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Mr. Sensenbrenner: Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, I am afraid that my friends on the other side of the aisle aren't listening. There are two types of habeas corpus: one is the constitutional great writ. We are not talking about that here. We can't suspend that. That is in the Constitution, and we can't suspend that by law.

The other is statutory habeas corpus, which has been redefined time and time again by the Congress. That is what we are talking about here, and we have the constitutional power to redefine it.

I yield 4 minutes to the gentleman from Iowa (Mr. King).

Mr. King of Iowa: Mr. Speaker, I thank the chairman for 6 powerful years leading the Judiciary Committee.

The Supreme Court created a mess and hurt the Global War on Terror with its unnecessary and unconstitutional opinion in the Hamdan case. The Supreme Court had no authority to hear the Hamdan case. The Detainee Treatment Act gave the Court of Appeals for the District of Columbia Circuit exclusive jurisdiction over the validity of any final decision of an enemy combatant status review tribunal. The Supreme Court in Hamdan v. Rumsfeld ignored the provision of the DTA and a longstanding line of its own precedents which stood for the principle that Congress can limit jurisdiction in pending as well as future cases.

The DTA provided that: no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay.

The plain language of this statute clearly applies to cases pending at the date of enactment. The Supreme Court should have reached this conclusion, relying on their own precedent, but they failed to do so. In response, this legislation, H.R. 6166, has been carefully drafted so that the Court can fully understand that it applies to both pending and later filed cases. It was not necessary for Congress to be so specific, but in order that the Court will not make the same mistake twice, Congress has carefully chosen the language "pending on or filed after the date of enactment" in section 5 of this legislation.

In his dissent in Hamdan v. Rumsfeld, Justice Scalia reminded the majority that they failed to cite a single case where such a jurisdiction limitation provision was denied immediate effect in pending cases. I agree with his opinion that the cases granting such immediate effect are legion.

The Court's opinion has had yet another fatal flaw. In order to apply the Geneva Conventions, the Court decided on its own that the Global War on Terror was not of international character. I cannot imagine that even the majority on the Court believed their own opinion. The Global War on Terror can in no way be characterized as a mere civil war. It is a war between Western Civilization and militant Islamic fascists from all around the world. It does not take place only in legislation.

Announcement by the Speaker Pro Tempore

The Speaker pro tempore (Mr. Simpson): 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 Chair recognizes the gentleman from Iowa.

Mr. King of Iowa: It is a war between Western Civilization and militant Islamic fascists from all around the Muslim world. It does not take place only in one nation. Global is international.

The Court decided the conclusion they desired and then shoehorned their decision to fit a preferred result, substituting their judgment for the constitutional judgment of Congress and of our Commander in Chief. And that was during a time of war. By doing this, the Supreme Court's majority in Hamdan further undermined our Constitution which relies on the separation of powers.

The unconstitutional intervention by the Supreme Court in Hamdan could have been handled by Congress and the President in another way. Under article III, section 2, Congress could have reasserted our clearly defined authority to limit the jurisdiction of the Supreme Court and to grant jurisdiction to any inferior court of our choosing, as expressed in the very plain language of the Detainee Treatment Act.

If we had not been a Nation at war, a Nation urgently concerned about protecting our citizens from attack, Congress may well have advised the Court of their unconstitutional intervention and the Court's obstruction of the ability of the Commander in Chief to protect America from our enemies and ignored the Court's decision. The necessities of war won out over the separation of powers, and for the first time the Supreme Court has engaged in setting parameters in war fighting beyond our national borders.

Because of our national security, Congress and the President jumped through a series of hoops set by the Court, rather than carry on a protracted power struggle over the Constitution with the Court. But, Mr. Speaker, Congress concedes no power to the Court not defined in the Constitution or specified by statute.

Mr. Conyers: Mr. Speaker, I now yield 2 1/2 minutes to the gentleman from Virginia, a member of the Judiciary Committee, Mr. Scott.

Mr. Scott of Virginia: Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, while I support the efforts to establish a system of military commissions as required by the Supreme Court's decision in the Hamdan case, I am disappointed that a bill of this magnitude is being considered under a closed rule and without assurances that traditional notions of due process, judicial independence, and full compliance with the Geneva Conventions will be in the bill.

One of the most egregious problems of this bill is the creation of a presumption in favor of admitting coerced evidence, along with the continued insistence that a person can be fairly convicted using secret evidence. Another problem with the bill is it strips jurisdictions of civil courts from hearing cases involving plaintiffs who seek redress for violations of the torture provisions of the Geneva Conventions. This bill actually retroactively applies new standards. Now, whether this review of the habeas corpus as statutory or constitutional, it is a good idea; and it is the only way anybody can get a hearing on whether or not they have been tortured by the United States.

Moreover, the only automatic right of appeal would be to an entirely new appellate court of military commission review, with all of the judges appointed by and in the chain of command of the Secretary of Defense. In addition, the Secretary of Defense would be granted wide latitude to depart without judicial scrutiny from the rules and detainee protections the legislation purports to create. It would allow him to do so whenever he deems it practicable or consistent with military or intelligence activities. In an extraordinary move, the bill would retroactively limit the scope of U.S. obligations under common article 3 more than half a century after the United States ratified the Geneva Conventions, and it immunizes all previous violations of the War Crimes Act and other laws against torture and inhumane treatment of detainees in our custody.

This retroactive provision grants immunity to government officials and civilians, such as CIA operatives, interrogators, or those who may have authorized, ordered, or even participated in illegal acts of torture or abuse.

Mr. Speaker, this is a complex bill, and it is before us on a take- it-or-leave-it basis, with no amendments. We should take the time to consider all of these new provisions deliberately to ensure that the legislation does not undermine the United States' commitment to the rule of law, the success of its fight against terrorism, and, most of all, the safety of our United States' servicemen and women.

I urge my colleagues to defeat the passage of H.R. 6166.

