family of being willing to be considered for this nomination and urge him even as busy as it may be to spend time with his family understand he has a wonderful family grandchildren and so forth and i'm sure he will i would also again urge the white house that we do not need to have  all kinds of press comments about they for hearings i think would be more important that we do is we have in the past work you get the information necessary and in the polling as the time will have an appropriate hearing i would do a kind of work of course with senator specter and that and i think it was really demonstrated before i will have a hearing that will make the senate proud both republicans and democrats will with a complete another matter while within morning business mr president in two thousand and five president bush praised the iraqi people for exercising their democratic right to vote you know that by participating in free elections the iraqi people firmly rejected the antidemocratic ideology the terrorists and they demonstrate the kind of courage is always the foundation of self government like president i've applied anyone who has the right to vote and to determine where where they will go with that right to vote i wish though the president would speak as enthusiastically about voting rights for the american citizens who live literally in his backyard in the same city where he resides in the white house as disappointing that the bush administration has threatened to veto legislation that would give a vote to the member of the house of  approximately the same number of people the state of vermont where the porting state in the union we've been we have had the right to vote for starters and represent forefathers did much to design the united states of america as provided president after president but especially the cornerstone of a great nation that made it possible for the state of vermont to become the first dated they didn't have to the original thirteen there's no way mr president i could go back to my state of vermont and say the district of columbia will almost exactly the same number of people cannot have a boring member of the house of representatives act why i would do this last year congress committed and historic mistake by suspending the great radius corpus not just for those combined in one tunnel bay for mistake committed in the military commissions act of two thousand and six must be corrected a v s corpus restoration act of two thousand and seven s one eight five a bill which is a members base as thirty co sponsors the senate judicia japanese americans during world war two the elimination of hay vs rights was an action driven by fear that was a stain on america's reputation throughout the world this is a time of testing future generations will look back to examine the choices we made during a time when security was too often invoked as a watchword to convince us to slacker defense of liberty and the rolled back these protections by limiting that right permanently for any non citizen labeled and to make a bad impact detainee doesn't have to be found to be an enemy combatant it's  not for the government someone named person the government to see someone is awaiting terminations that status something they can contest where they're held in jail states today these are people work and pay taxes people by by our laws and people should be in tired to fair trade but it is after all the american way it is after all to their countries but under this law any of these people could be detained forever without any ability to challenge their detention court this is wrong it's unconstitutional it's un american top conservative thinkers evangelical activists prominent members of the latino community have all spoken out on the need to restore these basic american rights general colin powell like many leading former military and diplomatic officials as spoken of the importance of these abs right general powell  isn't that what our systems all about but perhaps most powerful for me was a test morning a rear adm or donna good or he was working in his office in the pentagon as judge advocate general of the navy on september eleventh two thousand and one he saw firsthand the effects of terrorism when a plane crashed in the building he was work rights of human beings even those of the enemy really become more like the enemy that makes us weaker it imperils our value in troops serving not just in iraq and afghanistan but around the gold he was right whether you're an individual soldier or a great nation is difficult to defend the higher ground by taking the l the world knows what our enemies stand for the world also knows what this country has tried to stand for and live up to not just in the best of times but also in the worst of times senate in a quorum call the clock ticking on the defense programs bill you just heard judiciary committee chairman patrick leahy on the floor a few moments ago talking about the fact that there is no agreement yet on iraq war amendments and in fact no agreed to time yet on the amendment that he and senator specter have offered regarding allowing detainees accessed access that is to federal court we do expect  amendments to be debated first that an amendment offered by democrat dianne feinstein of california that would require the closure of guantanamo bay the facility there within a year and prohibit transferring amendment offered by senators leahy and specter saying that one of the first measures the senate will consider is the amendment by the chairman of the just judiciary chairman patrick leahy and arlen specter the panel's ranking republican that would restore the right of corpus to detainees that have been declared enemy combatants as well as