Floor Statements

Mr. President, I thank the senior Senator from California for addressing concerns I had with an earlier version of this bill. I was particularly concerned about the apparent disconnect between the substantive offense created by the bill and the misdemeanor penalty for its violation. The offense requires proof that a defendant, for the purpose of damaging or interfering with the operations of an animal enterprise, ``intentionally damages, or causes the loss of any property (including animals or records)'' used by an animal enterprise. By contrast, the misdemeanor penalty provision applied to offenses involving ``exclusively non-violent physical obstruction'' of an animal enterprise facility, resulting in no bodily injury, no property damage, and no loss of profits.

It is difficult to imagine how a person can intentionally damage property, or intentionally cause the loss of property, while at the same time be engaged exclusively in nonviolent physical obstruction that causes no real harm. The only way these provisions could be reconciled would be by watering down the criminal prohibition to extend to peaceful conduct that the bill was never intended to cover.

The current version of the bill clears up the confusion. It strikes the misdemeanor provision in its entirety and clarifies that the substantive offense created by the bill requires proof of intentional damage to real or personal property, not simply a loss of profits. These changes will ensure that legitimate, peaceful conduct is not chilled by the threat of Federal prosecution, and that prosecution is reserved for the worst offenders.

Mr. President, I would like to express my gravy reservations about certain provisions of the fiscal year 2007 Defense authorization bill conference report. This legislation poorly handles key provisions related to the National Guard, which--as the events since September 11th have highlighted--is critical to our Nation's defense. The final conference report drops the reforms known as the National Guard Empowerment Act, a bill that would have given the National Guard more bureaucratic muscle inside the Pentagon. It would have cleared away some of these administrative cobwebs and given the Guard the seat at the decision-making table that it needs and deserves. It also should concern us all that the conference agreement includes language that subvert solid, longstanding posse comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law. There is good reason for the constructive friction in existing law when it comes to martial law declarations.

Combined, these moves amount to a double punch against the National Guard. The National Guard has done so much to protect the security and safety of our country. Yet the authorization bill sends the signal that we are not interested in truly supporting them. This conference report says we do not want to address glaring problems that have surfaced during their increasingly frequent deployments. And, incredibly enough, it says to the Guard that other military forces are better to carry out tasks here at home. In short, this bill goes in the wrong direction.

Let's review what the 500,000 men and women of the National Guard do for the country. The National Guard is essential to the military's missions at home and abroad. More than 10,000 members of the National Guard are currently called up for domestic options, most along the border and involved in counter-drug operations.

Almost 60,000 citizen-soldiers are deployed overseas, almost 40,000 involved in Iraq deployments. Over 6,000 members of the Air Guard are deployed. And let's remember, that at the high-water mark, the Guard made up almost 40 percent of the troops on the ground in Iraq.

It is also clear that we are going to need the Guard even more in the future. Consider the information reported in a New York Times article from last Friday. The active U.S. Army is being deployed at such a high rate that it appears increasingly likely that the National Guard is going to need to be tapped once again to make the troop levels.

Any way you cut it, the National Guard is absolutely essential to our Nation's defense. We cannot fight our wars abroad, we cannot secure the country at home, and we cannot response to large-scale emergencies without the Guard.

Given the fact that the National Guard is one of the country's most valuable and needed forces, one would think that our leaders in the Department of Defense would be spending significant time developing policies and

budgets plans that truly support the Guard. For example, I would think it logical to make the replacement of the Guard's aging and worn equipment a priority. I would think it logical to give the National Guard a stronger voice in policymaking decisions and in setting budgetary priorities that affect the National Guard. I clearly see the benefits of deferring to the Adjutants General and the Nation's governors, those who control and oversee the Guard, when determining how best to utilize Guard at home during domestic emergencies.

Instead of these good policy goals and practices, we have only a long list of unfair and ill-conceived decisions from the Pentagon that do very little to support the Guard in reality. And these examples are only the tip of the iceberg.

Last December, the Army and the Air Force decided to try to make precipitous cuts to the National Guard. The Army sought to cut the Army Guard by almost 17,000 soldiers, while the Air Force drove for reductions of almost 14,000 airmen. These personnel cuts were made without consultation with the National Guard Bureau, the States Adjutants General, and the Nation's Governors. While Congress was successful in turning those recommendations back, the fact remains that the active force still desired to balance its budgets at the expense of the Guard.

In late Spring of last year, the Air Force forwarded a list of base closure recommendations the cut deeply into the Air National Guard. The closure list took away flying missions in States in which the Air National Guard is the only Air Force presence in the State. No consideration was made of this crucial link between local communities and the armed forces. Nor did the Air Force consider the Air National Guard's homeland security capabilities. Why were such ill-advised recommendations made? The reason is that the Air National Guard was not involved in the force structure review process.

Similarly, in 2002, there was no consultation with the Air National Guard when the Air Force decided to take away the Air National Guard's B-1 bomber units, which, as a GAO study underscored, were cheaper to operate, more efficient, and more effective than their active duty counterparts.

Further, since September 11, torturous debate has developed in the Pentagon whenever the National Guard is needed for a large-scale operation at home, such as during Hurricane Katrina. We have learned that the Guard works optimally at home when it serves under the command-and-control of the Nation's Governors, with Federal reimbursement, under title 21 of the Federal Code.

This title 32 status ensures that locally elected officials remain in control of military forces operating at home. Because the National Guard comes directly out of these local communities, posse comitatus statutes do not apply. This title 32 arrangement has been used most recently to increase security at the border, but it has previously been used effectively to have the Guard provide added security at the Republican and Democratic National Conventions, the G8 Summit, the Nation's airports, and around the Capitol Building in Washington.

There seems to be some kind of reflexive reaction within the Department of Defense against having the Guard and the Governors remain in control of operations at home. In fact, a sizeable contingent exists within the Pentagon to have the active duty military control the National Guard and other military personnel and assets. So every time there is a natural disaster or other emergency, the Pentagon engages in a lengthy debate back-and-forth about control of the Guard. To date, these debates have led to sensible outcomes. But it should not be so difficult and uncertain.

Finally, the National Guard has little influence at the senior ranks within the Army and the Air Force. The number of high-ranking officers is completely imbalanced between the Guard and the active forces. While the National Guard constitutes a high percentage of our total number of ground troops, it has just a sliver of the overall percentage of three- and four-star general officers. And, while the Air National Guard constitutes a high percentage of the Air Force's mobility assets and a similarly high percent of its strike assets, the Air Guard has a negligible share of the high-ranking positions, where important decisions are made.

The National Guard Empowerment Act seemed to be a logical response to these ill-advised policy positions and imbalanced bureaucratic structure. The entire thrust of the legislation rests in increasing the bureaucratic muscle of the National Guard. The idea behind it is to prevent some of these ill-advised policies from moving forward. More importantly, the legislation is designed to firmly identify the uses of the National Guard, ensure the force is ready and equipped for its critical homeland security missions by bringing its organizational ties in line with its real responsibilities and accomplishments.

Specifically; the legislation, as included in the Senate's version of the Defense authorization bill contained four major provisions. First, it would elevate the Chief of the National Guard Bureau from the rank of lieutenant general to full general.

Second, the Deputy Commander of United States Northern Command, the military headquarters designed to oversee military forces used in the United States operationally would be mandated to come out of the ranks of the National Guard. Third, the National Guard would be redefined as a joint bureau of the Department Defense, rather than a branch of Army and the Air Force, enabling the Guard to maintain its role as the primary military reserve, while allowing the National Guard to avoid bureaucracy within the Defense Department. Finally, the National Guard would have formally be tasked with working with the States to identify gaps in their resources to respond to emergencies at home.

This proposal is not only targeted, but also modest. Our original legislation, S. 2658, the National Defense Enhancement and National Guard Empowerment Act of 2006, would have additionally placed the Guard Bureau chief on the Joint Chiefs of Staff and given the National Guard separate budget authority. Though we still believe these provisions are important to empowering the National Guard fully, we listened and understood the objections of other senators. We dropped those provisions in the amendment to the Defense Authorization bill to reach a consensus where even more members would agree to the amendment, beyond the already 40 senators who are cosponsoring the baseline legislation.

We can all acknowledge that the National Guard is essential to our Nation's defense, that there has been some questionable policymaking affecting the Guard in recent years, and that the empowerment bill represents a positive step towards strengthening the Guard. Yet where does the final conference report on the defense authorization bill end up on Guard empowerment?

Not only does this conference report unfortunately drop the Empowerment amendment entirely, it adopts some incredible changes to the Insurrection Act, which would give the President more authority to declare martial law.

Let me repeat: The National Guard Empowerment Act, which is designed to make it more likely for the National Guard to remain in State control, is dropped from this conference report in favor of provisions making it easier to usurp the Governors control and making it more likely that the President will take control of the Guard and the active military operating in the States.

The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor. When the Insurrection Act is invoked posse comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy, and it is for that reason that the Insurrection Act has only been invoked on three--three--in recent history.

The implications of changing the act are enormous, but this change was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.

While the Conference made hasty changes to the Insurrection Act, the Guard empowerment bill was kicked over for study to the Commission on the National Guard and Reserve, which was established only a year ago and whose recommendations have no real force of law. I would have never supported the creation of this panel--and I suspect my colleagues would agree with me--if I thought we would have to wait for the panel to finish its work before we passed new laws on the Guard and Reserve.

In fact, we would get nothing done in Congress if we were to wait for every commission, study group, and research panel to finish its work. I have been around here over 30 years, and almost every Senator here knows the National Guard as well as any commission member. We don't need to wait, and we don't need to study the question of enhancing the Guard further. This is a terrible blow against rational defense policy- making and against the fabric of our democracy.

Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point. I can only surmise that we arrived at this outcome because we are too unwilling to carry out our article I, section 8 responsibilities to raise and support an Army. We have it in our constitutional power to organize the Department of Defense. The Goldwater-Nicholas Act that established a highly effective wartime command structure and the Nunn- Cohen legislation that established the now-critical Special Operations Command came out of Congress.

If the then-stale leadership of the Pentagon had its way, these two critical bills would never have seen the light of day. Today, however, the Pentagon is just as opposed to the Empowerment legislation, and instead of asserting its power, the Congress is punting--just kicking it down the field and out of play.

Also, it seems the changes to the Insurrection Act have survived the conference because the Pentagon and the White House want it. It is easy to see the attempts of the President and his advisors to avoid the debacle involving the National Guard after Hurricane Katrina, when Governor Blanco of Louisiana would not give control of the National Guard over to President and the Federal chain of command. Governor Blanco rightfully insisted that she be closely consulted and remain largely in control of the military forces operating in the State during that emergency. This infuriated the White House, and now they are looking for some automatic triggers--natural disasters, terrorist attacks, or a disease epidemic--to avoid having to consult with the Governors.

And there you have it--we are getting two horrible policy decisions out of this conference because we are not willing to use our constitutional powers to overcome leadership that ranges from the poor to the intemperate in the Pentagon and the White House. We cannot recognize the diverse ways that the Guard supports the Country, because the Department of Defense does not like it--simply does not like it.

Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty.

The conference report was agreed to.

(The conference report is printed in the proceedings of the House in the Record of September 29, 2006.)

Reserving the right to object. I shall not, of course. As a matter of clarification, there is still some specific time reserved to the Senator from Vermont; is that correct?

Thank you.

Madam President, will the Senator from Pennsylvania yield?

Thank you, Madam President. If I require further time beyond 10 minutes I will take time from that reserved to the Senator from Vermont.

Let's understand exactly what we are talking about here. There are approximately 12 million lawful permanent residents in the United States today. Some came here initially the way my grandparents did or my wife's parents did. These are people who work for American firms, they raise American kids, they pay American taxes.

Section 7 of the bill before us represents a choice about how to treat them. This bill could have been restricted to traditional notions of enemy combatants--foreign fighters captured on the battlefield--but the drafters of this bill chose not to do so.

Let's be very clear. Once we get past all of the sloganeering, all the fundraising letters, all the sound bites, all the short headlines in the paper, let's be clear about the choice the bill makes. Let's be absolutely clear about what it says to lawful permanent residents of the United States. Then let's decide if it is the right message to send them and if it is really the face of America that we want to show.