Mr. Conyers: Mr. Speaker, I am proud to yield to the gentleman from California (Mr. Schiff), who has worked diligently on this issue, 2 minutes.

Mr. Schiff: Mr. Speaker, I want to try to resolve an issue which has been debated here this afternoon about what the effect of this legislation is on American citizens.

Plainly, the legislation defines "unlawful enemy combatant" as any person who materially supports someone or is believed to support someone engaged in hostilities against the United States. That includes American citizens. And yet the majority says, but, under the legislation, only aliens can be brought up before the military tribunal. That is also correct. So how do you resolve this apparent difference?

The reality is there is no difference. Because what the bill contemplates is a two-part system of justice: one for those who are brought before tribunals, and one for those who may never be brought before tribunals but who are, nonetheless, detained as unlawful enemy combatants. Because this bill contemplates that people will be detained, whether it is in a secret CIA prison or elsewhere, and perhaps never brought before a tribunal; and there is nothing in this legislation that prohibits the detention of an American indefinitely, never brought before a tribunal.

Now the majority says, we don't do away with the habeas rights of Americans, writ large or writ small. If that is the case, why don't we say that in this legislation, that an American detained as an unlawful enemy combatant has the right of habeas corpus? The reason we don't say it in this bill is because the administration has consistently taken the position that those detained, including Americans, as unlawful enemy combatants do not have the right of habeas corpus to seek redress in courts and have fought that already in court.

So where does that leave us in the war of ideas? We have an enemy that has nothing to offer in the war of ideas. We have everything to offer. But when we undermine the idea of what it is to be an American, the idea of this country, by saying that we will water down the rule of law, that we will have a separate system of justice or no system of justice, for those who are declared unlawful combatants will have no right to court redress, that is a setback in the war of ideas.

Mr. Conyers: Mr. Speaker, I am pleased to yield to the gentleman from New York (Mr. Nadler), a distinguished member of the Committee on the Judiciary, 2 minutes.

Mr. Nadler: Mr. Speaker, this is how a Nation loses its moral compass, its identity, its values and, ultimately, its freedom to fear.

It is ironic that the people who use the word "freedom" with reckless abandon, in everything from fries to a global vision, should come before the American people advocating the suspension of habeas corpus, secret star chamber tribunals, unlimited detention without review, and, yes, torture.

Yes, we must be vigilant to protect our safety. But we must not allow the honor and values of our Nation to be permanently stained by this detestable legislation. It is beneath us. It is not what we stand for.

There are many infamies in this bill, as others have pointed out. I will concentrate on just one.

This bill would allow the President, or any future President, to grab someone off a street corner in the United States, or anywhere else in the world, and hold them forever without any court review, without having to charge them, without ever having to justify their imprisonment to anyone.

This bill is flatly unconstitutional, for it repeals the great writ, habeas corpus; not, Mr. Sensenbrenner, a statutory writ, the statutory great writ.

Turn to page 93, "No court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

"Awaiting such determination"? That says it all. Nowhere in this new law is there any time limit for making this determination. In fact, it could be never.

We are told that these procedures are only for those the President has called "the worst of the worst." How do we know they are the worst of the worst? Because the President says so. And the President and Federal bureaucrats, as we all know, never make mistakes.

Some people held as unlawful enemy combatants may be put before a military tribunal, but they need not be. They can be held forever without a hearing, without a military tribunal.

So let's review. The government can snatch anyone who is not a U.S. citizens anywhere in the world, including on the streets of this city, whether or not they are actually doing anything, and detain them in jail forever, out of reach of our Constitution, our laws or our courts.

We rebelled against King George, III, for far less infringements on liberty than this 200 years ago, but we seem to have forgotten. This bill makes the President a dictator for when someone can order people jailed forever without being subject to any judicial review. That is dictatorial power. The President wants to exist in a law-free zone. He does not want to be bound by the law of war or our treaty obligations. He does not want to answer to the Constitution, to the Congress or to the courts.

Mr. Speaker, rarely in the life of a Nation is the question so stark: Are we going to rush this complete repudiation of what we stand for through the Congress? I hope we are better than that.

Mr. Conyers: Mr. Speaker, I yield to the gentleman from Maryland (Mr. Van Hollen), an excellent member of the Committee on the Judiciary, 2 minutes.

Mr. Van Hollen: Mr. Speaker, we now know what the administration wanted to hide from the American people: that the consensus view of all 16 intelligence agencies is that the Iraq war has made the overall terrorism problem worse, not better; that it has fueled the jihadist movement and made us less safe, and not more safe.

The Bush administration was wrong about weapons of mass destruction. They were wrong about alleged collaboration between al Qaeda and Saddam Hussein, and they are wrong about this bill.

This bill will weaken, not strengthen, our national security. They are wrong because this bill will place our troops in Iraq and elsewhere around the world in greater danger of torture, both today and in future conflicts. They are wrong because this bill will further erode our already tarnished credibility and moral standing around the world.

Let us always remember that our strength flows not only from the force of our military but from the power of our example. And they are wrong because we have learned the hard way that information extracted through torture and extreme coercion can be unreliable.

Remember when Secretary Powell at the United Nations told the world that Saddam Hussein had mobile bioweapons labs? That information came from a person that we turned over to Egypt who was tortured, and the CIA has since acknowledged that information was false, and yet that was important information that was used as part of our argument to go to war in Iraq.

This is a defining moment for our Congress and our country. It will define who we are as a people and what we stand for, and yet it gives the President too much of a blank check to unilaterally decide that answer for all of us. It gives the President the authority to unilaterally define what constitutes specific acts of torture. It gives the President the authority to unilaterally decide who can be detained as an enemy combatant, including American citizens, and, therefore, send them into a legal limbo.

Mr. Speaker, when we take very important decisions in the name of the American people, we better get it right. This bill gets it wrong.

