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Mr. Bond: Mr. President, I thank the Chair, and I ask that the postponed recognition of the distinguished Senator from South Carolina now be instituted. I express my gratitude to him for allowing us to go forward with the intervening amendment.

The Presiding Officer: The Senator from South Carolina.

Amendment No. 286

Mr. Graham: Mr. President, I would like to thank Senator Lieberman for working me into the line here. What I am rising to talk about is a very important issue for how we conduct this war, for how the law works in a time of war, for the values Americans would like to embrace when we are under siege as a nation, and try to give my explanation to what Senator Specter's amendment would do and why I oppose it so vehemently.

To give a little background and history of this issue, at least from my perspective--and I would ask every Senator to look at this very closely because this is a very important concept we are talking about-- the Guantanamo military installation to house enemy combatants, people determined by our military to be enemy prisoners of war out of uniform, meeting the Geneva Convention's definition of an enemy combatant--the administration chose Guantanamo as the jailing site. There were prisoners there who brought actions in our Federal court, arguing that their confinement needed to be reviewed by Federal courts. The administration took the position that Guantanamo was outside the United States. They lost. I think the administration should have lost. To me, Guantanamo, because of the lease and the relationship the U.S. military has to that installation, is clearly part of the infrastructure of the United States.

The reason they made the argument is it is a long-held concept in law that habeas rights do not apply to people overseas, that our constitutional provisions granting to American citizens the right to bring a habeas petition when they are confined does not apply extraterritorially. The administration lost on the argument that Guantanamo was outside the United States, and the Federal court said: Okay, it is within the United States.

What habeas rights would attach to someone at Guantanamo Bay? Here is where Senator Specter and I dramatically differ. Senator Specter reads the Rasul case to say that someone confined at Guantanamo who is a noncitizen enemy combatant has a constitutional right under our Constitution to petition Federal courts, to have a district court judge review their confinement. I think that is completely wrong.

The D.C. Court of Appeals recently held in a 2-1 decision that people detained at Guantanamo Bay do not have constitutional rights under our Constitution to petition for habeas.

Rasul was about 2241, section 2241 of the U.S. Code, a congressional enactment that creates statutory habeas rights. That statute has been amended in many different forms--restricting habeas, granting habeas, allowing States appellate procedures postconviction relief to be substitutes for habeas.

The Supreme Court said: Since Congress has not spoken as to whether detainees at Guantanamo will be covered by 2241, we are going to allow a case to go forward under that statute until Congress tells us otherwise.

It was Justice O'Connor who was suggesting to the Congress we need to speak. The administration at the time of the Rasul case had no infrastructure in place to give due process to someone who is accused of being an enemy combatant. Justice O'Connor, in another case--I don't remember the name now--said: What you need to look at is Army Regulation 190-1, which is a procedure to guide military members how to determine who an enemy prisoner may be from a civilian who is an innocent person involved in war. So what the military did, after the second Supreme Court case, was come up with a Combat Status Review Tribunal. Now the Combat Status Review Tribunal is the due process right given to suspected enemy combatants.

To me, 9/11 was an act of war. It was also a crime, but it was an act of war. I believe the people housed at Guantanamo Bay are warriors, not common criminals. They will be afforded the due process rights of wartime law of armed conflict, not domestic criminal law.

What is the law of armed conflict when it comes to status? Article V of the Geneva Convention says that if there is a question of status, the country which houses the person, is in charge of the person, will conduct a competent tribunal. A "competent tribunal" all over the world is a military proceeding where the military of that country will determine if the person in front of them is a civilian, uniformed person, or enemy combatant.

The Combat Status Review Tribunal is well beyond the due process requirement of the Geneva Conventions. What happens at the Combat Status Review Tribunal, first of all, is that the enemy suspect prisoner will go before a panel of three military officers trained in who presents a military threat--an intelligence officer, a combat officer, and a legal officer. I think tomorrow or Friday, the 14 high- value detainees who have been in CIA custody will go through this process.

The question for this Congress is, Do we want the military to make the initial decision on who an enemy prisoner is based on what a military threat is to our country and the expertise the military has in determining if this person is an enemy prisoner, enemy combatant, or do we want to give that to a district court judge who has absolutely no training?

Enemy prisoners during World War II were not allowed to file habeas petitions and come into our Federal courts and sue the military during a time of war to be released. Chief Justice Jackson said: Wait a minute. This is not our job. We are not trained for this. If we allow enemy prisoners detained by our military during a time of war to have access to our Federal courts, Federal judges are taking over a job the military is trained for and we are not trained for.

Here is what Justice Jackson said in the Eisentrager case:

We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.

Nothing in the text of this Constitution extends such a right nor does anything in our statute.

So the Eisentrager case in 1950 clearly said habeas does not apply to enemy prisoners. I cannot find the language--it talks about why it is a bad idea--but it is forthcoming. So as early as 1950, the courts rejected enemy prisoner petitions in the Federal court.

Now, the question for Congress is, after 9/11--5 years later--do we as a Congress want to confer onto people classified by our military to be enemy combatants a Federal court right never known in the law of armed conflict at any other time in our history? Do we want to be the first Congress in the history of the United States to take away from our military the ability to determine who a military threat is and make literally a Federal court trial out of that decision?

There had been 160 habeas petitions filed before we acted last year. Let me tell you, they have sued our own military for everything imaginable: the quality of the food, DVD access, not enough exercise, judge-supervised interrogation. Some of the people who have brought these cases are accused of killing Americans in the most brutal way.

One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on behalf of enemy combatants held at Guantanamo Bay, publicly stated:

The litigation [for the United States]… . It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation … with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?

It is clear that it does--according to one of the lawyers representing detainees--make it very difficult for the military to do their job when it comes to intelligence gathering. I will have an unclassified summary to put into the Record at the end of my time that talks about the information gained at Guantanamo Bay.

But here is what Justice Jackson said would be the real big mistake for the Federal courts if you start granting habeas petitions and give enemy prisoners a right to sue our own people about their status in a time of war:

The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Was he prophetic? These 160 cases have created a nightmare for the military at Guantanamo Bay. Medical malpractice suits have been filed, $100 million money-damage lawsuits have been filed. It has been a legal nightmare.

So what I am trying to persuade the Congress to do is not grant in statute a right never given to any other enemy prisoner during any other war, because it is dangerous to do so.

What did we do to accommodate the unique needs of this war, a war potentially without end? For the first time in the history of our country, we are allowing Federal courts to review whether a person has been properly classified as an enemy prisoner. Once the military decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/ 11, can you imagine 5 years after 9/11 the Congress would open up any Federal courtroom that a lawyer could shop to find--whatever judge the lawyer could find in the country--and allow Shaikh Mohammed to sue our own military about his status, creating a nightmare zoo courtroom trial, bringing people from all over the world to determine his status, where the judge would have a say, not the military? That would be a mistake of monumental proportions.

What will happen is Shaikh Mohammed, in a classified setting, will have evidence presented by the Government to show he is an enemy combatant. He will have a chance to rebut that. When his case has been decided, he will have an automatic right of appeal to the DC Circuit Court of Appeals, where the DC Circuit Court of Appeals will look at the military decision in question and find out whether two things occurred. Were the due process rights given Shaikh Mohammed and other enemy combatant suspects consistent with our own Constitution? Secondly, was the evidence introduced sufficient to support the finding he is an enemy combatant?

