health care for the Guard and Reserves.

What we have done--there is a three-tiered system. For every 90 days you are called to active duty, you get a year of TRICARE at a 28- percent premium share rate, which is the same as for Federal employees. Everyone who works in our offices as Federal employees pays 28 percent of the cost of their Federal health care. The only group in the Federal Government not to have Federal health care were the Guard and Reserves. We fixed that last year. And we are going to have a change in the allocation.

Tier 2: If you are an unemployed or an uninsured guardsman or reservist, we are going to have a 50-50 cost share. If you are in the private sector with health care, and you want to come into TRICARE, to have continuity of health care, not bouncing back and forth, we are going to have a 75-25 share. So if you want to get out of your private- sector health care and come into TRICARE, you will have to pay 75 percent. That will be down from 85 percent. We put a cap on premium growth rates.

The entire package, from allowing people to retire early if they serve on active duty, voluntarily or involuntarily, is a great idea. Balancing out the premiums to be paid will go a long way to make our Guard and Reserve family members and Active Duty and military members more appreciated. And it will certainly help them with their budget problems, because we all know how costly health care is.

I have introduced a separate stand-alone bill that would allow every guardsman and reservist who is eligible for TRICARE to participate in premium conversions. It would allow them to have their TRICARE premiums on a pretax basis, like every other Federal employee. That is a stand- alone bill. We will do it later.

I thank Senator Chambliss for coming up with a package that would allow military members and the Guard and Reserves to get credit for their active service in terms of retiring below age 60. Senator Clinton and I have worked for several years on TRICARE benefits for guardsmen and reservists. I think we have improved that benefit in a very reasonable way. I put that on the record and hope every Member of the Senate will appreciate what we have done because our guardsmen and reservists have served above and beyond the call of duty.

Mr. President, I now yield to Senator Clinton, who, as I have indicated, has been with us every step of the way, leading on this issue.

Mr. President, this is a very important debate. There is a lot of interest in this debate throughout the world. I am sure everybody at home is probably not sitting on the edge of their seats listening to what I am saying, but in many ways this debate will define the U.S. relationship with the Middle East and the world at large for a long time.

The authors of this amendment are as patriotic as anyone I have ever met. They are fine Senators. They are smart. They are trying to do what they believe is in the best interest of the country and the world at large. The problem I have with the amendment and the reason I rise in opposition to it is that there is an underlying premise about this amendment that we need to set timetables to send a signal to the Iraqi people to do their part and to get on with the transition and to stand up faster and to get political solutions to hard problems faster so that we can come home, and without this amendment, the Iraqi people may just draw this thing out and rely on us too much.

I understand your concern, but I take a different view of the Iraqi people. I am here today publicly to say that I could not be more proud of standing with the Iraqi people and their Government than I am now. What we have asked of them, they have delivered. Senator Dodd was right. Every time we tried to set deadlines, they delivered. They delivered on some of the most difficult circumstances imaginable. If you want to run for office in Iraq--it is tough in America; they say awful, bad things about us in this body when we run--they try to kill you, and they come after your family. So to those

Iraqis who have joined the police force for the right reasons, to those who are serving in the military for the right reasons, to those politicians trying to bring that country together with a unity coalition government, my hat is off to you. I admire you. I am proud to stand by your side. I have no desire to leave you in a lurch. I have every confidence that you want us gone as much as we want to leave, but you understand your capacity is limited right now.

The National Security Adviser said there is a roadmap for us to leave, and the Iraqi people want to have the ability to chart their own destiny sooner rather than later.

To my friends in the Senate, if the U.S. Congress sets a timetable, it is a rebuke of the Government in Iraq. It is a vote of no confidence in the Iraqi people, and it will be seen as such on al-Jazeera and throughout the Middle East.

There will be a timetable for us to leave. It will be performance driven, and it will be authored by the Iraqi people themselves. The day they set the timetable and they set the benchmarks, it will empower their Government and their people and it will diminish the terrorists. If we set those timetables and the benchmarks, it will diminish the Iraqi Government, all of the efforts of the Iraqi people, and empower the terrorists.