Take an example. Imagine you are a law-abiding, lawful, permanent resident, and in your spare time you do charitable fundraising for international relief agencies to lend a helping hand in disasters. You send money abroad to those in need. You are selective in the charities you support, but you do not discriminate on the grounds of religion. Then one day there is a knock on your door. The Government thinks that the Muslim charity you sent money to may be funneling money to terrorists and thinks you may be involved. And perhaps an overzealous neighbor who saw a group of Muslims come to your House has reported ``suspicious behavior.'' You are brought in for questioning.

Initially, you are not very worried. After all, this is America. You are innocent, and you have faith in American justice. You know your rights, and you say: I would like to talk to a lawyer. But no lawyer comes. Once again, since you know your rights, you refuse to answer any further questions. Then the interrogators get angry. Then comes solitary confinement, then fierce dogs, then freezing cold that induces hypothermia, then waterboarding, then threats of being sent to a country where you know you will be tortured, then Guantanamo. And then nothing, for years, for decades, for the rest of your life.

That may sound like an experience from some oppressive and authoritarian regime, something that may have happened under the Taliban, something that Saddam Hussein might have ordered or something out of Kafka. There is a reason why that does not and cannot happen in America. It is because we have a protection called habeas corpus, or if you do not like the Latin phrase by which it has been known throughout our history, call it access to the independent Federal courts to review the authority and the legality by which the Government has taken and is holding someone in custody. It is a fundamental protection. It is woven into the fabric of our Nation.

Habeas corpus provides a remedy against arbitrary detentions and constitutional violations. It guarantees an opportunity to go to court, with the aid of a lawyer, to prove that, yes, you are innocent.

As Justice Scalia stated in the Hamdi case:

The very core of liberty secured by the Anglo-Saxon system

of separated powers has been freedom from indefinite

imprisonment at the will of the Executive.

Of course, the remedy that secures that most basic freedom is habeas corpus.

Habeas corpus does not give you any new rights, it just guarantees you have a chance to ask for your basic freedom.

If we pass this bill today, that will be gone for the 12 million lawful, permanent residents who live and work among us, to say nothing of the millions of other legal immigrants and visitors who we welcome to our shores each year. That will be gone for another estimated 11 million immigrants the Senate has been working to bring out of the shadows with comprehensive immigration reform.

The bill before the Senate would not merely suspend the great writ, the great writ of habeas corpus, it would eliminate it permanently. We do not have to worry about nuances, such as how long it will be suspended. It is gone. Gone.

Over 200 years of jurisprudence in this country, and following an hour of debate, we get rid of it. My God, have any Members of this Senate gone back and read their oath of office upholding the Constitution? This cuts off all habeas petitions, not just those founded on relatively technical claims but those founded on claims of complete innocence.

We hundred Members in the Senate, we privileged men and women, are supposed to be the conscience of the Nation. We are about to put the darkest blot possible on this Nation's conscience. It would not be limited to enemy combatants in the traditional sense of foreign fighters captured in the battlefield, but it would apply to any alien picked up anywhere in the world and suspected of possibly supporting enemies of the United States.

We do not need this bill for those truly captured on the battlefield who have taken up arms against the United States. That is why the definition of enemy combatant has been so expansively redefined behind closed doors in the dark of night.

This bill is designed instead to sweep others into the net. It would not even require an administrative determination that the Government's suspicions have a reasonable basis in fact. By its plain language, it would deny all access to the courts to any alien awaiting--what a bureaucratic term, to determine your basic human rights, ``any alien awaiting''--a Government determination as to whether the alien is an enemy combatant. The Government would be free to delay as long as it liked--for years, for decades, for the length of the conflict which is so undefined and may last for generations.

One need only look at Guantanamo. Even our own Government says a number of people are in there by mistake, but we will not get around to making that determination. Maybe in 5 years, maybe 10, maybe 20, maybe 30. And we wonder why some of our closest allies ask us, what in heaven's name has happened to the conscience and moral compass of this great Nation? Are we so terrified of some terrorists around this country that we will run scared and hide? Is that what we will do, tear down all the structures of liberty in this country because we are so frightened?

It brings to mind that famous passage in ``A Man for All Seasons.'' Thomas More is talking to his protege, William Roper, and says something to the effect that England is planted thick like a forest with laws. He said, Would you cut down those laws to get after the devil? And Roper said, of course I would cut down all the laws in England to get the devil. And then More said, Oh, and when the last law was down and the devil turned on you, what will protect you?

This legislation is cutting down laws that protect all 100 of us, and now almost 300 million Americans. It is amazing the Senate would be talking about doing something such as this, especially after the example of Guantanamo. We can pick up people intentionally or by mistake and hold them forever.

How many speeches have I heard in my 32 years in the Senate during the cold war and after, criticizing totalitarian governments that do things such as that? And we can stand here proudly and say it would never happen in America; this would never happen in America because we have rights, we have habeas corpus, and people are protected.

I am not here speculating about what the bill says. This is not a critic's characterization of the bill. It is what the bill plainly says, on its face. It is what the Bush-Cheney administration is demanding. It is what any Member who votes against the Specter-Leahy amendment and for the bill today is going to be endorsing.

The habeas stripping provisions in the bill go far beyond what Congress did in the Detainee Treatment Act in three respects. First, as the Supreme Court pointed out in Hamdan, the DTA removed habeas jurisdiction only prospectively, for future cases. This new bill strips habeas jurisdiction retroactively, even for pending cases. This is an extraordinary action that runs counter to long-held U.S. policies disfavoring retroactive legislation.

Second, the DTA applied only to detainees at Guantanamo. This new legislation goes far beyond Guantanamo and strips the right to habeas of any alien living in the United States if the alien has been determined an enemy combatant, or even if he is awaiting a determination--and that wait can take years and years and years. Then, 20 years later, you can say: We made a mistake. Tough. It allows holding an alien, any alien, forever, without the right of habeas corpus, while the Government makes up its mind as to whether he is an enemy combatant.

And third, the impact of those provisions is extended by the new definition of enemy combatant proposed in the current bill. The bill extends the definition to include persons who supported hostilities against the United States, even if they did not engage in armed conflict against the United States or its allies. That, again, is an extraordinary extension of existing laws.

If we vote today to abolish rights of access to the justice system to any alien detainee who is suspected--not determined, not even charged; these people are not even charged, just suspected--of assisting terrorists, that will do by the back door what cannot be done up front. That will remove the checks in our legal system that provide against arbitrarily detaining people for life without charge. It will remove the mechanism the Constitution provides to stop the Government from overreaching and lawlessness.

This is so wrong. It grieves me, after three decades in this Senate, to stand here knowing we are thinking of doing this. It is so wrong. It is unconstitutional. It is un-American. It is designed to ensure the Bush-Cheney administration will never again be embarrassed by a U.S. Supreme Court decision reviewing its unlawful abuses of power. The Supreme Court said, you abused your power. And they said, we will fix that. We have a rubberstamp Congress that will set that aside and give us power that nobody--no king or anyone else setting foot in this land--had ever thought of having.

In fact, the irony is this conservative Supreme Court--seven out of nine members are Republicans--has been the only check on the Bush- Cheney administration because Congress has not had the courage to do that. Congress has not had the courage to uphold its own oath of office.

With this bill, the Congress will have completed the job of eviscerating its role as a check and balance on the administration. The Senate has turned its back on the Warner-Levin bill, a bipartisan bill reported by the Committee on Armed Services, so it can jam through the Bush-Cheney bill. This bill gives up the ghost. It is not a check on the administration but a voucher for future wrongdoing.

Abolishing habeas corpus for anyone the Government thinks might have assisted enemies of the United States is unnecessary and morally wrong, a betrayal of the most basic values of freedom for which America stands. It makes a mockery of the Bush-Cheney administration's lofty rhetoric about exporting freedom across the globe. We can export freedom across the globe, but we will cut it out in our own country. What hypocrisy.

I read yesterday from former Secretary of State Colin Powell's letter in which he voiced concern about our moral authority in the war against terrorism. The general and former head of the Joint Chiefs of Staff and former Secretary of State was right.

Admiral John Hutson testified before the Judiciary Committee that stripping the courts of habeas corpus jurisdiction was inconsistent with our history and our tradition. The admiral concluded:

We don't need to do this. America is too strong.

When we do this, America will not be a stronger nation. America will be a weaker nation. We will be weaker because we turned our back on our Constitution. We turned our back on our rights. We turned our back on our history.

I ask unanimous consent to have printed in the Record a letter from more than 60 law school deans and professors who state that the Congress would gravely disserve our global reputation by doing this.

Kenneth Starr, the former independent counsel and Solicitor General for the first President Bush, wrote that the Constitution's conditions for suspending habeas corpus have not been met and that doing it would be problematic.

The post-9/11 world requires us to make adjustments. In the original PATRIOT Act five years ago, we made adjustments to accommodate the needs of the Executive, and more recently, we sought to fine-tune those adjustments. I think some of those adjustments sacrificed civil liberties unnecessarily, but I also believe that many provisions in the PATRIOT Act were appropriate. I wrote many of the provisions of the PATRIOT Act, and I voted for it.

This bill is of an entirely different nature. The PATRIOT Act took a cautious approach to civil liberties and while it may have gone too far in some areas, this bill goes so much further than that. It takes an entirely dismissive and cavalier approach to basic human rights and to our Constitution.

In the aftermath of 9/11, Congress provided in section 412 of the PATRIOT Act that an alien may be held without charge if, and only if, the Attorney General certifies that he is a terrorist or that he is engaged in activity that endangers the national security. He may be held for seven days, after which he must be placed in removal proceedings, charged with a crime, or released. There is judicial review through habeas corpus proceedings, with appeal to the D.C. Circuit.

Compare that to section 7 of the current bill. The current bill does not provide for judicial review. It would preclude it. It does not require a certification by the Attorney General that the alien is a terrorist. It would apply if the alien was ``awaiting'' a Government determination whether the alien is an ``enemy combatant.'' And it is not limited to seven days. It would enable the Government to detain an alien for life without any recourse whatsoever to justice.

What has changed in the past 5 years that justifies not merely suspending but abolishing the writ of habeas corpus for a broad category of people who have not been found guilty, who have not even been charged with any crime? What has turned us? What has made us so frightened as a nation that now the United States will say, we can pick up somebody on suspicion, hold them forever, they have no right to even ask why they are being held, and besides that, we will not even charge them with anything, we will just hold them? What has changed in the last 5 years?

Is our Government is so weak or so inept and our people so terrified that we have to do what no bomb or attack could ever do, and that is take away

the very freedoms that define America? We fought two world wars, we fought a civil war, we fought a revolutionary war, all these wars to protect those rights.

And now, think of those people who have given their lives, who fought so hard to protect those rights. What do we do? We sit here, privileged people of the Senate, and we turn our backs on that. We throw away those rights.

Why would we allow the terrorists to win by doing to ourselves what they could never do and abandoning the principles for which so many Americans today and throughout our history have fought and sacrificed? What has happened that the Senate is willing to turn America from a bastion of freedom into a cauldron of suspicion, ruled by a government of unchecked power?

Under the Constitution, a suspension of the writ may only be justified during an invasion or a rebellion, when the public safety demands it. Six weeks after the deadliest attack on American soil in our history, the Congress that passed the PATRIOT Act rightly concluded that a suspension of the writ would not be justified.

But now, 6 weeks before a midterm election, as the fundraising letters are running around, the Bush-Cheney administration and its supplicants in Congress deem a complete abolition of the writ the highest priority, a priority so urgent that we are allowed no time to properly review, debate, and amend a bill we first saw in its current bill less than 72 hours ago. There must be a lot of fundraising letters going out.

Notwithstanding the harm the administration has done to national security--first by missing their chance to stop September 11 and then with their mismanaged misadventures in Iraq--there is no new national security crisis. Apparently, there is only a Republican political crisis. And that, as we know, is why this un-American, unconstitutional legislation is before us today.