Mr. Conyers: Mr. Speaker, I include for the Record a letter dated September 27 from the American Civil Liberties Union and 41 other organizations.

Mr. Speaker, I turn now to the gentleman from Massachusetts (Mr. Frank), a former member of the committee, 1 minute.

Mr. Frank of Massachusetts: Mr. Speaker, I understand the lack of compassion for terrorists. I share much of it. But this is not about terrorists. This is about people accused of terrorism. And there may be human realms where infallibility is a valid concept, not in the arresting of people and certainly not when this is done in the fog of war.

Have we not had enough examples of error, of people like the recent case, to our embarrassment, of a man sent to Syria to be tortured by the United States wrongly; of Captain Yee; of Mr. Mayfield in Oregon?

Have we not had enough examples of error to understand that you need to give people accused of this terrible crime a way to prove that the accusations were not true? That is what is at risk here.

I believe that the law enforcement people of America and the Armed Forces of America are the good guys. But they are not the perfect guys. They are not people who don't make mistakes, particularly acting as they do under stress.

It is a terrible thing to contemplate that this bill will allow people to be locked up indefinitely with no chance to prove that they were locked up in error. We should not do it.

Mr. Conyers: Mr. Speaker, I yield myself the balance of my time.

The last reason for the many that have been brought forward as to why this legislation is dangerous and unwise is that it endangers our troops because it has the effect of lowering the standards set forth in the Geneva Conventions. By allowing the President to unilaterally interpret the Geneva Conventions and then exempting his interpretations from any scrutiny, we are creating a massive loophole to this time- honored treaty and endangering our own troops.

As the head of Army intelligence, Lieutenant General Kimmons warned us, no good intelligence is going to come from abusive practices. I think history tells us that. And if you don't believe him, just ask Maher Arar, an innocent Canadian national, who was sent by our Nation, I am sorry to report, to Syria where he was tortured.

This legislation decimates separation of powers by retroactively cutting off habeas corpus. Let us not approve this legislation in the House of Representatives this evening.

Mr. Speaker, I yield back the balance of my time.

Mr. Sensenbrenner: Mr. Speaker, I yield myself 3 minutes, and I would like to make a couple of points.

First of all, this legislation has to be read in conjunction with the Detainee Treatment Act which was signed into law last year. That law provides for a procedure to review whether or not someone is properly detained as an enemy combatant. So the business of indefinite detention is a red herring.

Secondly, this legislation itself creates a number of new rights for detainees and people who are tried before military commissions. Let me enumerate them. There are 26 new rights:

A right to counsel provided by the government at trial and throughout appellate proceedings; an impartial judge; the presumption of innocence; standard of proof is beyond a reasonable doubt.

The right to be informed of the charges against the defendant as soon as practicable.

The right to service of charges sufficiently in advance of trial to prepare a defense.

The right to reasonable continuances.

The right to peremptorily challenge members of the commission. That is something nobody has in the United States against a Federal judge.

Witnesses must testify under oath and counsel, and members of the military commission must take an oath.

The 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 in 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 or physical safety issues.

The right to have any finding or sentences announced as soon as determined.

The right against compulsory self-incrimination.

The right against double jeopardy.

The defense of lack of mental responsibility.

Voting by members of the military commission by secret written ballot.

Prohibition against unlawful command influence towards members of the commission, counsel, and military judgments.

Two-thirds vote of members is required for conviction, three-quarters is required for sentence to life or over 10 years, and unanimous verdict is required for the death penalty.

Verbatim authenticated record of trial.

Cruel and unusual punishment is prohibited.

Treatment and discipline during confinement the same as afforded to prisoners in U.S. domestic courts.

The right to review the full factual record by the convening authority, and the right to at least two appeals, including two in article 3 in Federal appellate court. That is one more appeal than the Constitution gives United States citizens.

So what's the beef? There are 26 more rights that are created in this legislation. Vote down the legislation, you vote down all of these new rights.

Mr. Speaker, at this time I yield the balance of my time to the gentleman from California (Mr. Hunter) and ask unanimous consent that he be permitted to yield portions of that time as he sees fit.

The Speaker pro tempore: Is there objection to the request of the gentleman from Wisconsin?

There was no objection.

The Speaker pro tempore: The gentleman from California has 3\1/2\ minutes remaining.

Mr. Hunter: Mr. Speaker, I yield myself 2 1/2 minutes.

Mr. Speaker, I want to thank all my colleagues on both sides of this debate.

This great Nation, this shining city on a hill, was attacked on 9/11. We undertook aggressive action against the terrorists who attacked us. We killed a lot of them. We found them in places where they never thought we would find them, in caves at 10,000-foot elevation mountain ranges, in deserts, in cities, and we captured some of them. And some of those who designed the attack against the United States and New York and Pennsylvania and Washington have been captured. And they are now in Guantanamo or going to Guantanamo. And the Supreme Court of the United States has charged this body with building a system with which to prosecute these terrorists, and we are responding with that system.

Now, I would say to those who say that this is not fair, that we haven't given them enough rights, I think we have given them plenty. We have enumerated those. The chairman of the Judiciary Committee went over many basic rights. But the world is going to see these trials. And as I watch these defendants, these people, including those who designed the attack on 9/11, being presumed innocent; being given lawyers by the United States; being set against a standard of proof beyond a reasonable doubt; being protected against self-incrimination; being given the right to exculpatory evidence; being given the right to two appeals, not one appeal, as the minority had in the initial markup coming out of the Armed Services Committee, the American people will have an opportunity to see whether or not they think that the alleged terrorists have been given enough rights. So let's do what the Supreme Court asked us to do.

We have put together an excellent product. It is agreed on. It will be introduced shortly in the U.S. Senate. For those who say they want to see the product of Mr. Warner and Mr. McCain and Mr. Graham, they have had a great deal of input into this, and they will be introducing this piece of legislation in the other body. So let's get on with this. It is our duty to pass this bill, to construct this system, construct this court, and bring justice before the eyes of the widows and orphans of 9/11, our fellow citizens, and the world. Let's do it.

