Floor Statements

Mr. President, today I wish to recognize Mr. Norman Scarborough of Clinton, SC, who has been named the South Carolina Professor of the Year by the Council for Advancement and Support of Education, CASE. The Professor of the Year awards are the only national awards that recognize college and university professors for excellence in undergraduate teaching and mentoring. Professor Scarborough is to be commended for this exceptional honor, and I wish to extend my personal congratulations.

Professor Scarborough is currently a member of the Department of Economics and Business Administration at Presbyterian College in Clinton, where he has served since 1979. He teaches classes on business law, small business management, management information systems, and business statistics. Professor Scarborough has numerous publications having either authored or coauthored 7 books and 6 papers on everything from economic development to the Internet. His professional and scholarly affiliations include Phi Kappa Phi, the American Management Academy, the United States Association of Small Business Entrepreneurship, and the Society for the Advancement of Management. Professor Scarborough also founded the student business club at Presbyterian College.

In the classroom, Professor Scarborough is known for his preparation and enthusiasm. He prides himself on encouraging his students to think critically about his lessons instead of simply memorizing them. Professor Scarborough also emphasizes the practical application of the subjects he teaches, preaching to his students about how his lessons can be used in life.

Professor Scarborough has garnered the personal and professional respect of his students, colleagues, and neighbors. He is well- deserving of recognition for his efforts and work. I commend Professor Scarborough, the South Carolina Professor of the Year, for his award and wish him great success in his future.

Mr. President, I thank the Senator. I stand here in two capacities: speaking as a Senator trying to find a compromise that would be good for the institution and as a friend of Tom Coburn.

If I had any doubt about the effect this would have on the institution, I would not rise in support of my friend, because we all know why we are here. We are here to make the country stronger and the Senate better. Having Tom Coburn here as a physician I think makes the country stronger and better.

It is not about him making money. All of us know Senator Coburn and what he does in Oklahoma. He is not practicing medicine to make money. He is practicing medicine to stay in touch with his constituents, to provide a vital service to rural Oklahoma, and to try to pay the bills. He is doing it for all the right reasons.

You can, as Senator Lott said, have outside income. This is not about outside income. This is about trying to maintain the skills that are very much in demand in Oklahoma and a relationship that I think will be beneficial to the people he serves and the Senate as a whole.

The bottom line is, it worked in the House. They had the same debate in

the House. They had a compromise where Senator Coburn could practice medicine not for a profit but for the privilege of serving his constituents in two ways: as a Representative and a doctor. It worked very well. It was a win-win. It can be a win-win for the Senate. Physicians who served in the Senate in the past have been allowed to practice.

Perception is important. We don't want to do anything in the Senate on our watch that would give a perception that the body is not at its highest level. And reality is important too. I think the reality of allowing Dr. Coburn to continue to practice in the Senate, such as he did in the House, is extremely beneficial to real people who need a good doctor who is competent at delivering medical care and who has a great heart for serving people. Those individuals need the Senate to understand they are affected, and whatever perception problems anybody is worried about, it did not hurt the House at all, and it is not going to hurt the Senate.

The reality is there are people counting on Dr. Coburn, and it would be a shame for them to be denied medical care from a very good man.

From the Senate's point of view, I think it would be good for us to have a commonsense view of what our role in society is, that we are not a body that should be totally disconnected from everyday life. If you can have a Member of the body serving in a very vital capacity that improves everyday life, then we ought to let that happen. It would be a win-win for the Senate, and it would be a win-win for the people of Oklahoma.

I am here to say that Tom Coburn is not only a great Senator, he is a great doctor, and he practices medicine for all the right reasons. Any perception problem should not stand between him and the ability to deliver a vital service. We are not reduced as a body by him taking care of people in Oklahoma. I think we are enhanced.

I yield the floor.

Mr. President, I thank the Senator for allowing us to have this time. I have a unanimous consent request to make for the Record. This has been approved by the majority leader and minority leader.

I ask unanimous consent that the consent agreement relating to S. 295, which is a bill about China currency, which was entered on July 1, be modified so that it is applicable under the same terms including any days in December that the Senate is in session but under no circumstances no later than March 31, 2006, with all other provisos remaining.

At this time, I yield to my colleague from New York.

Mr. President, I thank my colleague for giving a very good explanation of where we started and where we are today and where we hope to be in the future. Where we started was a situation where China saw no self-interest in allowing their currency to meet international monetary standards of being valued by the market.

The practice of pegging the yuan to the dollar has created a tremendous manufacturing disadvantage for our manufacturers. It has hurt every competitor China deals with. It is a practice that needs to change because China has changed.

Our goal is to allow that change to come about in a reasoned way, in a win-win fashion. The change that occurred, as Senator Schumer spoke about, where there was a slight revaluation, was a very good signal coming from China. It was an optimistic event. Since then, 4 months later, very little has happened.

I know the President is going to put it on the table when he goes to China. We stand behind our President in this regard, that we in the Senate, 67 of us, anyway, and the President, through Secretary Snow, and the President himself, have been urging the Chinese to change their currency practices. It is the position of the administration that it should float, while it is also the position of the Senate that China needs to change their currency practices. As Alan Greenspan has said so well, it is in China's self-interest.

I do hope, as Senator Schumer said, that after this meeting with President Bush there will be further progress. So I am guardedly optimistic but resolved to make sure we have a level playing field when it comes to dealing with China. This is an opportunity for a win-win. I hope the Chinese will take us up on it and we can have a better relationship.

This one issue is one of the defining moments in the U.S.-China relationship economically and we will see what time yields in terms of these negotiations.

I yield back all time.

Mr. President, last week we had a debate and vote on whether an enemy combatant terrorist al-Qaida member should be able to have access to our Federal courts under habeas like an American citizen. Senator Bingaman is trying to strip that part of the amendment. He is consolidating the habeas petitions into the DC Court of Appeals, but habeas still lies with a standard you can drive a truck through. The court would look at the lawfulness of the detention which would allow, in my opinion, the ability of a terrorist to go into the DC Circuit Court of Appeals and start asking for Internet access under the right of counsel. It is a never-ending process that should never have begun anyway.

I urge a ``no'' vote to make sure the right of appeal is consistent with the law of armed conflict and we do not have unfettered right of court access by enemy combatants to sue us over everything to undermine the war effort. I ask a ``no'' vote consistent with the last vote.

Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 2524 to Amendment No. 2515

Mr. President, I ask unanimous consent for an additional minute to set the record straight.

That would be fine. I would like an extra minute. Senator Kerry gave me some very good advice, and I will take it if I am given the time.

Mr. President, this is a serious and very important vote. During the debate last week, I made a statement about what rights our troops would have. Our troops, once they are charged under the Uniform Code of Military Justice, get appeal rights under the military system, and they do have habeas rights about their criminal misconduct.

What I am trying to say--I got it wrong--is when our troops are enemy prisoners there is no right to appeal to

the civil courts wherever they may be, nor has there ever been a right for an enemy prisoner to go to our court. Senator Kerry gave me some good advice. I misstated, and I am sorry. But the concept of an enemy prisoner or enemy combatant not having access to civilian courts has been the tradition of 200 years. We are about to end this whole endeavor on a high note. I thank Senator Kyl for being a very constructive finder of solutions, and I thank Senator Levin for going that extra mile to find a way we can leave this issue with honor.

This Levin-Graham-Kyl amendment allows every detainee under our control to have their day in court. They are allowed to appeal their convictions, if they are tried by military commissions--a model that goes back for decades to the Federal courts of this country, if they get a sentence of 10 years or the death penalty.

We are going to have court review. An enemy combatant will not be left at Guantanamo without a court looking at whether they are properly characterized. We are doing it in a way consistent with the law of armed conflict, in an orderly way.

I am proud that we are because this is a war of values. We can win this war without sacrificing our values, and part of our values is due process, even for the worst among us.

I thank Senator Levin very much. Senator Specter's stated that the Circuit Court of Appeals of the District of Columbia is the primary court to hear these cases, but the Supreme Court can receive a certiorari petition from that court.

Mr. President, will the Senator yield?

Will the Senator yield for a question?

I don't know if anyone has done an analysis of our trade deficit. What percentage does the Senator believe is directly attributable to unfair trade practices on behalf of the Chinese? It is one thing to be outworked. If people work harder than you do and are smarter than you are, shame on you. But I believe, as the Senator does, that a lot of the market share that we are losing in the trade deficit explosion has to do with Chinese Government policy when it comes to trade behavior rather than just simply outworking the American worker.

What is the Senator's view on that?

Mr. President, I will be glad to get a letter from the prosecutor at the military commission about the procedures. I will bet $100 he will say they are great. The point is, we are talking about two different things. My amendment is designed to get us back to what we have been doing for a couple hundred years. What I am concerned about is that an enemy prisoner, not someone charged with a crime, is having access to Federal courts to sue our own troops about the food, about the mail, about whether they should have Internet access, about whether they should get DVDs. There are 160 lawsuits now in Federal court suing to stop interrogations unless a Federal judge oversees the interrogation.

Never in the history of the law of armed conflict has a military prisoner, an enemy combatant, been granted access to any court system, Federal or otherwise, to have a Federal judge come in and start running the prison and determining what is in bounds and what is out. The military is the proper body to determine who an enemy combatant is and how to run a war and how to interrogate people, not Federal judges who are not trained in the art of military science.

Here is what these lawsuits are about. Here is why I am so adamant that we stop it. No. 1, what are we stopping? We are not stopping a constitutional right that exists under our law for an enemy prisoner in our hands to be able to question their detention through Federal court action. There is no constitutional right under habeas corpus in American jurisprudence for an enemy prisoner to go to Federal court and challenge whether they should have Internet access or DVD access, all the other things they are suing the people for, medical malpractice. That has never been the case. None of the Germans in World War II who were housed in the United States, and the Japanese prisoners, were allowed to go to Federal court and get a Federal judge to come in and oversee their treatment. We don't allow that. That is not part of the law of armed conflict.

Habeas petitions are not coming from the Constitution. They are coming from an interpretation of section 2241. The Rasul case was a Supreme Court case that said that contrary to the Government's argument, Guantanamo Bay, Cuba is in the effective control of the United States, even though it is not part of our own territories. Because of the lease arrangements and because the Department of Defense is an agency covered by the jurisdiction of the Federal courts, the argument that it is outside the jurisdiction of Federal courts because of its location was defeated. That led to the decision that since you are within the control of our jurisdiction at Guantanamo Bay, section 2241 applies unless Congress says otherwise.

Here is the question I will ask every Member of this body: Does the Senate want enemy terrorists, al-Qaida members being detained at Guantanamo Bay, to have unlimited access to our Federal courts to sue our troops about the following:

A Canadian detainee, who threw a grenade that killed an American Army medic in a firefight and who comes from a family of longstanding al- Qaida ties, moves for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. That was a lawsuit brought in a Federal court by a person who blew up one of our medics, who wanted a Federal judge to supervise his military interrogation. If we start doing that, we might as well close Guantanamo Bay down.

These are not people being charged. They are being kept off the battlefield because they have been captured on the battlefield, and they have been labeled enemy combatants. The procedures I am trying to get in place will comply with the law of armed conflict. Twelve of the people have been let go at Guantanamo Bay. Over 200 in total have been let go. They have been found no longer to have intelligence value or to be a threat to the United States. Once those two determinations are made, they are let go, even if they are an enemy combatant. Twelve of them have been recaptured. A couple of them have been killed. They have gone back to the fight.

The people at Guantanamo Bay are captured as part of the war on terror, and some of them may be running. The point is, when you join al-Qaida, whether you stand or fight or run, you have lost your rights to be considered anything other than what you are--an enemy combatant taking up arms against the United States.