I hate to say that I disagree with my good friends, but I do. We are going to come home one day. That day is not so far away. History will judge us by not when we left but by what we left behind. I want to leave behind a regime capable of pulling off something no one else has been able to do in the Middle East, a functioning democracy so the Shias and Sunnis and Kurds can live together under the rule of law and they can take out their differences at the ballot box and the courtroom. It has been 3\1/2\ years almost. They have come a long way. We have been at this over 200 years. We still have our problems. Under the best of circumstances it is very difficult to bring people together of different backgrounds, religions, and ethnic groups. We had our own Civil War. It started in my State. When we wrote our Constitution, after 11 years, women couldn't vote. African Americans were not even recognized as people. We have come a long way, and it has taken us a long time to get there.

Our Iraqi friends, the moderates are fighting and dying for their own freedom. They have come a long way in 3\1/2\ years. I am begging this body, let us not, as a body, set a timetable that would diminish their sacrifice and not recognize it for what it is. The truth is, the Iraqi Government and the Iraqi people are doing historic things in the Mideast that no one else has been able to accomplish. They are not lazy. They are not indifferent. They are not letting us fight their war. They are fighting it alongside us and dying. They are dying in larger numbers than we are. If they pull this off with our help, the world will be eminently safer. If they fail, moderate forces in the Mideast will be less likely to rear their head and stand up against terrorists, and the terrorists will seize the moment in the decades to come.

Never has so much been at stake for mankind and with so few people sacrificing. Stand with the Iraqi people. They want us out, but don't diminish their sacrifice.

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

Mr. President, I want to speak, if I may, regarding a proposal by Senator Bingaman concerning Guantanamo Bay and the disposition of detainees. I understand he introduced an amendment yesterday. I have the summary of it. If I mischaracterize it or if it is changed in any way, I apologize. I will try to give an overview based on what I know, with the understanding that if it changed, I stand corrected.

Senator Bingaman, from what I understand, has an amendment that would require the United States to either charge, repatriate or release individuals held at Guantanamo Bay within 180 days of the enactment of the Defense authorization bill, and if for some reason the Government fails to comply within that timeframe, the Department of Defense would have to report back to Congress to tell us why. It provides further that charges could be filed in U.S. District Court, a military tribunal court or military commission or an international tribunal against detainees.

If I may, I will express my concerns about this amendment. No. 1, the detainees at Guantanamo Bay are being held as enemy combatants. That is a concept that has been part of our law for quite a while. The Supreme Court has several enemy combatant case holdings. That is someone who is involved in hostilities but not in the normal course of combat. They don't wear uniforms. They are not supported by a particular State. They are fighting, in this case, for a terrorism cause that doesn't have a country of origin. They are irregular combatants.

For many years in the military law, a regular combatant or enemy combatant has been considered a person outside of the protection of the Geneva Convention because that is an international treaty designed to protect lawful combatants and have procedures that every signatory country will abide by. A lawful combatant is someone who represents a State, wears a uniform, and operates within the rules of international military law.

Al-Qaida, by their very definition, because they don't wear uniforms and represent a particular country, are irregular enemy combatants. The people at Guantanamo Bay have been captured in various parts of the world by the U.S. military or were turned over to them as being suspected of being involved in the war on terror. There are 500- something people down there now; over 200 have been released. Senator Bingaman's amendment would require the Government to release them all or charge them.

The reason I believe that is not good public policy is because enemy combatants--you don't have to choose between trying them and letting them go. A prisoner of war is not required to be released until the hostilities are over. We have had Members of the Congress who were enemy prisoners during Vietnam and were incarcerated 5, 6 or 7 years, until the Vietnam war came to an end.

This amendment, in an odd way, would allow enemy combatants to be released before hostilities are over, which is something not afforded to a prisoner of war. But a traditional prisoner of war is not subject to being tried as a war criminal for the mere status of being involved with the opposing force.

I believe strongly that it is not advisable for this country to say as a matter of policy that every enemy combatant or unlawful combatant per se is a war criminal. Military trials or commissions should be conducted for people who are part of the enemy force who have violated the law of armed conflict. There are about 20-something people, I believe, facing military commission charges at Guantanamo Bay and haven't been tried yet because of Federal court proceedings affecting the outcome of the military commission status. This amendment would require the United States to make a choice that no other country has ever had to make: try them or let them go.