That is the proper role for a judge. That is what judges are trained to do. It would be a monumental mistake to allow a habeas petition to be filed, where literally you could go to any court in the land and have a full-blown trial, calling people off the battlefield to make the case that this person was an enemy prisoner and give that decisionmaking ability to a judge not trained in who is a military threat to our country and take it away from the military.

That is why I am so passionate about this issue. I do believe in due process at a time of war. I have been a military lawyer for well over 20 years. I believe our country should adhere to the Geneva Conventions, that we should be a standard-bearer for what is right. But we should not cripple our military's ability to defend us in a way that makes absolutely no sense.

We should not put Federal judges on the frontlines in deciding who is a threat to this country, when the military is trained to do that. Let the judges look over the military's shoulder and in a proper way, consistent with their training.

Now, what is going to happen? The case is going to go to the Supreme Court soon. If I am wrong, I will take the floor and say so. Senator Specter has a belief there is a constitutional right to habeas. I do not believe that. But if the Court holds so, then I would be wrong. I would argue that the DC Circuit Court of Appeals is an adequate substitute for habeas, but that will be up to the Court.

All I am asking is to allow the work product of last year that has gone before the DC Circuit Court of Appeals that has been upheld to go through the system. I will gladly sit down with Senators Specter and Levin to see if we can work on better due process rights for people accused of being an enemy combatant. I think we can do that as a Congress without turning that decision over to Federal judges. It is a very dangerous thing we are proposing to do, to take away from the military to determine who a threat is and to give it to a Federal judge.

Finally, I would like to say: I know this is a war without end. Two hundred-and-something people have been released from Guantanamo Bay because they get an annual review board to look at their status anew. We do not want to keep people who have been misidentified who are not a threat. But we do not have the choice of "try them or let them go." This is a war, and we can keep warriors off the battlefield as long as they are a threat. When it comes time to determine who should bear that risk, who should bear the risk of letting someone go at Guantanamo Bay--the innocent civilian populations of the world who have been a victim of people out of uniform wreaking havoc or the people who started this whole mess to begin with--if you are going to proportion risk, I think it should fall on the people who created the problem to begin with.

Twelve people have been released from Guantanamo Bay under the annual review process of the 200-and-something. Twelve have gone back to the battle. Three have been killed. So you make mistakes both ways. I don't want to hold one person down there who should not be held, but I don't want to let anybody go who is a threat to our country because we are at war.

Due process rights attach to people in war, but we cannot criminalize what has been an act of war beginning on September 11, 2001. The people down there will have their day in court. They will have a chance to have a say about who they are and what the facts are. But I do believe there are people down at Guantanamo Bay who are warriors. If they ever got out, they would try to kill us again.

Mr. Lieberman: Mr. President, will my friend from South Carolina yield for a question?

Mr. Graham: Yes, sir.

Mr. Lieberman: I appreciate the Senator's remarks. I know the Senator from South Carolina has a background in military law, so he speaks with some authority on these questions.

What interests me in this discussion is the rights of citizens as opposed to noncitizens. I wanted to ask my friend, first, am I right that you are not arguing against the principle that an American citizen, even one alleged to be an enemy combatant, does have habeas corpus rights?

Mr. Graham: The Senator is absolutely right; any American citizen. The Padilla case is the best example you could give. Padilla was charged as an enemy combatant, a U.S. citizen. It is true American citizens in the past have been held indefinitely as enemy combatants. But I do believe they should have access to our courts as a member of citizenship. And they would have a constitutional right to seek relief from a Federal judge to determine whether the military or law enforcement officers make that decision. We are talking about people in the same status as the Germans and the Japanese. There was a reason the thousands of enemy prisoners housed in the United States never had access to our Federal courts. It is what Justice Jackson was saying. The Federal judiciary would make a mockery of the military's ability to run the war if you turned every military decision into a Federal court trial as to who an enemy prisoner is. Justice Jackson, in the most eloquent fashion, told us what could come if you conferred these rights on enemy prisoners.

Here is what is odd. If I am a lawful combatant, if I am captured tomorrow as a member of the uniformed services of the United States, I do not have any rights under the Geneva Conventions to go to the host country's judiciary. We are creating, for unlawful combatants, enemy combatants, a right greater than someone who is captured as a lawful combatant.

Under the Geneva Conventions, there is no right to go to a court in any land to ask to be released. But in America, if you are an unlawful combatant, we are giving you your day in Federal court, after the military acts, which I think is an accommodation for the fact that this war is different. It is not lost upon this Senator this war is different. There will be no signing on the "Missouri." I do not know when this war is going to end. I do not want an enemy combatant decision to be a de facto life sentence without robust due process. But I do believe, if the choice is between letting them go or having them die in jail, if they are still a threat, let them die in jail.

I do believe every enemy prisoner is not a war criminal, and the choice for the country is not "let them go or try them." Because that is a false choice in the law of armed conflict. It would not serve us well to say that every American captured in the next war is a war criminal because they are performing their duties. You only confer war criminal status on someone who goes outside the law of armed conflict. So we are making some decisions for the ages.

I am all for due process. I am all for scrutiny and transparency because I want my country to win the war not changing whom we are. But I do not want us to fundamentally change the relationship between the military and military threats. Our judges have a role to play. The Congress has a role to play. The military has a role to play. Keep everybody in their lanes, and this will work.

Mr. Lieberman: I thank my friend.

So I take his answer to say also--correct me if I am wrong--that the existing statute, including the MCA--which is the subject of the lawsuits we have been describing that are pending--the existing statute does not alter the right of American citizens who are alleged to be enemy combatants to use habeas corpus rights?

Mr. Graham: The Senator is correct in two fashions. It says no military commission can try an American citizen. A military commission at Guantanamo Bay cannot, as a matter of law, try an American citizen, even if they are an enemy combatant. Someone from America could join al-Qaida, but they are going to be tried in our Federal courts if they are caught.

What we are trying to do is have a military commission consistent with the Uniformed Code of Military Justice to try people. The difference between now and Nuremberg, I say to the Senator, is the war is still ongoing. The reason we are not going to release all the information as to why Shaikh Mohammed is an enemy combatant is because that is very sensitive information. We will give a summary to the public. And the courts will get to review that decision in full in a classified setting. But I cannot stress to you enough we are at war.

The last time we had a Federal trial where somebody tried to blow up the World Trade Center in the early 1990s, some of the information in that courtroom setting that had to be released wound up in a cave in Afghanistan. I will talk about that later. We are trying to balance the need to be safe and the obligations we have under the law of armed conflict. I think we have struck a good balance. If I am wrong, the Supreme Court will tell me. Please, just to my fellow Senators, let this case go to the Supreme Court, see what they say, and we can fix it if we need to. That is all I am asking.

Mr. Lieberman: Again, I thank my friend. So in furthering what this discussion is about, it is whether non-American citizens seized in the war on terrorism and alleged to be enemy combatants should have habeas corpus rights under our Constitution?

Mr. Graham: I am the biggest advocate that an American citizen such as Mr. Padilla should be tried in Federal court. The man who was caught working with the Taliban in Afghanistan was in Federal court. Moussaoui was in Federal court because we didn't have the Military Commissions Act. An American citizen will be tried in Federal court with all the rights of an American citizen available to them.

Mr. Lieberman: Let me ask this final question. This is the part of this discussion that I struggle with, which is what is the appropriate status in the context in which we are talking about permanent lawful residents of the United States.

