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The Speaker pro tempore: Debate shall not exceed 2 hours, with 80 minutes equally divided and controlled by the chairman and the ranking minority member of the Committee on Armed Services and 40 minutes equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary.
The gentleman from California (Mr. Hunter) and the gentleman from Missouri (Mr. Skelton) each will control 40 minutes, and the gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr. Conyers) each will control 20 minutes.
The Chair recognizes the gentleman from California.
Mr. Hunter: Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 6166.
The Speaker pro tempore: Is there objection to the request of the gentleman from California?
There was no objection.
Mr. Hunter: Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 6166, the Military Commissions Act of 2006. I can't think of a better way to honor the fifth anniversary of September 11 than by establishing a system to prosecute the terrorists who on that day murdered thousands of innocent civilians and who continue to seek to kill Americans, both on and off the battlefield.
Our most important consideration in writing this legislation is to protect American troops and American citizens from harm. The war against terror has produced a new type of battlefield and a new type of enemy. How is it different? We are fighting a ruthless enemy who doesn't wear a uniform, an enemy who kills civilians, women and children, and then boasts about it; a barbaric enemy who beheads innocent civilians by sawing their heads off; an uncivilized enemy who does not acknowledge or respect the laws of war.
Justice Thomas put it best in the Hamdan decision. He said, ``We are not engaged in a traditional battle with a nation state, but with a worldwide hydro-headed enemy who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of the beheadings of civilian workers, and has tortured and dismembered captured American soldiers.
So how is the battlefield new? First, it will be a long war. We don't know if this enemy will be defeated this decade, the next decade or even longer than that. Second, in this new war, where intelligence is more vital than ever, we want to interrogate the enemy; not to degrade them, but to save the lives of American troops, American civilians and our allies. But it is not practical on the battlefield to read the enemy their Miranda warnings.
Finally, this is an ongoing conflict, and sharing sensitive intelligence sources, methods and other classified information with terrorist detainees could be highly dangerous to national security, and we are not prepared to take that risk.
So what have we done to develop a military commission process that will allow for the effective prosecution of enemy combatants during this ongoing conflict? Without this action, the United States has no effective means to try and punish the perpetrators of September 11, the attack on the USS Cole and the embassy bombings. We provide basic fairness in our prosecutions, but we also preserve the ability of our warfighters to operate effectively on the battlefield.
I think a fair process has two guiding principles, Mr. Speaker. First, the government must be able to present its case fully and without compromising its intelligence sources or compromising military necessity. Second, the prosecutorial process must be done fairly, swiftly, and conclusively.
Who are we dealing with in military commissions? I have shown the picture of Khalid Sheikh Mohammed, who is alleged to have designed the attack against the United States that was carried out on 9/11. We are dealing with the enemy in war, not defendants in our domestic criminal justice system. Some of them have returned to the battlefield after we let them out of Guantanamo.
Our primary purpose is to keep them off the battlefield. In doing so, we treat them humanely, and, if we choose to try them as war criminals, we will give them due process rights that the world will respect. But we have to remember that they are the enemy in an ongoing war.
In time of war, it is not practical to apply to rules of evidence the same rules of evidence that we do in civilian trials or court martials for our troops. Commanders and witnesses can't be called from the front line to testify in a military commission.
We need to accommodate rules of evidence, chain of custody and authentication to fit what we call the exigencies of the battlefield. It is clear, Mr. Speaker, that we don't have crime scenes that can be reproduced, that can be taped off, that can be attended to by dozens of people looking for forensic evidence. We have in this war against terror a battlefield situation.
If hearsay is reliable, we should use it. And I might add that hearsay is utilized and has been utilized in tribunals like the Rwanda tribunals and the Kosovo tribunals. If sworn affidavits are reliable, we should use them. And, Mr. Speaker, we have not expanded the use of hearsay beyond what is being used in those tribunals, Rwanda and Yugoslavia.
The Supreme Court has tasked us with an adjustment, but in doing so let's not forget our purpose is to defend the Nation against the enemy. We won't lower our standards; we will always treat detainees humanely, but we can't be naive either.
This war started in 1996 with the al Qaeda declaration of jihad against our Nation. The Geneva Conventions were written in 1949, and the UCMJ was adopted in 1951. In that sense, what we are required to do after the Hamdan decision is broader than war crimes trials. It is the start of a new legal analysis for the long war. It is time for us to think about war crime trials and a process that provides due process and protects national security in this new war.
So what do we do with these new military commissions? We uphold basic human rights and state what our compliance with this standard means for the treatment of detainees. We do this in a way that is fair and in a way that the world will acknowledge is fair.
First, we provide accused war criminals at least 26 rights if they are tried by a commission for a war crime. While I will not read all of them, here are some of the essential rights we provide:
The right to counsel, provided by government at trial and throughout appellate proceedings. An impartial judge. A presumption of innocence. A standard of proof beyond a reasonable doubt. The right to be informed of the charges against him as soon as practicable. The right to service of charges sufficiently in advance of trial to prepare a defense.
And, Mr. Speaker, I am going to insert the balance of those 26 basic and fundamental rights in the Record, so I won't read them all at this point.
The right to reasonable continuances;
Right to peremptory challenge against members of the commission and challenges for cause against members of the commission and the military judge;
Witness must testify under oath; judges, counsel and members of military commission must take oath;
Right to enter a plea of not guilty;
The right to obtain witnesses and other evidence;
The right to exculpatory evidence as soon as practicable;
The right to be present at court with the exception of certain classified evidence involving national security, preservation of safety or preventing disruption of proceedings;
The right to a public trial except for national security issues or physical safety issues;
The right to have any findings or sentences announced as soon as determined;
Right against compulsory self-incrimination;
Right against double jeopardy;
The defense of lack of mental responsibility;
Voting by members of the military commission by secret written ballot;
Prohibitions against unlawful command influence toward members of the commission, counsel or military judges;
2/3 vote of members required for conviction; 3/4 vote required for sentences of life or over 10 years; unanimous verdict required for death penalty;
Verbatim authenticated record of trial;
Cruel or unusual punishments prohibited;
Treatment and discipline during confinement the same as afford to prisoners in U.S. domestic courts;
Right to review of full factual record by convening authority; and
Right to at least two appeals including to a Federal Article III appellate court.