those awaiting military reviews that will determine their legal status many republicans contend that habeas corpus rights do not apply to non citizens and that many of the legal challenges that have been filed are frivolous that from john donnelly congressional quarterly really are today our live coverage of the senate on c span t the senate continues in a quorum call waiting for a member to come to the floor and speak on the defense programs bill the defense authorization bill which sets the fence program as for fiscal year two thousand and eight the bait beginning we have plenty of information for you by the way on our website if you'd like to read the full text of the bill which is h r fifteen eighty five or any of the published amendments you can link to that just go to our website cspan dot org also coming up this week in the senate to more defense program debate through the week a possible iraq war amendments also washington d c voting rights in the house of representatives that expected to come to the floor tomorrow a cloture vote tomorrow afternoon in fact on that going back to defense programs for a moment there is no agreement yet on iraq war amendments we do expect combatant detainees issues to come up at some point today although we no agreement yet on iraq war amendments but we do expect to hear about combatant detainees issues today a couple of amendments that we understand still do not have a time agreement on yet but still amendment that would require the closure of guantanamo bay within a year john donnelly of congressional quarterly one of our guest today on washington journal in fact wrote a short time ago that dianne feinstein a member of the judiciary committee is preparing an amendment that would require closure of the prison at guantanamo within one year it would also prohibit transferring guantanamo detainees outside the united states the story goes on many republicans are expected to counter that president bush also wants to close the prison but not before he knows where to relocate the prisoners republicans have argued that any u s town that hosts a prison with an al qaeda prisoner will become a target for yes that according to an article by john donnelly of congressional quarterly earlier this afternoon the defense authorization bill is h r fifteen eighty five and we have links to that the text of that bill also published amendments plenty of information available on our website just go to c span dot org our senate coverage continues live on c span t and i would now ask unanimous consent that all pending and then was be withdrawn with the exception of eleven substitute amendment that senator leahy or his designee be recognized to offer a first degree and then went on the subject of pay  corpus that after the leahy amendment is offered senator graham or his designee be recognized to offer a first degree amendment to strike section ten twenty three if the offering of these amendments does not preclude further amendments on the subject matter of these amendments is there objection object here no objection sorter now mr president mr president behalf of who seeks recognition eighty five behaviors corpus restoration act of two thousand and seven as introduced in the united states senate if enacted s one eighty five would remove the habeas corpus restrictions included in the military commissions act of two thousand and six seven the provisions of s one eighty five that seeks to remove these important elements ignores their history and their role in protecting our nation's security as the supreme court recognized in johnson versus aizen drugger in one nine hundred fifty case extension of habeas corpus to alien combat and captured abroad would hamper the war effort and bring aid and comfort to the enemy and the constitution requires no such thing the united states already provides alien enemy combatants detained at guantanamo bay cuba with an unprecedented degree of process which includes judicial review of decisions regarding their detention before the federal appeals court in washington d c repealing the m c a is limitations on  simply burden our courts with duplicative and unnecessary litigation for this reason and because repeal of the m c a as habeas provisions would delay and disrupt the vital work of bringing in a me combat and to justice the president's senior advisers would recommend that he veto s one eighty five if the bill is presented to him for signature present there's more of the letter but i will submit it for the record at this point and note that the amendment offered by senator leahy is virtually the same as not the same as the bill introduced and i am presuming that the president's senior advisers would as a result also recommend a veto of the bill if it included this provision of the defense authorization bill is extraordinarily important to our troops and to add a totally extraneous provision amending a different bill to the defense authorization bill especially one which carries the suggestion of a presidential veto would be the height of irresponsibility on the part of the united states senate the substantive arguments of the department of justice with respect to a b s are correct and the senate should not therefore seek to amend another statute in the defense authorization bill thus inviting a veto of the bill related to the a b s corpus provision is the amendment that is now pending offered by senator graham of south carolina and that amendment would strike a provision of the defense authorization bill section ten twenty three that also relates to the subject of treatment of detainees unfortunately the way the committee bill was written the bill that's before us right now  we retained that language and we don't strike it as