Mr. Speaker, I yield the balance of my time to the majority leader, Mr. Boehner.

Mr. Boehner: Mr. Speaker, let me thank my colleague for yielding.

We all know that in the years since 9/11 we have been focused on one vital goal, and that is stopping terrorist attacks before they happen.

I want to commend Chairman Hunter and Chairman Sensenbrenner for their work on this piece of legislation. I think we all know that to stop terrorist attacks before they happen, we need to be able to interrogate terrorist suspects, find out what they know, and put them on trial.

After 9/11, President Bush vowed to devote his Presidency to protecting the American people, and he vowed to use every tool at his disposal under the law to fight the terrorists and attack them before they attack us.

If we are serious about stopping terrorist attacks before they happen, the ability to extract information from terrorist suspects and put them on trial is essential.

President Bush put together a system to accomplish these goals after 9/11. We have captured some of the world's most dangerous terrorists. But now our efforts are on hold because of a Supreme Court decision in June and that without congressional authorization, the Federal Government lacks the authority to use military tribunals for these suspected terrorists.

In the wake of this Court decision, Congress has a choice. We can do nothing and allow the terrorists in U.S. custody to go free or to go into a trial meant for American civilians; or we can authorize tribunals for terrorists, find out what they know, and bring them to justice.

This bill will allow us to continue to gather important intelligence information from foreign terrorists caught in battle or caught while plotting attacks on America. As President Bush has said, the information we have learned from captured terrorists "has helped us to take potential mass murderers off the streets before they were able to kill us."

We know these interrogations have provided invaluable intelligence information that has thwarted terrorist attacks and has saved American lives. This bill allows Congress to draw the parameters for detaining and bringing to justice terrorists like Khalid Sheikh Mohammed, the driving force behind the terrorist attacks of September 11. The bill will provide clear guidance for Americans who are interrogating the terrorist suspects on behalf of our country. It will preserve this crucial program while meeting our commitments and obligations under the Geneva Conventions. It will also help us meet a 9/11 Commission recommendation that America develop a common coalition approach toward the detention and humane treatment of captured terrorists.

We recognize military tribunals play a critical role in helping us fight the global war on terror, and we will give these tools to our President as he fights to help keep all of us safe.

But the real question today is, what will my colleagues, my Democrat colleagues, do when it comes to this vote today?

Virtually every time the President asks Congress for the tools he needs to stop terrorist attacks, a majority of my Democrat friends have said "no." Democrats by and large voted "no" on establishing the Department of Homeland Security in July of 2002.

A majority of Democrats voted "no" on additional funds to respond to the attacks of September 11 and bolster homeland security efforts in May of 2002. The majority of the Democrats voted "yes" to deny funding for law enforcement to carry out provisions of the PATRIOT Act in July of 2004. And a majority of Democrats voted "no" on the REAL ID Act, which makes it difficult for terrorists to travel freely throughout the United States, in February of 2005. And Democrats voted "no" on reauthorizing the PATRIOT Act, and gloated about killing it, in December of 2005.

And more recently, many Democrats voted against a resolution condemning the illegal leaks of classified intelligence information that could impair our fight against terrorism. Democrats voted "no" in the Judiciary Committee against allowing the terrorist surveillance program to go forward. And the Democrats in the Judiciary Committee voted "no" on this bill as well.

So the question is, will my Democrat friends work with Republicans to preserve this crucial program or oppose giving the President the tools that he needs to protect the American people? Will my Democrat friends work with Republicans to give the President the tools he needs to continue to stop terrorist attacks before they happen, or will they vote to force him to fight the terrorists with one arm tied behind his back?

Now, I do not, and will never, question the integrity or the patriotism of my colleagues on the other side of the aisle. This is about giving our President the tools he needs to wage war against terrorists who are trying to kill us. And I hope that we will stand together this week and vote to give our President the tools that we need to fight and win in our war against terrorists all over the world.

Mr. Blumenauer: Mr. Speaker, I am disappointed and perplexed that the administration and the Republican leadership refuse to provide meaningful legislation dealing with suspected terrorists and instead attempt to repeat the mistakes of the past. H.R. 6166, the Military Commissions Act, does nothing for our security and attempts to add legitimacy to the current improper actions of the Bush administration.

By not adhering to the strictest standards when putting suspected terrorists on trial, we run the risk of punishing innocent people who could simply have been in the wrong place at the wrong time. It is now widely known that potentially hundreds of inmates in Guantanamo Bay may in fact have had nothing to do with terrorism, If we accept this legislation to be the new law of the land, we will be skirting our moral responsibility to be vigorous in our pursuit of terrorists while remaining just in our cause,

This administration has repeatedly shown that it will make the wrong judgments and has repeatedly crossed the line while never acknowledging its own mistakes. Rather than stepping back to address the flaws that resulted in the Supreme Court's "Hamdan vs, Rumsfeld" decision, the administration and the Republican Majority continue to charge forward with more of the same. Congress can and must do better.

Mr. Shays: Mr. Speaker, although I have some reservations, I support this legislation and appreciate it being brought up for consideration.

On June 29, 2006, the Supreme Court ruled 5-3 in the case of Hamdan v. Rumsfeld that the Bush administration lacked the authority to take the "extraordinary measure" of scheduling special military trials for inmates, in which defendants have fewer legal protections than in civilian U.S. courts. Supreme Court Justice John Paul Stevens recommended Congress authorize a trial system closely based on our military's court-martial process. I am pleased that is what we are doing today.

It is a testament to our system of government that the highest court has given us guidance in properly administering justice to these terrorism suspects. We should bring detainees to trial with protections similar to military courts. This will guarantee the trials are honest, fair and impartiaI and that justice is done.

I recognize there are certain areas in which the tribunal system we are authorizing must deviate from a traditional court-martial and in my judgment this bill handles those differences in a fair and just manner.