We provide all these rights, and we give them an independent judge, and the right to at least two appeals, including the U.S. Court of Appeals for the District of Columbia and access to the Supreme Court. Nobody can say this is not a fair system.
I know some of my colleagues are concerned about the issue of reciprocity. Look at this list of rights. And we are going to put it up here, Mr. Speaker, so that all the Members can see this. And also keep in mind that these are the rights for terrorists. These are the rights for the people who struck us on 9/11 and killed thousands of Americans. If we are talking about true reciprocity, then we are only concerned about how the enemy will treat American terrorists. These are not our rules for POWs; these are how we treat terrorists. We treat the legitimate enemy differently, and expect them to treat our troops the same.
How do we try the enemy for war crimes? In this act, Congress authorizes the establishment of military commissions for alien unlawful enemy combatants, which is the legal term we use to define international terrorists and those who aid and support them, in a new separate chapter of title 10 of the U.S. Code, chapter 47A. While this new chapter is based upon the Uniform Code of Military Justice, it creates, Mr. Speaker, an entirely new structure for these trials.
In this bill we provide standards for the admission of evidence, including hearsay evidence and other statements, that are adapted to military exigencies and provide the military judge the necessary discretion to determine if the evidence is reliable and probative. And he must find that it is reliable and probative before he allows it to be admitted.
I want to talk a little bit about how we handle classified evidence. We had three hearings on this bill in addition to briefings and meetings with experts. I asked every witness the same question: If we have an informant, either a CIA informant or an undercover witness of some sort, are we going to tell Kalid Sheikh Mohammed who the informant is? The legislation does not allow KSM to learn the identity of the informant.
After several twists and turns in the road, after meeting with the Senate and the White House in marathon sessions over the weekend, we have crafted a solution that does not allow the alleged terrorists to learn the identity of the informant, yet provides a fair trial. And, Mr. Speaker, that is critically important to all of us in this Chamber, because that American agent or informant may have information that saves thousands of lives. He may be of enormous value added to the security of this country. We can't divulge his identity, and we can't divulge it to the alleged terrorist, and doing so would allow that information to go back quickly, as it has on two occasions: one coming out of the first bombing of the World Trade Center where we now have established that Osama bin Laden did come into possession of classified evidence that was moved up through those court proceedings, and once in Guantanamo. So it is very, very important that we protect classified evidence and that we protect the identity of our agents.
We address this in section 949d, subsection (f) of section 3. Classified evidence is protected and is privileged from disclosure to the jury and the accused if disclosure would be detrimental to national security. The accused is permitted to be present at all phases of the trial, and no evidence is presented to the jury that is not also provided to the accused. Section 949d(f) makes a clear statement that sources, methods, or activities will be protected and privileged and not shown to the accused.
However, and this is how you move the essence of an undisclosed agent's testimony to the jury without disclosing the identity of the agent, the substantive findings of the sources, methods, or activities will be admissible in an unclassified form. This allows the prosecution to present its best case while protecting classified information. In order to do this, the military judge questions the informant outside the presence of the jury and the defendant. In order to give the jury and the defendant a redacted version of the informant's statement, the judge must find, one, that the sources, methods, or activities by which the U.S. acquired the evidence are classified; and, two, that the evidence is reliable.
Once the judge stamps the informant as reliable, the informant's redacted statement is given to both the jury and the accused. It removes the confrontation issue. And this, again, to my friends who said we want to follow the UCMJ and we want to give these people all the rights that we give our uniformed servicemen, our analysis is that we would not be able to keep from disclosure the identity of our special agents if we followed the UCMJ. That is designed to protect American uniformed servicemen, and it is not something that we should apply in the case of alleged terrorists.
I think that these rules protect classified evidence and yet preserve a fair trial.
One other point I want to make for the record. As I mentioned earlier, we have modified the rules of evidence to adapt to the battlefield. One of the principles used by the judiciary in criminal prosecutions of our citizens is called the fruit of the poisonous tree doctrine. This rule provides that evidence derived from information acquired by police officials or the government through unlawful means is not admissible in a criminal prosecution.
I want to make it clear that it is our intent with the legislation not to have this doctrine apply to evidence in military commissions. While evidence obtained improperly will not be used directly against the accused, we will not limit the use of any evidence derived from such evidence.
The deterrent effect of the exclusionary rule is not something that our soldiers consider when they are fighting a war. The theory of the exclusionary rule is that if the constable blunders, the accused will not suffer. However, we are not going to say that if the soldier blunders, we are not going to punish a terrorist. Some rights are reserved for our citizens; some rights are reserved for civilized people.
Mr. Speaker, this is a complicated piece of legislation. In addition to establishing an entire legal process from start to finish, we address the application of common article 3 of the Geneva Conventions to our current laws.
Section 5 clarifies that the Geneva Conventions are not an enforceable source of rights in any habeas corpus or other civil action or proceeding by an individual in U.S. courts. Mr. Speaker, this protects American troops.
Section 6 of the bill amends 18 U.S.C. section 2441, the War Crimes Act, to criminalize grave breaches of common article 3 of the Geneva Conventions. As amended, the War Crimes Act will fully satisfy our treaty obligations under common article 3. This amendment is necessary because section C(3) of the War Crimes Act defines a war crime as any conduct which constitutes a violation of common article 3. Common article 3 prohibits some actions that are universally condemned, such as murder and torture, but it also prohibits outrages upon personal dignity and what is called humiliating and degrading treatment, phrases which are vague and do not provide adequate guidance to our personnel.
Since violation of common article 3 is a felony under the War Crimes Act, it is necessary to amend it to provide clarity and certainty to the interpretation of this statute. The surest way to achieve that clarity and certainty is to define the list of specific offenses that constitute war crimes punishable as grave violations of common article 3.