We have a profoundly important and dangerous choice to make today. The danger is not that we adopt a pre-9/11 mentality. We adopted a post-9/11 mentality in the PATRIOT Act when we declined to suspend the writ, and we can do so again today.

The danger, as Senator Feingold has stated in a different context, is that we adopt a pre-1776 mentality, one that dismisses the Constitution on which our American freedoms are founded.

Actually, it is worse than that. Habeas corpus was the most basic protection of freedom that Englishmen secured from their King in the Magna Carta. The mentality adopted by this bill, in abolishing habeas corpus for a broad swath of people, is not a pre-9/11 mentality, it is a pre-1215--that is the year, 1215--mentality, a mentality we did away with in the Magna Carta and our own Constitution.

Every one of us has sworn an oath to uphold the Constitution. In order to uphold that oath, I believe we have a duty to vote for this amendment-- the Specter-Leahy amendment--and against this irresponsible and flagrantly unconstitutional bill. That is what I will do.

The Senator from Vermont answers to the Constitution and to his conscience. I do not answer to political pressure.

Madam President, I reserve the remainder of my time.

Mr. President, reserving the right to object, I did not understand the part about the fence.

I did not understand the part about the timing of the fence bill.

Just that part.

Mr. President, even though I believe we have made a terrible and tragic mistake in the Senate, including major changes in our constitutional rights willy-nilly to get out to campaign, I realize they have locked this in and there is not much one can do about it. I think it is a farce in the Senate.

Mr. President, it is from strength that America should defend our values and our Constitution. It takes a commitment to those values to demand accountability from the Government. In standing up for American values and security, I will vote against this bill.

I can give you many reasons, but let me take one. We will turn back the protections of the Great Writ of habeas corpus. Since 13th century Anglo jurisprudence, we have had the Great Writ. We have had habeas corpus since the birth of our Nation. We fought a revolution to make sure we could retain it. We fought a civil war, and we fought through two world wars. Now, in a matter of hours, in a debate that has so often skirted the issues, we are ready to strip back habeas corpus. I cannot vote for that.

Senator Smith spoke stirringly earlier today of the dangers of the bill's habeas provision, which would eliminate the independent judicial check on Government overreaching and lawlessness. He quoted from great defenders of liberty. It was Justice Robert H. Jackson who said in his role as Chief Counsel for the Allied Powers responsible for trying German war criminals after World War II: ``That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.'' He closed the Nuremberg trials about which Senator Dodd spoke earlier by saying: ``Of one thing we may be sure. The future will never have to ask, with misgiving, `What could the Nazis have said in their favor?' History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength.''

He was right and his wisdom was echoed this week at our Judiciary Committee hearing when Admiral Hutson and Lieutenant Commander Swift testified that fairness and lawfulness are our greatest strengths. This legislation doesn't live up to that ideal. It strips away fairness.

The actions by the U.S. Government, this administration, for all its talk of strength, have made us less safe, and its current proposal is one that smacks of weakness and shivering fear. Its legislative demands reflect a cowering country that is succumbing to the threat of terrorism. I believe we Americans are better than that. I believe we are stronger than that. I believe we are fairer than that. And I believe America should be a leader in the fight for human rights and the rule of law, and that will strengthen us in our fight against terrorists.

We have taken our eye off the ball in this fight against terrorists. That is essentially what all of our intelligence agencies concluded in the National Intelligence Estimate that the administration had for six months while this was rolling along, but that they only shared a part of this past weekend. Our retooled and reorganized intelligence agencies, with leadership handpicked by the administration, have concluded, contrary to the campaign rhetoric of the President and Vice President, that the Iraq war has become a ``cause celebre'' that has inspired a new generation of terrorists. It hasn't stopped terrorists, it has inspired new terrorists. Surely, the shameful mistreatment of detainees at Guantanamo, at Abu Ghraib, at secret CIA prisons, and that by torturers in other countries to whom we have turned over people, have become other ``causes celebre'' and recruiting tools for our enemies.

Surely, the continued occupation of Iraq, when close to three- quarters of Iraqis want U.S. forces to depart their country, is another circumstance being exploited by enemies to demonize our great country.

Passing laws that remove the remaining checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin Laden and al-Qaida. Authorizing indefinite detention of anybody the Government designates, without any proceeding or without any recourse, putting them into the secret prisons we condemned during the Cold War, is what our worse critics claim the United States would do. That is not what American values, our traditions, and our rule of law would have us do.

This is not just a bad bill, this is truly a dangerous bill.

I have been asking Secretary Rumsfeld's question for the last several weeks: whether our actions are eliminating more of our enemies than are being created. But now we understand that we are creating more enemies than we are eliminating. Our intelligence agencies agree that the global jihadist movement is spreading and adapting; it is ``increasing in both number and geographic dispersion.'' We are putting ourselves more at risk.

``If this trend continues,'' our intelligence agencies say, that is, if we do not wise up and change course and adopt a winning new strategy, ``threats to U.S. interests at home and abroad will become more diverse, leading to increasing attacks worldwide.'' Attacks have been increasing worldwide over the last 5 years of these failing policies and are, according to the judgment of our own, newly reconstituted intelligence agencies, likely to increase further in the days and months and years ahead. The intelligence agencies go on to note ominously that ``new jihadist networks and cells, with anti- American agendas, are increasingly likely to emerge'' and further that the ``operational threat will grow,'' particularly abroad ``but also in the homeland.''

This is truly chilling. The Bush-Cheney administration not only failed to stop 9/11 from happening, but for 5 years they have failed to bring Osama bin Laden to justice, even though they had him cornered at Tora Bora. They yanked the special forces out of there to send them into Iraq. We have witnessed the growth of additional enemies.

And what do our intelligence agencies suggest is the way out of this dangerous quagmire? The National Intelligence Estimate suggests we have to ``go well beyond operations to capture or kill terrorist leaders,'' and we must foster democratic reforms. When America can be seen abandoning its basic American democratic values, its checks and balances, its great and wonderful legal traditions, and can be seen as becoming more autocratic and less accountable, how will that foster democratic reforms elsewhere? ``Do as I say and not as I do'' is a model that has never successfully inspired peoples around the world, and it doesn't inspire me.

The administration has yet to come clean to the Congress or the American people in connection with the secret legal justifications it has generated and secret practices it has employed in detaining and interrogating hundreds, if not thousands, of people. Even they cannot dismiss the practices at Guantanamo as the actions of a few ``bad apples.''

With Senate adoption of the antitorture amendment last year and the recent adoption of the Army Field Manual, I had hoped that 5 years of administration resistance to the rule of law and to the U.S. military abiding by its Geneva obligations might be drawing to a close. Despite the resistance of the Vice President and the administration, the new Army Field Manual appears to outlaw several of what the Administration euphemistically calls ``aggressive'' tactics and that much of the world regards as torture and cruel and degrading treatment. In rejecting the Kennedy amendment today, the Senate has turned away from the wise counsel and judgment of military professionals. Of course, the President in his signing statement already undermined enactment of the antitorture law.

The administration is now obtaining license--before, they just did it quietly and against the law and on their own say-so, but now they are obtaining license--to engage in additional harsh techniques that the rest of the world will see as abusive, as cruel, as degrading, and even as torture. Fortunately, a growing number of our own people see it that way, too.

What is being lost in this debate is any notion of accountability and the guiding principles of American values and law. Where are the facts of what has been done in the name of the United States? Where are the legal justifications and technicalities the administration's lawyers have been seeking to exploit for 5 years? The Republican leadership's legislation strips away all accountability and erodes our most basic national values without so much as an accounting of these facts and legal arguments. Senator Rockefeller's amendment to incorporate some accountability in the process through oversight of the CIA interrogation program was unfortunately rejected by the Republican leadership in the Senate.

Secrecy for all time is to be the Republican rule of the day. Congressional oversight is no more. Checks and balances are no more. The fundamental check that was last provided by the Supreme Court is now to be taken away. This is wrong. This should be unconstitutional. It is certainly unconscionable. This is certainly not the action of any Senate in which I have served. It is not worthy of the United States of America. What we are saying is one person will make all of the rules; there will be no checks and balances. There will be no dissent, and there will be nobody else's view, and we will remove, piece by piece, every single law that might have allowed checks and balances.

We are rushing through legislation that would have a devastating effect on our security and our values. I implore Senators to step back from the brink and think about what we are doing.

The President recently said that ``time is of the essence'' to pass legislation authorizing military commissions. Time was of the essence when this administration took control in January 2001 and did not act on the dire warnings of terrorist action. Time was of the essence in August and early September 2001 when the 9/11 attacks could still have been prevented. This administration ignored warnings of a coming attack and even proposed cutting the antiterror budget on September 10, the day before the worst foreign terrorist attack on U.S. soil in our history. This administration was focused on Star Wars, not terrorism. Time was of the essence when Osama bin Laden was trapped in Tora Bora. But this administration was more interested in going after Sadaam Hussein, who the President recently admitted had ``nothing'' to do with 9/11.

After 5 years of this administration's unilateral actions that have left us less safe, time is now of the essence to take real steps to keep us safe from terrorism. Real steps like those included in the Real Security Act, S. 3875. We should be focusing on getting the terrorists and securing the nuclear material that this administration has allowed for the last 5 years to be unaccounted for around the world. We should be doing the things Senator Kerry and others are talking about, such as strengthening our special forces and winning the peace in Afghanistan, where the Taliban has regrouped and is growing in strength.

Instead, the President and the Republican Senate leadership call for rubberstamping more flawed White House proposals just in time for the runup to another election and for the fundraising appeals to go out.

I had hoped that this time, for the first time, even though the Senate is controlled by the President's party, we could act as an independent branch of the Government and serve as a check on this administration. After this debate and the rejection of all amendments intended to improve this measure, I see that day has long passed. I will continue to speak out. That is my privilege as a Senator. But I weep for our country and for the American values, the principles on which I was raised and which I took a solemn oath to uphold. I applaud those Senators who stood up several times on the floor today and voted to uphold the best of American values.

Going forward, the bill departs even more radically from our most fundamental values. And provisions that were profoundly troubling a week ago when the Armed Services Committee marked up the bill have gotten much worse in the course of closed-door revisions over the past week. For example, the bill has been amended to eliminate habeas corpus review even for persons inside the United States, and even for persons who have not been determined to be enemy combatants. It has moved from detention of those who are captured having taken up arms against the United States on a battlefield to millions of law-abiding Americans that the Government might suspect of sympathies for Muslim causes and who knows what else--without any avenue for effective review.

Remember, we are giving a blank check to a Government whose incompetence was demonstrated in historic dimensions by the lack of preparation in response to Hurricane Katrina. This is the same Government which, in its fight against terrorism, has had Senator Kennedy and Congressman Lewis on terrorist watch lists, and could not get them off. This is a Government which repeatedly releases confidential family information about our Armed Forces and veterans. It is a Government which just refuses to admit any mistakes or to make any corrections but regards all of its representatives, from Donald Rumsfeld to Michael Brown, as doing a ``heckuva job.''

The proponents of this bill talk about sending messages. What message does it send to the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes? Its message is that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants--a term that the bill now defines in a tortured and unprecedentedly broad manner. And that power and any errors cannot be reviewed or corrected by a court. What message does that send about abuse of power? What message does that send to the world about America's freedoms?

Numerous press accounts have quoted administration officials who believe that a significant percentage of those detained at Guantanamo have no connection to terrorism. In other words, the Bush-Cheney administration has been holding for several years, and intends to hold indefinitely without trial or any recourse to justice, a substantial number of innocent people who were turned in by anonymous bounty hunters or picked up by mistake in the fog of war or as a result of a tribal or personal vendetta. The most important purpose of habeas corpus is to correct errors like that--to protect the innocent. It is precisely to prevent such abuses that the Constitution prohibits the suspension of the writ of habeas corpus ``unless when in Cases of Rebellion or Invasion the public Safety may require it.'' But court review has now embarrassed the Bush administration, as the U.S. Supreme Court has three times rejected its lawyers' schemes. And, so how does the administration respond? It insists that there be no more judicial check on its actions and errors.