Here is my message to the terrorists: If you join a terrorist organization taking up arms against the United States and you get involved in combat, you are likely to get killed. If you get captured, you will be taken off the battlefield as long as necessary to make sure our country is protected from you.

Under the law of armed conflict, there is no right to try them or let them go. Shaikh Mohammed, the mastermind of 9/11, is in U.S. control right now. He is not a criminal, but you have to charge within 90 days or let go. He is an enemy combatant, the mastermind of 9/11, and 9/11 was an act of war. It was not a crime. The law of war needs to apply. Anybody who suggests that Shaikh Mohammed should have unlimited access to the Federal courts to get a Federal judge to supervise his interrogation is fundamentally changing the law of war and making us less safe. He will not be let go. If you don't want to be captured and detained for a long time, don't join al-Qaida.

Listen to this: Kuwaiti detainees seek court orders that they be provided dictionaries in contravention of GTMO's force protection policy and that their counsel be given high-speed Internet access at their lodging on the base and be allowed to use classified DOD telecommunications facilities, all on the theory of the right to counsel. A motion by a high-level al-Qaida detainee complaining about base security procedures, speed of mail delivery, and medical treatment, seeking an order that he be transferred to the least onerous conditions at GTMO and asking the court to order that GTMO allow him to keep any books and reading materials sent to him and to report to the court on his opportunities for exercise, communication, recreation, and worship. A man captured on the battlefield, engaged in a war against the United States, because of 2241's interpretation where Congress hasn't spoken, is petitioning a court to supervise his opportunity to exercise, communicate, recreate, and worship, and where he should be housed.

In other words, Federal judges are going to determine how we run the war, not the people fighting the war. Never in the history of warfare has an enemy prisoner been allowed to do such things. It didn't happen in World War II. Why? Because we have a right, as a country capturing enemy prisoners, to take them off the battlefield. They are not common criminals. We have an obligation to treat them humanely under the law of armed conflict.

An emergency motion seeking a court order requiring GTMO to set aside its normal security policies and show detainees DVDs that are purported to be family videos. One hundred sixty of these cases, another 40 or 50 suing our own people, one for $100 million, suing the doctor who treated the guy. This is an absurd result.

I proudly stand before the Senate asking the Senate to fix this absurd result. The court in Rasul is asking the Senate and the House, do you intend for al-Qaida terrorists, enemy combatants, to have access to Federal courts under habeas rights to challenge their detention as if they were American citizens? The answer should be, no, we never intended that. That is what my amendment does. It says to the courts and to the world that an enemy combatant is not going to have the rights of an American citizen, and we are going to stop all these lawsuits undermining our ability to protect ourselves.

What have I done in place? I have stopped a procedure that has never been granted before because it is totally out of bounds of what we need to be doing and have done. I allow Federal courts to review each enemy combatant's determination at the Circuit Court of Appeals for the District of Columbia to look at whether the combat status review tribunal, the group deciding whether you are an enemy combatant, followed the procedures and standards we set up.

What do the Geneva Conventions give our own troops, if our own troops fall into enemy hands under the Geneva Conventions? If there is a question about their status, it says a competent tribunal has the ability to challenge. The combat status review tribunal that we have set up at Guantanamo Bay since August of 2004 is Geneva Conventions protection on steroids. They have a full-blown hearing, a right every year to have their status redetermined. And what do you look at? Were they an enemy combatant engaged in armed conflict against the United States? Do they present intelligence value or a continuing threat to the United States? That determination is made every year, a full-blown adversarial process way beyond what the Geneva Conventions require in such situations.

We have added to that Federal court oversight to see if the people at Guantanamo Bay are following the rules and procedures set up in accordance with the law of armed conflict.

Senator Bingaman is a very fine man, a fine Senator. I deeply disagree with him. And any letter that anybody writes, I have my own letters from JAGs.

It is a simple proposition. His amendment allows unlimited habeas petitions regarding detention to come to the Circuit Court of Appeals for the District of Columbia. The type lawsuits that we see now will continue: A motion by Kuwaiti detainees unsatisfied with the Koran they are provided and want another version, a filing by a detainee requesting a stay of litigation pending related appeals, an emergency motion by a detainee accusing military health professionals of gross and intentional malpractice.

They are swamping the system. Americans are losing their day in court because somehow we have allowed enemy combatants, people who have signed up to kill us all, to take us into Federal court and sue us about everything.

That is not part of the law of armed conflict. Our troops are not going to get that right if they are in the hands of someone else. What I am asking for is for us to treat enemy combatants humanely and in accordance with the law of armed conflict. I am asking for us to provide due process in accordance with the Geneva Conventions and then some. I am even allowing a Federal court review of the process down there. But I will not now or ever sit on the sidelines and give rights to enemy combatants who have been caught on the battlefield in the war of terror the unending, endless right to think of every reason in the world to take our own troops into court. We will keep having this debate and we will keep having this argument until the cows come home because I am not going to sit on the sidelines and watch that happen.

There has never been a constitutional right for that to happen. Section 2241 is what we are talking about here. Congress wrote it. Congress has restricted habeas rights for illegal immigrants. Congress has restricted habeas rights of its own citizens numerous times because these petitions can get out of control and take over a courtroom.

The question for this Congress is whether you, after 9/11, want to give enemy combatants detained at Guantanamo Bay who have been captured on the battlefield the unlimited right to go into any Federal court in this land and to sue over everything they can think of. If you do, then we have made a huge mistake in the war on terror. I suggest that you say no to Senator Bingaman's amendment and get us back to where we have been for 200 years. Apply the law of armed conflict. Once you have been determined to be an enemy combatant, you get the due process of the Geneva Conventions. We have done that and then some to allow a limited Federal court review, more than anybody has ever gotten in history. We get back on track. And when it comes to military commissions and those who will be charged with the law of armed conflict violations, I am working with Senator Levin and others to try to find a way to get a Federal court appeal right.

How much time do I have, Mr. President?

I will try to retain 1 minute.

Let it be said that the people who attacked us on 9/11 committed an act of war, not a crime, and they are going to be tried under military commissions, not in our Federal courts, because they are engaged in a war and they are violating the law of armed conflict. They will get their day in court and we will come up with a fair process to make sure they have their day in court, but we are not going to take a war and turn it into a crime.

I reserve the remainder of my time.

I don't mind if the Senator wants 4 more minutes to speak on his amendment.

If I may have the same courtesy and have 4 minutes.

No. 1, we have a fundamental difference. I do not want everyone to have habeas rights. I do not want the enemy combatant al- Qaida terrorist to be able to go in our courts and start to sue our own troops. I don't want it. I don't think people in this body want it. I do not think the American people want it. I want al-Qaida members to be detained in armed conflict. They should not have due process rights beyond what the Geneva Conventions ever envisioned.

As to Senator Bingaman's amendment, he talks about they can't base claims on living conditions, but listen to this: Whether the status determination was supported by sufficient evidence and reached in accordance with due process of law, provided that statements obtained through undue coercion, torture, or cruel or inhuman treatment may not be used as a basis for the determination, and consideration of lawfulness of the detention of such alien. You could drive an army of trucks through those legal exceptions. What it would do is legitimize this request by a Canadian detainee, who threw a grenade and killed an American medic, in moving for a preliminary injunction forbidding the interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. In other words, under this amendment, that claim stands. He could come in and ask a Federal judge: I want you sitting there while they interrogate me. And we are turning the war away from military people to Federal judges. We can't do that. We will compromise our own defense, our own freedom.

As to the people at Guantanamo Bay who are going to be charged with a crime, I am working with Senator Levin to come up with a military commission model we all can be proud of. There are 490 enemy combatants down there who are not going to be charged with crimes, and if we allowed them unfettered freedom to have courts, to have judges control military interrogation and get into the bowels of running this war--not only has it never been done, but I challenge anybody to bring one case down here where an enemy prisoner has been able to go into Federal court and complain about their detention. Once you have a combatant charged with a crime, you are working with 490 of them who are going to have unfettered access under 2241 unless Congress acts. If you want to stop this kind of litigation and not turn over the war to Federal judges, then you need to tell the courts that 2241 does not apply. No law in the history of armed conflict has allowed this to happen and it needs to not happen now. Twelve people have been released down there under the procedures we already have, and they have gone back to try to kill us.

Nothing is perfect. Nothing is perfect. We may let some people go who go back to the fight, but what we are going to do is we are going to have a process we can be proud of that fairly determines who an enemy combatant is and who is not following the Geneva Conventions law of armed conflict. We are not going, with my amendment, to turn the al- Qaida member into an American citizen suing us for anything they can think of about due process of law and as to where they have been detained.

This is a fundamental moment in terms of values in the law of armed conflict. The American value system is being maintained by due process and then some. The American value system that you can allow people who are trying to kill you unfettered access to the Federal courts to sue your own troops--if that becomes our value, we are going to lose this war.

I thank the Chair.

Mr. President, I ask unanimous consent to have letters in support of my amendment printed in the Record.

So I have to pick whom I like best?

I agree.

No.

Reserving the right to object, how does this affect the debate on the Energy and Water conference report?

By how long?

I have no objection.

Would the Senator add my name, please?

Mr. President, I rise today to express my concern regarding the Mixed Oxide fuel project. This project is vital to reduce the threat of terrorists or rogue nations obtaining nuclear weapon materials. By resulting in the disposal of 34 metric tons--64 tons in total--of surplus weapon-grade plutonium, enough for thousands of nuclear weapons, the MOX program helps accomplish one of our most important nonproliferation goals. This plutonium, once converted into fuel for commercial nuclear power plants, is a real ``swords into plowshares'' program.

Despite this importance, the Department of Energy has not requested full funding for this project in the President's Fiscal Year 2004, Fiscal Year 2005 and Fiscal Year 2006 budget request as originally proposed in the report to Congress entitled ``Disposition of Surplus Defense Plutonium at Savannah River Site, February 2002.'' The funding shortfalls will add to the existing 3-year delay caused by the negotiations between the Russian and U.S. Governments regarding liability for the project. However, with agreement between the U.S. and Russia on liability, the administration has no reason not to request full funding in next year's budget. It is vital that in the next budget the administration proposes fully funding the MOX program at a level that will bring this project closer to its original schedule.

Never hesitant to support missions in support of our national defense, the residents of South Carolina took considerable risk by allowing shipments of defense plutonium to be sent to the Savannah River Site from Rocky Flats and other DOE sites in advance of the construction of the MOX plant. In addition to supporting DOE's efforts to consolidate plutonium and accomplish the goals of the plutonium disposition program, this agreement greatly assisted DOE's efforts to expeditiously close Rocky Flats, resulting in considerable cost savings for DOE.

In a sign of good faith to the State of South Carolina, language was negotiated between the State of South Carolina and the Federal Government that required the Department of Energy to convert one metric ton of defense plutonium into fuel for commercial nuclear reactors by 2011 or face penalties of $1 million per day up to $100 million per year until the plutonium is either converted into the fuel or removed from the State. It has never been the intention of South Carolina to receive penalty payments; the residents of the State simply sought reassurances that weapons-grade plutonium would not remain at SRS indefinitely. South Carolina would not have accepted plutonium without this statute. However, until the plant is operational, it is critical to maintain the protections provided in Section 4306 of the Atomic Energy Defense Act, 50 USC 2566. This is the reassurance the Federal Government gives to South Carolina that it is DOE's intention to see this project through.

It is also my intention to make a technical correction, in the future, to language contained in the conference report to the Fiscal Year 2006 Energy and Water Appropriations Act. This conference report contains a change to important authorizing language that would make these penalty payments ``subject to the availability of appropriations.'' I appreciate the willingness of the Senator from New Mexico to see that this is resolved.