On September 19, 2006, along with several of my Republican colleagues, I wrote to Majority Leader Boehner urging him to bring a bill to the floor that ensures the United States remains fully committed to the Geneva Convention. In our judgment, the bill considered by the Senate Armed Services Committee was a good bill, and I am grateful the bill before the House was modified to closely reflect the provisions in the Senate.

The legislation could have be more explicit in stating the so-called enhanced or harsh techniques that have been implemented in the past by the CIA may not be used under any U.S. law or order. The bill provides the President with some latitude to define what techniques may be used in accordance with the prohibition against cruel, inhuman and degrading treatment.

When I read the language in this bill--and specifically the definitions of cruel, inhumane and degrading treatment--I believe any reasonable person would conclude that all of those techniques would still be criminal offenses under the War Crimes Act because they clearly cause "serious mental and physical suffering."

I am also concerned about the bill's definition of rape, and of sexual assault or abuse under a section delineating what crimes may be prosecuted before military tribunals if committed by an enemy combatant or if committed by an American against a detainee. The narrow definition in this bill leaves out other acts, as well as the notion that sex without consent is also rape, as defined by numerous state laws and federal law.

For these reasons, I am voting for the Democrat Motion to Recommit the bill to require a reauthorization of this legislation and also to request expedited judicial review.

Mr. Levin: Mr. Speaker, I regret that once again the Republican Leadership has chosen to stampede far-reaching legislation through the House without adequate debate or any opportunity for Members to offer amendments. It has been 5 years since the 9/11 attacks, and it is only now that Congress is taking up legislation to try and punish terrorist suspects. The 96-page bill before the House was negotiated in secret last weekend and only introduced less than 48 hours ago. After waiting 5 years, can't we take even 5 days to consider a bill of this magnitude?

This Nation's security requires that terrorists must be caught, convicted and punished, and we need a process to do this. It is not clear to me how the proponents of this bill can claim that they are being tough on terrorists when it is almost certain that this legislation will not withstand constitutional scrutiny by the Supreme Court. The bill before the House bars detainees from filing habeas corpus suits challenging their detention. Under the bill, a person can be labeled an unlawful enemy combatant and detained indefinitely with no judicial view. This will not pass constitutional muster. Habeas corpus isn't about giving special rights to terrorists, as some have claimed; rather, it is about giving people who are accused of serious crimes an opportunity to disprove the charges against them.

I am also concerned that this legislation gives the President the authority to reinterpret the meaning and application of Common Article 3 of the Geneva Conventions. Especially given the well documented abuses of prisoners held at Abu Ghraib and Guantanamo Bay, we need to be clear that the United States will rigorously comply with its international obligations under the Geneva Conventions. This is important both to reinforce our Nation's moral standing in the world and to protect the men and women of our Armed Forces. If a U.S. soldier is held prisoner by another nation, we expect that they will enjoy the full protections of the Geneva Conventions, not some watered-down interpretation.

It is the job of Congress to pass legislation to try and punish terrorists. That legislation must protect our men and women in uniform from erosion of the Geneva Conventions, and the legislation must be tough, fair and able to withstand constitutional challenge. The bill before the House meets none of these standards, and I urge my colleagues to reject it. Rather than rush through such a fundamentally flawed bill, the House should remain in session and do the job right.

Ms. Jackson-Lee of Texas: Mr. Speaker, I rise in strong opposition to H.R. 6166, the Military Commissions Act of 2006. I oppose the bill because it creates an unfair trial system for military detainees, and does almost nothing to curb the President's power to authorize interrogation tactics that are widely recognized as torture.

Mr. Speaker, this so-called compromise bill, is actually nearly identical to what the administration has sought all along. The bill continues to allow secret evidence in trials, prohibits detainees from challenging the merits of their detention in courts, and effectively allows the President to authorize the CIA to continue inhumane detention and interrogation.

The Supreme Court ruled in the Hamdan v. Rumsfeld case that the President's system to try terrorist suspects is unlawful. All of us here and Americans everywhere want to see al Qaeda fighters tried and convicted for their crimes. The measure the House is considering, however, does not go far enough to ensure that military trials will be conducted in a fair and open fashion. For instance, the bill still allows certain classified evidence to be kept secret from defendants, giving them access only to evidence with large redacted portions. And it still permits certain cases under which a military judge could allow a trial in absentia. Perhaps most egregiously, the measure actually blocks the ability of innocent detainees to challenge the validity of their detention in an independent judicial tribunal because the bill denies the right of detainees to bring a habeas corpus action.

Mr. Speaker, habeas corpus is not "special treatment for terrorists," as proponents of the measure claim. Rather, it is a legal procedure that has the power to exonerate innocent detainees--not terrorists--who have been imprisoned and not brought to trial. Indeed, the writ of habeas corpus is the bedrock of the rule of law and traces its heritage back to the signing of the Magna Carta in 1215 A.D.

Denying habeas corpus review for detainees in U.S. custody is simply another unwarranted attempt by the Executive branch to arrogate powers vested by the Constitution in the Federal judiciary. If the bill before us becomes law, the administration could pick and choose not only who could be tried, but could hold them in prison indefinitely with no possibility of judicial review.

Although the bill does not technically redefine the Geneva Conventions, the measure does nothing to curb the power of an executive branch, like the current one, with a track record of abusing the human rights of secret military detainees. The bill states that the President has the " authority to interpret the meaning and application of the Geneva Conventions," and could do so through executive orders. There is no question that President Bush fully intends to authorize the CIA to continue what it euphemistically refers to as "alternative interrogation techniques."

We know now that most of these interrogations using "alternative techniques" have occurred in secret "black site" prisons in Eastern Europe and other foreign lands in clear and direct violation of Common Article 3, which prohibits signatories from inflicting "cruel treatment and torture" and "humiliating and degrading treatment" upon individuals who are not actively engaging in combat, including soldiers who have surrendered or been arrested and become prisoners of war.