The truth is that some of them deserve to be tried as war criminals. Some of them deserve to be taken off the battlefield until they are no longer a threat to our country and our coalition forces. And to have to let them go or try them is a choice the country should not have to make.

Who is at Guantanamo Bay? There have been some high-profile stories about individuals who were sent there who may not have been involved in enemy combatant activities. Unfortunately, those things happen. You can get someone in your custody based on some bad information and, over time, find out you made a mistake. And 200-something people have been released under the current procedure. What is that procedure? The Geneva Convention says if there is a question as to whether a person is a POW, a prisoner of war, or an unlawful enemy combatant, the host country, the country in custody of that individual, must have a competent tribunal to make that decision.

As far as I know--and correct me if I am wrong--the decision as to whether a person is an enemy combatant is a military decision. We don't have civilian trials. The Geneva Convention doesn't require a civilian judicial determination to be made. The determination of whether you are a POW who is entitled to the Geneva Convention protection, an enemy combatant or an innocent individual, is left up to the military. I argue that that is the way it should be, with due process rights.

The problem with this war is that we don't know when it is going to be over because there will be no surrender ceremony. I am sensitive to that. I understand the Senator's concerns, and that is legitimate. The process at Guantanamo Bay now, as I understand it, is

when somebody is sent there, a combat status review tribunal will review their case, a military intelligence officer, and a military lawyer will look at the case and determine if the individual before them is an enemy combatant or meets the definition of an unlawful irregular enemy combatant. The host country where the person comes from can intervene on their behalf. Evidence is collected. They don't have a lawyer, but they have a representative. Every year, that person's status is reviewed. An annual review looks at whether the person still has intelligence value, whether they are a threat to the United States or has anything changed about their initial status determination.

Under an amendment passed that was authored by Senator Levin and myself, every Guantanamo Bay detainee now will have a chance to appeal their case to the Court of Appeals for the District of Columbia, and a Federal court of appeals at the District of Columbia will review the combat status review tribunal's action in that case to see if it was proper. So now we have civilian courts looking over the initial military determination. When it comes to military commissions and people being tried as war criminals, we have the presumption of innocence and the right to a lawyer, which is a very similar tribunal to international tribunals, very similar to the UCMJ but different in some regards.

So the idea that we need to let the prisoners go or try them all, I think it would be a very bad policy decision to make because some of them can be dangerous, can be a threat to our country if released or they could have intelligence value but don't fall within the definition of war criminal. To say that every enemy combatant is going to be tried as a war criminal is not good policy because you are beginning to change the way the rules have worked for a very long time.

We have had 200-something people released. About a dozen of them have gone back to the fight, unfortunately. So there have been mistakes at Guantanamo Bay by putting people in prison that were not properly classified. There have been mistakes about releasing people that we thought were not dangerous but turned out to be so.

I have a summary of statements made by individuals who have been released from Guantanamo Bay but went back to the fight. I ask unanimous consent that it be printed in the Record.

Mr. President, one of them is Mullah Shazada who was released from Guantanamo Bay on May 8, 2003. He assumed control of Taliban operations in southern Afghanistan. His activities reported including the organization and execution of a jail break in Kandahar.

Abdullah Mahsud was released in 2004. He became the militant leader of the Mahsud tribe in southern Waziristan. We learned he had been associated with the Taliban since his teens and has been described as an al-Qaida facilitator. In mid-October 2004, he directed the kidnapping of two Chinese engineers in Pakistan. During a Pakistani rescue attempt, the kidnappers shot one of the hostages.

Mohammed Ismail was one of two juveniles held at Guantanamo Bay. He was released in 2004. During a press interview after his release, he thanked the United States for providing him education opportunities in Guantanamo Bay and stated he would look for work after visiting his relatives. He was recaptured 4 months later in May 2004 participating in an attack on U.S. forces near Kandahar. At the time of his recapture, Ismail carried a letter confirming his status as a Taliban member in good standing.