the graham amendment would do we would essentially be returning to a law enforcement approach to terrorists that frankly failed us before nine eleven and obviously does not work in the post nine eleven context we can't deal with all of the enemy combatants as criminal defendants these people that are picked up on the battlefields of iraq and afghanistan cannot be dealt with in the same way as criminal sentence in our court system and senator graham's amendment would strike these harmful provisions of the bill i want to begin by reminding my colleagues of the evil nature of these terrorists and then go through the three particular parts of this provision that require removal first a requirement that al qaeda terrorists held in iraq and afghanistan be given lawyers i mean just imagine that second the authorization to demand discovery and compel testimony from service members and third the requirement that al qaeda and taliban detainees be provided access to classified evidence i mean to state these three provisions of the bill is to recognize immediately why it is so harmful that they be included in this bill and why they need to be stricken but focus for just a moment on the people that we're talking about held in guantanamo and picked up in iraq and afghanistan at least thirty of the detainees released already from guantanamo bay have since returned to waging war against the united states and our allies and of course the provisions of section twenty one are all designed to effectuate the release of some of these prisoners some of these detainees so thirty have already been released because we no longer deemed them to be a threat to the united states or our forces but after their release twelve of the released detainees have been killed in battle by to release detainees became regional commanders for taliban forces and one attack u s and allied soldiers in afghanistan killing three afghan soldiers one released detainee killed an afghan judge one released detainee let a terrorist attack on a hotel in pakistan and a kidnapping raid that result and in the death of a chinese civilian and this former detainee recently told pakistani journalists that he planned to quote fight america and its allies until the very end so even under the procedures today which give due process to these detainees and allow them to be released if we can no longer demonstrate that they are a threat to u s forces even under these provisions at least thirty of the detainees have gone right back to the battlefield and are attacking us in our forces the provisions of section ten twenty three would make it very difficult if not impossible for the united states to detain committed terrorists like this people who have been captured while waging war against us no nation in the history of armed conflict impose the kinds of limits that the bill would impose on its ability to detain in a me war prisoners war prisoners released in the middle of an ongoing conflict such as members of al qaeda will return to waging war that's the whole point of prisoners of war in the war you capture people and hold them so that they can't return to the battlefield to kill your troops we've already seen this happen thirty times with the detainees released from guantanamo as i said and of section ten twenty three of the bill were to be enacted into law we would expect that more civilians and afghans and iraqis will be killed and it may be inevitable that even our own soul soldiers be killed by such released terrorists this is a price that our nation should not be forced to bear let me mention three specific general problems with section ten twenty three the first has to do with the requirement qaeda terrorists held in iraq and afghanistan must be provided with lawyers i can't imagine that the details of this were known to the members of the committee when they put it in the bill this could never be executed it would require the release of the detainees either they get lawyers or they have to be released and here's why the defense bill requires that council be provided and trials be conducted for all unlawful enemy combatants held by the united states including for example al members captured and detained in iraq and afghanistan if they've been held for two years we hold approximately eight hundred prisoners in afghanistan and tens of thousands in iraq none of them are lawful combatants all would arguably be entitled to a trial in a lawyer under this bill such a provision would at least require a military judge a prosecutor and a defense attorney as well as other legal professionals the scheme is totally unrealistic the entire army jag corps only consists of about fifteen hundred officers and each is busy with current duties moreover under the bill each state detainee would be permitted to retain a private or volunteer counsel our agreements with the iraqi government barred the united states from transferring iraqi detainees out of iraq as a result the bill would require the united states to train and transport and house and pro tect potentially thousands or even ten tens of thousands of private lawyers in the middle of a war zone during ongoing hostilities this is impossible think about this in the context of other conflicts not just iraq or afghanistan conflict think about in the context of world war two i mean anybody hearing this would think it's nuts but the bill before us literally requires us to provide attorneys to these captured detainees in iraq tens of thousands of them this proposal would likely force the united states to release these enemy combatants as i said  because there's no way that you could provide all the lawyers to them obviously that would further jeopardize our military by requiring a trial for each