In other words, if I understand what the Military Commissions Act-- again, correct me if I am wrong--says, is that a permanent, lawful resident of the United States who is apprehended as part of the war on terrorism and alleged to be an enemy combatant does not have a right of habeas, or a right to have a case heard in Federal court. That concerns me. This is what I want to ask my friend from South Carolina who has had experience with this to clarify, as to whether that may be--if I can use the term a "denial" of equal protection--to say a permanent, lawful resident of the United States cannot have the same rights in these cases that a citizen of the United States has.

Mr. Graham: Well, that is a very good question, and I think that is something we actually need to sit down and look at, that situation where you are not a citizen, but you are here on a legal status. I would be, quite frankly, very comfortable to clarify that, if anyone ever finds themselves in that category, to say, no, you are going to have all the rights of an American citizen.

What I am trying to do is make sure that we don't change 200 years of history. The people who assassinated President Lincoln, within 30 days they were caught, tried, and executed in a military commission format. We have had American civilians tried in military commissions in times of war, but they were reviewed by our Federal courts. Some of the German saboteurs who landed during World War II, I think one or two of them actually were American citizens who left to go back to Germany to aid the enemy. They got tried by military commissions, and the Supreme Court reviewed their case.

What I am saying is that an enemy prisoner, a noncitizen, since time began in our country and in every other country, has been treated under the law of armed conflict, not domestic statutes. That is a distinction of great significance, and we don't need--the due process rights these enemy combatants, noncitizens, have are greater than the Geneva Conventions require, and every enemy combatant had their day in Federal court but in a way consistent with what judges are trained to do.

I don't believe it is in our national interests during ongoing hostilities to take away from the military the ability to classify who they believe to be a threat, what status that person has acquired based on their activities. I do believe the courts can look at every case and see: Was due process afforded? Did the evidence support the finding? That, to me, is the magic combination, and habeas destroys that combination.

Mr. Lieberman: I thank the Senator from South Carolina. This, to me, has been a very helpful exchange. I would like to continue the discussion on the distinct question of what the habeas rights of permanent lawful residents of the United States should be.

Mr. Graham: It is a great area to discuss. I thank the Senator. I yield the floor.

Mr. Lieberman: I thank the Chair, and I yield the floor.

Mr. Specter: Mr. President, I ask my colleague from South Carolina if he would be willing to respond to a few questions.

Mr. Graham: I would be honored to respond to my friend from Pennsylvania.

Mr. Specter: I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically:

Aliens held at the base, like American citizens, are entitled to invoke the Federal courts' section 2241 authority--

Which is the habeas corpus statute.

So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case.

Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that:

All detainees shall be notified--

Leaving out some irrelevant material--

of the right to seek a writ of habeas corpus in the courts of the United States.

Is the Senator familiar with that provision?

Mr. Graham: No, sir, I am not.

Mr. Specter: Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy.

The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Mr. Graham: I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make.

Rasul said that habeas rights attached to Guantanamo Bay detainees until Congress says otherwise, and that is the difference we have. I read Rasul to say, since Congress hasn't spoken under 2241, Guantanamo Bay is within U.S. jurisdiction and the statute would apply to anybody held at Guantanamo Bay. It is not an overseas location. Until Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

Mr. Specter: Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Mr. Graham: OK.

Mr. Specter: Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant:

An individual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Mr. Graham: If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts.

Here is where the Senator and I have been partners. I have always believed the executive branch has to collaborate with the Congress, and they have been hard-headed about this and they wound up losing in court. They lost on whether it was outside the United States. Once the court ruled 2241 applied, the DOD had no other choice but to tell people: This is a statutory right. They were telling people at Guantanamo Bay: This is your statutory right. They were coming to me and other Senators saying: Please change 2241 because it is hampering the war effort.

That is exactly where we find ourselves. We took the input of the administration, we voted last year, we stripped habeas from 2241 where district court judges could make military decisions, and we are replaced in the appeals process where Federal courts do look at what the military does after they have decided. I think not only did the D.C. Circuit Court of Appeals uphold that as a proper thing to do but the Supreme Court will also.

So my belief is that it was our decision as Congress as to whether to give these enemy prisoners habeas rights, unlike any other war. We decided with Rasul we didn't want to do that. I think it is the best decision we have ever made. If you had asked this Congress on September 30, 2001: Would you want to create a Federal court action for any al- Qaida member caught to go into Federal court and bring lawsuits against our own troops alleging not enough exercise, bad DVD access, you name it, we would have said no. That would have been crazy. Why would we want to give this group of people who are trying to kill us all rights that we didn't give the Japanese and the Nazis who were trying to kill us all?

So now we find ourselves in Congress filling in the gap that the court found. The Congress has spoken. We told the courts, D.C. Circuit Court of Appeals: No habeas rights under 2241. We substituted another procedure that I think makes sense, and the court found out that we did it in a constitutional manner, and I think we are going to win at the Supreme Court.

But having said that, if there are other ways to improve due process where the Congress can make this CSRT process better, count me in. But I am not going to sit on the sidelines and watch the Federal courts do something they are not trained to do before Congress blesses it. If the Senator is right that the Supreme Court says apart from 2241 an enemy prisoner, noncitizen, has a constitutional right to habeas, then I would be wrong. I would argue that our procedures under the D.C. Circuit Court of Appeals method of going to challenge the military is an adequate substitute. But I am firmly convinced that our courts are going to say there is no constitutional right for these prisoners, like there was none for Japanese and German prisoners, and that Congress has made a good decision to take the Federal courts and put them behind the military, not in front of the military.

Mr. Specter: Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right?

That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Mr. Graham: All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days.

Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.

Mr. Specter: Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes.

The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute.

They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points.

As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established.

I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

Mr. Graham: I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional.

I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them.

I hate to leave. I have enjoyed this debate.

Mr. Specter: I have one more thing. I take your last extended statement to be a "no," am I right?

Mr. Graham: I believe they will be constitutional. If you think there has been a miscarriage of justice in any case, that will go to court. If you think something happened in the CSRT that is laughable, then the Federal court is going to get to look at every case. I can assure you and every other American that every decision made by the military on Guantanamo Bay will work its way to the Federal court, and our judges will look at the record and the process, and they will tell us in individual cases and as a group whether this works. Give them a chance to do it.

With that, I have to leave.

Mr. Specter: One last question. I still take that to be a "no." It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Mr. Graham: No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans.

There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone.

If you let these people out of jail, at least 12 of them are going to come back and kill you.

With that, I must leave. We will continue the debate.

Mr. Specter: Let me say, in conclusion, that bombast and oratory and repetition cannot undercut a few very basic facts. One is that the Department of Defense established a rule to give Guantanamo detainees the right of habeas corpus. They set out a standard as to what would constitute being an enemy combatant. These are rules, when they call for evidence, that judges are equipped to decide. When there is a rebuttable presumption of guilt, undercutting the basic principle of America, the presumption of innocence, that is basically unfair.

When you talk about the decision by the Court of Appeals for the District of Columbia, where they limited the Supreme Court opinion to a narrow holding on the statute, although the court then went on to say there was a constitutional right, that will not pass muster when it comes back to the Supreme Court. It is fallacious to the utmost to argue that there is no constitutional right to habeas corpus, when the Constitution explicitly says the right of habeas corpus may be suspended only in time of invasion or rebellion. It simply cannot be contended rationally that there is no constitutional right to habeas corpus.