Abdul Rahman Noor, after being released in July 2003, has participated in hostile actions against U.S. forces near Kandahar. He was later identified as the person in a 2001 al-Jazerra interview described a mujhadeen defensive position claiming to have downed an airplane.

The reason I mention these individuals is that mistakes have been made in letting people go. Once the military tribunal reviewed these individual cases, they made a determination the person was no longer a danger to the United States and possessed no additional intelligence value. They were wrong.

These people and several others went back to the fight, and at least one of the people involved killed an American medic.

The process we have at Guantanamo Bay is reform in a manner that I think is consistent with American values. This body, in an overwhelming vote, indicated to the Department of Defense that their interrogation techniques needed to be standardized and put in the Army Field Manual. That is a work in process.

This body, in an overwhelming vote, gave every detainee at Guantanamo Bay a right to petition their status to Federal court for Federal court review.

We have due process rights in place for detainees at Guantanamo Bay that I think are unprecedented in the rules of armed conflict and are based on the fact that this is a war without a definable end.

But the amendment before us by my good friend from New Mexico would require this country to release the detainees en masse or repatriate them or charge them. The problem with repatriation is that one of the problems with closing Guantanamo Bay is, where do we put these people?

We have had case after case where the detainee was eligible to be released but did not want to go back to their host country for fear of reprisal. The idea that we can take the 460 prisoners and open the gates of the prison and say, Go back, is going to be a problem because a lot of them have no place to go or won't be taken back.

Another problem is that if we release these people en masse, some of them will become our worst nightmare. Information about statements made by detainees--I have another document here, where they openly avow a desire to get back into the fight and to kill Americans and to continue the war on terrorism.

Simply stated, the people at Guantanamo Bay, in my opinion, are people who need to be looked at every year in terms of their status and whether they have intelligence value and whether they present a danger. And that decision can be reviewed by civilian authorities.

They are not people for whom we should open the door and say, Leave or be charged, because the truth of the matter is that there are people down

there who are enemy combatants who have not engaged in conduct that would fit a traditional definition of a war crime.

I just don't think we need to make that choice. We need to make sure that every detainee has adequately been processed, that our country is accountable for their treatment, that our country is accountable for their legal status, and that we have a way to prove to the world and to our own public that the detainees are being confined within the rules of armed conflict and treated properly.

This amendment would set in motion, I believe, forces that would come back to haunt us. Mr. President, I say to my good friend from New Mexico, I understand his concerns about Guantanamo Bay and the image problems that it has created, but I would argue that the reforms in which we have engaged have been real. We are not getting much credit for those reforms, but we are just going to have to understand as a nation that every critic of this country's policy doesn't have to make the decisions we do.

The criticism coming from abroad about Guantanamo Bay is part of democracies being able to speak openly, but they are not coming to South Carolina. If we let them go, they are not coming to South Carolina. I will do everything I can to keep these people from coming into my home State. And I doubt we want them to go to Mexico, and I doubt they are going to go to Connecticut.

I do not want to intermingle them with our military prison population because these people represent the hardest of the hard.

I hope we can reform Guantanamo Bay and that one day it will be closed because the needs of the war on terrorism have been met. And I do hope that those who are war criminals in the truest fashion will be tried at Guantanamo Bay by military commission and those who are not war criminals will be held until they are no longer a danger. I do not believe it is advisable for this country to make a choice as a nation that no other nation has ever had to make before, and that is turning loose someone who is caught on a battlefield engaged in hostilities against our own people or try them all as war criminals. That has never happened before, and it shouldn't happen here.

I yield the floor.

Mr. President, I ask unanimous consent that the text of the Project Seahawk Implementation Act be printed in the Record.

Madam President, I will give a little background, if I could, about this subject matter and area of inquiry.

The Department of Defense initiated early on this year, and part of last year, a fairly dramatic increase in TRICARE premiums for military retirees and family members. The TRICARE program is, I think our membership knows, a military health care system for Active-Duty people and also for those who are retired, up to age 65. This is a provision for those 65 who can continue during Medicare eligibility.

The health care part of the military budget is just growing leaps and bounds. Our chairman is sort of the champion of the TRICARE program, and it has been a wonderful program for military members and their families and retirees. But in 2015, it is going to be 12 percent, if nothing changes in the entire military budget. It is on an unsustainable course. We have not had a premium increase since TRICARE's inception.