detainee it would also require soldiers to offer statements to criminal investigators needing later to prove their case after they capture someone in other words unlike when on the battlefield you capture someone and you hold them because they're a threat to us but you're not putting them on trial now you're going to put them on trial and you'd have to have the kind of evidence that would stand up in court you all watch the t v shows with the clever defense lawyers you know about i object your honor that's not relevant or that's hearsay on the battlefield who walks around with lawyers making sure that  miranda rights are read and the evidence is collected and statements are taken that will hold up in court when they're later tried you need to carry evidence kits and cameras means even identifying the person later on to years after you capture someone the defense lawyer says is that the person you captured well those guys all kind of looked alike to me when they were shooting at me on the battlefield i can't be sure well the case gets thrown out of court was there a chain of custody of the evidence you'd have to have some kind of protection of the chain of custody of the evidence taken on the battlefield or it would be thrown out when you get to court they need to spend hours after each trial writing after action reports and which would have to be reviewed by commanders valuable time in other words taken from combat operations and soldiers rest whenever they capture somebody on the battlefield it would be a horrible precedent for the future as i said aside from this war in iraq it would  make fighting a major war in the future simply impossible and i just again go back to world war two in that war we detained over two million enemy prisoners of war it would have been impossible for the united states to have conducted a trial and provided coun to two million captured enemy combatant so the bottom line is that with respect to this provision of section ten twenty three the requirement of counsel to these detainees held in iraq and afghanistan it would be impossible to  implement and as a result it should be stricken the second point is authorized al qaeda detainees to demand discovery and compel testimony from american soldiers i alluded to that a second ago the underlying bill would actually authorize unlawful enemy combatants including al qaeda detained in iraq and afghanistan to demand discovery and compel testimony from witnesses just like we do in our criminal courts here in the united states these witnesses would all be u s soldiers who were involved in the capture of the prisoner and under the bill an american soldier could literally be recalled from his unit at the whim of the al qaeda terrorist in order to be cross examined by him or his lawyer or a judge or that  or a judge or the terrorist lawyer newspaper column and stuart taylor describes the questions that such a right raises he says should a marine sergeant be pulled out of combat in afghanistan to testify at a detention hearing about when where how and why he captured the detainee what if the northern alliance or some other ally made the capture should the military be ordered to deliver high level al qaeda prisoners to be cross examined by other detainees and their lawyers and  goes on and on the questions abound as the supreme court itself observed in johnson versus i's and cross your which is the law on this subject and i'm quoting it would be difficult to devise a more effective fettering of the field commander than to allow or allow the very enemies he is ordered to reduce to submission to call him to account in his own civil court and divert his efforts and attention from the military offensive abroad to the legal defense of it home let me reiterate that this is the united states supreme court talking not long after world war two when a question similar to this arose and a justice of the supreme court says it would be difficult to devise a more effective fettering of a field commander than to allow the very intimate he's ordered to reduce to submission to call him and account in his own civil court and divert effort and attention from the military offensive abroad to the legal defense of his actions here at home it would be difficult to conceive of a process that would be more insulting to our soldiers in addition many al qaeda members who were captured in afghanistan were captured by special operators whose identities are kept secret for obvious reasons this would force them to reveal themselves to al qaeda members and therefore expose themselves or simply forego the prosecution to the individual which is obviously the more likely to happen is simply couldn't do all of this so you'd have to forgo prosecution release the prisoner clearly americans should not be subject to subpoena by al qaeda think about that and that brings me to the last point the requirement that al qaeda and taliban detainees be provided access to classified evidence you give the enemy your classified evidence the sources and methods of your intelligence operations in order to prosecute them which is what would be required by the bill here's the exact language the bill requires the detainees be provided with a sufficiently specific substitute of classified evidence and that detainees private lawyers be given access to all relevant classified evidence and when this bill was brought up in the senate some members questioned whether it really requires us to share classified information with al qaeda detainees and their lawyers so let me direct those following this debate to very specific l pages and lines of the bill to show what it does at page three lines sixteen through twenty one the bill expressively provides that the detainee must