And, Mr. Speaker, this is very important. This protects our troops, it gives them certainty, it gives them clarity. You don't want to have our troops so paralyzed by what they see as prosecutions arising out of common article 3 that you will have a situation where a female officer in the U.S. military will not interrogate a Muslim male on the basis that she is afraid that that action may be defined or projected as being a humiliation of that particular prisoner being interrogated and therefore subjecting that female American officer to a war crimes accusation.
So what we have done is we have taken the offenses that are considered to be grave offenses under article 3, and then I have enumerated several of those, and we define those as the offenses which will be applicable upon which prosecutions can be brought, and then we give to the President on what I would call infractions of Geneva article 3 or lesser violations of Geneva article 3, we give him the right to put together regulations that account for and treat actions that are defined under those minor offenses.
Section 6 of the bill also provides that any detainee under the custody or physical control of the United States will not be subject to cruel, inhumane, or degrading punishment provided by the fifth, eighth, and fourteenth amendments to the Constitution as defined by the U.S. Reservations to the U.N. Convention Against Torture. This defines our obligations under common article 3 by reference to the U.S. constitutional standard adopted by the Detainee Treatment Act that we passed in 2005. And, Mr. Speaker, all parties, both Houses, decided that it was appropriate that we define this type of treatment, degrading treatment, especially under the reservations to the convention that is mentioned, the U.N. Convention Against Torture. We decided that that was good enough for putting together the Detainee Treatment Act; it should be good enough for this particular body of law.
Section 7 of the bill addresses the question of judicial review of claims by detainees by amending 28 U.S.C. section 2241 to clarify the intent of the Detainee Treatment Act of 2005 to limit the right of detainees to challenge their detentions. The practical effect of this amendment will be to eliminate the hundreds of detainee lawsuits that are pending in courts throughout the country and to consolidate all detainee treatment cases in the D.C. Circuit Court.
However, I want to stress that under this provision detainees will retain their opportunity to file legitimate charges to their status and to challenge convictions by military commissions. Every detainee under confinement in Guantanamo Bay will have their detention reviewed by the U.S. Court of Appeals for the District of Columbia.
So what we are doing here is channeling the suits to a particular court which has great expertise in this area, rather than let them be put in rifle-shot fashion or form-shot fashion to other courts throughout the United States.
Mr. Sensenbrenner and my other colleagues are going to speak on the rest of the bill. But, before I finish, I want to make one point very clear. This legislation does not condone or authorize torture in any way. In fact, we make it a war crime punishable by death for one of our interrogators to torture someone to death.
Let me emphasize that again. In section 6 of this bill, we amend 18 U.S.C. 2441, the War Crimes Act. In this amendment, we explicitly provide that torture inflicted upon a person in custody for the purpose of obtaining information is a war crime for which we may prosecute one of our own citizens. While most of this legislation deals with how we handle the enemy, I want to make it crystal clear that nothing in what we are doing condones or allows torture in any way.
Mr. Speaker, unfortunately, I heard at least one Member on the Democrat side say that this gives the President the right to define what torture is. That is not accurate. Torture is forbidden, and there are specific criminal penalties for torture.
In summary, I think this legislation is the best way to prosecute enemy terrorists and to protect U.S. Government personnel and service members who are fighting them.
Let me make one final statement with respect to the right to Miranda warnings and all of the evidentiary rulings that accompany an application utilizing the UCMJ, the Uniform Code of Military Justice, in battlefield situations if we had done that, which we did not.
In the hearings we had, we had at least one experienced officer in the Judge Advocate Corps state that it was his opinion, having tried hundreds of cases, that if you applied the UCMJ, as a number of Members on the Democrat side said they would like to do, to constitute the body of law under which we are prosecuting terrorists, in this officer's opinion once a corporal had captured a terrorist on the battlefield, maybe seconds after that terrorist had shot at him, and threw that terrorist over the hood of a Humvee, if you used the UCMJ, he would at that point have to give him the Miranda rights and then call up a lawyer and assign that lawyer to that alleged terrorist, and then all of the statements and all of the evidentiary rulings that could flow from that activity would then trigger.
Mr. Speaker, we can't have a battlefield where platoon leaders and company commanders are bringing up fire teams and with those fire teams they are bringing up teams of lawyers. That is why we needed a new type of structure for this new type of battlefield.
Mr. Speaker, I think we have responded to the mandate of the Supreme Court that Congress involve itself in producing this new structure to prosecute terrorists. I think we have done a good job. We have worked hard with the Senate and White House. We have made dozens and dozens and dozens of agreed provisions in here that have been carefully looked over by the Senate, the White House, and the House of Representatives. I think we have a package that will allow us to leave this body in the next several days having put into place a system under which we can try individuals who are now waiting at Guantanamo, people who are alleged to have designed the attack against the United States on 9/11 and which we can now begin the prosecution of those individuals.
I want to thank everybody who has participated in this long and arduous procedure. We have had lots of hearings in the Senate and in the House. My good colleague, Mr. Skelton, was involved himself in these hearings and on the original markup that we did on the bill.
We have differences of opinions. I think this is a time when we should come together and pass what is an excellent body of law that will be a very important part of fighting this new war against this new type of enemy.
Mr. Speaker, I reserve the balance of my time.
Mr. Skelton: Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we need to be tough on the terrorists, but we also need to be tough with certainty. I oppose this legislation because it lacks the certainty that we require.
As a former prosecuting attorney from yesteryear, Mr. Speaker, I remember the specter that hangs over every prosecutor's head after successfully prosecuting a criminal, and that specter is that the Supreme Court will reverse that hard-won conviction.
I am terribly concerned that this is not tough enough because it does not bring about the certainty of a conviction being upheld and standing the scrutiny of our Supreme Court.
This is a constitutional issue. The debate today will undoubtedly go down in the annals of our country as being one that stands out as a study in constitutional law and duty thereunder. Our duty as Members of Congress is to uphold the Constitution. That is what I intend to do in my speech and in my vote.
But also it is our duty to pass legislation that is constitutional. I have serious questions as to whether this is constitutional or not.
I received a letter from the Chief Counsel of the tribunals that exist, Colonel Dwight Sullivan, who said, ``If the new military commission system is constitutionally permissible, allow it to proceed with the judiciary's imprimatur. If, as I believe, it is constitutionally deficient, then allow the judiciary to quickly identify its faults so they can be corrected."