I am as concerned as the Senator from South Carolina about protecting America. I led the fight to reauthorize the PATRIOT Act. But the question is, is there some reason to hold the detainees? In the case that went to the District of Columbia Circuit Court of Appeals, you had the District Court looking at the information--it wasn't evidence-- which was that the detainee had a conversation with an al-Qaida member, but they could not identify him. The proceeding was a laughingstock. That is the detainee in the District of Columbia Circuit Court case which is going to the Supreme Court.

I don't think this Congress ought to wait or punt to the Supreme Court. We passed a statute which takes away Federal court jurisdiction to make the simple determination: Is there a reason to hold them? We ought not to let that stand.

I ask unanimous consent that a letter dated today, received by Senator Leahy and myself, be printed in the Record. It sets forth eloquently the reasons why habeas corpus for detainees should be reinstated by the Congress. It is signed by RADM Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge Advocate General at an earlier period; BG David Brahms, who was the Marine Corps senior legal adviser from 1983 until 1988; and BG James Cullen, who was the chief judge of the U.S. Army Court of Criminal Appeals.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Specter: I yield the floor.

The Presiding Officer (Mrs. McCaskill): The Senator from New Hampshire.

Mr. Sununu: Madam President, I rise to speak for a few minutes on the topic that was being covered by Senators Specter, Graham, Lieberman, and others, and that is the right of detainees--in particular, detainees at Guantanamo Bay--to petition the court system through what we refer to as habeas corpus and question the specific details that have led to their confinement, to their definition or status as an enemy combatant.

This is an important issue. Naturally people get excited when they are debating this issue. Senator Graham is no exception. But one thing that he mentioned I think must be addressed, and that is this is about letting people out of jail, letting people go free who might attack the United States at a later date. I feel very strongly that this isn't about letting people out of jail, and it isn't even necessarily about letting people object to the conditions of their confinement, because I believe Congress can and should address the habeas issue without necessarily allowing any frivolous petition regarding conditions to go forward. But it is about the rights of these individuals to question the determination that they are an enemy combatant.

The U.S. military or other forces operating on behalf of our coalitions overseas have captured and detained individuals and determined that they are enemy combatants and, therefore, they can be detained indefinitely on the basis of that determination.

The situations that arose in previous conflicts were also brought up. What about similar situations in the Second World War, the First World War, or other engagements of the U.S. military in our past? I rise today, most importantly, to emphasize that there is a significant difference between this war and those conflicts. There are differences in some very important ways that make this right or this ability to petition against your definition as an enemy combatant very important.

First, this is not a war where we have troops lined up or engaged on a battlefield in uniform. These are very different combatants, very different enemies we face, by that definition, not always easily recognized and sometimes incredibly difficult to recognize those who are planning to kill U.S. citizens or our allies around the world. They are not on a specific battlefield and certainly not in uniform.

Second, these enemy combatants--and there are many thousands of enemy combatants the United States faces around the world--could be almost anywhere in the world. It makes this very different than past conflicts. They could be here in the United States, they could be in Pakistan, they could be in Somalia, they could be in Kenya, they could be in Germany, they could be in Spain, or they could be in the United Kingdom. As a result, we could have an individual in any one of these countries captured, detained, and placed into our incarceration in Guantanamo Bay or another facility and designate them as an enemy combatant.

That is highly unusual when compared to past conflicts or past battles and, I think, as a result could naturally cause significant problems in relations with other military organizations that are supporting our efforts, other countries' diplomatic affairs, all of which are important to our success in this effort.

So because these are individuals who could be captured and detained from anywhere around the world, we have to take extra consideration to make sure they are dealt with in a straightforward way that respects principles of due process.

Third, a third important distinction in this conflict is because of the nature of the conflict, these individuals could be held indefinitely without any clear prospect of being released through the processes that would often bring a conclusion to hostilities, negotiation, a cease-fire, or surrender.

We all recognize this conflict is very different in that regard. When constituents back home in New Hampshire ask me, When is this struggle against terrorism going to end? You certainly can't give a definitive answer in terms of time, but you also are very hard pressed to give a definitive answer in terms of specific objectives--when we capture this individual, when we destroy this organization, when we bring stability to this part of the world that is traditionally encouraged or fermented jihadists. So we have for these individuals--many of whom are evil individuals who have plotted and planned against the United States and our allies around the world--indeterminate, unlimited detention at the hands of the United States.

Given those differences that set this conflict apart from past military conflicts in our history, I think it is in keeping with our standards of due process to ensure that when someone finds themselves indefinitely held by the United States in this conflict, they can at a minimum petition, object to their status or the determination of their status as an enemy combatant, and at least argue on appeal the facts of the case, make an argument as to why they should not be classified as an enemy combatant.

Senator Specter and others made the argument when we were considering the Detainee Treatment Act that this ought to be done in the D.C. Circuit Court of Appeals. I think the exact time, place, and manner of this appeal can and should be determined by an act of Congress. But I think what is most important is that we not simply say because commanders on the battlefield decided--when I use the word "battlefield," I mean in this modern sense--commanders somewhere in the field, somewhere around the world, after you were arrested or detained or captured, decided you were an enemy combatant, that we are going to let that determination stand without appeal, without objection, without petition.

At the very least, again, it is consistent with the principles of due process that are so important to this country that we give that detainee at least one opportunity to object in a court to the specifics that led to him being determined an enemy combatant.

This is an important issue, but I think it is not just important because it affects our security, which we all want to protect to the greatest extent possible, but because it speaks to our own citizens and it speaks to people around the world as to what kind of a society we are and what principles we hold to be dearest.

This is an issue that deserves thorough debate in the Senate. I look forward to hearing more from both sides and working with Senator Specter to try to move forward a process that addresses these concerns, that doesn't necessarily have to grant all rights and all privileges accorded to every U.S. citizen to those who are determined to be enemy combatants, but at least gives them the fundamental right to challenge that determination which could and, in many cases, should lead to their indefinite incarceration at Guantanamo Bay.

I thank the Chair.

The Presiding Officer: The Senator from Pennsylvania.

Mr. Specter: Madam President, while the Senator from New Hampshire is still on the floor, I thank him and commend him for his statement directly to the issues. He has articulated them very well. It is a different circumstance and what we are looking at is the issue of indefinite detention and some process where there has to be some reason given for the detention. It doesn't haven't to comply with the technical Rules of Evidence, although the Department of Defense regulation calls for evidence, and evidence is a work of art comprehending competency of items to establish a fact. But without moving into the full range of evidence for some reason to hold them-- and I agree with the Senator from New Hampshire that we are not looking for a remedy to test living conditions or to test food or test a wide variety of items that may be comprehended in other habeas corpus situations, but just detention--that is all--just detention.

I am agreeable to modifying the amendment to specifying just detention. The Senator from New Hampshire raises a valid point that there may be other Senators--he estimates as many as 10--who are inclined to support an amendment which directed itself only at detention.

There is the right of modification. I am going to talk to more of my colleagues to see if that would produce a significantly different result.

I thank the Senator from New Hampshire.

I yield the floor, and in the absence of any Senator seeking recognition suggest the absence of a quorum.

The Presiding Officer: Will the Senator withhold his request?

Mr. Specter: Yes.

The Presiding Officer: The Senator from Illinois.