be provided and that's i'm quoting now the must be provided access to a quote sufficiently specific summary of and i'm quoting again the classified evidence that is admitted against the detainee this language appears to mirror the classified information procedures act rules that apply to the use of classified information in federal court like this these procedures give the detainee a right to the substance of classified evidence the government might be able to redact some names or other information but only if it still gives the detainee the substance of the evidence and if the united states is not willing to compromise the evidence in this way it cannot use the evidence similarly at page three zero five line five the bill expressly requires that underage provisions and i'm quoting again counsel for the detainee is provided access to the relevant classified evidence and of course i don't know how you're any more specific than that his lawyer gets to see relevant classified evidence foreign and domestic intelligence agencies are already very hesitant to divulge classified evidence to the c s r to hearings that we already conduct these are part the internal and non adversarial military process today intelligence agencies will inevitably refuse to provide sensitive evidence to detainees and their lawyers they will not risk compromising such information for the sake of detaining one individual terrorist in addition the united states already has tenuous relations with some of the foreign governments particularly the middle east that have been our best sources of information about groups like al qaeda if we give detainees a legal right to access such information these foreign governments would simply i presume simply shut off all further supply of information to the united states why would they do otherwise they don't want to expose their own sources they don't want to compromise their evidence or expose even the fact that they've cooperated with the united states  exposing our cooperation of these governments the bill perversely applies a sort of stop snitching policy toward our middle eastern allies which is likely to be as ruthlessly effective as when applied to criminal street gangs to potential witnesses to a crime in the united states some of our best information is gained from foreign intelligence services who like us are trying to find out everything they can about these terrorists once they know that we have to turn the information they gave us over to the terrorists they're going to stop cooperating with  the argument that i present here that sharing classified evidence with al qaeda detainees and their lawyers would badly damage america's efforts in the war with al qaeda was recently reinforced by several declarations that were recently introduced into the ongoing  these declarations were filed by the director of national intelligence by the director of the central intelligence agency and by the director of the federal bureau of information three top intelligence agencies together these statements confirm that sharing classified information with detainees and their lawyers would not only inevitably leak lead to leaks of sensitive information but that it would violate american intelligence agency's agreements with foreign governments and with confidential human sources violations that would inevitably undermine these organizations and individuals willingness to cooperate with the united states in the future and a final point on this we already know from hard experience that providing classified the prosecutors were required to do so under the civilian criminal justice system of discovery rules which require that large amounts of evidence be turned over to the defense the judge warned the defense that the information could only be used for perp for trial and not for other purposes nevertheless within ten days of being turned over the defense information found its way to sudan and into the hands of some of bin laden as the district judge who presided over the case  list was in downtown khartoum within ten days and bin laden was aware within ten days that the government was on his trail end of quote that's what happens when you provide classified information in this context in another case tried in the civilian criminal justice system testimony about the use of cell phones tipped off terrorists as to how the government was monitoring their networks according to the judge and i quote there was a piece of innocuous testimony about the delivery of a battery for cell phone and quote this testimony alerted terrorists to the government surveillance and as a result their communication network shut down within days and intelligence was lost to the government forever intelligence that might have prevented who knows what this bill this particular section of the bill ten twenty three repeats the mistakes of the past treating the war with al qaida similar to a criminal justice investigation would force the united states to choose between compromising information that could be used to prevent further terrorist attacks on the one hand and on the other letting captured terrorists go free as i said before this is not a choice that our nation should be required to make let me just read a couple of the quotations that i alluded to earlier from the director of the central intelligence agency general michael hayden relative to the damage that would be caused by requiring this classified information to be turned over to the defendant or his lawyers and i'm quoting now much the information that is potentially discoverable was provided to the cia by foreign intelligence services or disclosed the specific assistance provided by the cia's foreign partners in the global war on terror if the