I offered an amendment to the Rules Committee that would provide for expedited review by the court system, and it was turned down.
What is so bad is that a case goes cold, witnesses disappear, witnesses die. It would be an absolute injustice for a despicable terrorist, once convicted, to have that conviction overturned, and you can't try it again. Some of these people are absolutely the worst of the worst. That is why we need certainty in the law, and that is what we do not have here.
There are numerous constitutional challenges regarding this legislation. I will mention them:
The provisions that strip the Federal courts of jurisdiction over habeas corpus.
Second, article I of the Constitution prohibits ex post facto laws. That is what this creates.
Third, it is questionable as to whether under article III of the Constitution the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention.
Fourth, the provisions regarding coerced testimony may be challenged under three amendments to our Constitution.
Fifth, the right to confront witnesses and evidence. It also, among other things, has legislation containing the broadest of hearsay rules.
Sixth, the violation of the exceptions clause under article III.
Seventh, the challenges on equal protection and other constitutional grounds.
We want certainty, Mr. Speaker. We want these people, once tried, to be convicted and that conviction upheld. If we pass a law full well knowing that there are provisions in here that would allow them a get- out-of-jail-free card or to have a death sentence reversed, we are doing wrong. We are doing wrong according to our duty, and we are doing wrong in representing the people of our country.
We need certainty as well as toughness. Without certainty, we will not be tough on these terrorists.
Mr. Speaker, I reserve the balance of my time.
Mr. Hunter: Mr. Speaker, I yield 3 minutes to the gentleman from New Jersey (Mr. Saxton), the chairman of the Subcommittee on Terrorism.
Mr. Saxton: Mr. Speaker, I rise in strong support of H.R. 6166.
Ladies and gentleman, this is not an ordinary bill. This is an urgently needed measure to fill a gaping hole in our legal system, both in our ability to bring criminals of 9/11 to justice, the bombings of the USS Cole and the American embassies in Kenya and Tanzania to justice, and to protect our American troops and agents from frivolous prosecutions and lawsuits. It is no exaggeration to say that this is the most important measure to come before this body in this Congress.
Without this bill, the mastermind of 9/11, Khalid Sheik Mohammed, who deliberated and cold-bloodedly plotted the death of thousands of Americans, would go unpunished for his crimes upon humanity.
Yes, we are a nation of laws. The Supreme Court has called upon the Congress to act, and that is what we will do.
We have produced an extraordinarily fair criminal process here to adjudicate the fate of these terrorists. Those who would find the court procedures laid out in this bill wanting will never be satisfied until we are reading Miranda rights on the battlefield. We have carefully narrowed and crafted the provisions of this bill to enable the United States to prosecute the perpetrators of the 1998 bombings of the American embassies in Kenya and Tanzania, the 2000 attack on the USS Cole, and other crimes that have been committed.
Yes, these were suicide attacks and the men who delivered the explosives were killed, along with innocent victims, but the planner, logisticians, and financiers of those operations remain at large.
Importantly, this bill allows, as all Americans believe it should, the criminal prosecutions of those who purposefully and materially supported these criminal activities. And, of course, the measure covers those responsible for 9/11 as well.
Mr. Speaker, I can think of no reason that this measure should not pass unanimously. It outlaws torture.
The Speaker pro tempore: The Chair notes a disturbance in the gallery in violation of the Rules of the House and directs the Sergeant at Arms to restore order.
The gentleman may proceed.
Mr. Saxton: Mr. Speaker, I can think of no reason that this measure should not pass unanimously. It outlaws torture, mandates decent treatment for unlawful enemy combatants who are in our custody, protects Americans from frivolous lawsuits and prosecutions, and, most critically, provides a fair, balanced and civilized process by which the international war criminals may be held accountable for their action.
The world has waited long enough to bring these men to justice. Vote "yes" on this measure.
Mr. Skelton: Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Ortiz).
(Mr. ORTIZ asked and was given permission to revise and extend his remarks.)
Mr. Ortiz: Mr. Speaker, each and every Member of this House is equally concerned with bringing terrorists to justice and punishing them for attacking the United States because they have committed horrible crimes.
But I have a lot of questions to ask. I want to be sure that I do the right thing. Why are we rushing into this? I know we have to comply with the law, but we should not be in a hurry. I think we need to do what is right.
You know, I have some questions. When the Geneva Conventions convened back in 1949, there were at least 200 countries who agreed in what came out of this convention. Are we prepared for other nations' leaders, such as Iran, Syria, and others, to selectively interpret the Conventions' article 3 in a way that we are comfortable with?
I am pretty sure that when they met in 1949, there were agreements and disagreements, but we came out with something that everybody accepted. Now there are going to be some changes into that. Have we in any way contacted those leaders of those countries to see what they think about the changes that are being formulated today?
I think that we are beginning to open up a can of worms. So we are going to have to be very careful of what we do. The Navy Judge Advocate General, the top lawyer for the Navy, reminded us recently that Geneva exists to protect American soldiers. Our protections are only as strong as the protections of the Geneva Conventions.
Mr. Speaker, each and every member of this House is equally concerned with bringing terrorists to justice and punishing them for attacking the United States.
Everything about this bill today begs questions.
Do we know what we are doing in putting our feet on an unsure path, one which will certainly change the face of our international responsibilities and our international obligations?
Why are we rushing this? We should not be in such a hurry to overhaul our international obligations.
Nearly 200 nations around the world are signatories to the Geneva Conventions. Are we prepared for other nations' leaders--such as Iran, Syria and others--to selectively interpret the Convention's Article 3 in a way that we are comfortable with?
What can of worms are we opening today?
The Navy Judge Advocate General, the top lawyer for the Navy, reminded us recently that Geneva exists to protect American soldiers. Our protections are only as strong as the protections Geneva offers.
Why are we taking away the Supreme Court's authority--in a historic grab of power--to consult international law in interpreting conduct associated with the War Crimes Act?
Are we taking away power from our other Federal courts?