When the Senate accedes to that demand, it abandons American principles and all checks on an imperial Presidency. The Senator from Vermont will not be a party to retreat from America's constitutional values. Vermonters don't retreat.

Senator Smith, speaking this morning about the habeas provisions of this bill, quoted Thomas Jefferson, who said:

The habeas corpus secures every man here, alien or citizen,

against everything which is not law, whatever shape it may

assume.

Jefferson said on another occasion:

I would rather be exposed to the inconveniences attending

too much liberty than to those attending too small a degree

of it.

With this bill, the Senate reverses that profound judgment of history, chooses against liberty, and succumbs to fear.

When former Secretary of State Colin Powell wrote last week of his concerns with the administration's bill, he wrote about doubts concerning our ``moral authority in the war against terrorism.'' This General, former head of the Joint Chiefs of Staff and former Secretary of State, was right. Now we have heard from a number of current and former diplomats, military lawyers, Federal judges, law professors and law school deans, the American Bar Association, and even the first President Bush's Solicitor General, Kenneth Starr, that they have grave concerns with the habeas corpus stripping provisions of this bill.

I agree with Mr. Starr that we should not suspend--and we should certainly not eliminate--the Great Writ. I also agree with more than 300 law professors, who described an earlier, less extreme version of the habeas provisions of this bill as ``unwise and contrary to the most fundamental precepts of American constitutional traditions.'' And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk. We cannot spread a message of freedom abroad if our message to those who come to America is that they may be detained indefinitely without any recourse to justice.

In the wake of the 9/11 attacks, and in the face of the continuing terrorist threat, now is not the time for the United States to abandon its principles. Admiral Hutson was right to point out that when we do, there would be little to distinguish America from a ``banana republic'' or the repressive regimes against which we are trying to rally the world and the human spirit. Now is not the time to abandon American values, to shiver and quake, to rely on secrecy and torture. Those are ways of repression and oppression, not the American way.

We need to pursue the war on terror with strength and intelligence, but we need to uphold American ideals. The President says he wants clarity as to the meaning of the Geneva Conventions and the War Crimes Act. Of course, he did not want clarity when his administration was using its twisted interpretation of the law to authorize torture and cruel and inhumane treatment of detainees. He did not want clarity when spying on Americans without warrants. And he certainly did not want clarity while keeping those rationales and programs secret from Congress. The administration does not seem to want clarity when it refuses even to tell Congress what its understanding of the law is following the withdrawal of a memo that said the President could authorize and immunize torture. That memo was withdrawn because it could not withstand the light of day.

It seems the only clarity this administration wants is a clear green light from Congress to do whatever it wants. That is not clarity. That is immunity from crime. I cannot vote for that. That is what the current legislation would give to the President on interrogation techniques and on military commissions. Justice O'Connor reminded the nation before her retirement that even war is not a ``blank check'' when it comes to the rights of Americans. The Senate should not be a rubberstamp for policies that undercut America's values.

In reality, we already have clarity. Senior military officers tell us they know what the Geneva Conventions require, and the military trains its personnel according to these standards. We have never had trouble urging other countries around the world to accept and enforce the provisions of the Geneva Conventions. There was enough clarity for that. What the administration appears to want, instead, is to use new legislative language to create loopholes and to narrow our obligations not to engage in cruel, degrading, and inhuman treatment.

In fact, the new legislation muddies the waters. It saddles the War Crimes Act with a definition of cruel or inhuman treatment so oblique that it appears to permit all manner of cruel and extreme interrogation techniques. Senator McCain said this weekend that some techniques like waterboarding and induced hypothermia would be banned by the proposed law. But Senator Frist and the White House disavowed his statements, saying that they preferred not to say what techniques would or would not be allowed. That is hardly clarity; it is deliberate confusion.

Into that breach, this legislation throws the administration's solution to all problems: more Presidential power. It allows the administration to promulgate regulations about what conduct would and would not comport with the Geneva Conventions, though it does not require the President to specify which particular techniques can and cannot be used. This is a formula for still fewer checks and balances and for more abuse, secrecy, and power-grabbing. It is a formula for immunity for past and future abuses by the Executive.

I worked hard, along with many others of both parties, to pass the current version of the War Crimes Act. I think the current law is a good law, and the concerns that have been raised about it could best be addressed with minor adjustments, rather than with sweeping changes.

In 1996, working with the Department of Defense, Congress passed the War Crimes Act to provide criminal penalties for certain war crimes committed by and against Americans. The next year, again with the Pentagon's support, Congress extended the War Crimes Act to violations of the baseline humanitarian protections afforded by Common Article 3 of the Geneva Conventions. Both measures were supported by a broad bipartisan consensus, and I was proud to sponsor the 1997 amendments.

The legislation was uncontroversial for a good reason. As I explained at the time, the purpose and effect of the War Crimes Act as amended was to provide for the implementation of America's commitment to the basic international standards we subscribed to when we ratified the Geneva Conventions in 1955. Those standards are truly universal: They condemn war criminals whoever and wherever they are.

That is a critically important aspect of the Geneva Conventions and our own War Crimes Act. When we are dealing with fundamental norms that define the commitments of the civilized world, we cannot have one rule for us and one for them, however we define ``us'' and ``them.'' As Justice Jackson said at the Nuremberg tribunals, ``We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.''

In that regard, I am disturbed that the legislation before us narrows the scope of the War Crimes Act to exclude certain violations of the Geneva Conventions and, perhaps more disturbingly, to retroactively immunize past violations. Neither the Congress nor the Department of Defense had any problem with the War Crimes Act when we were focused on using it to prosecute foreign perpetrators of war crimes. I am concerned that this is yet another example of this administration overreaching, disregarding the law and our international obligations, and seeking to immunize others to break the law. It also could well prevent us from prosecuting rogues who we all agree were out of line, like the soldiers who mistreated prisoners at Abu Ghraib.

The President said on May 5, 2004 about prisoner mistreatment at Abu Ghraib:

I view those practices as abhorrent.

He continued:

But in a democracy, as well, those mistakes will be

investigated, and people will be brought to justice.

The Republican leader of the Senate said on the same day:

I rise to express my shock and condemnation of these

despicable acts. The persons who carried them must face

justice.

Many of the despicable tactics used in Abu Ghraib--the use of dogs, forced nudity, humiliation of various kinds--do not appear to be covered by the narrow definitions this legislation would graft into the War Crimes Act. Despite the President's calls for clarity, the new provisions are so purposefully ambiguous that we cannot know for sure whether they are covered. If the Abu Ghraib abuses had come to light after the perpetrators left the military, they might not have been able to be brought to justice under the administration's formulation.

The President and the Congress should not be in the business of immunizing people who have broken the law and made us less safe. If we lower our standards of domestic law to allow outrageous conduct, we can do nothing to stop other countries from doing the same. This change in our law does not prevent other countries from prosecuting our troops and personnel for violations of the Geneva Convention if they choose; it only changes our domestic law. But it could give other countries the green light to change their laws to allow them to treat our personnel in cruel and inhuman ways.

Let me be clear. There is no problem facing us about overzealous use of the War Crimes Act by prosecutors. In fact, as far as I can tell, the Ashcroft Justice Department and the Gonzales Justice Department have yet to file a single charge against anyone for a violation of the War Crimes Act. Not only have they never charged American personnel under the act, they have never used it to charge terrorists either.

This bill does not clarify the War Crimes Act. It authorizes and immunizes abhorrent conduct that violates our basic ideals. Perhaps that is why more than 40 religious organizations and human rights groups wrote to urge the Senate to take more time to consider the effects of this legislation on our safety, security, and commitment to the rule of law, and to vote against it if the serious problems in the bill are not corrected.

The proposed legislation would also allow the admission of evidence obtained through cruel and inhuman treatment into military commission proceedings. This provision would once again allow this administration to avoid all accountability for its misguided policies which have contributed to the rise of a new generation of terrorists who threaten us. Not only would the military commissions legislation before us immunize those who violated international law and stomped on basic American values, but it would allow them then to use the evidence obtained in violation of basic principles of fairness and justice.

Allowing in this evidence would violate our basic standards of fairness without increasing our security. Maher Arar, the Canadian citizen arrested by our government on bad intelligence and sent to Syria to be tortured, confessed to attending terrorist training camps. A Canadian commission investigating the case found that his confessions had no basis in fact. They merely reflected that he was being tortured, and he told his torturers what they wanted to hear. It is only one of many such documented cases of bad information resulting from torture. We gain nothing from allowing such information.

The military commissions legislation departs in other unfortunate ways from the Warner-Levin bill. Early this week, apparently at the White House's request, Republican drafters added a breathtakingly broad definition of ``unlawful enemy combatant'' which includes people-- citizens and noncitizens alike--who have ``purposefully and materially supported hostilities'' against the United States or its allies. It also includes people determined to be unlawful enemy combatants by any ``competent tribunal'' established by the President or the Secretary of Defense. So the Government can select any person, including a United States citizen, whom it suspects of supporting hostilities--whatever that means--and begin denying that person the rights and processes guaranteed in our country. The implications are chilling.

I am sorry the Republican leadership passed up the chance to consider and pass bipartisan legislation that would have made us safer and help our fight on terrorism both by giving us the tools we need and by showing the world the values we cherish and defend. I will not participate in a legislative retreat out of weakness that undercuts everything this Nation stands for and that makes us more vulnerable and less secure.

The Senator from Vermont, consistent with my oath of office and my conscience and my commitment to the people of Vermont and the Nation, cannot--I will not--support this bill.

Mr. President, the Senate is poised to approve the fiscal year 2007 Department of Defense Appropriations conference report. Like past Defense Appropriations bills, there are things in this bill that I support and there are others that I disagree with. Without taking much of the Senate's time today I want to mention one small but very important provision in this bill.

Section 9012 of the conference report states that no funds shall be made available for the establishment of permanent U.S. military bases in Iraq or to exercise U.S. control over any oil resource of Iraq. This language, which was sponsored by Senator Biden and which I strongly support, provides an important signal to the Iraqi people and to the sovereign government of Iraq that it is not the intent of the United States to control or maintain a

permanent military presence in their country. It is especially important in light of the recent surveys which indicate that a significant majority of Iraqis want United States military forces to withdraw from their country.

For many Vermonters and for people around the world who have concerns and suspicions about the Bush administration's intentions in Iraq, this makes clear that regardless of the disagreements among us over the continued deployment of U.S. troops in Iraq, we agree that they are not there to establish permanent bases or to control Iraqi oil resources.

Mr. President, I was privileged to serve with David Pryor. I am proud of him. I think it is going to be a wonderful opportunity for the board to have his services.

Mr. President, I would like to recognize the exceptional generosity and work of Park B. Smith and his wife, Linda Johnson Smith.

Park and I met through our mutual involvement in The Marine Corps-- Law Enforcement Foundation, an organization that believes in and supports the potential of our youth. They provide scholarship bonds for children of active-duty Marines and Federal law enforcement personnel killed in the line of duty. Park has become a good friend and someone whom I admire.

Park, an alumnus of the College of the Holy Cross, and Linda have a strong belief in the value of education and have exemplified this dedication. Through their generosity, the College of the Holy Cross has been able to continue to grow and build its community. It is for this reason that I would like to ask unanimous consent to have an article about Park and Linda Smith from The Wall Street Journal printed in the Record.

Mr. President, will the Senator yield on that point for a couple of moments?

Mr. President, I commend the two leaders for trying to work out these issues. Over the years, I have seen leaders try to do it at the end of a session. I don't consider myself a Charles Atlas, but I do consider myself a U.S. Senator. I have taken an oath to uphold the Constitution of the United States.

Some of us have sat in this Chamber and in committee for 5 years while what was being done in detaining the prisoners violated our Constitution and our traditions in the United States. Seven of the nine Members of the Supreme Court are Republicans, incidentally, and have said the same thing in the Hamdan decision.

We tried for 5 years to get the administration to listen to us, to tell us there are ways we could have worked this out so the United States would follow its own laws, would follow its own Constitution, would follow the ideals on which this country was founded, and give that kind of example, a shining light to the rest of the world. And now suddenly the administration, after meeting behind closed doors, predominantly just with the Republicans, says: Here, in 2 hours' time, we have a solution; accept it. I have some problems with that. I will discuss this with the leaders.