cia is compelled to comply with the court's decision the cia will be obligated to informants foreign liaison partners that a court order requires that the cia provide this information to the court and the detainee counsel there is a high probability that certainly is on services will decrease their cooperation with the cia because of the extent that their information has become enmeshed in us legal proceedings he goes on some information discoverable under the court's decision originated with her pertains to clandestine human intelligence sources these individuals provide information or assistance to the cia only upon the condition of absolute and lasting secrecy revealing this information even to the court or cleared counsel would expressly violate these agreements and would irreparably harm the cia's ability to utilize current sources and to recruit sources in the future let me just read one other thing from general hayden the director of the cia with over three hundred detainees at guantanamo bay cuba it appears that compliance with the court's decision will require disclosure to several hundred perhaps more than one thousand private attorneys who are not employees of the united states government and who are not trained in handling classified information with so many untrained individuals allowed access to such sensitive information i believe that unauthorize disclosures even if inadvertent are not only probable but inevitable the regulations controlling access to classified information recognize that limiting the number of people with access is a necessary step in safeguarding sensitive information the court's decision would even cerate the u s government's carefully conceived plan to keep its most highly sensitive information compartmentalized and would increase the likelihood of public disclosure let me just quote one thing from robert muller the director of the federal bureau of investigation and his affidavit to the court in the case that i mentioned quote disseminating human source information could reasonably lead to the disclosure of their identities because often the information provided by human sources is singular in nature in other words he's the only person that knows about it so when the information is divulged then the other side knows exactly where it came from back to director mueller the disclosure of singular information could endanger the life of the source or his and her family and friends or cause the source to suffer physical or economic harm or ostracism within the community these consequences and the inability of the f b i to protect the identities of its human sources would make it exceptionally more difficult for the f b i and other u s intelligence agencies to refute recruit human sources in the future and a president these are the kinds of irreparable harm that would result if the language of section ten twenty three remains in the bill not my words but director m hayden the director of the cia and now let me quote from director of national intelligence michael mcconnell admiral mcconnell had this to say the intelligence community has many sources of information that must be protected for example much of the information at issue is provided by foreign intelligence services or would reveal a specific assistance provided by foreign partners in the global war on terror certainly a services will likely decrease their cooperation with the u s government if their information is caught up in u s court proceedings just one final comment human sources also provide the intelligence community with critical information but only upon the condition of absolute secrecy revealing this information would violate the assurances of confidentiality we provide these sources and would likely result in their minimizing we're ceasing altogether their cooperation such a disclosure would harm the intelligence community's ability to retain current sources and recruit new ones and if we cannot recruit and retain sources the intelligence community simply cannot conduct its business in a president that's the point of senator graham's amendment to strike these provisions from the bill they would irreparably harmed our intelligence collection capability which is the first defense against these terrorists and that's why the graham amendment striking section ten twenty three should be adopted we've already bent over backward to provide the detainees at guantanamo the ability to contest their detention and to have their detention reviewed and eventually even in the united states supreme court and before that the circuit court of appeals this is a very fair system more fair than ever been provided by any other nation in any other circumstance any more than our constitution requires so we're treating the people we capture in a very fair way what we cannot do is to take those same kinds of protections and apply them anywhere we capture a foreign capture someone in a foreign theater and as i said before never in the history of warfare have they been subjected to the criminal justice system of our country to take that system and try to transport it to the fields of afghanistan or iraq would obviously not only be breaking precedent would be a horrible idea for all of the reasons that i've just indicated so i ask my colleagues to give very careful attention to the dangerous return to the pre nine eleven notion that these terrorists are after all only common criminals we have to treat them that way they've made no secret that they're actually at war with us and we ignore this point at our peril i remind my colleagues of the statement administration policy on the bill which says that the president would be advised to veto the bill of section ten twenty three remains in the bill