Do we remember one of the more salient points raised by the 9-11 Commission that the United States was negligent in staying involved in matters around the world?
The 9-11 Commission encouraged the U.S. to get more involved with other nations, to find security in a global environment. Are we doing that today?
My grandson Oscar is almost 4 years old. He may be a soldier someday. While his grandfather is in Congress, I will raise my voice to keep our soldiers safe.
When Congress gives away power to the President, it is a permanent move. The question each of us must ask is: how wise will this policy seem 10 years from now? And when the Congress gives power to the President, we must understand that the President today will not be in office years down the road.
To my friends on the other side of the aisle: do you know the test to apply for this question? It is this: Think of the person you disagree with completely, imagine they are the President, and ask yourself: Do I really want that person to have this authority?
| COMPARISON OF ALTERNATIVES RELATED TO MILITARY COMMISSIONS | |
|---|---|
| Compromise bill (H.R. 6166) | McCain-Warner (S. 3901) |
| GENEVA CONVENTIONS, TREATY OBLIGATIONS AND INTERNATIONAL LAW | |
| Authorizes the President to interpret of meaning and application of the Geneva Conventions. | Defines grave breaches to Common Article 3 of the Geneva Conventions to include cruel, unusual, inhumane treatment or punishment with reference to the 5th, 8th and 14th Amendments. |
| Revises War Crimes Act to provide limited immunity for government officials from prosecution for past acts that degraded and humiliated detainees. | Does not retroactively apply the revisions to the War Crimes Act. |
| Asserts that the revised War Crimes Act fully satisfies the U.S. obligation under the Geneva Convention to provide penal sanctions for grave breaches of Common Article 3. | Does not create a three-tier system of enforcement, with Presidential discretion to define and enforce any offenses below grave breaches of Common Article 3. |
| Adds a ban on U.S. courts using any international law in interpreting conduct prohibited in the War Crimes Act. | .......................................... |
| Makes the War Crimes Act changes retroactive to the amendments to the War Crimes Act in 1997. | .......................................... |
| For lesser offenses below a grave breach, gives the President explicit authority to interpret the meaning and application of the Geneva Conventions Common Article 3. | .......................................... |
| Requires that such interpretations be published, rather than described in secret to a restricted number of lawmakers. | .......................................... |
| Affirms that Congress and the judiciary can play their customary roles in reviewing the interpretations. | .......................................... |
| Prohibits cruel, inhuman, or degrading treatment or punishment and relies on the President to ensure compliance. | .......................................... |
| DEFINITION OF ENEMY COMBATANT | |
| Expands the definition of an "unlawful enemy combatant" to include an individual who has "purposefully and materially" supported hostilities against the U.S. or its co-belligerents or a person who is or was determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal. | Defines "unlawful enemy combatant" as an individual engaged in hostilities against the United States who is not a lawful enemy combatant. |
| DETAINEE HABEAS CORPUS CLAIMS | |
| Identical to S. 3901 | Extinguishes pending Habeas Corpus claims. |
| CLASSIFIED INFORMATION AND ACCESS OF THE ACCUSED TO EVIDENCE. | |
| Generally the same as S. 3901 with some additional clarifications to ensure the accused will not see classified information. |
|
| EVIDENCE OBTAINED THROUGH COERCION/SELF-INCRIMINATION | |
| Prohibits use of statements obtained by cruel, inhuman, and degrading treatment not amounting to torture. | Allows statements, obtained before passage of the DTA, through cruel, inhuman and degrading treatment and lesser forms if coercion of the military judge finds it reliable and probative and in the interest of justice. |
| Allows statements, obtained after passage of the DTA, through coercion (but not through cruel, unusual, or inhumane treatment or punishment) if the judge finds it reliable and probative and in the interest of justice. | Statements obtained by lesser forms of coercion may be allowed if the military judge finds it reliable and probative, and in the interest of justice. |
| HEARSAY EVIDENCE | |
| Hearsay is more easily admissible. | Hearsay is admissible if the military judge finds the evidence more probative than other evidence the proponent can reasonably obtain. |
| Hearsay normally inadmissible can be used unless the party it is used against demonstrates it is unreliable or lacks probative value (burden of proof is on the accused). | .......................................... |
| Emphasizes the importance of preventing disclosure of classified hearsay (no substantive addition). | .......................................... |
| APPEALS | |
| Establishes a Court of Military Commission Review, with appeals to the D.C. Circuit, and by certiorari to the Supreme Court. | Appeals would be to the Court of Appeals for the Armed Forces, and by certiorari to the Supreme Court. |
Mr. Hunter: Mr. Speaker, I would like to yield 3 minutes now to the gentleman whose subcommittee oversees the policies for our 2.5 million folks in uniform, Mr. McHugh of New York.
(Mr. McHUGH asked and was given permission to revise and extend his remarks.)
Mr. McHugh: Mr. Speaker, I thank the gentleman for yielding.
Let me just make a few comments based off that statement. This is a great country when we can have, as we had moments ago, an individual come into the people's House and express, perhaps out of order but very passionately, their concerns about how we are being unfair.
Let me be very clear. As someone who has for 14 years visited our troops in virtually every combat theater in which they have been located, if our troops were to be taken prisoner, they would be well served by the enemies of this Nation, such as Sudan, such as North Korea, and, as was mentioned, Iran and others, to be treated under the provisions of this act.
We are extending to these terrorists, and make no mistake about it that they are terrorists, unlawful combatants, the rights and protections that all of us as American citizens enjoy under the fifth, the eighth, and the fourteenth amendment.
I have heard my good colleagues, and they are good Americans, express concerns about somehow changing our obligations under the Geneva Conventions under common article 3. Make no mistake about this as well. The language that we are incorporating into our basic domestic criminal law uses the language of the commentaries on common article 3 and the Geneva Conventions. We simply harmonize that common article 3 with our United States laws, requiring that only grave breaches of that common article, as provided in the Geneva Conventions' commentaries, are subject to criminal prosecution.
International law has traditionally provided, time and time again, that it is the signatory to an international convention that is responsible for making it clear what the violations of law may be, and that is what we are doing here today.