I thank the Senator from New Mexico and look forward to working with him to continue to fully support the construction and operation of the MOX facility.

Clarification on Funds

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

Mr. President, I send an amendment to the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, at this time I would like to, in conjunction with my colleague Senator Levin, lay down this amendment, give a brief explanation of what it is designed to do, and I think we will vote on it tomorrow after we vote on Senator Bingaman's amendment.

No. 1, Senator Levin and his staff have been working on this, along with Senator Kyl and other Senators, for the last couple of days. I do not know how to say it other than it has been a lot of fun. It has been tough at times, but I think we have come out with a product that the Senate can be proud of, and hopefully the country can be proud of when it comes to how to treat detainees at Guantanamo Bay.

Here is what we are trying to do. With my amendment, which we voted on last week, the concern I had was we were about to criminalize the war because of the Rasul case. Section 2241 of the habeas statute had been interpreted not to prohibit foreign alien enemy terror suspects from seeking habeas petitions in Federal court about their confinement and detainment as enemy combatants. The Rasul case was the result of the Supreme Court rejecting the Government's argument that Guantanamo Bay was outside the jurisdiction of the Federal court. They ruled that Guantanamo Bay was constructively within the jurisdiction of the Federal court, and in that opinion basically challenged the Congress.

Now that we have decided that, since there are no due process rights in place at the time, we are going to provide habeas petitions to these detainees until Congress comes in and says otherwise.

My amendment was, Congress being on record that the 2241 habeas statute has been used to provide habeas corpus rights by Congress to American citizens, that we do not intend for an enemy combatant or foreign national--someone captured in conflict against the United States--to have habeas rights before our Federal courts to complain about their confinement and their detention. In other words, we are not going to allow enemy prisoners of war the right to go into civilian court and start challenging their detention. The military commissions are operating at Guantanamo Bay with a different purpose. They are going to try people who are charged with violations of the law. Right now there are about 10 or 15 cases. There are almost 500 people who are being detained as enemy combatants. Last week, when Senator Levin was arguing with me about my amendment, I think he made some very good points. By working with him and others, Senator Kyl and others, we have addressed some of the weaknesses in my original amendment. Senator Bingaman will have another amendment, and I think we deal with some of his concerns, too. I do see this as a win-win.

What we are trying to do, instead of changing what has been the rule of law for 200 years in terms of enemy prisoner rights, is create a process that not only mirrors the Geneva Convention but goes well beyond the Geneva Convention.

An enemy combatant is a legal term of art. It applies to those people involved in hostilities against the United

States but are not part of a Geneva Convention-recognized Army. The Geneva Convention uses the term ``irregular combatant.'' We have case law in the United States talking about enemy combatant. It deals with German saboteurs; those people who commit hostilities are engaged in acts of war but shed the cloak of being part of a uniformed force. So the term ``enemy combatant'' has been well recognized in our law.

What we do with an enemy combatant, once a person has been determined to be an enemy combatant, we can detain them similar to a prisoner of war. The Geneva Convention says if there is a question about whether a person's status is rightfully conferred whether you are a prisoner of war, enemy combatant, irregular combatant, or a civilian who has done nothing wrong, the Geneva Convention requires the host country to have a competent tribunal set up to determine status.

Since August of 2004, at Guantanamo, the Combatant Status Review Tribunal system has been in place. In my opinion, it is Geneva Convention article 5 tribunals on steroids. It gives a right to confront. It gives adversarial process to the suspected enemy combatant. It also allows a yearly review of an enemy combatant status. What they are looking at, at Guantanamo Bay, is whether a person was engaged in hostile acts against the United States in a regular fashion, whether the person has intelligence value to the United States or poses a threat. If one or two of those three conditions are met, they can be detained at Guantanamo Bay, and every year there is a reevaluation.

We have had some people caught up in the net, and we found later probably did not have all three requirements and they have been let go. We have also had about a dozen people caught up in the net in the war on terror who we thought were no longer a threat to the United States. We released them and a dozen at least have gone back to fighting. Some have been killed. Some have been captured yet again.

The process we use is important, but no process is perfect. We are trying to come up with a process the country can be proud of that applies the law of armed conflict standard and does not turn the war on terror into a crime. Right now every person sent to Guantanamo Bay will be offered a Combatant Status Review Tribunal hearing, which is well beyond what the Geneva Convention requires, to determine their status.

In addition to the yearly review, working with Senator Levin, Senator Kyl, and others, we have come up with a right of every enemy combatant to go to Federal court. Instead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia. On top of everything else we are doing, they can challenge their status determination in a Federal court. The Federal court will look at the process involved in their individual case to see if it complied with the CSRT standards in terms of procedure and the standards that were to be used to determine whether a person was properly detained--the evidentiary standards, all other standards.

This will allow a Federal court oversight of any combatant status. It will be a one-time deal. It will not be an opportunity for the enemy prisoner to sue us about everything they can think of.

Now, that to me is unprecedented. That is well beyond what the Geneva Convention requires or envisions but is something we ought to do and we can be proud of because it is a Federal court oversight of a military action in a way that doesn't erode the military's ability to conduct a war. We can go to other people in the world and say, Our courts are now involved in looking at what we do. We can also say that Congress is finally involved because in addition to the rights I have described, under our amendment, the person who determines whether an enemy combatant is retained or released will be confirmed by the Senate. That will give the Senate a connection to what is going on in Guantanamo Bay.

If you change the CSRT regulations in any way, you have to send those changes to the Congress. That way we are involved. And we have a statement in our bill to make sure you do not use statements that were a result of undue coercion to determine if you are an enemy combatant.

So now we have Congress involved in an oversight function. We have the courts involved in oversight function. We have a due process right well beyond the Geneva Convention requirements. That is something we should be proud of.

Military commissions. There are 10 or 20 people potentially facing a military commission trial for what are violations of law of armed law conflict. The flaw in my amendment is it did not have a right of appeal from a military commission verdict to a Federal court. In World War II, the enemy saboteurs I described before were all tried by military commissions that President Roosevelt created by Executive order. Four of the six were sentenced to death. The Supreme Court reviewed the military commission process in the Quirin case and found that military commissions were lawful if the person being tried was truly an enemy combatant. So there is a historical precedent in our country for the Federal courts, the Supreme Court, to look at military commission trials to make sure they are lawfully constituted.

What we have done, working with Senators Levin, Kyl, and others, we have created that same type appeal process for all military commission decisions. Under the amendment that we have come up with, any case resulting in a capital punishment finding--any person who is given the death penalty by the military commission--has an automatic direct right of appeal to the Circuit Court of Appeals for the District of Columbia and the court will determine if they were tried in a court up to the military commission standards and procedures and whether the military commission was constitutional.

Anyone who receives a sentence of 10 years or more will also have an automatic right to appeal the same court. If you receive a sentence less than 10 years, the Circuit Court of Appeals for the District of Columbia will determine whether they want to hear your case based on a petition for certiorari or something akin to it.

That, in essence, is what we are trying to do. In both instances, the CSRT procedures and the military commission procedures will be reviewed by Federal courts and the court will have the ability to determine whether they are constitutional and will have an ability in an individual case to determine whether the enemy combatant or the person tried under the military commission procedures will be reviewed by Federal courts to decide whether they are constitutional according to the rules and procedures that have been set up.

I defer to my friend and colleague, Senator Levin.

Mr. President, my hope is, as Senator Levin indicated, we are all doing this because we believe Congress has a role in this war. The executive branch has the job to lay the battle plans in place and to go after the enemy and be the Commander in Chief. But the Congress regulates captives of land and sea. The Congress is involved in issues about the detention, interrogation, and prosecution of enemy combatants and those who are trying to do harm to the country.

My goal over the last week was to do two things: get the Congress involved and for us to start thinking, what do we want, as a nation, to happen in this war now and down the road? What do we want to happen to the Sheik Mohammeds and people such as he? Do we want them to be common criminals? No. We want them to be people considered under the law of armed conflict.

My amendment last week was a direct result of what I think was a growing problem for our country. Section 2241 habeas rights were being exercised by noncitizen, foreign terrorist suspects to the point they were flooding our courts. They were bringing lawsuits.

I will give you an example. One 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 the interrogation of him or engaging in ``cruel, inhuman, or degrading'' treatment of him.

In other words, he wanted the judge to come in and stop his interrogation before it started and to sit there basically and supervise it.

Another al-Qaida detainee complained about basic security procedures, the speed of mail delivery and medical treatment. He was seeking an order that he be transferred to the ``least onerous conditions'' at Gitmo and asking the court to order that Gitmo allow him to keep any books and reading materials sent to him and to ``report to the Court'' on ``his opportunities for exercise, communication, recreation, worship, etc.''

As I said last week, we never allowed enemy prisoners to go into civilian courts and ask judges to come over and take over the military prison in a time of war.

The Nazis did not get that right in World War II. We had plenty of Nazi prisoners housed in military prisoners all over the United States. They were not able to go to Federal court and complain about the books and the DVDs--they didn't have DVDs then--whatever they were asking for.

There is an ``emergency'' motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

There is another lawsuit wanting the lawyer to have Internet access at Guantanamo Bay. That is what I objected to. This is not the law of armed conflict being applied. This is giving an enemy prisoner a right that no enemy prisoner has ever enjoyed before in the law of armed conflict. It was creating litigation against our troops.

There was one medical malpractice claim. There are over 40 cases suing for monetary damages. Can you imagine, after 9/11, if the Senate were asked the question, Do you want an al-Qaida suspect who is captured to be able to go into Federal court, in unlimited fashion, and bring lawsuits against our own troops for their behavior? The answer is no.

But Senator Levin was right. The military commission, part of it is written in a way without a direct appeal to Federal courts. There is historical precedent for doing it in-house, but there is a Supreme Court review precedent. So I am willing to take that part of the amendment that was not really the focus of the lawsuit abuse and come up with a compromise the country should be proud of.

Now, as to Senator Bingaman's attempt to strike my language, I will vote against Senator Bingaman's amendment, and I will urge all those who voted for me last time to stand with me. Senator Bingaman is trying to create a right to the DC Circuit Court of Appeals for all enemy combatants to bring habeas petitions similar to an American citizen, not what we have done in our amendment but a true habeas petition under section 2241.

The question is, Does the Congress want al-Qaida members to have habeas rights similar to American citizens? I say no. Senator Bingaman allows that right to still exist. He addressed some of the concerns I raised. He says the

habeas petition cannot consider claims based on living conditions. Because I have described how outrageous these claims are--about the exercise regime, the reading materials--most Americans would be highly offended to know that terrorists are suing us in our own courts about what they read.

He has two exceptions, however. They can still bring habeas lawsuits similar to an American citizen, ``whether such status determination was supported by sufficient evidence and reached in accordance with due process of law, provided that statements obtained through undue coercion, torture, or cruel or inhuman treatment may not be used as a basis for the determination; and (C) the lawfulness of the detention of such alien.''

The reason I am going to vote no on the Bingaman amendment is that these exceptions--the lawfulness of the detention of such alien--would allow a court, if they chose, to look at every condition of the enemy prisoner's life and do, again, what we are trying to prevent, that you could go into Federal court and start asking for a Federal judge to intervene in your interrogation before it even starts. My belief is the military is the best group to run the war, not Federal judges.

So I am going to oppose Senator Bingaman's amendment because it preserves habeas rights for noncitizen, foreign terrorists to come into Federal court at the District Court of Appeals, DC Court of Appeals, to put a wide variety of issues on the table. I do not think that is good for us. I do not think it is good for the war.