As I said, I don't stand here as Charles Atlas, but I stand here as a U.S. Senator with my rights and to protect the rights of Americans.

Mr. President, I have listened to my friend, Jim Jeffords, the Senator from Vermont speak here this morning. I couldn't help but think as I heard Senator Jeffords speak with wit and clarity, and you might say even some emotion, that Jim Jeffords, given the opportunity to make a speech--and many of us will do so on this Senate floor as we leave--did it being true to himself, with his own good nature, his own sense of history, and his own justifiable pride in what he has accomplished.

I have known Jim Jeffords from his days as a State senator in Rutland. I have known his wonderful wife, Liz Daley Jeffords. They are both dear friends of mine and my wife Marcel. Mrs. Jeffords was referred to as a great lady the other night by the anchor of our State's largest TV station. Some of us who have known Jim for years would say she gets that greatness for putting up with him for all these years. But we Vermonters found no difficulties in putting up with Jim Jeffords. He has been elected overwhelmingly to the offices he has held and he has done it with support from Republicans, Democrats, and Independents alike. He has gotten these votes the old-fashioned way--he earned them.

We came here together 32 years ago. I like to talk about the Leahys coming to Vermont in the 1850s. Jim reminds me his family came to Vermont a century before. We both live in small towns in Vermont; we have had that sense of Vermont. He has never lost it. He has been a good friend.

His career highlights are legendary. Let me tell you why he is supported so. First and foremost, Senator Jeffords is known as an environmental champion. In Vermont, they say, If you scratch a Vermonter you scratch an environmentalist, no matter the party.

He has done it in the great tradition of Senator Bob Stafford. Senator Bob Stafford is also from the same county as Jim Jeffords-- actually Jim grew up near him. He mentioned Bob today.

He carved out a legend on education and the environment when he was here. But then Jim Jeffords had done that as attorney general and as a State senator in our State. For the past three decades he has left his fingerprints on nearly every environmental law enacted, from the Clean Air Act and the Clean Water Act to the Superfund program to acid rain reduction.

In fact, when others in his position would be thinking about where are the papers going and how will we retire, just a matter of months ago he offered the boldest solution to combat global climate change this body has ever considered.

He has championed legislation to strengthen our Nation's education system and increase the opportunities for individuals with disabilities.

In 1975, as a brandnew Member of the House of Representatives, as he said, coming in with a neck brace--the walking wounded from an election where both of us ran in Vermont--he coauthored what would later be known as the Individuals with Disabilities Education Act, IDEA. It was strongly supported by his colleagues here in the Senate and before that in the House. It has provided equal access to education for millions of students with disabilities, students who otherwise would have been shunted aside and this country would not have had the value of their achievements.

As chairman of the Health, Education, Labor and Pension Committee, he worked tirelessly on education, job training, and disability legislation. Most recently, his leadership in the Senate Environment and Public Works Committee was essential to the passage of the highway bill. Of course, Vermont and the rest of the country will benefit from that.

I might say there has been no greater leader for Vermont's dairy industry than Senator Jeffords. In his work on the Northeast Dairy Compact and the milk programs, he has fought tough battles for Vermont dairies--and won. He actually knows as much about our dairy industry as most dairy farmers.

It is what he has done for future generations. All of us can talk about what we do here. It is what we leave for our children and our grandchildren that counts. Future generations of Vermonters will honor Jim's legacy when they see the work that he began as attorney general and continued throughout the Senate--helping to restore Lake Champlain to its brilliance, its magnificence; or witness the bald eagles abounding in the wilderness areas, thanks to Jim.

I applaud him for this statement as he takes leave of the Senate-- although it seems this year we will never know when we leave. None of us are getting our final airplane reservations yet. But he has done it with his usual grace and good humor. I applaud him for that and I hope all of us when we come to leave, whenever that may be, will have the opportunity to show that same grace. He served Vermont well and, just as importantly, he served the Senate well.

After a long career I might violate the rules somewhat, addressing my friend and colleague directly: For a long career, Jeff, you can leave with your head held high. You have served Vermont and your Nation proudly.

I yield the floor.

Will the Senator yield, without losing his right to the floor?

My understanding is the Senator from Vermont has an hour reserved on the bill, with up to 45 minutes of that on the Specter- Leahy habeas amendment.

No. Mr. President, I am confused by this. It was my understanding the Senator from Vermont had up to 45 minutes specifically reserved, not from anybody else's time, but from his own time, on the Specter-Leahy, et al., amendment, and a total--out of which the 45 minutes would have to come--of 1 hour on the bill. Is that incorrect?

Will the Senator yield for a question?

The senior Senator from Virginia has an absolute right to object to anything further. This is not what I understood had been agreed to. It is the unanimous consent that the Chair has so stated. I will not seek to change it. I don't suggest that it is the fault of the Senator from Virginia. This is not what I understood the agreement to be.

I ask unanimous consent that the senior Senator from Connecticut, Mr. Dodd, be added as an original cosponsor to the Specter-Leahy habeas amendment.

Mr. President, how much time is there to the Democratic leader on this?

Mr. President, as I said earlier, I understood that the consent agreement was to give me 45 minutes on the Specter-Leahy-Dodd amendment and 15 minutes on the bill. That seems to not have been the agreement entered into by leadership. I ask that I take 10 minutes from the Democratic leader's time and the remaining time from my own 45 minutes of time.

I see the concern by the Senator from Michigan. I will take it from my 45 minutes. I also note that I will not consent to any other time agreements on this bill insofar as the time agreement I understood I had was not entered into. I will take the 45 minutes.

Mr. President, this administration has yet to come clean to the Congress or the American people in connection with the secret legal justifications it has generated and secret practices it has employed in detaining and interrogating hundreds if not thousands of people in the war on terror. Even they cannot dismiss the practices at Guantanamo as the actions of a few ``bad apples.'' With Senate adoption of the anti- torture amendment last year and the recent adoption of the Army Field Manual, I had hoped that 5 years of administration resistance to the rule of law and to the U.S. military abiding by its Geneva obligations might be drawing to a close. Despite the resistance of the Vice President and the administration, the new Army Field Manual appears to outlaw several of what the administration euphemistically calls ``aggressive'' tactics and that much of the world regards as torture and cruel and degrading treatment. Of course, the President in his signing statement undermined enactment of the anti-torture law, and now the administration is seeking still greater license to engage in harsh techniques in connection with the military tribunal legislation before us now.

What is being lost in this debate is any notion of accountability. Where are the facts of what has been done in the name of the United States? Where are the legal justifications and technicalities the administration's lawyers have been seeking to exploit? Senator Levin's amendment, which restores the bipartisan legislation passed by the Senate Armed Services Committee, would maintain some accountability for this administration's actions and some standards of justice and decency. The Republican leadership's legislation which is before us now strips away all accountability and erodes our most basic national values.

If the administration had answered me when I asked over and over about the Convention Against Torture and about rendition, we could have come to grips with those matters before they degenerated, as they have, into international embarrassment for the United States. As Secretary Colin Powell wrote recently, ``The world is beginning to doubt the moral basis of our fight against terrorism.'' It did not need to come to that.

If FBI Director Mueller had been more forthcoming with me at or after the May 2004 hearing in which I asked him about what the FBI had observed at Guantanamo, we could have gotten to a detention and interrogation policy

befitting the U.S. years sooner than we have.

If the administration would have responded to my many inquiries over the years regarding the rendition of Maher Arar, I would not have had to send yet another demand for information to the Attorney General this week, and we would not have been embarrassed by the Canadian commission report about his being sent by U.S. authorities to Syria where he was tortured. Mr. Arar is the Canadian citizen who was returning to Canada through New York when he was arrested by American authorities at JFK airport and held for 12 days without access to a Canadian consular official or lawyer. He was then rendered, not to Canada, but to Syria, without the knowledge or approval of Canadian officials, where he was tortured. Last week, a Canadian commission inquiry determined that Mr. Arar had no ties to terrorists, he was arrested on bad intelligence, and his forced confessions in Syria reflected torture, not the truth. Sadly, the administration is still seeking to avoid accountability by hiding behind legal doctrines. The administration continues to thwart every effort to get to the facts, to get to the truth and to be accountable. I am worried that the legislation before us is one more example of that trend.

Unfortunately, Senator Levin's amendment, like the Armed Services Committee's bill, retains the extremely troubling habeas provision. I will be submitting an amendment to strip that provision.

We are rushing through legislation that would have a devastating effect on our security and on our values, and we need to step back and think about what we are doing. The President recently said that ``time is of the essence'' to pass legislation authorizing military commissions. Time was of the essence when this administration took control and did not act on the dire warnings of terrorist action. Time was of the essence in August and early September 2001 when the 9/11 attacks could still have been prevented. This administration ignored warnings of a coming attack and even proposed cutting the anti-terror budget. It focused on Star Wars, not terrorism. Time was of the essence when Osama bin Laden was trapped in Tora Bora.

After 5 years of unilateral actions by this administration that have left us less safe, time is now of the essence to take real steps to keep us safe from terrorism like those in the Real Security Act, S. 3875. Instead, the President and the Republican Senate leadership call for rubberstamping more flawed White House proposals in the run up to another election. I hope that this time the U.S. Senate will act as an independent branch of the government and finally serve as a check on this administration.

We need to pursue the war on terror with strength and intelligence, but also to do so consistent with American values. The President says he wants clarity as to the meaning of the Geneva Conventions and the War Crimes Act. Of course, he did not want clarity when his administration was using its twisted interpretation of the law to authorize torture, cruel and inhumane treatment of detainees and spying on Americans without warrants and keeping those rationales and programs secret from Congress. The administration does not seem to want clarity when it refuses even to tell Congress what its understanding of the law is following the withdrawal of a memo that said the President could authorize and immunize torture. That memo was withdrawn because it could not stand up in the light of day.

It seems that the only clarity this administration wants is a clear green light from Congress to do whatever it wants. That is not clarity; it is immunity. That is what the current legislation would give to the President on interrogation techniques and on military commissions. Justice O'Connor reminded the nation before her retirement that even war is not a ``blank check'' when it comes to the rights of Americans. The Senate should not be a rubberstamp for policies that undercut American values and make Americans around the world less safe.

In reality, we already have clarity. Senior military officers tell us they know what the Geneva Conventions require, and the military trains its personnel according to these standards. We have never had trouble urging other countries around the world to accept and enforce the provisions of the Geneva Conventions. There was enough clarity for that. What the administration appears to want, instead, is to use new legislative language to create loopholes and to narrow our obligations not to engage in cruel, degrading, and inhuman treatment.

In fact, the new legislation muddies the waters. It saddles the War Crimes Act with a definition of cruel or inhuman treatment so oblique that it appears to permit all manner of cruel and extreme interrogation techniques. Senator McCain said this weekend that some techniques like waterboarding and induced hypothermia would be banned by the proposed law. But Senator Frist and the White House disavowed his statements, saying that they preferred not to say what techniques would or would not be allowed. That is hardly clarity; it is deliberate confusion.

Into that breach, this legislation throws the administration's solution to all problems: more Presidential power. It allows the administration to promulgate regulations about what conduct would and would not comport with the Geneva Conventions, though it does not require the President to specify which particular techniques can and cannot be used. This is a formula for still fewer checks and balances and for more abuse, secrecy, and power-grabbing. It is a formula for immunity for past and future abuses by the Executive.

I worked hard, along with many others of both parties, to pass the current version of the War Crimes Act. I think the current law is a good law, and the concerns that have been raised about it could best be addressed with minor adjustments, rather than with sweeping changes.

In 1996, working with the Department of Defense, Congress passed the War Crimes Act to provide criminal penalties for certain war crimes committed by and against Americans. The next year, again with the Pentagon's support, Congress extended the War Crimes Act to violations of the baseline humanitarian protections afforded by Common Article 3 of the Geneva Conventions. Both measures were supported by a broad bipartisan consensus, and I was proud to sponsor the 1997 amendments.