John McCain, Lindsey Graham, Members of the other body who have had experience in these matters, either as being prisoners of war or as having the opportunity to go through as a Judge Advocate General in prosecuting, understand our responsibility is to not throw away the conventions that we have committed ourselves to as Americans and to not abandon the leadership we have shown for more than 200 years in the question of human rights. This bill meets that standard.
It is not sufficient to say that convictions may be overturned if the answer is not to convict at all. We have to recognize that it is our responsibility to the American people and to the brave men and women that I have visited as a member of the Intelligence Committee who we ask to interrogate these people that we will do the right thing by them, respect international conventions and respect the basic tenets upon which this Nation was built, that of human rights. This bill does it, and I would hope all my colleagues would support it.
Mr. Speaker, I rise today in strong support of H.R. 6166. This bill is vitally important for securing America and ensuring that accused terrorists are tried for war crimes in an open and transparent court that will apply justice swiftly and fairly.
There is more to this bill than military commissions, however. H.R. 6166 addresses an issue that Supreme Court created in the Hamdan case. The Court in Hamdan decided that Common Article 3 of the Geneva Conventions--a article that many assumed only applied to regular armies--applies to terrorist organizations, like al Qaeda. As a result of this decision, our brave personnel in the military and other national security agencies are faced with' an unpredictable legal landscape because the meaning of certain elements of Common Article 3 are vague--the standard? An outrage against personal dignity.
The question, would a female interrogator of a male Muslim detainee be guilty of violating Common Article 3 because the mere scenario constitutes an outrage upon personal dignity? That kind of situation is untenable. It's unfair to our personnel out in the field trying to protect lives here at home. It is Congress' responsibility to draw the lines of what conduct will be judged criminal.
As a result, we need to amend the War Crimes Act to make clear that only grave breaches of Common Article 3 constitute a war crime under U.S. law. Let me be clear, under international law a party to the treaty is responsible for incorporating only grave breaches of Common Article 3 in its penal code. My point is simple: Today the Congress is complying with our treaty obligations under Geneva Conventions and today the Congress is following the guidance of the Supreme Correct in Hamdan (even though many believe that the Court's decision was ill construed).
Now, some have suggested that H.R. 6166 condones torture or that this bill implicitly permits "enhanced torture techniques". These suggestions are absolutely false and they fly in the face of the very words that appear on the pages of this bill.
First--it is illegal under U.S. law to torture. This was true before H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a war crime that can result in the death penalty. This means that under the War Crimes Act, any U.S. personnel that engages in torture will be subject to prosecution for committing a war crime. Additionally, in the context of military commissions, a statement obtained through torture is not admissible.
Second--this bill makes clear that the way we treat our detainees is guided by treatment standards set by the Congress--last year--in the Detainee Treatment Act, also know as the McCain amendment. This standard is based upon the familiar standards of the U.S. Constitution. Thus, "cruel, inhuman, and degrading treatment or punishment" under this section means the cruel, unusual, inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as defined by the U.S. reservations to the UN Convention Against Torture.
Don't we all agree that the Constitution, which provides the fundamental, underlying protections for the citizens of the United States, provides more than sufficient protections for unlawful enemy combatants? Why should an accused terrorist enjoy protections that exceed what the Constitution provides every to every one of us as United States citizens?
Let me close by saying that this is an important bill for the American people--we will bring the masterminds of 9/11 to justice, and this is an important bill for the brave men and women fighting this battle--they can do their job in theater without the fear of frivolous prosecution here at home.
Mr. Skelton: Mr. Speaker, I yield 4 minutes to the distinguished gentlewoman from California (Ms. Harman), ranking member of the Intelligence Committee.
(Ms. HARMAN asked and was given permission to revise and extend her remarks.)
Ms. Harman: Mr. Speaker, I thank the gentleman for yielding and commend him for his very impressive service as ranking member of the Armed Services Committee.
Mr. Speaker, I take a back seat to no one in my effort to understand the threats against us, find those who would cause us harm, and prevent them from harming us. I also believe strongly that Congress must act under article I, section 8 of the Constitution to regulate "captures on land and on water."
Since this administration started new programs to detain and interrogate terror suspects after 9/11, I have offered to help craft a new legal framework around those policies. I have called on the Vice President, his chief of staff, the National Security Adviser, and the Attorney General to help Congress craft such a framework to eliminate the fog of law. And I have argued that this new framework would empower, not limit, those who must carry out those policies because they would know that they were acting legally.
Today's bill is far from the best we can do. The rule for debate is closed, which means that none of us can improve the bill. And as debate has made clear, this bill was written by the White House in consultation with a few Republican Members. There was no bipartisan consultation and possibly none with any of the Republican members of the Intelligence Committee.
Others will address issues with immunity, coerced confession, habeas corpus, and court review. I want to address the issue which relates to the Intelligence Committee and which I believe is the primary reason for rushing the legislation through. There is a carve-out for the CIA. The bill would permit the CIA to continue a separate program for interrogation that does not comply with the Army Field Manual. If such a program is needed, then Congress must impose strict limits and ensure that we have the tools to do strict oversight.
An amendment which Mr. Skelton and I hoped to offer today would have required notification in advance to the intelligence committees of any alternative set of interrogation procedures; a legal opinion from the Attorney General that they comply with Federal and international law; assurances that they are applied only to those we believe possess reliable, high-value, actionable intelligence; that the Army Field Manual techniques would not work; and that the use of the techniques would not adversely affect our troops who may be captured. Our amendment was not made in order, and I remain very skeptical that Congress can assure that any CIA carve-out will be limited and carefully monitored.
Mr. Speaker, we can do better. The bill negotiated by Senators McCain, Graham, and Warner was better. Let us wait for the lame duck session and do this right. Vote "no."
Mr. Hunter: Mr. Speaker, at this time I would like to yield 2 minutes to the gentleman who sits on both the Armed Services Committee and the Intelligence Committee and has put enormous focus on this particular bill, the gentleman from Texas (Mr. Thornberry).