Now, I will vote with Senator Levin on our comprehensive package when it comes to how we are going to conduct the war on terror.

I will end with this thought. For the first time I know of, since September 11, 2001, we have sat down as a Congress and an administration to start thinking this thing through. We have come up with, I believe, a darn good package.

I say to Senator Levin, I have enjoyed working with him on this. I have been a military lawyer for over 20 years. There are a lot of things that go on in the Senate I do not know as well as I should. But I feel very comfortable that the war on terror is truly a war, that 9/ 11 was an act of war, it was not a crime, and if we will apply the law of armed conflict, we can be proud as a nation.

I say to the Senator, your amendment and my amendment together have gotten us back to where we should have been years ago, applying the law of armed conflict to these terror suspects in a way that goes beyond the Geneva Conventions because we are a nation that wants to do it right and then some. But we are also preserving our own ability to defend ourselves.

So to the world, if you are wondering what is going on in America now, if anybody goes to Guantanamo Bay, the Congress will be told about what goes on, and we will have a say about what goes on. If anybody at Guantanamo Bay is determined to be an enemy combatant, not only will Congress be involved in how they are kept and how long they are kept, our Federal courts will review the actions of our military to see if they comply with the Constitution of our Nation. And that is a huge change.

I say to the Senator, I congratulate you for working with me--working together--to come up with a review process, where the world can know for sure that what we are doing meets our own constitutional standards. Enemy combatants are going to get a chance to go to Federal court. The Federal court is going to look at the big picture and see whether what we have done is constitutional, and when it comes to that individual's case, to look at whether the procedures and standards that were involved were properly applied. The world should respect us for that. I am proud to have been part of that process.

To those who go to court and have their liberty interests dealt with, those who are going to be tried for law of armed conflict violations, we can tell the world that those people who will be tried at Guantanamo Bay will not be tried in secret. They will be tried in public to the extent that we can.

There is an op-ed piece today in the Washington Post by a defense counsel--and God bless him; I have been a defense counsel, and I want every right I can get as a defense counsel--saying that the trials at Guantanamo Bay are a lot different than the ones at Nuremberg. He is right in this regard. Nuremberg was trying people after the war was over. We will be trying people at Guantanamo Bay while the war is going on.

What we want to do is make sure the public knows as much as possible about the process, that the defendants understand the evidence against them, that they have the right to challenge the evidence, call witnesses, and testify. And they are presumed innocent. It is a very good infrastructure. But there may be some evidence down there about a particular defendant that has to be classified because to divulge that evidence would tip our enemy off as to what we are doing and how we are doing it.

We are still at war. It is important we understand we are still at war. But we can tell the world that for every person who goes through a military commission trial, we will be as open as we possibly can be without compromising our own security.

When that verdict is rendered, the Federal courts of the United States of America will look at the military action to see if it comports with the Constitution of our Nation, the preeminent legal document in the world, and will also review the individual's case. I am proud of that. It is going further than we probably absolutely have to, but it is doing the American thing. It is putting American values on display.

Ladies and gentlemen of the Senate, tomorrow is a historic day in the war on terror. You have a chance to put some legal infrastructure in place that will be a model for the world, that will help us win this war on our terms. I am proud to have been part of it.

I yield the floor.

Mr. President, I call up amendment No. 2515 which is at the desk.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, will you notify me when I have used 15 minutes of the time?

Mr. President, this whole debate we are having now with Senator Kerry, what we did with Senator McCain's amendment earlier, and what I am trying to do, is a healthy debate about where we are going as a nation, how we prosecute the war on terror, and what kind of value set we are going to adopt.

One thing we need to understand as a nation and we need to understand in the Senate, in my opinion, is that the attack of 9/11 was an act of war. It was not a criminal enterprise. That is an important statement to make. Every Senator needs to understand in their own mind: Was 9/11 and were those who planned it and those who blew up the people in Jordan yesterday common criminals or are these people engaged in acts of terrorism and war? Let it be said clearly, in my opinion, that the United States is at war with al-Qaida and associate groups, and we have been since 9/11.

When a country such as the United States is at war, we have a rich tradition of following the law of armed conflict, of living up to the Geneva Conventions and all other international treaties that regulate the conduct of war. We have a moral imperative as a nation not to lose our way in fighting this war. Using tactics of one's enemy is no excuse in defeating one's enemy.

It is clear to me from Abu Ghraib backward, forward, and other things we know about that at times we have lost our way in fighting this war. What we are trying to do in a series of amendments is recapture the moral high ground and provide guidance to our troops. That is why Senator McCain's amendment, which I cosponsored, is so important, and it passed by voice vote.

The McCain amendment requires standardization of interrogation techniques when it comes to people in our charge, not as criminal defendants but as enemy combatants, people detained on the battlefield, POWs. It requires the Army Field Manual, not the United States Code, to be changed in a way to give our troops the guidance they need as to what is in bounds and out of bounds when it comes to interrogating prisoners. It is important that we get good information. It is equally important that we not lose our value set in obtaining that information.

Senator McCain has two things in his amendment that we desperately need. It standardizes interrogation techniques for the military, dealing with people who are part of this war, our enemies, and it also makes a statement to every other agency in the Government that you are going to treat people humanely if they are captured under your charge as part of fighting this war.

Guantanamo Bay is a place we have designated to take people off the battlefield and hold them, and the determinations that go on at Guantanamo Bay fall into two categories. Some can be prosecuted for violations of the law of war, not criminal violations in

terms of domestic criminal law but violations in terms of the law of war. Enemy combatants are being held at Guantanamo Bay like POWs were held in the past. What we have done at Guantanamo Bay is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant.

The Geneva Conventions in article V state that if there is a doubt about one's status, the host country, the person who is in charge of the person, the suspected enemy person, that host country will have a competent tribunal to determine the status.

What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O'Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is ``Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.'' We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant.

The McCain amendment says if you are an enemy combatant, we will treat you humanely, even though you may be part of the most inhuman group the world has ever known. Senator McCain is right. How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct.

I want to make sure we follow the law of armed conflict, that we comply with the spirit of the Geneva Conventions, that we do it right because we are a country that believes in doing it right. I believe the Congress needs to get involved. We have been AWOL.

I have enjoyed working with Senator Levin and my Democratic colleagues, Senator Warner, Senator McCain, and others to get the Congress involved. Here is what we have done. The Congress is now setting interrogation standards that have long been overdue and neglected. The Congress is now setting a humane treatment standard that will serve us well in the international community. The Congress, through my amendment, is now getting involved in the enemy combatant detention process.

People worry about taking folks to Guantanamo Bay and never hearing from them again. I can assure you they can be heard from. They are being heard from. They are being inspected in terms of their treatment by the International Red Cross. I have been to Guantanamo Bay twice. If you worry about what is going on at Guantanamo Bay, go down there yourself. The press has access to Guantanamo Bay. The International Red Cross has access to Guantanamo Bay. My amendment gets Congress in the ball game.

My amendment requires that Combat Status Review Tribunal regulations have to come to the Senate and the House for our review. Congress now is looking over the shoulder of what is going on there.

My amendment requires that the person sitting at the top of the pyramid who makes the decision to release or detain has to be confirmed by the Senate so they will be accountable to us.

My amendment prohibits the use of undue coerced statements to detain somebody as an enemy combatant.

If you are a POW in a war, you are there until the war is over. An enemy combatant falls into that same category, and we are going to make sure they get due process accorded under international law and then some, and the Congress is going to watch what happens. The Congress is going to be involved, and we are going to take a stand. We are going to help straighten out this legal mess we are in.

But there is another problem. For those who want to treat people in our charge humanely, sign me up. For those who want to get Congress involved in making sure we have standardized interrogation techniques so our own troops won't get into trouble, sign me up. For those who want to give enemy combatants due process in accordance with the Geneva Conventions, and then some, sign me up. For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out. Never in the history of the law of armed conflict has an enemy combatant, irregular combatant, or POW been given access to civilian court systems to question military authority and control, except here.

What has happened at Guantanamo Bay that we need to fix? I know what we need to fix in terms of the way we have treated prisoners. We are doing it. We are getting it right. We are making up for our past sins. My request to this body is, let's not go too far and create problems that will come back to haunt us. We are at war; we are not fighting the Mafia. We are fighting an enemy desirous of taking us down as a nation.

The Supreme Court decided that the Guantanamo Bay activity was part of the United States, not in its territory so much as under its control. The Supreme Court has been shouting to us in Congress: Get involved.

Habeas corpus rights have been given to Guantanamo Bay detainees because the location is under control of the United States, and Congress has been silent on how to treat these people. The Supreme Court has looked at section 2241, the habeas statute, and they are saying to us: Since you haven't spoken, we are going to confer habeas rights until you act.

Justice O'Connor said that we will under habeas give due process to enemy combatants, but if you were smart, you would have a process like Army regulation 190-8, and that would be more than enough. Well, we are smart.

Here is what has happened. If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security because the habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States. Three hundred of them have lawyers in Federal court and more to follow. We cannot run the place.

They are not entitled to this status. They are not criminal defendants. And here is what they are doing in our courtrooms:

A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison.

Another example. A Kuwaiti detainee sought a court order that would provide dictionaries in contradiction of Gitmo's force protection policy and that their counsel be given high-speed Internet access at their lodging on the base and be allowed to use classified DOD telecommunications facilities, all on the theory that otherwise their right to counsel is unduly burdened.

This is one of my favorites. There was a motion by a high-level al- Qaida detainee complaining about base security procedures, speed of mail delivery, and he is seeking an order that he be transferred to the least onerous conditions at Gitmo and asking the court to order that Gitmo allow him to keep any books and reading materials sent to him and to report to the court on his opportunities for exercise, communication, recreation, and worship.

Can you imagine Nazi prisoners suing us about their reading material?

Two medical malpractice claims have come out of this.

Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

Where does this stop? It is never going to stop.

Let me tell you what it is doing. Here is a quote from one of the lawyers representing these detainees in Federal court:

We have over one hundred lawyers now from big and small

firms working to represent these detainees. Every time an

attorney goes down there, it makes it that much harder for

the U.S. military to do what they're doing. You can't run an

interrogation . . . with attorneys. What are they going to do

now that we're getting court orders to get more lawyers down

there?

Know what. The people at Gitmo are asking that same question: What are we going to do? It is impossible to interrogate people with this much court intervention. We are undermining the role Gitmo plays in helping our own national security. No POW enemy combatant in the history of the world has been given Federal court unlimited access as an American citizen.

Here is what I propose we do: that we take the procedures that are in place far beyond what the Geneva Conventions require, that we make the reforms my amendment suggests where Congress is now involved in oversight, and we do one other thing, we allow a detainee to go to Federal court, not anywhere and everywhere, but to one place, the Circuit Court of Appeals for the District of Columbia where they can challenge what the military has done to them in terms of their status.

That is a right beyond what any enemy combatant POW has ever had in history. That will make sure two things happen: My amendment will make sure Congress will supervise what goes on and will be notified about what happens at Gitmo. They will be able to hold people off the battlefield as enemy combatants; they will have a process recognized by the Geneva Conventions and then some; and they will also have a right to go to Federal court to challenge their status to make sure we did it right.

If we will do these things together, then we can be proud as a nation. They all need to be done together. We need to make sure standardized interrogation techniques exist for the benefit of our own troops in the Army Field Manual to create clarity out of chaos. We need to make a statement as a nation that no matter who you are or where you are, if you are in our charge, you are going to be treated humanely.