The legislation was uncontroversial for a good reason. As I explained at the time, the purpose and effect of the War Crimes Act as amended was to provide for the implementation of America's commitment to the basic international standards we subscribed to when we ratified the Geneva Conventions in 1955. Those standards are truly universal: They condemn war criminals whoever and wherever they are.

That is a critically important aspect of the Geneva Conventions and our own War Crimes Act. When we are dealing with fundamental norms that define the commitments of the civilized world, we cannot have one rule for us and one for them, however we define ``us'' and ``them.'' As Justice Jackson said at the Nuremberg tribunals, ``We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.''

In that regard, I am disturbed that the legislation before us narrows the scope of the War Crimes Act to exclude certain violations of the Geneva Conventions and, perhaps more disturbingly, to retroactively immunize past violations. Neither the Congress nor the Department of Defense had any problem with the War Crimes Act as it now stands when we were focused on using it to prosecute foreign perpetrators of war crimes. I am concerned that this is yet another example of this administration overreaching, disregarding the law and our international obligations, and seeking to immunize others to break the law. It also could well prevent us from prosecuting rogues who we all agree were out of line, like the soldiers who mistreated prisoners at Abu Ghraib.

The President said on May 5, 2004 about prisoner mistreatment at Abu Ghraib: ``I view those practices as abhorrent.'' He continued: ``But in a democracy, as well, those mistakes will be investigated, and people will be brought to justice.'' The Republican leader of the Senate said on the same day: ``I rise to express my shock and

condemnation of these despicable acts. The persons who carried them must face justice.''

Many of the despicable tactics used in Abu Ghraib the use of dogs, forced nudity, humiliation of various kinds do not appear to be covered by the narrow definitions this legislation would graft into the War Crimes Act; of course, despite the President's calls for clarity, the new provisions are so purposefully ambiguous that we cannot know for sure. If the Abu Ghraib abuses had come to light after the perpetrators left the military, they might not have been able to be brought to justice under the administration's formulation.

The President and the Congress should not be in the business of immunizing people who have broken the law, making us less safe, turning world opinion against us, and undercutting our treaty obligations in ways that encourage others to ignore the protections those treaties provide to Americans. We should be very careful about any changes we make.

If we lower our standards of domestic law to allow outrageous conduct, we can do nothing to stop other countries from doing the same. This change in our law does not prevent other countries from prosecuting our troops and personnel for violations of the Geneva Convention if they choose; it only changes our domestic law. But it could give other countries a green light to change their own law to allow them to treat our personnel in cruel and inhuman ways.

Let me be clear. There is no problem facing us about overzealous use of the War Crimes Act by prosecutors. In fact, as far as I can tell, the Ashcroft Justice Department and the Gonzales Justice Department have yet to file a single charge against anyone for violation of the War Crimes Act. Not only have they never charged American personnel under the act, they have never used it to charge terrorists either.

We can address any concerns about the War Crimes Act with reasonable amendments, as the Warner-Levin bill did, without gutting the Act in a way that undermines our moral authority and makes us less safe. Senator Levin's amendment goes back to the Warner-Levin bill's formulation, and I urge Senators of both parties to support it.

The proposed legislation would also allow the admission into military commission proceedings of evidence obtained through cruel and inhuman treatment. This provision would once again allow this administration to avoid all accountability for its misguided policies which have contributed to the rise of a new generation of terrorists who threaten us. Not only would the military commission legislation before us immunize those who violated international law and stomped on basic American values, but it would allow them then to use the evidence gotten in violation of basic principles of fairness and justice.

Allowing in this evidence would violate our basic standards of fairness without increasing our security. Maher Arar, the Canadian citizen sent by our government to Syria to be tortured, confessed to attending terrorist training camps. A Canadian commission investigating the case found that his confessions had no basis in fact. They merely reflected that he was being tortured, and he told his torturers what they wanted to hear. It is only one of many such documented cases of bad information resulting from torture. We gain nothing from allowing such information. The Armed Services Committee bill, which the Levin amendment restores, would not allow the use of this tainted evidence.

The military commissions legislation departs in other unfortunate ways from the Warner-Levin bill. Early this week, apparently at the White House's request, Republican drafters added a breathtakingly broad definition of ``unlawful enemy combatant'' which includes people-- citizens and non-citizens--alike--who have ``purposefully and materially supported hostilities'' against the United States or its allies. It also includes people determined to be ``unlawful enemy combatant'' by any ``competent tribunal'' established by the President or the Secretary of Defense. So the government can select any person, including a U.S. citizen, whom it suspects of supporting hostilities-- whatever that means--and begin denying that person the rights and processes guaranteed in our country. The implications are chilling. We should go back to the reasonable definition the Senate Armed Services Committee came up with. That is what the Levin amendment does.

I hope that we will take the opportunity before us to consider and pass bipartisan legislation that will make us safer and help our fight on terrorism, both by giving us the tools we need and by showing the world the values we cherish and defend, the same values that make us a target. We should amend the legislation before us to keep the War Crimes Act strong and to require some accountability from the administration. The Levin amendment does just that, and I urge all senators to vote for it. Let us join together on behalf of real security for Americans.

Mr. President, before we stand here congratulating ourselves too much about all the wonderful things we did in these closed-door meetings and these back-room meetings and the Bush-Cheney statements about what we are allowed to do or not allowed to do in what has become an increasingly rubberstamp Congress--the most rubberstamp Congress I have ever seen in 32 years here--I want to talk about the habeas stripping provisions, what I call un-American provisions, which are regrettably in the bill before us and unfortunately contained in the committee bill, and even included in the amendment before us now. The Specter- Leahy-Dodd amendment will eliminate those provisions from the bill pending before the Senate.

It will be interesting to see whether the Bush-Cheney administration will allow Republican Senators to vote for it. Lord knows there have not been many votes made here that have been by independent Senators.

As currently drafted, section 7 of the military commissions bill would wrongfully, and in my view, unconstitutionally eliminate the writ of habeas corpus for anyone detained by this administration on suspicion of being what they call an ``enemy combatant,'' which is a dangerous concept that is being expanded by a vague and ever-expanding definition.

The President could basically say I think you are an enemy combatant, and lock you up, and you can't even contest it.

I think of the hundreds of pages of statements made by Senators on both sides of the aisle when other countries have done something this arbitrary, or this vague, and locked up people inside their borders, and we said how un-American it is. If we pass this, we can no longer call it un-American. We can call it codified American law.

Important as the rules for military commissions are, they will apply to only a few cases. In this war on terror, you may wonder how many people have been brought to justice. We are holding about 500 people in Guantanamo. We are so committed to this war that we have charged a total of 10 people in the nearly 5 years that the President declared his intention to use military commissions. That is two a year. They just announced plans to charge an additional 14 men. At this rate, I will be about 382 years old when they get around to charging all the people they are detaining. But for the vast majority of the almost 500 prisoners at Guantanamo, and the thousands it has detained over the last 5 years, the administration's position remains as stated by Secretary of Defense Donald Rumsfeld 3 years ago: There is no interest in trying them.

It is not just a question of we have no interest in trying those we have determined to be enemy combatants. If we have dozens and dozens or even hundreds of people who are picked up by mistake or turned over by bounty hunters to get the bounty and not because they might have done something, we are not going to try them either. Sorry, we are just going to lock them up.

Perhaps the single most consequential provision of the so-called military commissions bill can now be found buried nearly 100 pages in to curtail judicial review and any meaningful accountability. This provision would perpetuate the indefinite detention of hundreds of individuals against whom the Government has brought no charges and presented no evidence, without any recourse to justice whatsoever. Maybe some of them are guilty.

If they are, try them. But we have to understand that there may be people in there who have no reason to be there and there are no charges and no evidence. This is un-American, it is unconstitutional, and it is contrary to American interests. This is not what a great and wonderful nation should be doing.

Going forward, the bill departs even more radically from our most fundamental values. I am proud to be an American, and I am proud to be a Senator. But mostly I am proud of what has been in the past our American values. Provisions that were profoundly troubling a week ago when the Armed Services Committee marked up the bill have gotten much worse in the course of the closed-door revisions over the past 5 days, including the last round of revisions, which were put in behind closed doors and sent around late yesterday, and that the majority now demands we pass immediately. Five years they sit, doing nothing, and then all of sudden, whoops, the polls look bad this fall for the election: Quick, pass anything, no matter how unconstitutional it might be.

For example, the bill has been amended to eliminate habeas corpus review even for people inside the United States, and even for people who have not been determined to be enemy combatants. Quick, pass it; quick, do it now; quick, pass it out of here so we can rubberstamp it in a signing ceremony before anybody reads the fine print.

We have done this in the past. As a witness said before our committee this week, we did this in the past. We did it with the Tonkin Gulf Resolution. We did it with the internment of Japanese Americans. Now we are about to do it again.

As the bill now stands, it would permit the President to detain indefinitely--even for life--any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for that person to challenge his detention. The administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would suffice to say that the alien was awaiting a determination on that issue, even though they may wait 20, 30, 40 years and wait until the grave gives them their escape.

In other words, the bill would send a message to the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes. Its message would be that our Government may at any minute pick them up and detain them indefinitely without charge and without any access to the courts or even to military tribunals unless and until the Government determines that they are not enemy combatants--even though they have no ability to help in that determination themselves. In turn, the bill now defines the term enemy combatants in a tortured and unprecedented broad manner.

Detained indefinitely, and unaccountably, until they are proven innocent; even though they have no right to stand up and offer proof. It is like the Canadian citizen Maher Arar, shipped off to a torture cell in Syria by the Bush-Cheney administration, despite what the Canadian Government recently concluded, that there is no evidence that he ever committed a crime or posed a threat to either the United States or Canadian security. Pick him up. He looks bad. Ship him to Syria. Torture him. Maybe he will confess to something and prove we were right.

Now it has been documented the Bush-Cheney administration did the wrong thing to the wrong man. When asked about it, what do they do? As usual, they evade all accountability. This is an administration that makes no mistakes. A rubberstamp Congress will never ask them what they did, they make no mistakes, and they hide behind a purported State secrets privilege.

The administration's defenders would like to believe Mr. Arar's case is an isolated blunder, but it is not. We have numerous press accounts that have quoted administration officials themselves who believe a significant percentage of those detained at Guantanamo Bay have no connection to terrorism. They have been held by the Bush-Cheney administration for several years and the administration intends to hold them indefinitely without trial or any recourse to justice, even though a substantial number of them are innocent people who were turned in by anonymous bounty hunters or picked up by mistake in the fog of war.

The most important purpose of habeas corpus is not to give people extra rights. No one is asking to give people special rights. Habeas corpus does not do that. Habeas corpus is intended to correct errors such as this to protect the innocent. It is precisely to prevent such abuses that the Constitution prohibits the suspension of the writ of habeas corpus ``unless when in cases of rebellion or invasion public safety may require it.''

I would assume the Bush-Cheney administration is not saying we are handling this question of terrorists so poorly that we are under invasion now. And I have no doubt this bill, which will permanently eliminate the writ of habeas corpus for all aliens within and outside the United States whenever the Government says they might be enemy combatants, violates that prohibition. I believe even the present Supreme Court, seven of the nine members now Republican, would hold it unconstitutional.

When former Secretary of State Colin Powell wrote of his concerns with the administration's bill, he wrote: ``The world is beginning to doubt the moral basis of our fight against terrorism.''

Talk to anyone who travels around the world anywhere, even among some of our closest allies, our best friends. We are asked, What are you doing? Have you lost your moral compass? And these are countries that faced terrorist attacks long before we did.

General Powell, former head of the Joint Chiefs of Staff, was right.

We have heard from current and former diplomats, military lawyers, Federal judges, law professors, law school deans, and even a former Solicitor General under the first President Bush, Kenneth Starr, that they have grave concerns with the habeas corpus stripping provisions of this bill. I have letters that come from across the political and legal spectrum saying this is wrong.

I ask unanimous consent that some of these letters be printed in the Record.

Monday we rushed to hold a hearing before the Judiciary committee on this important issue, and what happens? The surrogate for the administration, former White House associate counsel Brad Berenson, who testified before us, defends the habeas corpus stripping provisions of this bill by arguing that the United States has been and still is suffering from an invasion that requires the suspension of habeas corpus.