Mr. Durbin: Madam President, I come to the floor this afternoon to rise in support of the Specter-Leahy amendment, No. 286, which I hope we will have an opportunity to consider very shortly.

This amendment, which Senator Specter has addressed on the floor during the course of the day, is long overdue.

Last fall, Congress enacted a deeply flawed law called the Military Commissions Act. The law gives any President the power to imprison people indefinitely without charging them with any crime. It takes away fundamental due process as protected by the Constitutionally-protected right of habeas corpus. It allows our Government to continue to hold hundreds of prisoners for years without ever charging them with any wrongdoing.

I was one of 34 Senators who voted against the creation of this Military Commissions Act. I hope this year that Congress will begin to undo the damage to fundamental American values that was done by this legislation.

The amendment offered by the Senator from Pennsylvania and the Senator from Vermont, the Specter-Leahy amendment, is an excellent place to start. This amendment would repeal the provision of the Military Commissions Act that eliminated habeas corpus for detainees.

Habeas corpus is the legal name for a procedure that allows a prisoner to challenge their detention in court. It is a basic protection against unlawful imprisonment. It is one of the bedrock principles that separates America from many other countries around the world.

Over 700 lawyers from the Chicago area sent me a letter last year strongly opposing the elimination of habeas corpus for detainees. Here is how they explained the importance of this basic fundamental right, and I quote:

The right of habeas corpus was enshrined in the Constitution by our Founding Fathers as the means by which anyone who is detained by the Executive may challenge the lawfulness of his detention. It is a vital part of our system of checks and balances and an important safeguard against mistakes which can be made even by the best intentioned government officials.

Why is this administration so interested in protecting itself from the judicial review of our courts? Because the courts have repeatedly ruled that the administration's policies have violated the law and our constitution.

After the September 11 terrorist attacks, the administration unilaterally created a new detention policy for America. They claimed the right to seize anyone, including an American citizen in the United States, and to hold them until the end of the war on terrorism, whenever that might be.

They claimed that even an American citizen who is detained has no rights. That means no right to challenge their detention, no right to see the evidence against them, no right to even know why they are being held. In fact, an administration lawyer claimed in court that detainees would have no right to challenge their detention even if they were being tortured or summarily executed.

Using their new detention policy, the administration has detained thousands of individuals in secret detention centers around the world. Only time will lead to the complete disclosure of what they have done. The most well-known, Guantanamo Bay, is only one of those centers. Many have been captured in Afghanistan and Iraq, and people who never raised arms against us have been taken prisoner far from the battlefield, in places such as Bosnia and Thailand.

Who are the detainees in Guantanamo Bay? Well, back in 2002 then Defense Secretary Rumsfeld described them, and I use his words, "the hardest of the hard core." He went on to call them, "among the most dangerous, best trained, vicious killers on the face of the earth." Those are the words of Secretary Rumsfeld.

Well, I went to Guantanamo last July. There were some 400 detainees being held. There have been many others who have gone through that camp. Hundreds of people have been detained at Guantanamo, many for years, without ever being charged, and then were released.

Imagine, if you will, that you were scooped up by some government official, transported a thousand miles away to this rock in the middle of the Caribbean, this high-temperature, high-pressure location, and then held literally for years without ever being charged with any wrongdoing.

Every American would agree with what I am about to say. Every dangerous person should be arrested and detained to protect America from terrorism. When we have good cause to believe that a person threatens our country, I believe it is our right, when it comes to our basic security, to detain that person and to hold that person as long as they are a threat to our country. In this case, however, hundreds of individuals were taken from their homes, their businesses, their families, their countries, and transported to Guantanamo, and held without charges, sometimes for years, before they were released.

According to media reports, military sources indicate that many of the detainees had no connection to al-Qaida or the Taliban and were sent to Guantanamo over the objections of intelligence personnel who ultimately recommended they be released. It was a mistake. They never should have been held. They should not have been detained. Years were taken off their lives, while the image of Guantanamo has been created across the world.

One military officer said:

We are basically condemning these guys to long-term imprisonment. If they weren't terrorists before, they certainly could be now.

That quote comes from one of our military officials.

Based on a review of the Defense Department's own documents, Seton Hall University Law School reported that only 5 percent, 1 out of 20, of the detainees at Guantanamo were captured by U.S. forces, while 86 percent were taken into custody by Pakistani or Northern Alliance forces at a time when the United States was paying huge amounts of money for the capture of any suspected Arab terrorist.

The Defense Department's own documents revealed that the large majority of detainees never participated in any combat against the United States on a battlefield, and only 8 percent, that is fewer than 1 out of 10, of those being detained were even classified as al-Qaida fighters.

In 2004, in the landmark decision of Rasul v. Bush, the Supreme Court rejected this administration's indefinite detention policy. The Court held that detainees at Guantanamo have the right to habeas corpus to challenge their detentions in Federal court. The Court held that the detainees' claims that they were detained for over 2 years without any charge against them and without any access to counsel, and I quote the Court, "unquestionably described custody in violation of the Constitution, or laws or treaties of the United States."

That is why the amendment being offered by the Senator from Pennsylvania and the Senator from Vermont is so critically important. What we have enshrined in the Military Commissions Act is a violation of the fundamental values of our country.

As I have said before, and will repeat, anyone who is a danger to this country should be stopped, detained, arrested, and imprisoned, if necessary, before they harm anyone in our country. Those who are detained should be detained for cause. There should be a reason. There should be a charge against them. They should have the most fundamental access to justice, which we preach around the world; that they can defend themselves, know what they are being charged with, see the evidence being used against them, and have the right to counsel so that they can express their innocence in the most effective way.

How did the administration react to the Supreme Court decision in 2004? Instead of changing its policies to comply with the Constitution, the law, they came to the Republican-controlled Congress at that time and demanded that habeas corpus for detainees be eliminated.

This isn't about the rights of suspected terrorists. It is about who we are as Americans. Eliminating habeas corpus is not true to our values. Sadly, it creates an image of America that causes problems even for our troops in the field.

Recently, I went on a trip to South America with Senator Harry Reid, our majority leader in the Senate, and we talked to leaders in countries in South America. I can recall one leader saying that he wanted the United States to remove a base from his country. He said: We don't want to have another Guantanamo here in our sovereign country.

Guantanamo has become an image which needs to change. Even the President has called for the closing of Guantanamo. Yet what the Congress has done is to not only keep Guantanamo in business but to keep it in business with rules that are inconsistent with our Constitution and our fundamental values.

Tom Sullivan is a friend of mine and a prominent attorney in Chicago. He was a former U.S. attorney, a lead prosecutor for our Government in that area. He served in the Army during the Korean war.

For nothing, on a pro bono basis, Tom Sullivan has taken on cases of several Guantanamo detainees. He has practiced law for more than 50 years. He believes, even as a former professional prosecutor, that habeas corpus is a fundamental bedrock of America's legal system because it represents the only recourse available when the Government has made a mistake, detained a person and charged them with something of which they are not guilty.

ADM John Hutson, another man I have come to know and respect, was a Navy Judge Advocate for 28 years. Last year, he testified in the Senate Judiciary Committee hearing on the Military Commissions Act. Here is what Admiral Hutson, former Navy Judge Advocate, had to say about eliminating habeas corpus, and I quote:

It is inconsistent with our own history and tradition to take this action. If we diminish or tarnish our values, those values that the Founders fought for and memorialized in the Constitution and have been carefully preserved in the blood and honor of succeeding generations, then we will have lost a major battle in the war on terror.