Shaikh Mohammed, the mastermind of 9/11, is somewhere in our care. He is not a criminal defendant. He is a warrior, the planner of 9/11. It is not a decision we should have to make to try him or let him go. We keep him off the battlefield as we have kept every other POW and enemy combatant off the battlefield. We get good intelligence from him and we treat him humanely. Let us not turn this war into a crime. It would be a crime to do so.

I think I have presented what I believe to be as balanced an approach as I know how without giving up our right to defend ourselves. To the human rights activists out there, God bless you. You have helped us in many ways. We are going to make the statements you want us to make about treating people humanely. We are going to have standardized interrogation techniques. Congress is going to provide oversight and we are going to let the courts provide oversight. But in the name of human rights, we are not going to let this jail run amok. We are not going to create a status in international military law that has never been granted before. Of all the people in the world who should enjoy the rights of an American citizen in Federal court, the people at Guantanamo Bay are the last we should confer that status on. We did not do it for the Nazis. We should not do it for these people.

I reserve the remainder of my time.

How much time do I have remaining?

I yield 6 minutes to my colleague from Arizona.

I defer to my colleague from New Mexico.

I say to the Senator, I would be glad to, if I could just wrap up my thoughts. But do you want to do that now? What would you like to do?

Shall I go first?

Mr. President, how much time do I have?

Twelve and a half minutes.

Mr. President, one thing I have not done in this whole process is be willy-nilly about this amendment or about this issue. I am deeply concerned as a Senator that we have lost the moral high ground in the war, that we have confused our own troops, that our interrogation techniques have been out of bounds. That is why I support Senator McCain and other Members of this body--90 to 9--to get it right, because we have to maintain the moral high ground.

We did not have hearings about that because we do not need hearings. We know that our interrogation techniques have been confusing and sometimes unacceptable. We know it is time for America to say to the world that no matter what agency is involved or where the person is, they are going to be treated humanely. We know that.

I have been dealing with this for a year. I have worked with Senator Specter. I have been trying to find some way to get a grip on the legal aspects of this war, as well as the moral aspects of this war. And before I got here--I am still an active member of the Reserves. I have been a judge advocate in the Air Force most of my adult life.

Senator Leahy mentioned something: Let's be a nation of the rule of

law. I applaud that. The question is, What is the law here? What is the rule of law when you are at war? The rule of law when you are at war is the law of armed conflict. When we were attacked on 9/11, we went to war, ladies and gentlemen. We are not fighting a criminal enterprise. The rule of law in the law of armed conflict says that POWs and enemy combatants and irregular combatants will be detained within the guidelines of the Geneva Conventions. An enemy combatant is not entitled to Geneva Conventions protection because they do not wear a uniform, they do not fight for a nation. But an enemy combatant is entitled to certain things. We as Americans say you are entitled to be treated humanely, interrogated humanely, and you are entitled to due process to be kept off the battlefield. But you are what you are. You are someone who took up arms against our country. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care, for their exercise programs, or for their reading materials.

Do you want to be the Senator who has changed 200 years of law? Do you want to be the Senator who is changing the law of armed conflict to say that an enemy combatant--someone caught on the battlefield, engaged in hostilities against this country--is not a person in a war but a criminal and given the same rights as every other American citizen? Do you want to be the Senator who changes 200 years of that? I do not want to be. This is not complicated. One thing is for sure, this is not complicated. No POW in the history of this country has ever been allowed to sue our own troops in Federal court. Does it matter? The habeas corpus writ that is being exercised does not come from the Constitution. This is not a constitutional right that an enemy combatant has under our law. This is an interpretation of a statute we passed, 2241.

The question is, 4 years after 9/11, do we want to change our law and give a terrorist, an al-Qaida member, the ability to sue our own troops in Federal court, all over the country, for anything and everything? I do not. I want to treat them humanely. I want to get good information. And I want to prosecute them within the rule of law. But I do not want to do something that is absurd and is going to hurt our national security; that is, allowing a terrorist the ability to go to Federal court and sue our own troops, who are fighting for our freedom, as if they were an American citizen.

Do you know why the Nazis did not get to do that when we had them in our charge? Because that is not the law. It has never been the law. We caught six German saboteurs sneaking into this country, trying to blow up part of America. They were tried. Where? In a military commission, a military tribunal, not in a civilian court. We had German POWs who tried to come into Federal court, and our court said: As a member of an armed force, organized against the United States, you are not entitled to a constitutional right of habeas corpus.

Do you want to give these terrorists habeas corpus rights just like an average, everyday American citizen or a common criminal to sue our own troops? Well, if you do, vote against my amendment. If you want to get back to where we have been for 200 years, then you need to support me.

This is not complicated. We need to do more than one thing at a time. We need to have interrogation techniques we can be proud of. We need the McCain amendment. We need to standardize interrogation techniques so we do not lose the moral high ground. We need to make a statement that we are going to treat everybody humanely. Enemy combatant, POW--no matter who you are--we are going to treat you humanely.

The Congress does not need to give the executive branch a blank check on how to run this war. My amendment requires the executive branch to report to us about what they are doing at Guantanamo Bay. It requires the Senate to confirm the person in charge of releasing or retaining these enemy combats. My amendment gives them every right the Geneva Conventions afford an enemy combatant, and then some. It gives them an adversarial proceeding at Guantanamo Bay, where they can challenge their status. We go further. It gives them a right to go to the District Court of Appeals of the District of Columbia--something never done in the history of warfare--because we want to let the world know we are going to go out of our way to get it right.

But, ladies and gentlemen, if we do not rein in prisoner abuse, we are going to lose the war. But if we do not rein in legal abuse by prisoners, we are going to undermine our ability to protect ourselves.

I am making one simple request of this body: Do not give the terrorists, the enemy combatants, the people who blow up folks at weddings, who fly airplanes into the Twin Towers, the ability to sue our own troops all over the country for any and everything. Give them due process. Treat them humanely. Try them under the rule of law. But let's not change 200 years of the law of armed conflict.

Your vote today matters. Your vote today matters. We are going to make history one way or the other.

Does the Senate, honestly to God, want to give terror suspects the same rights as American citizens based on a statute we pass? That is what is at stake here. Our troops are counting on us.

They are being taken all over the country, and here is what is going on according to some of the people involved in these habeas petitions:

We have over one hundred lawyers now from big and small

firms working to represent these detainees. Every time an

attorney goes down there, it makes it that much harder for

the U.S. military to do what they're doing. You can't run an

interrogation . . . with attorneys. What are they going to do

now that we're getting court orders to get more lawyers down

there?

Civilian judges cannot run this war. This is about the rule of law. The rule of law protects people in armed combat. This is about changing our law to give terror suspects rights of U.S. citizens.

Shame on us if we do that.

I reserve the remainder of my time.

No, sir. That is not correct.

The military commissions would be the sentencing body, not the CSRTs. I know this is a bit complicated, but the CSRT provision doesn't try people. It determines whether they are enemy combatants.

No, sir. That is not accurate. This says that no illegal, no foreign alien who is being detained as an enemy combatant can file a writ of habeas corpus. The reason for that being said is because that has been the law for 200 years. We didn't let German prisoners file writs. Under the Roosevelt administration, these six people were captured. They were tried. Four were executed. A writ of habeas corpus was not available to them. It should not have been available to them. The reason we have a military system and we have a civilian system is because we understand the military is a unique body. We don't try our own people in civilian court. We try them in military court. It has been the history of the law of armed conflict that when you have somebody tried for a violation of law of armed conflict, you don't go to Federal court. You go to a military commission or a military court. That is what happened in World War II. That is what will happen to these people, if they are tried.

To my good friend Senator Levin, we fundamentally disagree. There is a principle at stake here that is as old as war itself. Writs of habeas corpus have never been given to enemy combatants or POWs. They have never been allowed access to the Federal court to challenge their enemy combatant status tribunal which is new and different, beyond the Geneva Conventions. The German prisoners were tried by a military commission. Four of them were executed. They were not allowed to go into Federal court under writ of habeas corpus because the Constitution does not confer the right of a writ to a foreign alien involved in combat activities against the United States. The only reason we are talking about this is, the Court is inviting us: As the Senate, do you want al-Qaida members, under 2241, to have the writ of habeas corpus. The military commissions are set up to try these people. My amendment talks about the procedure of keeping them off the battlefield, allows them due process rights beyond Geneva Conventions article 5, allows them now to go to a district court and the Court of Appeals for the District of Columbia beyond what the Geneva Conventions ever envisioned. The military commissions are totally different. No one has been tried yet.

Here is the one thing I can tell you for sure as a military lawyer. A POW or an enemy combatant facing law of armed conflict charges has not been given the right of habeas corpus for 200 years because our own people in our own military facing court-martials, who could be sentenced to death, do not have the right of habeas corpus. It is about military law. I am not changing anything. I am getting us back to what we have done for 200 years.

If you want to give terrorists habeas corpus rights as if they were American citizens, that they are not part of an outfit trying to wage war on us, fine, vote against me. If you think they are common criminals like American citizens, vote against me. I will be the first to say that if these were criminals, we wouldn't treat them this way. These are not criminals. These are people caught on the battlefield as the Nazis were caught on the battlefield. They need to be held accountable. They need to be treated humanely. Does this body want to be the first Senate in the history of the United States to confer rights on a POW and an enemy combatant to sue the troops who are trying to protect us? There are 160 cases down there. There are going to be 300 cases. They are going to ruin the ability to get intelligence because we in the Senate haven't acted, and we need to act.

How are we going to act? Are we going to act in the best tradition of the United States in accordance with the rule of law, or are we going to give terrorist suspects, al-Qaida members, the right to sue our own troops in Federal court? If you want that, vote against me. If you think that is absurd, vote with me.

May I respond?

May I answer that? I say to the Senator, with all due respect, that is dead wrong. Military commissions that will be trying the people designated by the President, subject to be tried at Guantanamo Bay for violation of the law of armed conflict, do get appeals. They get more appeal rights than the people who were tried as German saboteurs under military commissions. They get a lawyer. They get the right to confront witnesses against them. They get the right to call witnesses. The military commissions are different than the CSRTs. There is a process in the military commissions for people to have every right under the Geneva Conventions and then some, to have more rights than the German saboteurs. The German saboteurs did not have habeas corpus rights. They had an appeal right within the military commission system, as the al-Qaida members do. To say that you can be tried at Guantanamo Bay for a war crime and not have an appeal is not true. It is like we did with the saboteurs. To say that people at Guantanamo Bay should have habeas corpus rights is doing something no one has ever had in the law of armed conflict, Nazi or otherwise.

Under the military commission model, there is an appeal to a three-judge panel of civilians appointed to hear appeals. In the military commission model, under World War II, they didn't get that. There is an appeal process for civilian review of the trial of enemy combatants detained at Guantanamo Bay. My amendment doesn't affect that. It doesn't change that at all. My amendment prevents the use of habeas rights for POWs and enemy combatants, something we have never given in the history of the law of armed conflict to people in the military system because we don't want civilian judges coming in here and running the war. I am trying to get us back where we have always been. This is not complicated, but it is very important.

Mr. President, I want to end with this thought. Never in the history of military commissions where we have tried enemy combatants and spies have they appealed those convictions to Federal court. Never.

I ask unanimous consent to add Senator Cornyn as a cosponsor to the amendment.

Mr. President, I call up my amendment which is at the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, we need to standardize our interrogation techniques because we have lost our way. We need to make a statement we are not going to treat people poorly during our charge. For 200 years in the law of armed conflict, no nation has given an enemy combatant, a terrorist, al-Qaida member the ability to go into every Federal court in the United States and sue the people who are fighting the war for us. There are 160 habeas corpus petitions being filed against Guantanamo Bay detention.