What are we doing? What is going on? That is outrageous. That is running scared. That is so wrong. Is he saying that for 5 years this administration has been allowing an ongoing invasion in the United States and we are not aware of it? Are we going to suspend the great writ on this basis?

To quote Kenneth Starr:

The United States is neither in a state of rebellion nor

invasion. Consequently, it would [be] problematic for

Congress to modify the constitutionally protected writ of

habeas corpus under current events.

I suppose the administration would say we are not modifying it. Heck, no, we are eliminating it. We are not modifying the writ of habeas corpus, we are knocking it out for all aliens.

I agree with those from the right to the left, we should not modify, and we certainly should not eliminate, the great writ of habeas corpus. I agree with hundreds of law professors who described an earlier, less extreme version of the habeas provisions of this bill as ``unwise and contrary to the most fundamental precepts of American constitutional tradition.'' And I agree with the former ambassadors and other senior diplomats who wrote to us saying that eliminating habeas corpus for aliens does not help America, it does not make America safer, but rather it harms our interests abroad and makes us less safe.

Maybe some of those who want to pretend how powerful they have been in military matters ought to talk to those who have been in the military and actually understand a time when we are reaping the mistakes of our folly in Iraq. Let us not expand it further. The United States, especially since World War II and the Marshall Plan, has been a beacon of hope and freedom for the world. How do we spread a message of freedom abroad if our message to those who come to America is that they may be detained indefinitely without any recourse to justice?

In the wake of the attack of September 11, and in the fact of the continuing terrorist threat, now is not the time for the United States to abandon its principles. Admiral Hutson was right to point out that when we do, there would be little to distinguish America from a banana republic or the repressive regimes against which we are trying to rally the world and the human spirit.

Now is not the time to abandon American values and to shiver and quake as though we are a weak country and we have to rely on secrecy and torture. We are too great a nation for that. Those are the ways of weakness. Those are the ways of repression and oppression. Those are not the ways of America. Those are not the ways of this Nation I love.

The habeas provisions of this bill are wrongheaded. They are flagrantly unconstitutional. Tinkering with them would not make them less wrongheaded but might make them less flagrantly unconstitutional. I see no reason to save the administration from itself and from the inevitable defeat when the Supreme Court strikes them down.

Why should those who take our oath to uphold the Constitution seriously, who understand the fundamental importance of habeas to freedom, find ourselves compromising with such an irresponsible provision?

That is why at the appropriate point the chairman of the Senate Judiciary Committee and I will offer just one amendment, to remove the habeas provisions from the bill in their entirety. That is the right thing to do. I should also add, that is the American thing to do. We would still be left with the disgraceful but less extreme habeas stripping provisions that we enacted earlier this year in the Detainee Treatment Act. But we would at least not make one bad mistake even worse. By not totally eliminating habeas for all aliens, we can reduce the damage to America's credibility as a champion of freedom and show the American people and the courts that Congress is not entirely cavalier when it comes to its constitutional obligations. We can show the world that this great Nation is not so frightened and so shaky and so quaky that we are going to have to give up the principles that made us a great nation.

Our amendment would reduce the grave harm that will be done if the bill before the Senate passes. It was not too late last night for the Republicans to make yet more revisions to this unconstitutional bill. It is not too late today for the Senate to make the bill a little less bad, a little less offensive to the values and freedom for which America stands.

This is one American who is not going to run and hide. This is one American who is not willing to cut down the laws of our Nation. This is one American who thinks these laws and our protections have made us great not only here but abroad. This is one American who thinks that our freedoms, our laws, our protections, are what attracted people from other countries, people from other countries who have fled oppression in their own country and fled a lack of rule of law in their own country, to come to America, where we have a rule of law.

I yield the floor.

Mr. President, will the Senator yield for a couple of clarifications?

Mr. President, in stating the time, isn't there also the remainder of the time? I did not use my full 45 minutes this afternoon. Doesn't the Senator from Vermont have some remaining time on this amendment?

How much time is that?

Mr. President, am I correct that the amendment is offered on behalf of the distinguished senior Senator from Pennsylvania and myself, the distinguished senior Senator from Connecticut, and the distinguished Senator from Wisconsin, Mr. Feingold?

I ask and also the distinguished Senator from North Dakota, Mr. Dorgan.

Mr. President, today, as we begin the last week of this legislative session, the Senate considers the nomination of Francisco Augusto Besosa for a lifetime appointment to the U.S. District Court for the District of Puerto Rico. Mr. Besosa's nomination was reported unanimously to the Judiciary Committee on Thursday of last week.

Last week the Judiciary Committee held two business meetings dedicated to judicial nominations. I want to thank all Senators for working with us to expedite consideration of nominations like that of Mr. Besosa. I cooperated last Tuesday with the Chairman's request for a Special Executive Business Meeting. I came to the meeting and established the quorum. The Chairman had said that the meeting would be held to burn holds on two non-controversial circuit court nominees. I agreed to try to expedite consideration of the nomination of Kent Jordan, a nominee to the Third Circuit. Peter Keisler's nomination to the D.C. Circuit is, however, by no means non-controversial. Nonetheless, in an effort to work with the Chairman I stayed and the Republicans held over the Keisler nomination, as well.

Then, although we had not discussed either in advance, in order to be accommodating, I did not object when, at the request of Senator Grassley and Senator DeWine, the nominations of John Alfred Jarvey and Sara Elizabeth Lioi were also held over. Those nominations will now be reviewed and available for consideration by the Committee later this week in accordance with the rules of the Committee.

Mr. Besosa's nomination was unanimously reported at our regular Thursday business meeting. In addition, we reported a number of other judicial nominations, including one for a judicial emergency vacancy that was given expedited consideration. I thank the Chairman for his kind words in which he acknowledged our cooperation.

The Democratic Senators on the Committee have worked hard to accommodating the Chairman's demanding schedule. The Chairman has already held three hearings during the last three weeks and has another scheduled for this week, in addition to another special business meeting. We have held 18 judicial nominations hearings this year, including a Supreme Court hearing, as well as two additional executive nominations hearings.

I have been saying for some time that I feared we would sacrifice progress on nominations that can be moved for debate on controversial nominations. It appears that my fears will be realized this week. This Wednesday afternoon and evening, a hearing on the highly controversial nomination of Michael Wallace to the Fifth Circuit has been noticed and renoticed. As the times have changed, it has become even less likely that it will be helpful or productive during this extremely busy time of year. Of course, Mr. Wallace is the first appellate court nominee in 25 years to have been rated unanimously not qualified by the ABA peer review committee.

After today, the Senate will have confirmed 31 judicial nominees this year. The Republican Senate confirmed only 17 of President Clinton's judicial nominees in the 1996 session. The Senate has confirmed seven circuit court nominees, which is seven more than the Republican Senate confirmed with a Democratic President during the 1996 session. That year, Republicans would not consider or confirm a single appellate court nomination for an entire year-long session of the Senate, not one.

This is a far cry from the days when the Republican Congress pocket filibustered more than 60 of President Clinton's nominees, refusing even to bring them up for a vote in Committee. Of course, during the 17 months that I was Chairman, we were able to confirm 100 of President Bush's nominees. In 20 months of Republican control, with a Republican President, even counting Mr. Besosa's confirmation today, that number will stand at about half that--just 53.

We could have accomplished more this year if the White House had sent over consensus nominees early in the year. The White House did not. Many of the nominees we are now trying to consider now were not even nominated until July. Regrettably, the administration concentrated on a few highly controversial nominees and delayed until recently sending nominations and

thereby prevented us from having the time to do any meaningful review. We are now in the position of trying to rush through too many nominees too quickly for us to give them real consideration.

The White House continues to undermine our process. Instead of working with us and focusing on consensus nominees, the President sent back to us five highly controversial nominees who had been returned to the White House. Sadly, the Senate Republican leadership, which has rubberstamped a number of very poor nominations, may force us to spend time and energy debating troublesome nominations, rather than reviewing and confirming good ones.

We have been accommodating, and we will continue to be, but the Judiciary Committee and the Senate should not be a rubber stamp for the President's nominations. We should be taking our constitutional responsibility to advise and consent seriously. That means carefully reviewing the nominees' records and making sure that these are appropriate nominees for lifetime appointments to important Federal judgeships.

A customary practice in the Senate would have been for the leaders, the Republican and Democratic leaders, to have sat down with the Chairman and the Ranking Member by now and have worked out a process to conclude the year with respect to judicial nominations. I would have urged that we concentrate on completing our work on those nominations most likely to be confirmed and to maximize the number of confirmations. Sadly, that meeting has not occurred and apparently will not.

I congratulate Francisco Besosa and his family on his confirmation today.

Mr. President, in the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. President, today we consider a nominee for the new position of Assistant Attorney General for the National Security Division. All too often, in the Bush-Cheney administration, national security has been cited as a justification for overriding the rule of law and for imposing unprecedented secrecy. With the acquiescence of the Republican-controlled Congress, this administration may be the most unresponsive in history and the most unaccountable.

Ken Wainstein is President Bush's selection to be the first Assistant Attorney General for National Security, a new position created by Congress. I will not oppose this nomination in the hope that Mr. Wainstein will work with us and be responsive to the Senate.

I have concerns about this administration's unilateral approach to national security issues. Four years ago, the Office of Legal Counsel at the Justice Department issued a secret legal opinion concluding that the President of the United States had the power to override domestic and international laws outlawing torture. The memo sought to redefine torture and asserted that the President enjoys ``complete authority over the conduct of war'' and asserted that application of the criminal law passed by Congress prohibiting torture ``in a manner that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would be unconstitutional.'' It seemed to assert that the President could immunize people from prosecution for violations of U.S. criminal laws that prohibit torture. This memo was withdrawn only after it became public because it could not withstand public scrutiny.

We have learned through the media of warrantless wiretapping and data-mining conducted by this administration. This, despite the Foreign Surveillance Intelligence Act and its express provisions, as well as the actions of the Senate in voting to curtail the data-mining programs by Admiral Poindexter at the Defense Department. We have yet to be provided with a convincing legal justification for these programs. We have yet to be able to investigate or hold the administration accountable. Instead, every effort at oversight and accountability has been obstructed or curtailed by the administration. The administration refuses to follow the law and submit matters to the FISA Court and claims state secrets to force court challenges to be dismissed. The administration tells the Senate when, what and how it may investigate. The Department of Justice's own internal Office of Professional Responsibility's probe of whether lawyers at the Department violated ethical rules in justifying these activities was shut down by the Attorney General and the White House.

I was disappointed 2 weeks ago when the Judiciary Committee reported out a bill on party lines that would rubberstamp the administration's warrantless wiretapping. We were told that the administration would only follow the law if we passed the legislation endorsed by Vice President Cheney. This is a bill that would expand governmental power and reduce governmental accountability in an area in which we have been unable to engage in effective oversight. As I have said many times and as I continue to believe, we should not legislate in this area until we know more about the NSA's domestic spying activities and more about why the administration chose to flout the law and bypass both the FISA Court and the Congress.

I support Senator Feinstein's bipartisan bill, which we also reported out of committee, and I commend her for her hard work to get it done. We should follow Senator Feinstein's thoughtful, cautious, and narrowly tailored approach. Her bill addresses the one concrete problem with FISA that the Attorney General identified, by making it easier for the Government to initiate electronic surveillance in emergency situations. It also clarifies that FISA does not require the Government to obtain a warrant in order to intercept foreign-to-foreign communications, regardless of where the interception occurs.

At the same time, we should continue to press the administration for information. We should not take ``no'' for an answer. As this administration continues to expand its power, the Department of Justice should be advising the President to obey the law and respect the Congress and the courts, not just helping to rationalize actions and forestall oversight.

In theory, the new position to which Mr. Wainstein has been nominated might help Department of Justice attorneys to act responsibly on national security issues, rather than just to do the White House's bidding. It should put national security issues into the hands of experts, not political cronies. In fact, the WMD Commission recommended in March of last year that the different components of the Department's dealings with national security, terrorism, counterintelligence, and foreign intelligence surveillance be combined to eliminate deficiencies and inefficiencies in the Department's national security efforts. Congress acted to create the post. This new Assistant Attorney General position can only serve a useful role if the person who occupies it is willing to think independently. This administration has consistently prized loyalty over independence and expertise.