The bill may technically skirt the issue of America's conduct under the Geneva Conventions. But if American personnel blithely toss aside our international treaty obligations to uphold standards in the detention and interrogation of wartime prisoners, America will alienate our long-time allies who are crucial partners in the fight against terrorism. If America whisks people from the streets into secret detention facilities, and then uses secret evidence to convict them in special courts, it will do more to embolden our enemies than any extremist jihad web site ever could.

Mr. Speaker, this is far too serious an issue to be used as a script for the mud-slinging commercials of campaign season. The very fact that the House is considering such legislation shows that Congress has not been exercising adequate authority over an arrogant and overbearing executive branch. There is a great need for a system to try suspected terrorists, both for the sake of the families of the victims of the September 11 attacks and for the sake of our American men and women fighting overseas. But the bill before the House--despite being labeled as a "compromise"--fails to provide truly open trials and does not even allow innocent detainees to challenge their imprisonment. It is just another opportunity to rubber-stamp the President's ill-advised plan, and should be defeated.

Mr. Speaker, in the final analysis, the debate today is not about the terrorists or America's enemies; it is about the character of our country. It is not about them; it is about us. It is not about the terrorists; it is about who we are. We are the United States of America. We fight hard but we fight fair. We fight to defend our families, our friends, the powerless and unprotected. We fight to preserve our way of life and the ideas we believe in. And here is what we believe:

We believe in equal justice under law.

We believe in the dignity of the human being.

We believe in fair play and square dealing.

We believe in opportunity for all, responsibility from all, and community of all.

We believe in personal liberty and the public interest.

We believe in freedom of conscience and worship.

Mr. Speaker, the Global War on Terror is not just a battle of arms, though arms we need. It is also a battle of ideas over how we should live. If we jettison the principles bequeathed us by our forebears to gain a temporary and fleeting advantage over our enemies, then we will succeed in doing something no adversary ever could do and that is to defeat ourselves.

Mr. Speaker, we do not need to surrender our cherished beliefs, values, and liberties to prevail against our enemies. We need only conduct our affairs by the principles of honor and freedom that have made this nation the strongest, most powerful, and most admired nation in the history of the world.

I urge my colleagues to reject this ill-conceived and unwise legislation.

Mr. Paul: Mr. Speaker, I rise in strongest opposition to this ill- conceived legislation. Once again, the House of Representatives is abrogating its Constitutional obligations and relinquishing its authority to the executive branch of government.

Mr. Speaker, this legislation will fundamentally change our country. It will establish a system whereby the President of the United States can determine unilaterally that an individual is an "unlawful enemy combatant" and subject to detention without access to court appeal. What is most troubling is that nothing in the bill would prevent a United States citizen from being named an "enemy combatant" by the President and thus possibly subject to indefinite detention. Congress is making an enormous mistake in allowing such power to be concentrated in one person.

Additionally, the bill gives the President the exclusive authority to interpret parts of the Geneva Convention relating to treatment of detainees, to determine what does and does not constitute a violation of that Convention. The President's decision on this matter would not be reviewable by either the legislative or judicial branch of government. This provision has implications not only for the current administration, but especially for any administration, Republican or Democrat, that may come to power in the future.

This legislation eliminates habeas corpus for alien unlawful enemy combatants detained under this act. Those thus named by the President will have no access to the courts to dispute the determination and detention. We have already seen numerous examples of individuals detained by mistake, who were not involved in terrorism or anti- American activities. This legislation will deny such individuals the right to challenge their detention in the court. Certainly we need to prosecute those who have committed crimes against the United States, but we also need to be sure that those we detain are legitimately suspect.

I am also concerned that sections in this bill dealing with protection of U.S. personnel from prosecution for war crimes and detainee abuse offenses are retroactively applied to as far back as 1997.

Mr. Speaker, this bill will leave the men and women of our military and intelligence services much more vulnerable overseas, which is one reason many career military and intelligence personnel oppose it. We have agreed to recognize the Geneva Convention because it is a very good guarantee that our enemy will do likewise when U.S. soldiers are captured. It is in our own interest to adhere to these provisions. Unilaterally changing the terms of how we treat those captured in battle will signal to our enemies that they may do the same. Additionally, scores of Americans working overseas as aid workers or missionaries who may provide humanitarian assistance may well be vulnerable to being named "unlawful combatants" by foreign governments should those countries adopt the criteria we are adopting here. Should aid workers assist groups out of favor or struggling against repressive regimes overseas, those regimes could well deem our own citizens "unlawful combatants." It is a dangerous precedent we are setting.

Mr. Speaker, we must seek out, detain, try, and punish if found guilty anyone who seeks to attack the United States. We in Congress have an obligation to pass legislation that ensures that process will go forward. What Congress has done in this bill, though, is to tell the President "you take charge of this, we reject our Constitutional duties." I urge my colleagues to reject this ill-conceived piece of legislation.

Mr. Cardin Mr. Speaker, Congress has an obligation under the Constitution to enact legislation that creates fair trials for accused terrorists that will be upheld by the courts. We also have an obligation to protect our troops that fall into enemy hands, and to uphold American values and the rule of law. Finally, even during wartime, the President must work with Congress and the courts to uphold our Constitution. In June, the Supreme Court in Hamdan v. Rumsfeld struck down the President's military commissions, since they violated the Uniform Code of Military Justice and the Geneva Conventions. The Court noted that Congress, not the president, has the authority under Article I, Section 8 of the Constitution to "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."

I strongly support our government's efforts to isolate, track down, and ultimately kill or capture suspected terrorists who are planning terrorist attacks against the United States. We must bring these terrorists to justice swiftly. We must also strengthen our efforts to protect the homeland by providing additional resources to law enforcement and emergency services personnel who are charged with disrupting and responding to a terrorist attack in the United States. As a former member of the Homeland Security Committee, I have fought hard to implement the recommendations of the 9/11 Commission and to distribute our homeland security funds on the basis of actual threats and vulnerabilities.

