Liberated Text -> Congressional Record -> Nine Senators of Shame

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Amendment No. 2004

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

The Presiding Officer: The clerk will report.

The legislative clerk read as follows:

The Senator from South Carolina [Mr. Graham], for himself and Mr. McCain, proposes an amendment numbered 2004. Mr. Graham Madam President, I ask unanimous consent that reading of the amendment be dispensed with. The Presiding Officer: Without objection, it is so ordered.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Second, they deserve to be prosecuted in some instances. There are three things we are trying to accomplish. We are trying to standardize interrogation techniques to protect our own troops and have a one-stop shopping for what the rules are. That is through Senator McCain's amendment. We are trying to keep the moral high ground, as expressed by the President, to say we are not torturing people, we are not going to treat people inhumanely because that weakens us. The bottom line, it is not the right way to get good information and weakens us. The more standardization the better.

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

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

I ask for the yeas and nays.

The Presiding Officer: Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

Mr. Stevens: Madam President, I am informed there are objections from Members of the Committee on Armed Services to this amendment. I urge them to come over and defend their position.

This Senator was prepared to accept the amendment. It may be subject to a point of order. I am not sure. I do believe there are detainee items in the House-passed bills that would be germane under the circumstances, but it is another example, I might say, of the problems we get into when items that pertain to legislation end up on appropriations bills.

We are not really prepared to debate the amendment. I urge Members of the Committee on Armed Services who wish to do so to debate this amendment.

My only question is--I know the Senator is an extremely good attorney--has the phrase "unlawful enemy combatant" been used in any other portion of our laws of the Geneva Conventions?

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

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

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

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

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

McCain: Will the Senator yield?

Mr. Graham: Yes.

McCain: Does the Senator know how many detainees have been brought to trial in Guantanamo Bay?

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

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

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

McCain: If the Senator will yield, aren't there two different Court decisions now that are in direct contravention of each other as to the disposition of these cases?

Mr. Graham: Yes there is.

McCain: Could the Senator describe those.

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

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

McCain: If the Senator will yield further for a question, I guess my fundamental question is, aren't things in one heck of a mess?

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

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

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

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

Mr. Stevens: If the Senator will yield, has this matter been discussed in the Committee on Armed Services?

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

Mr. Stevens: I say to the Senator, that is another question. We were prepared to accept the amendment because--I don't claim expertise in this area; it is not within our jurisdiction. It is legislation on an appropriations bill, but I don't intend to raise an objection to it.

Has this been discussed, on a bipartisan basis, in the committee?

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

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

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

The Presiding Officer: The Senator from Alaska.

Mr. Stevens: Madam President, I believe the Senator's amendment has real merit. I find no objection to it. It has been conveyed to me by the administration. We still have a very small difference--it sounds like a big difference--on the McCain amendment. But we have no difference on this amendment. We are prepared to accept it, unless someone comes over here and finds a way to articulate an objection.

McCain: Madam President, who has the floor?

The Presiding Officer: The Senator from Alaska has the floor.

Mr. Stevens: Madam President, I yield the floor.

The Presiding Officer: The Senator from Arizona.

McCain: Madam President, first, I thank the Senator from Alaska for his cooperation. I thank the Senator from South Carolina for his unique and very important perspective on this issue. But I also point out it is very unfortunate--very unfortunate--the Senator from South Carolina has to put this on an appropriations bill. I do not want to get off the subject too much, but there is something wrong with our process here that I have to, for my amendment, find some narrow germaneness in order to get around my commitment to not authorize on an appropriations bill. Technically, I am not authorizing on an appropriations bill.

It is very unfortunate the Senator from South Carolina has to authorize on an appropriations bill. There may be some objection from someone in the minority. There may be some question. That is because we are not going through an orderly process. This should have been as an amendment on the authorization bill, and that should have been taken up. If someone did not like it, they could have voted to take it out. Now we are in a process where the Senator from South Carolina has to put it in.

Our system here is broken, and we need to properly authorize. I certainly am not blaming the Senator from Alaska. He has his responsibility to get the appropriations bill done. But there is something wrong when we are in a war--in a war; Americans' lives are on the line as we speak--and somehow we do not have room in our agenda to authorize the training, the equipping, the benefits, the pay, all of the things that go with an authorization bill, including the amendment of the Senator from Carolina.

A lot of us have repeatedly decried that this process of legislating is so badly broken today that we cannot even take care of the men and women in the military in an orderly fashion. It cries out for fixing. I would hope at some point we, as a body, would fix this system so we authorize before we appropriate funds. Again, this is meant as no criticism of the Senator from Alaska. He is playing the hand he is dealt. But there is something very badly wrong when we are in a war and somehow we cannot find time in our agenda and ought to authorize the much-needed pay raises, equipment, training, and all of the other things that go along with the authorization of our Nation's defenses.

I yield the floor.