Mr. Wainstein has some experience as a prosecutor, but he has also been a loyal official of this administration for some time now. I hope that he will be able to look at the crucial national security issues to be handled by this new office with a critical eye and a view toward respecting law and the Congress. If he does, he will be a breath of fresh air in the Bush-Cheney administration.

Recently, Judiciary Committee Chairman Specter and I received a letter from the Fraternal Order of Police. The FOP ``endorsed'' Mr. Wainstein ``in order to facilitate his departure from the U.S. Attorney's Office.'' They criticized him for being ``unwilling to perform'' the function of investigating and prosecuting an alleged attack on a police officer. That is not what I would term high praise for his judgment. I ask unanimous consent that a copy of the letter be printed in the Record.

Mr. President, I tell my friends from Colorado and Alabama, I certainly would not consume more time than that.

I thank the Senator from Alabama.

Mr. President, I thank my friend from Colorado and my friend from Alabama for their usual courtesy.

Over the last couple of weeks, the President, as Presidents do, used his pulpit to inform the Senate that his top priority was fixing the problem he created when he unilaterally proclaimed what laws govern military commissions. This newfound desire, this last-minute conversion to the idea of working with Congress, stands in stark contrast to his position in 2002, when a number of us, Republicans and Democrats alike, reached out to the administration and asked the President to work with us to establish the authority for fair and effective military commissions.

Four years later, after saying flat out, no, now the administration's go-it-alone plan has succeeded in having no terrorist military commission trials completed and no convictions. They are ``tough on terror,'' but nobody has been convicted.

Still, Congress set to work and the Armed Services Committee last week reported a bill that is supported by Republicans and Democrats to authorize military commissions. They worked with the professionals in the military, and listened to them. But this week the Senate Republican leadership has threatened to filibuster that bill, which came from a Republican-controlled committee and was voted for by both Republicans and Democrats.

I am a little bit confused. I have been here for 32 years, and I don't always follow exactly what is going on. But as I understand it, last week, the leadership was demanding immediate action on military commissions, saying they were going to be the Senate's No. 1 priority. All of a sudden, they are going to filibuster that. Just last year, the same leadership could not be more critical of what it called leadership-led partisan filibusters on the Democratic side. But apparently they are a great idea when led on the Republican side, even on legislation they supported--or said they did--in the present conference.

This week, the priority is a 700-mile fence along the southern border and a study to do the same thing along the northern border. It is getting hard to keep track of their real priorities.

In the Spring, the majority leader praised and voted for comprehensive immigration reform. The President supported it. The majority leader stood with Senators on both sides of the aisle and supported that bill. Now, he seems ready to throw our work over the side and abandon our principles.

If there is an opportunity for Senate floor time, why not use it instead to put an end to the ongoing war profiteering and contracting fraud in Iraq? Why not help those suffering from Hurricane Katrina? Why not pass a Federal budget? We are required by law to do that in April; it is now late September. Let's show the American people we will obey the law and pass one. Or we can consider the remaining appropriations bills; most have to be completed by next Saturday. Why not work on lowering health care costs? That would get a great cheer from everybody in my State. Or we can work on health insurance costs, fuel costs, or the rising costs of interest rates and mortgage rates.

The bill before us was rushed through the House of Representatives; it is not ready for consideration on the Senate floor. It has had no committee hearings whatsoever in the Senate. It is completely different than what the Senate passed, with Republicans and Democrats voting for it just a few months ago. I don't know why we could not have worked in the normal way we have done for a couple hundred years here and worked out the bills we had. Actually, this is an issue on which the President could be of help and show some leadership. He stated privately that he preferred the bill we passed, and it would be nice to hear him support it publicly.

Along with a bipartisan majority of Senators, I voted for a far more measured version of a physical barrier on the southern border. In doing so, we demonstrated our commitment to border security.

The Senate bill has a provision calling for 370 miles of fencing in the most vulnerable high-traffic areas. That is what the White House requested and recommended. That is what we were told the Secretary of Homeland Security wanted. It also had a provision, which makes a lot of sense, for consultation with the Mexican Government regarding any building of new fences to help ease the tensions that come along with such a project. We don't have an awful lot of friends around the world and we should not work to lose any friendships from our neighbors. In the Judiciary Committee, we also took into account the differences along the northern border and the very close working relationship and personal relationship with the Canadian Government, and kept out a study for a barrier on the northern border.

Look what we are debating today instead of all that. It is a hasty, ill-considered, mean-spirited measure that will cost taxpayers billions of dollars. America can do a lot better than this. A wall of this magnitude will be a scar on the landscape, a scar on a fragile desert ecosystem, and a scar on our legacy as a nation of immigrants. My grandparents were immigrants; my parents-in-law were immigrants. What does a 700-mile barrier wall say about us as a free country?

Most troubling, this bill would give the Secretary of Homeland Security unfettered power to decide what laws to follow, but even more important, what laws to totally ignore. Read the bill.

Remember, it is the same Department of Homeland Security that just last year was supposed to handle Katrina, one of the biggest governmental screw-ups in our lifetime. The Department of Homeland Security was supposed to have those people back a year later in their homes. Instead, we are spending billions of dollars, most of which have been wasted; it has disappeared. What we do see are homes intended for the victims of the Hurricane sitting in fields, empty and decaying.

This is the same Department of Homeland Security that has not managed to secure our ports, chemical plants, and our borders. It is the same Department of Homeland Security that the House of Representatives would entrust with unlimited power to ``take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.''

Mr. President, we don't create czars in this country. We fought a revolution to get out of the dictatorial control of King George. We have a constitutional form of government. We don't give one person the power to set aside any law they want.

I don't think any executive official, certainly not those who horribly mismanaged our preparation for Katrina and our response to it, should be given

one more blank check. How many more blank checks should we give away? We have already given them to Halliburton in Iraq. We have given them to the Department of Homeland Security for Katrina.

Remember how this administration misinterpreted the authorization for use of military force? We told them to get Osama bin Laden and they failed miserably, even when they had him cornered. Instead, they say: What we really meant was, not to get Osama bin Laden, but that the President can violate the FISA law and secretly wiretap Americans without a warrant. It is like ``Alice in Wonderland.''

This is the same President who signs a law with his fingers crossed behind his back and then issues a signing statement reserving to himself the power to decide what laws to follow, and how and when.

Remember the law against torture? We all voted for that legislation. The President signs a signing statement saying: However, I will determine how best to follow it.

This is the administration to which the Republican House wants to give a blank check, even after Justice O'Connor and the Supreme Court-- the Supreme Court made up of seven Republicans out of the nine members--have reminded us our Constitution provides for checks and balances, not a blank check for the administration.

As I said, instead of doing the job we should do--sitting down, having a conference, working this out, and actually voting on this legislation--what do the Senate and House Republican leadership want to do? Just give all the power to a Republican appointee, and we can all go home and campaign for reelection. God bless America.

The only thing the House left out of its bill is calling this a war on immigrants in which they view Secretary Chertoff as the commander in chief. Actually, I would like to see him take care of the problems in this country, starting with Katrina.

Have the lives lost in Iraq and the billions of taxpayers' dollars unaccounted for, the tragedy of 9/11, and Katrina taught us nothing? Everything happened on this administration's watch: Iraq, 9/11, Katrina, and billions of tax dollars wasted trying to fix the messes they created. How many more disastrous mistakes must this administration make before even a Republican-controlled Congress recognizes that abdicating our constitutional role and concentrating power in the executive branch is the wrong strategy for protecting the security and rights of the American people? Do we need to create yet another environment for crony contractors of the Bush-Cheney administration to bilk taxpayers out of billions?

Five years of this administration's incompetence has left America's borders unsecured and our immigration system broken. We joined to pass a bipartisan Senate bill with tough, practical, comprehensive immigration reforms to secure the borders, enforce our laws, and fix our immigration system. We want to bring undocumented immigrants out of the shadows. They are not just numbers; they are actual, real people-- mothers, fathers, husbands, wives, children. The President and his administration say that comprehensive immigration reform will make us safer. I agree with the President on this issue. President Bush told the American people he supports comprehensive immigration reform. I told the public I agreed with him. So now, if he wants comprehensive immigration reform, he has to tell the Republican leadership in Congress to stop obstructing it. They haven't even gone to a conference.

Nor do we need a study to determine whether we should build a barrier along the 3,175 miles of the United States-Canada border. Heavens to Betsy, most of us who live up there go back and forth all the time. We are visiting our relatives, visiting our cousins. I have been visiting my wife's relatives for years. When they come down, they are not terrorists, they are our neighbors whom we welcome to the United States. As I said before, and I will say again, I have heard some cockamamie ideas in my time in the Senate, but this rises to the top.

The northern border is different. It spans the continent. It is the world's longest and safest international boundary, and Canada is our most important trading partner. Have we gone blind? It is clear to me that those who want to build this barrier have no clue about the character, the history, and the day-to-day commercial importance of the northern border and the needs of the States and communities that would be affected. It is best to nip this foolishness in the bud before Congress wastes more tax dollars on another boneheaded stunt.

America can do better than this. The Senate has already pointed the way with a bipartisan, comprehensive approach. We need comprehensive reform that reflects America's values and which will actually work. The House bill we debate today will cost the taxpayers dearly, but it will accomplish little.

Mr. President, this afternoon I would like to take a moment to mark the passing of a great American--Judge James DeAnda. Judge DeAnda died of cancer on September 7, 2006, at the age of 81. He was appointed to the Federal bench by President Jimmy Carter in 1979 and served as judge on the U.S. District Court for the Southern District of Texas until his retirement in 1992. Before his distinguished tenure as a Federal trial judge, James DeAnda was a tireless civil rights advocate with what has become known as a ``voracious appetite for justice.''

Born in Houston, TX, James DeAnda was the son of Mexican immigrants. He attended Texas A&M University and served in the U.S. Marines during World War II before graduating from the University of Texas Law School in 1950, when there were only a handful of Hispanic law students. James DeAnda returned to Houston after graduation, but he had difficulty finding work because White law firms refused to hire a Hispanic lawyer. Not one to be discouraged, James DeAnda joined another Hispanic lawyer to form a legal practice dedicated to representing Hispanic Americans.

In one of his earliest cases, James DeAnda was a member of the four- person legal team behind Hernandez v. Texas, 1954, the first case tried by Mexican American attorneys before the U.S. Supreme Court. In Hernandez, the Supreme Court overturned the murder conviction of a Hispanic man by an all-White jury and for the first time gave Hispanics status as a distinct legal classification deserving of special protection under the Constitution. This case represented a watershed moment in our civil rights history because it opened the door to voting rights, education, and employment challenges by Hispanic Americans. James DeAnda himself used this newly attained classification to fight the segregation of Hispanic children within public schools. He was involved in a number of cases including Cisneros v. Corpus Christi Independent School District, 1970, in which the Supreme Court extended for the first time Brown v. the Board of Education to Hispanics.

In 1968, James DeAnda helped found the Mexican American Legal Defense and Educational Fund, MALDEF. As one of our Nation's leading Latino advocacy organizations, MALDEF played a crucial role in Judiciary Committee hearings on reauthorization of the Voting Rights Act this year. Several MALDEF leaders testified before the Senate and House committees about the continued importance of the Voting Rights Act in ensuring equal access and fair representation for minority voters. MALDEF conducted extensive studies showing the unavailability of translated voting materials and language assistance to Spanish-speaking voters, despite the legal requirement that they be provided and clearly demonstrated the need for reauthorization of the Voting Rights Act.

Judge James DeAnda inspired generations of civil rights advocates. The continuing work of the organization he helped to found, MALDEF, serves as an enduring legacy to this great American. Our thoughts and prayers go out to his family.

Mr. President, what is the parliamentary situation?

Mr. President, I ask unanimous consent that I be allowed to speak for up to 12 minutes as in morning business.

I thank the Chair.