and refer back again to the similar statement with response from the department of justice with respect to the hippies corpus  provisions that would be added to the bill in the bed of senator leahy i hope that my colleagues will take all of this into account when they consider voting on these amendments in this very important defense authorization bill which we need to pass and the president will want to sign so that we can do the things necessary to support our troops that we've sent into harm's way i urge my colleagues to support the graham amendment to strike section ten twenty three and not to they do a good job they do it consistently year in and year out and this may be one of the last events authorization bills that senator warner is involved in having made his announcement of speaking at the decision to retire in the the legal system our legal system has recognized the importance of a v s corpus the right of an individual to question the legality of his or her detention the military commissions act is perhaps the most disappointing and dangerous piece of legislation passed in more than a quarter century that i've been a member of this body among its many troublesome provisions the act eliminated havey as corpus to those individuals held by our government as enemy combatants by stripping these individuals of the right to petition the government we have undermined our nation's long standing commitment to the rule of law human rights advocates of this provision argue that stripping away this fundamental right was necessary to protect our nation's security that is totally false in my view we can last year when it summarily stripped a v s corpus rights with an act of the military commissions act where our founding fathers alive today i believe they would be seriously dismayed to realize how far our country has strayed from the values that  ain't trying to in our constitution the adoption of this measure stripping a view of corpus rights just one of a number of agree just provisions included the military commissions act that is why earlier this year i introduced s five seventy six the restoration arrest or in the constitution act to address these errors in addition to restoring a v s corpus rights as five seventy six would also require the united states to live up to its denethor convention obligations provide detainees access to attorneys for trials make admissible at trial evidence gained through torture and abyssal evidence gained through torture coercion and power military judges to exclude hearsay evidence they deemed to be unreliable and provide for the expedited judicial review of the military commissions act of two thousand and six to determine the constitutionality of all of its provisions the restoring the constitution act that in present one do the most damaging and unconstitutional aspects of the military commissions act while providing the us military a greater ability to bring those enemies we have to justice through military commissions i take a back seat to no one when it comes to defending our nation's security let me be clear i believe military communications in very limited circumstances may be very effective in bringing combatants to justice however i see no reason why procedures based on well established uniform military code of justice should be abandoned here but there is a right way and a wrong way to win the fight that we are in procedures that are here to bedrock legal principles such as saviors corpus abide by the geneva conventions and exclude hearsay evidence or evidence obtained through torture to name but if you do not make us weaker quite the contrary they demonstrate that no terrorist can destroy our way of life and our fundamental values that have guided our nation for over two centuries during the debate on the military commissions act that i present last year senator specter senator leahy and i offered an amendment that would retained the writ of a v s corpus unfortunately our amendment was rejected by this body and have to for twenty eight two thousand and six i voted against the military commissions  sadly i was in the minority in doing so i was in remain deeply disappointed that the senate passed this misguided legislation that day was a dark day in my view the history of this body and that day we have banded arc of it and not only the human rights but also to the rule of law because it means that separate us from our enemies commitments that have been fundamental to american leadership at the end of world war two this issue madam president has special resonance with me because of my father thomas dodd who sat  this very body at this very desk i might add as a member of the united states senate from connecticut years before in one thousand nine hundred five in one thousand nine hundred six before becoming a member of congress my father was a prosecutor working alongside justice robert jackson at the nuremberg work crimes trials in germany there the united states demonstrated to the world its profound commitment to the rule of law due process and human rights many of our allies did not see the need for trials for nasties held by allied forces indeed many of them called for summary executions the soviet union wanted to show trial and then just to shoot the twenty one defendants at nuremberg winston churchill the former prime minister also advocated summary execution by the defendant the united states robert jackson henry stimson the republican secretary of war under franklin roosevelt ben rosen and others argued as long long with robert jackson my father know we were different if we're going to demonstrate to the world that civility in the rule of law was what was its stake in the war with germany and japan that we were not going