Mr. Thornberry: Mr. Speaker, I think it is important to start with some important truths to remind ourselves of: one, we are in a struggle against a vicious, determined enemy who is determined to kill as many of us in as spectacular and as brutal a fashion as possible. Secondly, this struggle stretches all around the world and will go on for a long time. And, third, the enemy lives in the shadows and does not reveal when or where or how they are going to strike. Information is the key weapon we have to prevent them from killing us and to prevent them from attacking others in the future.
This debate, as you have heard, has been mostly about what rights those few who we are able to capture, what rights, legal rights, they have under our system. But I think it is important to also remind ourselves about the critical nature of information and in stopping future attacks. In the Cold War we worried about missiles and tanks, and we could use satellites to count on. Here we are worried about three guys in a cave or half a dozen in a compound or four in a flat in London. If we don't have credible, specific information to stop those individuals and what they plan, then we will not be able to do so.
I think this is a good bill, but I also believe that it is right up to the edge of tying our own hands or, to change my metaphor, of putting blinders on ourselves, to make it very, very difficult to stop future attacks. I think it is important to do this bill now so that there is the certainty that our folks in the field, in uniform and out of uniform, desperately need to have. But we need to be careful that those of us in this Congress do not take the extra step to make their job impossible and then point the fingers at them in the future.
I think Members should support this bill, and I also believe Members should be careful in the future.
Mr. Skelton: Mr. Speaker, I yield 2 minutes to the very distinguished gentleman from Texas (Mr. Reyes).
Mr. Reyes: Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, as a member of the House Intelligence Committee and the House Armed Services Committee, I understand the critical need to have the best possible intelligence both to prevent terrorist attacks against our Nation and to protect our troops in the battlefield. But those who have tied passage of military commissions legislation to the collection of actionable intelligence are simply misleading the American people.
I am deeply disappointed that military commissions legislation crafted by the White House and the Republican congressional leadership does not create a system that will pass constitutional muster. Like my colleagues, I demand that our Nation prosecute those who commit terrorist acts against us, but if Congress and the White House create a system of military tribunals that will be struck down by the Supreme Court as unconstitutional, we will further delay justice for the victims of terrorism and for their families.
The Bush administration has determined that we can legally hold all enemy combatants until the end of hostilities in the global war on terrorism, and as the National Intelligence Estimate released yesterday indicated, we won't be able to declare victory in the fight against terror and extremism anytime in the foreseeable future. So I ask, why are we in such a hurry to pass legislation that may do more harm than good? Why are we putting politics above victims of terrorist acts? Why are we endangering our troops?
Protecting our Nation also includes protecting the men and women who are serving in uniform in battlefields around the world. I believe, along with other military and legal experts, that the Republican military commissions bill will be interpreted by the international community as redefining our obligations under the Geneva Conventions. Our Nation must act from a position of strength, and we must think first of protecting our citizens before weighing how the world will view our actions. However, it is very unrealistic to simply ignore the impact that the changes included in H.R. 6166 could have on members of our military.
For that reason, Mr. Speaker, in wrapping up, I cannot support H.R. 6166 as it is written. We can do much better for our troops, the victims of terrorism, and the American people.
Mr. Hunter: Mr. Speaker, I would like to yield at this time 2 minutes to a gentleman who is himself a veteran and a former JAG officer and the chairman of the Veterans' Affairs Committee and a gentleman who has paid a lot of attention to this important subject, the gentleman from Indiana (Mr. Buyer).
Mr. Buyer: Mr. Speaker, I rise to enter into a colloquy with the distinguished chairman of the House Armed Services Committee, Mr. Hunter.
Mr. Hunter, as stated in section 948k of the legislation before us, military defense counsel shall be detailed to the accused as soon as practicable after the swearing of charges against the accused.
Section 949a of the legislation permits the accused to represent himself. That section also defines how the accused will conduct himself and when the military judge, in his discretion, may partially or totally revoke this right.
Of concern to me and some military lawyers is that, should this right be revoked, a delay of trial could occur while waiting for the detailed defense counsel of the accused or an appropriate authorized civilian counsel to get up to speed and to begin to perform the defense.
It is my understanding that the intent of the legislation allows the detailed military counsel to remain as an associate counsel should the accused exercise his right of self-representation. This ensures that even if the accused's right is revoked by the judge, the trial will continue in a timely and efficient manner.
Mr. Hunter: Mr. Buyer, that is correct. It is the intent of the legislation that the detailed military counsel shall act as an associate counsel during the course of self-representation. As you stated, should this right be revoked, the military counsel will then proceed to represent the accused throughout the rest of the trial.
Mr. Buyer: Chairman Hunter, I want to thank you for entering into this colloquy with me and for your work on this provision and the legislation as a whole. I would also like to thank the President. He said he would work with the House and the Senate. He has done that. Chairman, you have done that. I want to thank Senator Lindsey Graham for having done that.
Let me just share to all of my colleagues that I do believe this is a good product, Chairman Hunter; and I want to let everybody know and understand that.
This Code of Military Commissions, it has a good balance. You have struck that.
Mr. Hunter: Mr. Speaker, I thank the gentleman. I want to thank him for his valuable contribution.
Mr. Andrews: Mr. Speaker, I yield 2 1/2 minutes to the gentleman from New York (Mr. Israel), my very thoughtful friend.
Mr. Israel: Mr. Speaker, I rise in opposition to this bill. The distinguished chairman of the committee, who I have a very strong respect for, opened this debate by saying that in the global war on terror we cannot read terrorists their Miranda rights. No one has said that. No one has proposed it. No one has suggested it. That is not what is being debated here. That is not what we should debate here. It is absurd.
When it comes to terrorists planning mass murder on the American people, I want to find them. I want to capture them. I want to kill them. I want to try them. If they are found guilty, I want to kill them. I believe in capital punishment for terrorists perpetrating genocide.
But because I think that we should fight and kill terrorists, I want there to be fewer of them to fight and kill. This bill says to potential terrorists, the U.S. is surrendering the moral high ground. It is unilaterally relaxing the Geneva Conventions, that we are willing to keep people locked up indefinitely without a trial.