Let me read what one of them is saying, a motion by a high-level al- Qaida detainee complaining about basic security procedures: Speed of mail delivery, medical treatment, seek an order to be transferred to the least onerous condition at Gitmo, and asking the court to order Gitmo to allow him to keep any books and reading material sent to him, and report to the court on his opportunities for exercise, communication, recreation, and worship.

The Nazis couldn't go to a Federal court when we had them in our charge as prisoners of war. Never in the history of armed conflict has this been allowed.

Let us stand up for our troops in a reasonable way, protect them from abuses, and protect them from the court suits filed by the people they are fighting.

I echo the general themes of Senator McCain. This is an important event in the war on terror. He described very well that this is about us, not the terrorists. The terrorists are not having this debate in their world. There is not much debate going on about how they should behave toward innocent people, how they should behave toward people under their control. We know how they behave.

The war is about, Is that a justified way of doing business? The answer is, No.

Everyone condemns what they do, everyone who believes in freedom. This war is about two sets of values, theirs and ours. As we adjust in the war on terror, I think we have to understand that adjustment is necessary, but the adjustments cannot equate to eroding what we are fighting for. I am all for the PATRIOT Act. I think it has been very good that we adjust the way we have electronic surveillance. I think it has been very good that we allow the intelligence community and domestic law enforcement personnel to talk to each other about what is going on in the terrorist world. We are knocking some walls down with the PATRIOT Act that have made us less secure.

We are adjusting our military policy. We are adjusting our legal positions to adopt to a war that is new and different. Here is the new and different part about it: The enemy we are fighting is nontraditional in terms of the Geneva Conventions. I think the President instinctively got it right, right after 9/11. He made a declaration that al-Qaida members are not going to be treated under the Geneva Conventions, considered Geneva Conventions qualified. He was right because al-Qaida is not a standing army. It is a group of terrorists who are not fighting for a nation. They don't wear a uniform. They randomly attack civilians. To give them Geneva Conventions protection would be undermining the purpose of the Geneva Conventions that rewards people for playing fair.

The Geneva Conventions has within it reporting requirements and other devices that I think would undermine the war on terror. Some people that we catch, senior al-Qaida operatives or associates of al-Qaida, we don't want the world and their fellow terrorists to know we have them. Under the Geneva Conventions it would require reporting.

Here is what we are trying to do, with Senator McCain's amendment. Even though they are not Geneva Conventions qualified, the President said they will be treated humanely. We have had interrogation techniques in the past for enemy combatants, people who do not fall under the Geneva Conventions, but they have never been in one source document. The Army Field Manual is an attempt on our part to provide clarity to the troops.

I have gone with the chairman to Guantanamo Bay and I asked the question to the interrogators: Is there anything in the Army Field Manual that would prevent you from getting good intelligence, being involved in interrogations that would be fruitful to protect our Nation? They said no. They don't see the Army Field Manual as written or being drafted or revised as an impediment to doing their jobs.

So what is the upside? The upside is the people in the Department of Defense--who may find themselves in a situation where they will have a group of prisoners, detainees, some Geneva Conventions qualified, some not--will have a source document. The reason we are doing this amendment is right after 9/11 there was an attempt by the Department of Justice to cut corners, in my opinion, to give strained legal reasoning to the Convention on Torture, trying to define what torture is in a way that would get our own people in trouble.

The idea that you could actually break bones and that not be torture under the convention, that it would have to be a near-death experience--that gets us in a very dangerous area about physical abuse. The point we were trying to make, and the uniformed JAGs were trying to make, is when you start that reasoning, you have to understand there are other

laws on the books that govern our military.

The Uniform Code of Military Justice has a whole section about what is in bounds and out of bounds when it comes to detainees and how you treat detainees. It has an assault provision, making it a crime for a military member to degrade or assault someone in our charge.

The concern of the JAGs is that this new interpretation of the Convention on Torture allowing certain activity would put military personnel in jeopardy of being court martialed because of other laws on the books. Now is the time to reconcile this. Now is the time to come up with a standard that looks at every legal source of who we are and how we behave. The Army Field Manual will be one-stop shopping.

It will have interrogation techniques classified and unclassified that will be a roadmap of how we handle people at the Department of Defense who are non-Geneva qualified. It is the best thing we can do for the troops. Everybody is for the troops. We should be for the troops. If you are for the troops, I believe the best thing you can for them is to give them clarity so they will not run afoul of our values and our laws. It is the best thing we can do to help them as they execute this war on terror when it comes to interrogating people.

The second part of Senator McCain's amendment is equally important but for a different reason. Abu Ghraib happened. Things happen on our watch in war that we are not proud of. But that happens in every war. The fact that some people make mistakes, some people commit crimes, some people go too far, is a part of war. How you deal with it is really about you.

What has made us different is that we hold our own people accountable, and we don't let the end justify the means. We have been doing that for a very long time because we are trying to set a value system in place that will be good for the world. And when we take someone who is a member of the military and prosecute them for abusing a prisoner, that is different in a lot of places in this world. If we are prosecuting people for abusing prisoners, the worst thing we could do is confuse people about what is in bounds and what is out of bounds. That is why the Army Field Manual is necessary. But the statement Senator McCain is making about treating people humanely and cruel and unusual punishment interrogation techniques being out of bounds applies to everybody in the Government.

I believe we have to make a decision soon that that is what we are going to do for many years to come. The war on terror is going to be a long, hard road. We are going to be constantly asked to adapt to win the war. The question is, Should we sometimes set aside exceptions that are totally different than the way we have lived our lives for 200 years to win this war? My answer is, Absolutely not, because this war is not about taking down a capital, sinking a navy, or capturing an army; this war is about tolerance, values, religion, and respect for human rights. This war is truly about character.

I believe with all my heart and all my soul that what happened in Abu Ghraib is an aberration in terms of the men and women in the military. It doesn't reflect on who they are and what they believe. But it has done great damage to this country. To the terrorists, they are not the audience; it is those millions of people out there who are looking at democracy, checking under the hood, and trying to figure out which way to go.

As a nation, we need to say as strongly as we can that no terrorist will have a safe haven. We are coming after you. We are going to fight you to the death. But if we capture a terrorist, we will want good information. We want to try them for their crimes, but once we have them in our charge, then it becomes about us because if you do not practice what you preach, your children will go astray if you are a parent. If you do not practice what you preach, your value set that has made you a great nation, standing out in a world in a unique way--you will tarnish who you are. The only way we are going to win this war is to have American values shine brightly. And character is about doing the right thing when nobody watches.

I am hopeful that we can have a compromise and accommodation between the executive branch and the legislative branch on this issue; that we can have a policy statement that if you are in the hands of the CIA or a non-DOD agency, you can be interrogated aggressively, but you will be treated with a value set that this country has been fighting for in the past and is fighting for now. As the President reaffirmed just days ago, no matter where the prison is, no matter whether it is a prison known or unknown, American values follow that prisoner. That is what it has to be.

Can we do better language? Maybe. I am certainly openminded to working on language that makes who we are crystal clear. But I will not entertain a retreat. I will not entertain an exception that washes away what we have been standing for and fighting for and what over 2,000 young men and women have died for.

The courts are confused. The courts are crying out for congressional involvement. The executive branch is trying to adapt. I really do believe that the best thing we could do for this President and all future Presidents is for the Congress to get into the game and be an ally on how you detain, interrogate, and prosecute enemy combatants. That is missing. We have been AWOL. It is now time for us to step up to the plate and exercise our constitutional responsibility--not to weaken the Presidency but to make the executive branch stronger in the eyes of the courts.

If you had a policy that was signed off on by the Congress, signed off on by the executive branch, I am totally convinced that the judicial side of our Government would be much more deferential. They are telling us that. What benefit would that be? We could go to the world, and this President and the next could say that America at every level of Government is united. We are going to have aggressive interrogation techniques, we are going to detain people who are enemy combatants, and we are going to take them off the battlefield. And some of them are going to stand trial for their crimes. But we are going to do it together, and we are going to do it within our values. That would be the strongest message we could extend to the world. It would be the right message to send to our own troops. If we do not get this right now, people after us are going to pay a heavy price.

I yield the floor.

Mr. President, I am expressing my support of an amendment to provide additional funding for the Community Development Block Grants, CDBG, Program.

I share the concerns of many of my colleagues that some government programs are overreaching and duplicative. I remain committed to goals of limiting the size and scope of the Federal Government, but as we fulfill this mission, Congress must work to ensure that we continue to support programs that truly serve the needs of our constituents.

CDBG grants have benefited almost 130,000 people in South Carolina alone. Further, over ten thousand jobs have been created through CDBG projects. The CDBG program is one of HUD's most successful programs. It should be held up as an example of local communities, coordinating with their state, to using Federal dollars to foster growth and encourage citizen participation.

In listening to community leaders across the state of South Carolina, the CDBG program gives them flexibility to execute plans that accurately address their situational needs, which in turn pay great dividends for the community. To put it simply, the CDBG program works and I am a proud to be an original cosponsor of this amendment.

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

Mr. President, I ask permission to speak in morning business until Senator Brownback arrives.

Mr. President, I think it is appropriate this morning that those of us in elected office, and every American, show some appreciation for what is going on in Iraq this morning.

I turned on the television and saw a new face of Iraq. I saw a judge schooled in the law, loyal to the law, presiding over a trial of Saddam Hussein, a person who was schooled in thuggery, loyal to himself and his agenda, one of the most brutal murderers the Middle East has known. And I saw an attorney general laying out the case against Saddam Hussein.

How did that all happen? It happened through sheer will. First, violence had to replace diplomacy because diplomacy was failing. The effort to contain Saddam Hussein's regime, to rein it in, to clearly understand what his purposes were about weapons of mass destruction, to get him to stay out of the upheaval of the Middle East, to be a productive member of the Middle East society, the world community, in my opinion, failed miserably and we had to resort to force and violence to oust a man who had perpetuated many crimes against his own people and his neighbors.

How did it happen, at the end of the day? It happened through the bravery, commitment, and sacrifice of the American military, their coalition partners, and the Iraqi people themselves.

We have lost around 2,000 troops since the war began. To those families who have lost loved ones, there is nothing I can say other than I am sorry and, in my opinion, for what it is worth, your loved ones have advanced the cause of freedom by participating in a military operation to take Saddam Hussein off the throne and into the dock as a defendant.

To those coalition members who have stood with us and who have sacrificed, thank you. Because of your sacrifice, the cause of freedom has been advanced.

We do not appreciate enough, in my opinion, the sacrifice of the Iraqi people. I believe it is the judge or one member of the court whose brother was assassinated. To sit in judgment of Saddam Hussein is no easy thing to do. They are literally risking their lives to be a prosecutor, a policeman, or member of the army. They wear a target on

their back. Their families are at risk because the terrorists see it as a risk to their way of life. Those who take up arms against the terrorists in Iraq are literally changing the course of history.

To those men and women who have served in the American military, those who have lost life and limb, I hope you take pride in what is happening today. To the families of the loved ones who have been lost, those who have been injured, and those who are still serving, because of your sacrifice and commitment, your willingness to leave your comfort zones, to leave your family and friends, Guard members and Reservists leaving their businesses and loved ones behind, you have changed the course of Middle East history.

At the end of the day, we can't kill enough terrorists to win. Terrorism is about hijacking of a great religion. There is no place in the terrorist world for a different faith, people of moderation in the Islamic community, and there is no role for a woman. For that to change, it is going to have to be deeper than force of arms. It is going to have to be a transformation of a culture.

The culture of the rule of the gun versus the rule of law is happening before our eyes. What is going on today in Iraq is a sea change in the Middle East. It is about time a dictator in that region answers for his crimes. It is about time people in that region be allowed to live their lives in a normal fashion and raise their kids in peace.