Admiral Hutson concluded:

We don't need to do this. America is too strong. Our system of justice is too sacred to tinker with in this way.

He also testified that eliminating habeas corpus really puts our own soldiers at risk. Remember, John Hutson has given his life to our country's military, and here is what he said:

If we fail to provide a reasonable judicial avenue to consider detention, other countries will feel justified in doing exactly the same thing. It is our troops who are in harm's way and deserve judicial protections. In future wars, we will want to ensure that our troops or those of our allies are treated in a manner similar to how we treat our enemies. We are now setting the standard for that treatment.

I have heard arguments on the Senate floor: Oh, it is going to glut the courts of America if the 400 detainees at Guantanamo have some rights, if they have an opportunity to question the charges that have been brought against them, if they can use habeas corpus. I do not believe that is true and even if it was it is a small price to pay, a small price for America to pay to respect the most fundamental right that we believe to be part of our system of justice.

Will there be abuses? Well, I am sure there will be. There have been in virtually all the laws we have enacted. But we will be able to say at the end of the day that even in the midst of a war on terror, even as we feared what might happen tomorrow in the wake of 9/11, that America never lost its way in terms of its fundamental values and principles.

The Military Commissions Act, which passed this Senate, unfortunately is a step in the wrong direction. I fully support the Specter-Leahy amendment. We should honor American values and protect our brave men and women in uniform by restoring the right of habeas corpus, and I urge my colleagues to support this amendment.

Madam President, I ask unanimous consent that my name be added as a cosponsor to that amendment.

The Presiding Officer: Without objection, it is so ordered.

Mr. Durbin: I thank the Chair, and I yield the floor.

Mr. Specter: Madam President, while the Senator from Illinois is still on the Senate floor, I want to thank him for those eloquent remarks going right to the core of the issue, the importance of protecting America from terrorists and at the same time a balance in protecting Americans' constitutional rights.

When he refers to Tom Sullivan, the very distinguished Chicago attorney, I might note that Mr. Sullivan testified at a Judiciary Committee hearing and brought forth a number of examples, which I put into the Record earlier today, where it is recited in some detail people who were detained at Guantanamo for very long periods of time. One specifically commented about crossed the border, was supposed to have been associated with someone from al-Qaida, no reason for keeping him was given, no evidence to that effect, but was kept for 5 years and then released.

Let me express a concern I have, which I discussed earlier with the Senator from Illinois, and that is I am concerned that this amendment will not receive a vote. Last year, the Senate voted on a 51-to-48 vote, to include language in the Military Commissions Act that limited Federal court habeas jurisdiction. I have suggested that there be a cloture petition filed on this bill, if we are going to vote on cloture later this week on the underlying bill, and that would be a case where we might vote on cloture on this amendment. I would structure it in that fashion only as a way to get a vote so that people will have to take a position, and I simply wanted to make reference to that.

Madam President, I yield the floor.

Amendment No. 312

Mr. McConnell: Madam President, I offered an amendment on behalf of Senator Cornyn on Friday, and I now ask for the regular order with respect to amendment No. 312.

The Presiding Officer: The amendment is now pending.

Amendment No. 312, as Modified

Mr. McConnell: I send a modification to the desk.

The Presiding Officer: The amendment is so modified.

The amendment, as modified, is as follows:

On page 389, after line 13, add the following:

SEC. 15__. TERRORISM OFFENSES; VISA REVOCATIONS; DETENTION OF ALIENS.

(a) Recruitment of Persons to Participate in Terrorism.--

(1) In general.--Chapter 113B of title 18, United States Code, is amended by inserting after section 2332b the following:

Sec. 2332c. Recruitment of persons to participate in terrorism.

(a) Offenses.--

(1) In general.--It shall be unlawful to employ, solicit, induce, command, or cause another person to commit an act of domestic terrorism or international terrorism or a Federal crime of terrorism, with the intent that the person commit such act or crime of terrorism

(2) Attempt and conspiracy.--It shall be unlawful to attempt or conspire to commit an offense under paragraph (1).

(b) Penalties.--Any person who violates subsection (a)--

(1) in the case of an attempt or conspiracy, shall be fined under this title, imprisoned not more than 10 years, or both;

(2) if death of an individual results, shall be fined under this title, punished by death or imprisoned for any term of years or for life, or both;

(3) if serious bodily injury to any individual results, shall be fined under this title, imprisoned not less than 10 years nor more than 25 years, or both; and

(4) in any other case, shall be fined under this title, imprisoned not more than 10 years, or both.

(c) Rule of Construction.--Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States.

(d) Lack of Consummated Terrorist Act Not a Defense.--It is not a defense under this section that the act of domestic terrorism or international terrorism or Federal crime of terrorism that is the object of the employment, solicitation, inducement, commanding, or causing has not been done.

(e) Definitions.--In this section--

(1) the term 'Federal crime of terrorism' has the meaning given that term in section 2332b of this title; and

(2) the term 'serious bodily injury' has the meaning given that term in section 1365 of this title.".

(2) Technical and conforming amendments.--The table of sections at the beginning of chapter 113B of title 18, United States Code, is amended by inserting after section 2332b the following:

2332c. Recruitment of persons to participate in terrorism.".

(b) Judicial Review of Visa Revocation.--

(1) In general.--Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by striking "There shall be no means of judicial review" and all that follows and inserting the following: "Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a revocation under this subsection may not be reviewed by any court, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a revocation.".

(2) Effective date.--The amendment made by paragraph (1) shall take effect on the date of enactment of this Act and shall apply to visas issued before, on, or after such date.

(c) Detention of Aliens.--

(1) Detention of deportable aliens to protect public safety.--

(A) In general.--Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended--

(i) by striking "Attorney General" each place it appears, except for the first reference in paragraph (4)(B)(i), and inserting "Secretary of Homeland Security";

(ii) in paragraph (1)--

(I) by amending clause (ii) of subparagraph (B) to read as follows:

(ii) If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of the removal of the alien, the date the stay of removal is no longer in effect.";

(II) by adding at the end of subparagraph (B), the following flush text:

"If, at that time, the alien is not in the custody of the Secretary of Homeland Security (under the authority of this Act), the Secretary shall take the alien into custody for removal, and the removal period shall not begin until the alien is taken into such custody. If the Secretary transfers custody of the alien during the removal period pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled, and shall begin anew on the date of the alien's return to the custody of the Secretary subject to clause (ii)."; and

(III) by amending subparagraph (C) to read as follows:

(C) Suspension of period.--The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent the alien's removal subject to an order of removal.";

(iii) in paragraph (2), by adding at the end the following new sentence: "If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal, the Secretary of Homeland Security in the exercise of discretion may detain the alien during the pendency of such stay of removal.";

(iv) in paragraph (3), by amending subparagraph (D) to read as follows:

(D) to obey reasonable restrictions on the alien's conduct or activities, or to perform affirmative acts, that the Secretary of Homeland Security prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.";

(v) in paragraph (6), by striking "removal period and, if released," and inserting "removal period, in the discretion of the Secretary of Homeland Security, without any limitations other than those specified in this section, until the alien is removed. If an alien is released, the alien"; and

(vi) by redesignating paragraph (7) as paragraph (10) and inserting after paragraph (6) the following new paragraphs:

(7) Parole.--If an alien detained pursuant to paragraph (6) is an applicant for admission, the Secretary of Homeland Security, in the Secretary's discretion, may parole the alien under section 212(d)(5) and may provide, notwithstanding section 212(d)(5), that the alien shall not be returned to custody unless either the alien violates the conditions of his parole or his removal becomes reasonably foreseeable, provided that in no circumstance shall such alien be considered admitted.