And since I believe in executing people found guilty of perpetrating or planning a genocide on the American people, I want to make sure we are executing the right terrorists. Government is imperfect. We make mistakes. How do I know? Katrina. We lose records. How do I know? The long line of veterans at my district office who cannot get their back pay because we lost their records.
When it comes to capital punishment for terrorists, I want to make sure that we are giving them the proper trial, that we are getting the facts. If I am willing to execute them, I want to make sure it is based on fact.
And because I believe we should fight and kill terrorists, I also know that Americans in that fight are going to be caught; and I want them treated by the same standards that we would treat our enemy's prisoners. I do not want any one of our military people to be subject to the whims and the arbitrariness of a current interpretation by a foreign enemy.
Mr. Speaker, I want to close by suggesting and telling my colleagues that I recently asked a service member, who received a Bronze Star for valor in Fallujah, what he thought about this. He said, Congressman, I do not think our enemies really care about the Geneva Conventions, but I am fighting for my country because I care about morality, because I care about strong values, because this is a good country that leads the way, and I want to continue leading the way.
If I am asking young men and women to die for what we stand for, I want to stand for something. If I am asking people to fight to kill terrorists, I want to be in the pursuit of our values, not the terrorist's values.
Mr. Skelton: Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Andrews).
Mr. Andrews: Mr. Speaker, everyone who has spoken in this debate on both sides I think shares a deeply held conviction that they want terrorists who would threaten this country prosecuted, convicted and punished.
Because I believe the commencement of those prosecutions is imperative for the future of the country, I will support this bill. I will do so, however, with two severe reservations which I would hope would be dealt with by the other body and in conference.
The first has to do with the issue of habeas corpus, which is a complicated word, but in this context, here is what it means: As I read this bill there is a risk that a suspected terrorist could be held for an indefinite period of time without recourse to any decisionmaker outside of the executive branch.
The constitutionally of this is ambiguous. But the wisdom of it I think is clear. It is not very wise. I think revisiting this provision as the bill goes forward would assure the constitutionality of the bill and its compliance with the Geneva Conventions.
Secondly, I am concerned about the fact that there has been an insufficient procedure for us to consider this bill. There have been many good ideas dealing with habeas corpus, dealing with issues of retroactive immunity that I think deserve a full and fair airing and hearing on this floor. This is an unfortunate procedure in which we find ourselves.
My concern is it will be our sole opportunity, given the way things go around here, to voice our opinions on this. I do think that the underlying provisions of this bill are consistent with the spirit and letter of our obligations under the Geneva Conventions.
I have concluded that compliance with these conventions is essential so we can go forward in prosecuting and trying those who threaten our country. I believe this process needs great improvement. I think this bill needs one very specific improvement. But to move it forward, I will vote "yes."
Mr. Skelton: Mr. Speaker, I yield 5 minutes to the gentleman from Maryland (Mr. Hoyer).
Mr. Hoyer: I thank the gentleman for yielding.
Mr. Speaker, I wanted nothing more than to come to this floor today and vote for a military commissions bill that comports with our American values, that the rest of the world would see as fair and humane, that honors our international commitments and protects our own troops who fall into enemy hands and, as the ranking member has pointed out, the Supreme Court would uphold.
I regret that the chairman and the ranking member are not shoulder to shoulder on this issue, as should be the case. Too often have we considered these weighty matters of defending our country, defeating terrorism, protecting Americans in a partisan fashion. I think that is regrettable. I think the American people think it is regrettable.
Make no mistake. Every single Member of this House wants our President to have the intelligence necessary to prevent future terrorist acts on our Nation and our allies. Every single one of us wants those responsible for 9/11 and other terrorist acts to be tried fairly and punished accordingly. And we want those convictions to be upheld by the courts, and we want to stop future attacks.
But, regrettably, the bill before us today, in my opinion, falls far short of the high standards that this Congress and the American people expect and demand and indeed that the world expects of America. This legislation at bottom is really more about who we are as a people than it is about those who seek to harm us.
That is true if it were domestic. It is true internationally. No one wants to defend murderers and rapists, those who would harm our people, whether they live here or they live abroad. However, defending America requires us to marshal the full range of our power, diplomatic and military, economic, and, yes, moral. And when our moral standing is eroded, our international credibility is diminished as well.
We must not lightly dismiss the somber warning of our former Secretary of State, the leader of our Armed Forces, Chairman of the Joint Chiefs of Staff, serving on the administrations of President Bush I, and serving as his Secretary of State.
He said this, and I quote Colin Powell: "The world is beginning to doubt the moral basis of our fight against terrorism. I fear this legislation before us will further diminish that credibility."
While this bill properly lists as punishable offenses certain grave breaches of article 3 of the Geneva Conventions, it leaves almost unfettered discretion to the administration to define anything less than such grave breaches.
Why should we be concerned about providing this administration with such discretion, one might ask? Because our President and our Attorney General have routinely flouted congressional authority with signing statements and legal interpretations, which give to them unfettered authority.
As the Washington Post has stated, and again I quote: "The Bush administration's history is one of interpreting limitations on interrogation tactics, including Mr. McCain's previous legislation, banning cruel, inhuman and degrading treatment, as permitting methods most people regard as torture."
Furthermore, Mr. Speaker, this bill eliminates the fundamental legal right of habeas corpus. What is habeas corpus about? Why should we care for terrorists who attack our country? Because we might make a mistake. That is why we build in protections, to protect against mistakes because we are human.
The bill would greatly minimize judicial oversight by establishing a new appeals process and centralizing consideration of cases in the District of Columbia Court of Appeals, thus stripping other appellate courts from hearing cases currently pending before them.
Mr. Speaker, I am absolutely committed to winning the war on terrorism and bringing to justice any and all terrorists who would threaten us, harm us or cause harm to our country. However, I also believe we have an obligation to the Constitution and to our oath to do so in a manner that is consistent with our values, that makes us different than other nations in the world, that secures just convictions and that enhances our international credibility, thereby strengthening our national security.
I end as I started. I regret that I cannot support this legislation, and I are regret that it is not being offered in a bipartisan fashion. It would have been better for us, for the people, and for our country.
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