That day is still far away, but we are closer than we have ever been. So to those men and women serving in our American military and those who have suffered, congratulations and God bless. Because of your sacrifice and those sacrifices of our coalition partners and the Iraqi people, there has been a sea change in the Middle East and you deserve all the credit.

I hope the American people will be patient to see this thing through because what happens in Iraq is directly related to our own security.

I yield the floor.

Mr. President, No. 1, I would like to recognize that Senator Stevens, who has so honorably served our country, is genuinely concerned about the extent of this amendment. For those of you who are listening, Senator Stevens was a World War II pilot. He has gone in harm's way in defending his country. We have in the Chamber his counterpart on the Appropriations Committee, Senator Inouye, a Medal of Honor winner, and the Senator occupying the chair is a former POW. The food chain is going down when I am speaking. But what I want to try to discuss today is from a lawyer's point of view and really from a citizen's point of view.

I have had the honor for the last 20-some years to be a member of the Judge Advocate General's Corps of the Air Force, a prosecutor, a defense counsel, and I am now a Reserve military judge. That experience has been a wonderful experience. I have received more out of it than given. Wearing the uniform in any capacity is quite an honor, and to be a military lawyer has been one of the highlights of my life. I have never been shot at. I had some clients who probably wanted to kill me. But other than that, I do understand this debate pretty well. To me, it is not much of a debate. We have as a nation adopted the position that Senator McCain described when it comes to how you handle people in your care and custody.

One thing I would respond to Senator Stevens is that the Army Field Manual has sort of been the bible for interrogation for decades. If you are worried, and I think it is a fair question, is there anything in the Army Field Manual that would unfairly restrict the ability of the United States to gain good information and defend ourselves from a bunch of rogue thug murderers, the answer is no. You don't have to trust me there. Go to Gitmo and ask the question of the people who are doing the interrogation of these terrorists: Is there anything in the Army Field Manual as written or being drafted that would impede your ability to gather good information? And the answer they told me was no.

So what is the value of having it? The value of having standardization when it comes to interrogation, detention, and prosecution is of immeasurable benefit to the force because, as Senator McCain indicated, a lot of the people implementing these policies when it comes to interrogation, detention, and prosecution are in harm's way themselves. One of the things we have learned in this whole war on terror is that this Nation needs to have effective interrogation techniques, effective detention policies, and effective prosecution tools to hold the terrorists responsible because you have two audiences.

No. 1, you have the terrorist community. I want every terrorist to know, if you are not killed on the battlefield and you are captured, things are going to happen to you. You are going to be interrogated aggressively, but we are going to treat you humanely, not because we worry about your sensitivities but because we don't want to become who we are interrogating. So we are going to keep that in place.

The President has said whether the Geneva Convention applies or not we are going to treat everybody in our charge humanely, not because of them but because of us. And the debate here is what happens when somebody in your charge is not covered by the Geneva Conventions. It is easy when someone is a legal combatant. We know what the rules are. We have the Geneva Conventions. We have been a signatory for 60 years. The Army Field Manual covers that situation. The war on terror is different. Vietnam was different. We had people who were lawful, whom we were able to interrogate, detain, and prosecute without changing who we were.

The Army Field Manual as a one-stop shop to guide the way we handle lawful combatants and enemy combatants is absolutely necessary if for no other reason than to protect our own troops. That is why we are doing this. That is one of the main reasons--to make sure that your own troops don't get in trouble because they are confused.

I have been a military lawyer for 20 years. We have confused people about as much as you can possibly confuse them. And this all started with the Bybee memo. I think we need to know the history of where we have been, to find where we are before we take corrective action.

Right after 9/11, this Nation was shocked and shaken. We tried to make sure we could secure our freedom and security and do a balancing act, and we have done a pretty good job of it. How can you be secure and still free? How can you fight the worst enemy and still not become the worst of yourself? I think you can.

The Bybee memo was an effort by people at the Justice Department to take international torture statutes that we had ratified and been party of and have the most bizarre interpretation basically where anything goes. It was an effort on the part of the Department of Justice lawyers to stretch the law to the point the law meant nothing. And early on in this process, those in uniform who happened to be military lawyers stood up and spoke.

I am going to read from General Sandkuhler, Brigadier General of the U.S. Marines, who was one of the judge advocates to review this change in policy, this very liberal interpretation of what torture might be. He said:

The common thread among our recommendation is concern for

servicemembers. OLC [Office of Legal Counsel] does not

represent the services; thus, understandably, concern for

servicemembers is not reflected in their opinion. Notably,

their opinion is silent on the UCMJ and foreign views of

international law.

The general is telling the civilians that we live in a different world. This is a complex process, and if we interpret a torture statute in the way you are suggesting, we are going to get our own people in trouble.

He says:

We nonetheless recommend that the Working Group product

accurately portray the services' concerns that the

authorization of aggressive counter-resistant techniques by

servicemembers will adversely impact the following:

a. Treatment of U.S. servicemembers by Captors and

Compliance with International Law.

We have been the gold standard. We take this moral high ground to make sure if our people fall into enemy hands that we will have the moral force to say, You better treat them right. If you don't practice what you preach, nobody listens. Sometimes that does not happen, but you don't want to erode the principle because it puts people at risk.

Criminal and Civil Liability of DOD Military and Civilian Personnel in Domestic, Foreign, and International Forums.

All the reasons all the JAGs wanted to push back is that you are going too far if you interpret the statutes as being proposed by the Department of Justice. Some of the techniques violate the Uniform Code of Military Justice.

Senator Stevens is concerned about joint operations. Here is the rule: If you are wearing America's uniform, you are going to be judged by American standards. You will never be prosecuted unless you do something inconsistent with our law. If you are part of an international group and wondering what to do with a prisoner in front of you, I suggest we let our troops know there are rules they must follow, and if they see anything they think is out of bounds, report it.

The best thing we can do for anybody operating in the war on terror is give them clarity about what to do in very stressful situations. There is the combat role. What do you do with somebody who is captured? You do what the President says: You treat them humanely, you interrogate them by standards we can live by that will not erode our moral authority.

Where have those standards been in the last 50 or 60 years? The Army Field Manual. You can change the Army Field Manual to adapt techniques to the war on terror. There is a classified section of the Army Field Manual. There is nothing about its adoption that limits the ability to aggressively interrogate people to get good intelligence. But if you want to torture people, the Army Field Manual says no and the President says no. It is now time for Congress to say no, and that is what this amendment is about.

Congress has been AWOL when it comes to the war on terror in terms of

interrogation, detention, and prosecution, and we have done it in a way that weakens our Nation. We are the strongest when all three branches are on the same sheet of music. It is important, if we are going to win this war on terror, not to give the moral high ground to your enemy and to have laws that every branch of Government understands and the people implementing these laws are not confused and they will not get in trouble by following what we have said. Congress has been AWOL. It is now time for Congress to step up to the plate and offer assistance in the war on terror to the administration. That is exactly what we are doing.

I asked Judge Roberts, during the confirmation process, about this whole line of questioning. I said:

Do you believe that the Geneva Convention, as a body of

law, that it has been good for America to be part of that

convention?

ROBERTS: I do, yes.

GRAHAM: Why?

ROBERTS: Well, my understanding in general is it's an

effort to bring civilized standards to conduct of war--a

generally uncivilized enterprise throughout history; an

effort to bring some protection and regularity to prisoners

of war in particular. And I think that's a very important

international effort.

It is an important international effort, and al-Qaida should not be considered a lawful combatant under Geneva Conventions. But it is about us, as Senator McCain said. When we catch someone who is not under the Geneva Conventions, it is important that our people not only follow the dictates of the President--treat them humanely--but they know what to do. We are giving confusing policies in this new war on terror, this hybrid between a lawful combatant, enemy combatant, and regular combatant. We need to standardize our techniques.

How do we do that to make America the strongest? How can we effectively do that? We get the Congress involved, we get the administration involved, and we get the courts involved. Right now we have two court cases that are all over the board. Judges are telling us--Justice Scalia in one of the court cases is screaming out that Congress has been absent here. Congress needs to speak because the courts are not equipped to run Guantanamo Bay. The courts are not well equipped to interpret military policy, and they need guidance from Congress.

I asked Justice Roberts about that. One of his favorite Justices is Justice Jackson. Justice Jackson in the Youngstown steel case basically said that the executive branch is at its strongest when it has the expressed or implied consent of Congress.

When I met with Judge Roberts on this whole issue about detention, interrogation, and prosecution of enemy combatants, he said this is an area where the courts would welcome congressional involvement.

As a result of us being AWOL in Congress, there is a Supreme Court decision, 5 to 4, giving enemy combatants at Guantanamo Bay habeas corpus rights. They are noncitizens, and they are able to go to Federal court because there is no clear direction from Congress about how to treat these people. Mr. President, 185 of them have lawyers, and they are absolutely overrunning the place. To me, it is absurd that an enemy combatant, noncitizen terrorist has habeas corpus rights, and the reason they do is because we are giving no guidance to the courts about how we want these people treated.

I believe it is now time to give guidance to the courts, to the country, to the international community, to those in uniform serving us, and to the terrorists about what we are going to do, and Senator McCain's amendment has got it. It is the authority that has been missing in this great effort to win the war on terror. It is now bringing standardization into an area which had been previously chaotic. Every military lawyer who has been looking at the policies proposed has come away confused.

Let me tell you unequivocally that the military legal community understands what Senator McCain is doing and wholeheartedly adopts his efforts, that not only would it be good for the Congress to speak with the same authority as the President, but it would help the courts, and it would be good for our troops if they had the protection of standardization.

If you want to help our troops who are trying to win this war on terror, give them the cover they need and the guidance they need. Do not throw them to the wolves. We have had people prosecuted because they have been given an impossible task. They have been given the task of interpreting laws that make no sense. And if you really do want to stand by the troops, give them guidance. Give them the guidance and the tools they can use to get good information, not bad information, and get information in a way that does not embarrass our Nation and put us at risk.

Abu Ghraib has been a giant step back, a huge step back, and one of the reasons we had Abu Ghraib is because nobody there knew what they were doing. They were not trained. They were overwhelmed. They did not have consistency when it came to interpreting the interrogation policies because the policies made no sense. Some people are in jail now. Most of them are in jail because of their own misconduct. Some people have had their careers ruined because they are trying to interpret policies nobody can understand.

That is a huge deviation from the way we conducted war for 50 to 60 years, and we paid the price. We are allowing courts to come in and do things they are not equipped to do because we have been AWOL as Congress. The best thing we can do to win this war is have policies that allow us to effectively interrogate, detain, and prosecute terrorists without ceding the high ground. And this amendment is a start.

I am going to introduce every JAG memo written about the original policies. Their concern is we are putting our own people at risk.

This is General Rives, my current boss:

Should any information concerning the exceptional

techniques--

And they were exceptional--

become public, it is likely to be exaggerated/distorted in

both the U.S. and international media. This could have a

negative impact on international, and perhaps even domestic,

support for the war on terrorism. It could likewise have a

negative impact on public perception of the U.S. military in

general.

This was written 6 February 2003. He was foretelling what was going to happen. These are not ACLU lawyers. This is a Marine Corps general and a two-star general in the Air Force who dedicated their lives to defending their country and holding us up to be the great Nation we are.

I urge my colleagues to please adopt this amendment overwhelmingly. It will do a great service to future Presidents. It will be a great turning point in the war on terror. It is needed. It is a simple amendment. It uses the Army Field Manual as the bible for interrogation for lawful combatants and enemy combatants. You can write it the way you need to. It does not lock us into a position that would be undermining our efforts to get good intelligence. It simply will be a document that covers how we behave in every known situation from Guantanamo Bay to the battlefield in Afghanistan. It will be something that will help our troops understand what they can and cannot do. It will make us stronger as a nation.