I am therefore extremely disappointed, Mr. Speaker, that the House leadership failed to reach out to members on both sides of the aisle in crafting this legislation. We should heed the warning given by our former Chairman of the Joint Chiefs of Staff and former Secretary of State Colin Powell, who states that "the world is beginning to doubt the moral basis of our fight against terrorism."

The 9/11 Commission recommended that "the United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions . . . Allegations that the United States abused prisoners in its custody make it harder to build the diplomatic, political, and military alliances the [U.S.] government will need." This legislation today undermines the protections of the Geneva Convention, and by weakening our moral authority makes it harder for us to work with allies to win the war on terrorism and protect Americans.

I share the concerns of the many current and former military officers that testified to Congress that any weakening of these protections will place American soldiers at risk if they are captured overseas. I am pleased that last December Congress adopted Senator McCain's legislation and outlawed the use of torture, and cruel, inhuman or degrading treatment by U.S. personnel, which would endanger the treatment of our American soldiers overseas. I am disappointed, therefore, that this legislation allows the use of statements obtained by some this prohibited behavior to be admissible in court.

Finally, this legislation eliminates the fundamental legal right of habeas corpus, which would permit our government to hold detainees indefinitely without charge, trial, or the right to an independent hearing to weigh the evidence against the accused terrorist.

We must join with our allies to win the war on terrorism and bring terrorists to justice. Our Constitution contains the very values we hold dear and that makes us proud to be Americans, and which motivate our soldiers to lay down their lives in defense of this country. I have sworn to uphold and defend our Constitution and to protect our democracy. This legislation takes a step backward, is inconsistent with the rule of law, and will make it harder to work with our allies to build an effective coalition to defeat terrorism. I therefore will vote against this legislation.

Five years after the 9/11 attacks, it is inexcusable that not a single one of the terrorists who planned the 9/11 attacks has been brought to trial. I am hopeful that the Senate will improve this legislation as Congress continues to discharge its constitutional duty to create military commissions that are consistent with the rule of law and that will result in convictions of terrorists that will be upheld by our courts.

Mr. Lantos: Mr. Speaker, we are embarking on a debate of extraordinary importance to the Nation and to our success on the war on terrorism. It is centered on a fundamental issue of concern to anyone who cares about human rights--and there are still many of us, thankfully.

So this should be a debate about ideas, and there should be full and complete deliberation.

Unfortunately, because of an arrogant White House and a Republican Leadership in this House that has simply bowed to the Executive's will--as it has so many times before--we have once again made the consideration of a critical legislative initiative a charade, a debate being conducted with undue haste and without any serious consideration.

Mr. Speaker, since September 11, 2001, one of the most vexing problems that has faced our country in the struggle against the forces of nihilism and extremism is our approach to those who come into our custody because we believe they are a danger to the United States. We have seen unclear policy and muddy thinking leading to cruel treatment of those in U.S. custody, with some conduct even amounting, in the view of the former General Counsel to Department of the Navy under this Administration, to be torture. Finally, last June the Supreme Court ruled that the Administration's unilateral set of rules for trying terrorist suspects was unlawful.

Let us make no mistake about it--our treatment of detainees and our failure to come up with a joint approach with our allies has damaged our ability to prosecute successfully the war on terrorism. It has endangered our troops by setting standards for others that I believe we will deeply regret. It has impeded our ability to work with many of our allies who have a different view from this Administration on the obligations of the Geneva Convention, one that has since been adopted by our own Supreme Court. It has undermined our legitimacy worldwide and been a recruiting tool for our enemies.

The legislation before us should be an effort to address these problems, and in some ways it has. It establishes a better framework for trying detainees than the one established by the Administration. And by keeping it a crime to engage in serious physical abuse against detainees, it prohibits the worst of the abuses that we have seen, including those that are also banned by the Army's new Field Manual on interrogation, including forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over the head of a detainee or using duct tape over the eyes; applying beatings, electric shock, burns, or other forms of physical pain; waterboarding; using working dogs during an interrogation; inducing hypothermia or heat injury; conducting mock executions; depriving the detainee of necessary food, water, sleep or medical care.

Unfortunately, Mr. Speaker, the legislation remains deeply flawed in more ways than I have time to describe here. It prohibits any detainee from ever raising the Geneva Conventions in any case before any court or military commission, a provision that I fear will be used against our own troops if they are ever captured by the enemy. It takes actions against existing lawsuits and establishes a whole new system for military appeals that is constitutionally suspect, will lead to even more court cases, and could leave us five years from now with exactly the same number of convictions we have under the existing military tribunal system: zero. We should be trying to expedite trials of terrorist suspects, not providing the basis for more delays. And, acting directly against the recommendations of the bilateral 9-11 Commission, this legislation does not represent a joint approach with our allies.

Mr. Speaker, nearly 60 years ago, I fled from a continent in ruins from a war conducted without rules, marked by atrocities on a scale that the world had never seen. Much of that continent was under a dictatorship in Moscow that was bent on oppressing its citizens and those under its dominance everywhere. So the issues presented by this bill are more than a policy debate to me.

I am profoundly disappointed by what we are doing today. It does not represent progress in protecting our troops and civilians who are caught up in armed conflict. It represents a retreat.

The Geneva Conventions were meant to protect people like me and our country's troops from the worst abuses of war. This country has always stood for the upholding and supporting those protections and expanding them whenever we could, in our national interest.

We should not be rushing legislation through now, just before an election, when we know it won't be needed for many months. We should not be considering a bill that is substantially different from the one that has been already put through our Committees. And we should not be debating legislation without any chance of presenting our individual ideas for improving it.

But here we are. Under these circumstances, I oppose this legislation and fully expect to be back debating these issues when the Supreme Court overturns this ill-advised legislation.