(8) Additional rules for detention or release of certain aliens who have made an entry.--The following procedures apply only with respect to an alien who has effected an entry into the United States. These procedures do not apply to any other alien detained pursuant to paragraph (6).

(A) Establishment of a detention review process for aliens who fully cooperate with removal.--For an alien who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and has not conspired or acted to prevent removal, the Secretary of Homeland Security shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with paragraph (1)(B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Department of State or other Federal agency and any other information available to the Secretary pertaining to the ability to remove the alien.

(B) Authority to detain beyond the removal period.--

(i) In general.--The Secretary of Homeland Security, in the exercise of discretion, without any limitations other than those specified in this section, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in subsection (a)(1)(C)).

(ii) Length of detention.--The Secretary, in the exercise of discretion, without any limitations other than those specified in this section, may continue to detain an alien beyond the 90 days, as authorized in clause (i)--

(I) until the alien is removed, if the Secretary determines that there is a significant likelihood that the alien--

(aa) will be removed in the reasonably foreseeable future; or

(bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspiracies or acts to prevent removal;

(II) until the alien is removed, if the Secretary certifies in writing--

(aa) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;

(bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;

(cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or

(dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either--

(AA) the alien has been convicted of one or more aggravated felonies as defined in section 101(a)(43)(A), one or more crimes identified by the Secretary of Homeland Security by regulation, or one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, provided that the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or

(BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or

(ee) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and the alien has been convicted of at least one aggravated felony as defined in section 101(a)(43); and

(III) pending a determination under subclause (II), so long as the Secretary has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period as provided in subsection (a)(1)(C)).

(C) Renewal and delegation of certification.--

(i) Renewal.--The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months without limitation, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).

(ii) Delegation.--Notwithstanding section 103 of this Act, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (ee) of subparagraph (B)(ii)(II) to an official below the level of the Assistant Secretary for Immigration and Customs Enforcement.

(iii) Hearing.--The Secretary of Homeland Security may request that the Attorney General or his designee provide for a hearing to make the determination described in clause (dd)(BB) of subparagraph (B)(ii)(II).

(D) Release on conditions.--If it is determined that an alien should be released from detention, the Secretary of Homeland Security, in the exercise of discretion, may impose conditions on release as provided in paragraph (3).

(E) Redetention.--The Secretary of Homeland Security, in the exercise of discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody if the alien fails to comply with the conditions of release or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (B). Paragraphs (6) through (8) shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.

(F) Certain aliens who effected entry.--If an alien has effected an entry but has neither been lawfully admitted nor physically present in the United States continuously for the 2-year period immediately prior to the commencement of removal proceedings under this Act or deportation proceedings against the alien, the Secretary of Homeland Security in the exercise of discretion may decide not to apply paragraph (8) and detain the alien without any limitations except those which the Secretary shall adopt by regulation.

(9) Judicial review.--Without regard to the place of confinement, judicial review of any action or decision pursuant to paragraph (6), (7), or (8) shall be available exclusively in habeas corpus proceedings instituted in the United States District Court for the District of Columbia, and only if the alien has exhausted all administrative remedies (statutory and regulatory) available to the alien as of right.".

(B) Detention of aliens during removal proceedings.--

(i) In general.--Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is amended by adding at the end the following new subsections:

(e) Length of Detention.--

(1) In general.--With regard to the length of detention, an alien may be detained under this section, without limitation, until the alien is subject to an administratively final order of removal.

(2) Effect on detention under section 241.--The length of detention under this section shall not affect the validity of any detention under section 241 of this Act.

(f) Judicial Review.--Without regard to the place of confinement, judicial review of any action or decision made pursuant to subsection (e) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.".

(ii) Conforming amendments.--Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended--

(I) by inserting at the end of subsection (e) the following: "Without regard to the place of confinement, judicial review of any action or decision made pursuant to section 235(f) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia, and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right."; and

(II) by adding at the end the following new subsection:

(f) Length of Detention.--

(1) In general.--With regard to the length of detention, an alien may be detained under this section, without limitation, until the alien is subject to an administratively final order of removal.

(2) Effect on detention under section 241.--The length of detention under this section shall not affect the validity of any detention under section 241 of this Act.".

(C) Severability.--If any of the provisions of this paragraph or any amendment by this paragraph, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this paragraph and of amendments made by this paragraph, and the application of the provisions and of the amendments made by this paragraph to any other person or circumstance shall not be affected by such holding.

(D) Effective dates.--

(i) Amendments made by subparagraph (A).--The amendments made by subparagraph (A) shall take effect on the date of enactment of this Act, and section 241 of the Immigration and Nationality Act, as amended, shall apply to--

(I) all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of enactment of this Act; and

(II) acts and conditions occurring or existing before, on, or after the date of enactment of this Act.

(ii) Amendments made by subparagraph (B).--The amendments made by subparagraph (B) shall take effect on the date of enactment of this Act, and sections 235 and 236 of the Immigration and Nationality Act, as amended, shall apply to any alien in detention under provisions of such sections on or after the date of enactment of this Act.

(2) Criminal detention of aliens to protect public safety.--

(A) In general.--Section 3142(e) of title 18, United States Code, is amended to read as follows:

(e) Detention.--If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.

(1) Presumption arising from offenses described in subsection (f)(1).--In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that--

(A) the person has been convicted of a Federal offense that is described in subsection (f)(1), or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed;

(B) the offense described in subparagraph (A) was committed while the person was on release pending trial for a Federal, State, or local offense; and

(C) a period of not more than 5 years has elapsed since the date of conviction or the release of the person from imprisonment, for the offense described in subparagraph (A), whichever is later.

(2) Presumption arising from other offenses involving illegal substances, firearms, violence, or minors.--Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of 10 years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, an offense under section 924(c), 956(a), or 2332b of this title, or an offense listed in section 2332b(g)(5)(B) of this title for which a maximum term of imprisonment of 10 years or more is prescribed, or an offense involving a minor victim under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title.

(3) Presumption arising from offenses relating to immigration law.--Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required if the judicial officer finds that there is probable cause to believe that the person is an alien and that the person--

(A) has no lawful immigration status in the United States;

(B) is the subject of a final order of removal; or

(C) has committed a felony offense under section 842(i)(5), 911, 922(g)(5), 1015, 1028, 1028A, 1425, or 1426 of this title, or any section of chapters 75 and 77 of this title, or section 243, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1253, 1324, 1325, 1326, 1327, and 1328).".

(B) Immigration status as factor in determining conditions of release.--Section 3142(g)(3) of title 18, United States Code, is amended--

(i) in subparagraph (A), by striking "and" at the end; and

(ii) by adding at the end the following new subparagraph:

(C) the person's immigration status; and".

(d) Prevention and Deterrence of Terrorist Suicide Bombings and Terrorist Murders, Kidnapping, and Sexual Assaults.--

(1) Offense of rewarding or facilitating international terrorist acts.--

(A) In general.--Chapter 113B of title 18, United States Code, is amended by adding at the end the following:

Sec. 2339E. Providing material support to international terrorism

(a) Definitions.--In this section:

(1) The term 'facility of interstate or foreign commerce' has the same meaning as in section 1958(b)(2).