The second part of the amendment is the most important. It says that we as a nation will do what the President said: We will treat everybody in our charge humanely whether they deserve it or not because, as Senator McCain said, it is about us, it is not about them. And it is now time for Congress to speak. It will help us in court. When the courts understand that the Congress has come up with a plan in support of the administration to interrogate detainees, they will give great deference to that situation. When Congress is absent, they are going to be confused, and they are going to do some things they really do not want to do.

This is a very important moment in the war on terror. This brings us back into the light out of the darkness. It allows us to interrogate enemy combatants, unlawful combatants in a way to get good intelligence without undermining who we are as a people. It is necessary, it is legally necessary. It will strengthen our hand in court. It is very necessary to create certainty out of confusion for our troops.

One thing I can say with absolute certainty is that we have let the troops down when it comes to trying to give them guidance about what to do in very stressful situations. We are trying

to give them the armor they need to protect themselves from a terrible enemy. We are trying to give them the intelligence they need to get ahead of the enemy. The best thing we can do is give them the guidance they need to make sure we can win this war on terror and never lose the moral high ground.

I urge every person to think long and hard about this amendment. To vote no on this amendment, in my opinion, dramatically weakens us as a nation. To vote yes reinforces our values, provides good guidance to make sure we get good intelligence, and protects our own people from being prosecuted.

I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be dispensed with.

Madam President, I ask unanimous consent to set aside the pending amendment.

Madam President, I call up my amendment which is at the desk.

Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Madam President, I thank Senator Stevens for allowing me to do this. I appreciate that we have a busy day.

I totally understand where he is coming from about the interrogation amendment. I come out on a different side. This amendment deals with the combat status review procedure at Guantanamo Bay. I think it is very necessary. I think it strengthens what the administration is trying to do when it comes to enemy combatants. I think it helps the administration in court and is good policy for the country.

No. 1, I totally agree with the President that a member of al-Qaida should not be given Geneva Conventions status. I say to my friend from Alaska that Senator McCain's amendment doesn't confer Geneva Conventions status on enemy combatants. It standardizes the interrogation techniques. The Army Field Manual has a section for lawful combatants, those covered under the Geneva Conventions, and it will have a provision for unlawful combatants. Al-Qaida should not be given Geneva Conventions status. The Geneva Conventions and the signatories to the convention set the rules for the conduct of war. An unlawful enemy combatant is someone who goes around the battlefield without a uniform, doesn't represent a nation--a terrorist, for lack of a better word. They do not deserve the protection of the Geneva Conventions because they are cheating. But they do, in my opinion, deserve what the President said--not so much because they deserve it but because it is about who we are.

The President said even enemy combatants--members of al-Qaida--will be treated humanely. When we capture somebody on the battlefield-- throughout the world because the whole world is the battlefield in the war on terror--most of the people we are dealing with are not part of the uniformed force, not like the Iraqi Army.

The President said early on these people will be humanely treated but they will not be given Geneva Convention status. He is absolutely right. When we catch someone, say, in Afghanistan, who is a member of al-Qaida or some other terrorist network, certain people, once screened, go to Guantanamo Bay. The people at Guantanamo Bay have been participating in the allegations, or they have been participating in terrorist activities, supporting terrorist organizations as an unlawful enemy combatant. They are not uniformed soldiers.

We are reviewing everyone that comes to Guantanamo Bay to see if they deserve the status ``enemy combatant.'' The term ``enemy combatant'' came out of World War II when we had a Supreme Court case recognizing that term for German saboteurs who landed, I think, in Florida and were trying to do sabotage throughout the United States. These six or seven Germans were not in uniform. They were tried by a military commission.

We have a military commission at Guantanamo Bay that I totally support. And I think enemy combatant status was a result of that Supreme Court case. They were given that determination.

What we are trying to do is streamline interrogation techniques to deal with both lawful and unlawful combatants. That helps our troops, gives them guidance.

The second thing we are doing with my amendment is legitimizing, through congressional action, what the administration has done at Guantanamo Bay. The administration, in my opinion, has put together a very good, thorough process to look at each person that comes to Guantanamo Bay to determine whether or not they should be classified as enemy combatants because if they are classified as enemy combatants, they can be detained indefinitely and taken off the battlefield.

The due process rights afforded an enemy combatant have been up to the Supreme Court, and the Supreme Court, for the most part, has blessed the procedure. There have been some concerns expressed by the Court.

My amendment tries to, one, legitimize what the administration has created at Guantanamo Bay in terms of a review process to determine who is an enemy combatant and who is not. We made two small changes. We have learned in the past that sometimes people have been because of a single statement made, while in the hands of a foreign agency, a foreign country, that was given under duress. The amendment says that if a civilian is to determine enemy combatant status in a statement from a foreign interrogation, you have to prove that the statement was not unnecessarily coerced. Most Americans, I think, agree with that, and the people at Guantanamo Bay agree with that.

Second, the civilian who will determine from the appeal process whether or not the enemy combatant status, which is reviewed annually, should be held, would be appointed by the Senate as a Presidential appointment. Gordon England is doing it now, and he is a Presidential appointee. That continues the trend. I think it would be good to have the Senate involved.

What does this mean, very briefly? It means we can go to the world and say we have a procedure in place at Guantanamo Bay that will determine who an enemy combatant is and that these procedures are blessed by the courts, they are blessed by the Congress, and they are blessed by the administration. It would be good to be able to say, as a nation, that all three branches of Government--the executive branch, the judicial branch and the legislative branch--have all agreed on procedures to take enemy combatants off the battlefield and give those people who are suspected of being enemy combatants due process rights consistent with whom we are as a people and give enough flexibility to the military to make sure these people do not go back to the fight.

The truth is, several hundred have been captured and released. The process is working very well at Guantanamo Bay. I compliment the administration for setting up a combat status review process that has been changed a couple of times. It is eminently fair. This amendment blessed that process. It has two small changes. It would strengthen the process, and it would end this never-ending court debate about what to do.

The courts have been telling us, Congress, if you got involved, it would help us figure out what we should be doing. Justice Scalia, as Senator McCain indicated, screamed out, in a dissenting opinion granting habeas corpus rights to enemy combatants, that the courts are ill-equipped to run this war. Now, with this amendment, the Congress will bless what the administration has put in place, making small changes which will strengthen the administration's hands in the court. The courts will feel more comfortable ratifying this process, and we will be a united nation, a united front in all three branches of Government when it comes to dealing with enemy combatants.

It is very important that anyone who engages in unlawful enemy combatant activities against this Nation be taken off the battlefield and kept off the battlefield as long as necessary to make us safe. They deserve a certain amount of process because whom we are as a people and the process we are blessing gives them very adequate due process rights.

This amendment strengthens those rights. They deserve to be taken off the battlefield, and people engaging in unlawful enemy combatant activities should be taken off the battlefield as long as necessary to protect our country.

Second, they deserve to be prosecuted in some instances. There are three things we are trying to accomplish. We are trying to standardize interrogation techniques to protect our own troops and have a one-stop shopping for what the rules are. That is through Senator McCain's amendment. We are trying to keep the moral high ground, as expressed by the President,

to say we are not torturing people, we are not going to treat people inhumanely because that weakens us. The bottom line, it is not the right way to get good information and weakens us. The more standardization the better.

When it comes time to keep people off the battlefield, with this amendment we are stronger as a nation because Congress will have blessed what the administration has done.

In that regard, I offer this amendment as a way to bring clarity to a situation that is very important in the war on terror. We need to keep enemy combatants, once they have been lawfully determined to be an enemy combatant, off the battlefield as long as it takes to secure this Nation. This amendment helps to do that.

I ask for the yeas and nays.

Yes. It is in the Geneva Conventions. There is a section about unlawful enemy combatant, illegal enemy combatant.

The conventions are set up to confer status on signatories and to make sure that people who engage in unlawful activity are not covered. The people who wear civilian clothes that go in the population and engage in terrorist activity have never been covered under the convention. Under the convention, that is the definition they are giving.

The administration has used the term that has been legitimized by the courts for quite a while now in international law. In the review process at Guantanamo Bay, they will take the person off the battlefield. They have to make a case whether they fit the definition of enemy combatant. Each year they can challenge the designation. What we are doing in this amendment is basically blessing that procedure, requiring two more things.

One, the idea that the Senate will confirm the person who will ultimately have the release authority or the appeal authority to enemy combatant status; and two, prohibit the use of a single statement to hold somebody as an enemy combatant who was in a foreign government's hands, unless we can show the statement was not a result of torture.

We have learned from our experience at Guantanamo Bay that would be a good change.

Yes.

Of all the people we have detained--over 500--no one has been brought to trial yet. Two will be brought to trial in November.

One of the reasons that we cannot bring people to trial is because the Federal courts have issued a stay on prosecutions that has now been lifted. We are moving forward.

There is another Supreme Court case dealing with the due process rights of determining whether a person is an enemy combatant. The procedure is in place at Guantanamo Bay and has been generally blessed by the Court because they have been stayed on those proceedings, too.

Yes there is.

There was a stay by Federal district judge, staying military commission trials. The DC Circuit Court of Appeals overrode the lower court. That has gone up to the Supreme Court right now. I am confident the Supreme Court will legitimize military commissions, maybe with some changes.

This amendment deals with detaining somebody who is not being prosecuted yet, who may be prosecuted, but keeping them off the battlefield because we have determined they are an unlawful enemy combatant. The review process to make that determination I feel very comfortable with. And there are some small changes in the amendment. The courts have told us this is an area where Congress needs to act. The courts have many cases, not just one, challenging the Guantanamo Bay procedures and determining unlawful enemy combatant. Justice Scalia said in the dissenting opinion, if this were an area where Congress spoke, the courts would welcome their involvement.

The legal status of military commissions and the combat status review process are in legal limbo unnecessarily.

If you read these opinions, they are a hodgepodge of different dissenting and concurring opinions. The one common theme is the courts are suggesting to Congress we get involved.

When it comes to combat status review, I am totally convinced, after talking with now Chief Justice Roberts, this would be an area where the courts would welcome congressional involvement. He said to me in the hearings that the President or the executive branch is at its strongest when they have the implied or express support of the Congress.

So the purpose of this amendment, if I may say very briefly, is for Congress to legitimize what is going on at Guantanamo Bay about determining enemy combatant status, legitimizing that review process by making some changes. If we would do that, I am convinced the courts would welcome that involvement and a lot of this litigation would end overnight.

I have discussed it with one of the cosponsors of the amendment, Senator Warner, yes. I have been to Guantanamo Bay with Senator Warner and others, where we have talked about this. Yes, sir, I am very sure that the chairman knows about this because he is a cosponsor of the amendment.

I was under the assumption the amendment was going to be accepted, as you were, and now I have been told there are some concerns from the minority on the committee. I have talked extensively about these series of amendments. They all work in conjunction with each other. Senator McCain's amendment standardized interrogation techniques and what we as a people want to live by--we do not want to torture people. We are not going to torture people.

My amendment standardizes and makes small changes to the determination of who is an enemy combatant and who is not, because you keep people at Guantanamo Bay indefinitely under this procedure. It needs to be blessed by Congress. The third thing we do, later on, is deal with military commissions, actually how you try these people.

So I was under the understanding, I say to the Senator, that not only was Senator Warner a cosponsor of these two amendments, but that everybody was on board. The point here is to give the courts some guidance to bring about legal certainty where there is a legal mass, as Senator McCain indicated. So I don't know why anybody is objecting.