I will take a back seat to no one in wanting to help the troops, but the best thing we can do is create a benefit that is sustainable and not have to pick between health care benefits and armament and new weapons and all of the operational needs of the military, which are going to be eventually squeezed. In committee, Senator Nelson and myself, along with the chairman and ranking member, said to the Department of Defense: Stop, don't pass go, no fee increases.

We are going to have the GAO and other groups look at ways to save money before you have to ask for fee increases. And, secondly, give us some idea if the Department of Defense numbers are accurate. Are they accurate in terms of the growth explosion in the cost of this program? So we are going to get information to make a good decision and basically put a hold on the fee increases for participation of TRICARE.

That got us into the area of prescription drugs. One of the things that we have done for military members, and retirees in particular, is we have made prescription drugs very affordable and reasonably priced. What we are trying to do to save money is to allow an increase in retail prescription drug costs, which have again been static since the inception of the program, from $3 to $5 for a 30-day prescription for generic drugs, from $9 to $15 for a 30-day prescription of brand drugs. To counter that, we were going to have a zero copayment for those who chose to get their prescriptions filled through the mail. If you had a maintenance prescription, a drug need that would be recurring, and you used the mail system, there would be no copay at all.

What we are trying to do there is get people into purchasing drugs in a way that is cost effective for the military and have some cost increase to keep the program sustainable. That is what this debate is about.

I appreciate the chairman, who has been a great leader in this, working with Senator Lautenberg to try to find a way to get us past 2007.

I will end on this note. This problem is going to get worse. Over time, the military health care footprint within the Department of Defense budget is on an unsustainable course. TRICARE is a great program, but we are going to have to look at ways to make it more efficient, look at cost savings and, eventually, we are going to have to go back to the military community and ask for some increased participation to make this sustainable for the next generation of military retirees and their families. If we don't, we are going to be in a dilemma we would not want to be in as a nation, having to pick between operational needs and health care needs.

As a member of the Guard and Reserve--and I have done some time on active duty--I want to be as generous and as fair with the benefit package as the country can afford, but no benefit can be locked in time without some reevaluation and adjustment. After 2007 passes, we are going to have to start making hard choices. I promise all the Members of this body and those who may be listening to the military community that we are going to do it in a way that is acceptable, humane, rational, and not ask more than people can bear. The idea of trying to have a zero copayment if you would get your prescriptions filled through the mail is a great idea. It will be good for the military members participating in the prescription drug program, and I am convinced--and we will see after this year--that it will save a lot of money, specifically for those drugs recurring in need.

The increases on the generic and brand names through the retail system are appropriate, and we will revisit that issue after this year.

I just want the Members of the body to know that if we don't get ahead of the growth of TRICARE and try to implement changes in a systematic, incremental way, we are going to wind up one day where this body in the next decade is going to have to make some draconian choices. The way to prevent making draconian choices is to phase in changes that the force can accommodate and that will relieve the pressure on TRICARE. It is a wonderful program, and it needs to be on a sustainable footing. Right now it is on an unsustainable path. We will find out more information about how to reform it at the end of this year.

Madam President, I say to the chairman of the committee, I appreciate all the effort he has given to create TRICARE. He worked in a bipartisan manner to create a health care program that has been very valuable to the men and women in the military, their families, and particularly retirees. This program, like every other program at the Federal level, is going to have to be looked at anew in terms of sustainability. I look forward to working with the chairman and others to make it sustainable.

Madam President, if I may add, the projections are that the military health care program will be $65 billion in costs by 2015, 12 percent of the DOD's budget. We will be getting a real hard look to see if those moneys are accurate and ways to save money. Madam President, 2007 will be a year in which we look at the true cost component of TRICARE projected out in the future and try to think of ways to make it sustainable, because if the projections are anywhere near accurate, this program becomes unsustainable over time. It is worth saving, and I think anyone in the military would want it to be saved. We are just going to have to be honest with them about the cost. They cannot be locked in time forever.

Amendment No. 4205, as Modified