Mr. Nadler: Mr. Speaker, this is how a nation that has become fearful loses its moral compass, its identity, its values, and, ultimately, its freedom.

It is ironic that the people who use the word freedom with reckless abandon, in everything from fries to a global vision, should come before the American people today advocating for the suspension of habeas corpus, secret Star Chamber tribunals, unlimited detention without review and, yes, torture.

I know, we've been told it's not really torture, but I am sickened by the quibbling, legalistic hair splitting on something so basic to our nation's fundamental values.

Have you forgotten? We are America.

Let me say that again: we are the United States of America.

We have stood as a beacon to the world. People have aspired to our way of life, our values, our example, our leadership.

We are told that our enemies do not respect the rules of war or the rights of their captives, but do you really believe that "somewhat better than al Qaeda" is how we should measure our conduct? I don't.

And now, with scant deliberation, in an election eve stampede, we are urged to throwaway our values, our honor, our constitution, and our standing in the world as if it were yesterday's newspaper.

Yes, we must be vigilant to keep our nation safe, but we must not stand by while the honor and values of our nation are permanently stained by this detestable legislation. It is beneath us. It is not what we stand for.

Benjamin Franklin once said "they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." He was right.

Perhaps if this administration had the minimal competence necessary to make us safe, we might have a debate about the wisdom of Franklin's and the Founders' commitment to liberty. But this administration has demonstrated beyond any doubt that it is not our values that place us at risk, but its own incompetence, and the willingness of a rubber- stamp Republican Congress to follow the President over any cliff.

What are we being asked to do here, and why are we being asked to rush to judgement?

There are many infamies in this bill, as others have pointed out. I will concentrate on just one.

This bill would allow the President, or any future President, to grab someone off a street comer in the United States, or anywhere else in the world, and hold them forever, without any court review, without having to charge them, without ever having to justify their imprisonment to anyone.

This bill is flatly unconstitutional, for it repeals the Great Writ-- Habeas Corpus. Not a statutory writ, but the Constitutional Great Writ.

Read the bill. I know we're not supposed to do that in the Republican Congress, but, just this once, for the sake of our nation, please read the bill.

Turn to page 93.

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

"Awaiting such determination?" That says it all. Nowhere in this new law is there any time limit for making this determination. In fact, it could be never.

We are told that these procedures are only for those who the President has called "the worst of the worst."

How do we know they are the worst of the worst? Because the President says so, and the President, and federal bureaucrats, as we know, are never wrong.

Some people held as "unlawful enemy combatants" may be put before a military tribunal, but they need not be. They can be held forever without any hearing.

A person designated as an "unlawful enemy combatant" can challenge his detention only if he is brought before a military commission, or a Combat Status Review Tribunal, and only after the military commission and all the appellate procedures are finished. Then he can appeal to the D.C. Circuit, but only to review the legal procedures. The court can never look at the facts. That's on page 56.

So, let's review:

The government can snatch anyone who is not a U.S. citizen, anywhere in the world, including on the streets of this city, whether or not they are in a combat situation, whether or not they are actually doing anything, and detain them forever, out of reach of our constitution, our laws, and our courts.

It also says that a court can never review the conditions of detention, which is an elegant way of saying no court can hear a claim that the detainee was tortured. Ever.

Who is subject to these rules? Well the President wants you to think this is only about Khalid Sheikh Mohammed. Bad guy. Dangerous guy. Deserves to be locked up. We all agree on that one.

But it could also mean a lawful permanent resident. Someone like my grandmother while she was waiting to become a loyal American citizen, which she did, and which is why I am fortunate enough to have been born in this great country. It would apply to the relatives of anyone in this room who is not a Native American.

We rebelled against King George III for far lesser infringements of our liberties than this. This bill makes the President a dictator--for the power to order people jailed forever without being subject to any judicial review is the very definition of dictatorial power.

The President wants to live in a law-free zone. He does not want to be bound by the law of war or by our treaty obligations. He does not want to be answer to our Constitution, to the Congress or to the Courts.

If someone is in this country and he commits a crime, we have laws to stop him and lock him up. If those laws, including the Classified Information Procedures Act, don't work, we can improve them. That's how we put Zacarias Moussaoui in jail. Anyone remember the 11th hijacker? We caught him, tried him in a regular court, and now he's in jail.

Perhaps if this administration hadn't been asleep at the switch, we might have caught him before September 11th, and saved our nation from that terrible crime.

We could also hold people as prisoners of war if we catch them on the battlefield. That's worked pretty well in all our wars.

We can set up new rules that actually sort out the bad guys from the people we just grabbed, or who were sold to us by a rival group, as happened in Afghanistan. We already know that some of the people in Guantanamo have been there for years for nothing. Some of them have been released and some of them are still there. How does that make us safer?

And then there's torture. When is torture not torture? Apparently whenever the President and his team of legal scholars says it isn't.

This bill would write that dangerous practice into law.

It would also allow statements extracted under torture to be used as evidence. See page 17 of the bill.

Is it really hard, as the President and some members of Congress say, to understand the difference between legal interrogation and illegal torture? The people who wrote the Army Field Manual, and the people who train our troops, have never thought so. It only became a question when this President decided he was above the law.

Now the President wants to have us grant him immunity, in advance, for whatever he might have ordered. That's a neat trick, and it's in this bill.

Mr. Speaker, rarely in the life of a nation is the question so stark. Are we going to rush this complete repudiation of all we stand for through the Congress to give the Republicans an election issue? I hope we are not as cynical as some here seem to think we are.

There is nothing we are doing today that we can't do properly with some care and deliberation. There is no danger that someone is going to be released from custody. This administration has certainly fiddled for the last few years without accomplishing anything.

Perhaps, just perhaps, this time we can do it right. Let's try. That's the oath we took when we became members of this House. That's the responsibility we have today.

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