(2) The term 'international terrorism' has the same meaning as in section 2331.

(3) The term 'material support or resources' has the same meaning as in section 2339A(b).

(4) The term 'perpetrator of an act' includes any person who--

(A) commits the act;

(B) aids, abets, counsels, commands, induces, or procures its commission; or

(C) attempts, plots, or conspires to commit the act.

(5) The term 'serious bodily injury' has the same meaning as in section 1365.

(b) Prohibition.--Whoever, in a circumstance described in subsection (c), provides, or attempts or conspires to provide, material support or resources to the perpetrator of an act of international terrorism, or to a family member or other person associated with such perpetrator, with the intent to facilitate, reward, or encourage that act or other acts of international terrorism, shall be fined under this title, imprisoned not more than 25 years, or both, and, if death results, shall be imprisoned for any term of years or for life.

(c) Jurisdictional Bases.--A circumstance referred to in subsection (b) is that--

(1) the offense occurs in or affects interstate or foreign commerce;

(2) the offense involves the use of the mails or a facility of interstate or foreign commerce;

(3) an offender intends to facilitate, reward, or encourage an act of international terrorism that affects interstate or foreign commerce or would have affected interstate or foreign commerce had it been consummated;

(4) an offender intends to facilitate, reward, or encourage an act of international terrorism that violates the criminal laws of the United States;

(5) an offender intends to facilitate, reward, or encourage an act of international terrorism that is designed to influence the policy or affect the conduct of the United States Government;

(6) an offender intends to facilitate, reward, or encourage an act of international terrorism that occurs in part within the United States and is designed to influence the policy or affect the conduct of a foreign government;

(7) an offender intends to facilitate, reward, or encourage an act of international terrorism that causes or is designed to cause death or serious bodily injury to a national of the United States while that national is outside the United States, or substantial damage to the property of a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions) while that property is outside of the United States;

(8) the offense occurs in whole or in part within the United States, and an offender intends to facilitate, reward or encourage an act of international terrorism that is designed to influence the policy or affect the conduct of a foreign government; or

(9) the offense occurs in whole or in part outside of the United States, and an offender is a national of the United States, a stateless person whose habitual residence is in the United States, or a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions).".

(B) Technical and conforming amendments.--

(i) Table of sections.--The table of sections at the beginning of chapter 113B of title 18, United States Code, is amended by adding at the end the following:

2339D. Receiving military-type training from a foreign terrorist organization.

2339E. Providing material support to international terrorism.

(ii) Other amendment.--Section 2332b(g)(5)(B)(i) of title 18, United States Code, is amended by inserting "2339E (relating to providing material support to international terrorism)," before "or 2340A (relating to torture)".

(2) Increased penalties for providing material support to terrorists.--

(A) Providing material support to designated foreign terrorist organizations.--Section 2339B(a) of title 18, United States Code, is amended by striking "15 years" and inserting "25 years".

(B) Providing material support or resources in aid of a terrorist crime.--Section 2339A(a) of title 18, United States Code, is amended by striking "15 years" and inserting "40 years".

(C) Receiving military-type training from a foreign terrorist organization.--Section 2339D(a) of title 18, United States Code, is amended by striking "ten years" and inserting "15 years".

(D) Addition of attempts and conspiracies to an offense relating to military training.--Section 2339D(a) of title 18, United States Code, is amended by inserting ", or attempts or conspires to receive," after "receives".

(3) Denial of federal benefits to convicted terrorists.--

(A) In general.--Chapter 113B of title 18, United States Code, as amended by this subsection, is amended by adding at the end the following:

Sec. 2339F. Denial of Federal benefits to terrorists

(a) In General.--Any individual who is convicted of a Federal crime of terrorism (as defined in section 2332b(g)) shall, as provided by the court on motion of the Government, be ineligible for any or all Federal benefits for any term of years or for life.

(b) Federal Benefit Defined.--In this section, 'Federal benefit' has the meaning given that term in section 421(d) of the Controlled Substances Act (21 U.S.C. 862(d)).".

(B) Technical and conforming amendment.--The table of sections at the beginning of chapter 113B of title 18, United States Code, as amended by this subsection, is amended by adding at the end the following:

2339F. Denial of Federal benefits to terrorists.

(4) Addition of attempts or conspiracies to offense of terrorist murder.--Section 2332(a) of title 18, United States Code, is amended--

(A) by inserting ", or attempts or conspires to kill," after "Whoever kills"; and

(B) in paragraph (2), by striking "ten years" and inserting "30 years".

(5) Addition of offense of terrorist kidnapping.--Section 2332(b) of title 18, United States Code, is amended to read as follows:

(b) Kidnapping.--Whoever outside the United States unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away, or attempts or conspires to seize, confine, inveigle, decoy, kidnap, abduct or carry away, a national of the United States, shall be fined under this title, imprisoned for any term of years or for life, or both.".

(6) Addition of sexual assault to definition of offense of terrorist assault.--Section 2332(c) of title 18, United States Code, is amended--

(A) in paragraph (1), by inserting (as defined in section 1365, including any conduct that, if the conduct occurred in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242)" after "injury";

(B) in paragraph (2), by inserting (as defined in section 1365, including any conduct that, if the conduct occurred in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242)" after "injury"; and

(C) in the matter following paragraph (2), by striking "ten years" and inserting "40 years".

(e) Improvements to the Terrorist Hoax Statute.--

(1) Hoax statute.--Section 1038 of title 18, United States Code, is amended--

(A) in subsection (a)--

(i) in paragraph (1), after "title 49," by inserting "or any other offense listed under section 2332b(g)(5)(B) of this title,"; and

(ii) in paragraph (2)--

(I) in subparagraph (A), by striking "5 years" and inserting "10 years"; and

(II) in subparagraph (B), by striking "20 years" and inserting "25 years"; and

(B) by amending subsection (b) to read as follows:

(b) Civil Action.--

(1) In general.--Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute an offense listed under subsection (a)(1) is liable in a civil action to any party incurring expenses incident to any emergency or investigative response to that conduct, for those expenses.

(2) Effect of conduct.--

(A) In general.--A person described in subparagraph (B) is liable in a civil action to any party described in subparagraph (B)(ii) for any expenses that are incurred by that party--

(i) incident to any emergency or investigative response to any conduct described in subparagraph (B)(i); and

(ii) after the person that engaged in that conduct should have informed that party of the actual nature of the activity.

(B) Applicability.--A person described in this subparagraph is any person that--

(i) engages in any conduct that has the effect of conveying false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute an offense listed under subsection (a)(1);

(ii) receives notice that another party believes that the information indicates that such an activity has taken, is taking, or will take place; and

(iii) after receiving such notice, fails to promptly and reasonably inform any party described in subparagraph (B) of the actual nature of the activity.".

(2) Threatening communications.--

(A) Mailed within the united states.--Section 876 of title 18, United States Code, is amended by adding at the end thereof the following new subsection:

(e) For purposes of this section, the term 'addressed to any other person' includes an individual (other than the sender), a corporation or other legal person, and a government or agency or component thereof.".

(B) Mailed to a foreign country.--Section 877 of title 18, United States Code, is amended by adding at the end thereof the following new paragraph:

"For purposes of this section, the term 'addressed to any person' includes an individual, a corporation or other legal person, and a government or agency or component thereof.".