to succumb to the same kind of treatment that they gave to their victims in the opening statements made by robert jackson at nuremberg madam president a statement which i put the memory a long time ago indicates the difference that we brought to this issue robert jackson speaking of the soviet union the british the french and the united states then on that occasion at four great nations flushed with victory and sung with injuries voluntarily and say the hand of vengeance by its voluntarily submitting their captive enemies to the judgment of the rule of law this he said was the most significant tribute that power ever paid to reason  we insisted on giving the nazis members of the world's most barbaric regime the protections and the rights of the rule of law the nuremberg trials only brought many of the nazi war criminals to justice most were executed but it helped to demonstrate to the world the importance of providing even the most heinous of criminals the protections of the rule of law doing so makes our nation know to a nation and calculate stronger in my view not weaker at all but i fear that congress has allowed the president to diminish our nation's commitment to human rights and the rule of law we have failed to stand up for a most cherished values we let fear fear of being seen as weak override our duty to protect the constitution the values of our nation it's not too late madam president to right the wrong of last year we will have that opportunity in the next day or so and one of hopeful that the federal courts will strike down many of the provisions of the military commissions act a decision earlier this year by the west court of appeals for the district of columbia eliminating the writ of habeas corpus for enemy combatants despite two recent supreme court decisions suggesting that a b is right cannot legislatively be stripped away the split decision by the u s court of appeals for the district of columbia democracy and the rule of law last year our nation lost i believe that moral high ground this year congress must reassert to the nation the president and the courts that we recognize the vital role of a v s corpus in our legal system i believe that the specter laid out amendment is the first step and i'm doing the terrible damage done that the military commissions act has done to our legal system and our international reputation i implore my colleagues to begin today to undo the harm done to our nation's reputation by voting to restore habeas rights which have always been a core element of our jurisprudence and once again restore that moral authority we captured more than sixty years ago at a place called nerver and that this generation bears no less properly addressed the presiding option with dignity which he has earned but i thank my dear coming very very much we've done many things together and i've got more to go and the time he finally takes his last vote in this chamber and as he pointed out he's got a long way to go before that time comes over the course of the next several months but so many of us respect what he has done over the years as ranking member  chairman of the armed services committee that his his work will in fact be be greatly recognized i just want to make one quick point that responds to what the sense from connecticut pointed out recalling his same justice jackson who i quoted the senate wasn't on the floor but i could have justice jackson in the eisentrager case to point out that nothing could fetter our commanders more than to require a b s corpus rights for the german prisoners of war or the prisoners that were at issue in the johnson versions versus eisentrager case justice jackson himself recognized that the procedures that were awarded to the fifty some war criminals at nurnberg were not the same kind of procedures that were being sought in the eyes in trying her case and the hague these corpus rights that would be granted under the leahy amendment are far different than the rights that were granted to nurnberg war crimes defendants i think one question that would be interesting would be to ask the proponents of the legislation whether if we simply took the rights that were granted to the war criminals tr and gave those rights to the detainees at issue here would that be a satisfactory result i suspect the answer would be no because they are nowhere near the rights that would be included in the amendment that's pending so to cite justice jackson i think is to refer back to what he said and eisentrager and recognize that nothing according to him and i agree would more fetter our commanders and our on that number but i think my my point would still remain which is that it's one thing to try fifty war criminals out of over two million p o w s it's quite another to grant all two million the rights of work room and holes and we have tried some of the detainees as the equivalent of war criminals in our courts but dia was one of them but that's not to say that we owed the same criminal trials to all of the tens of thousands of detainees being held in iraq or afghanistan to yale yes i had a and they interesting play a few weeks ago to visit carrollton alabama in that may have been held within the united states during wartime being provided a vs rights a great question and the answer is there have never been in the history of the world a b s rights granted to enemy detainees or prisoners of war either by the united states or by the other country from which the great writ came into law and they have never been granted so the answer is there is no precedent whatsoever and that's why when colleagues say we want to restore he b s rights that's an incorrect characterization enemy combatants p o w s have never had a b s rights as a matter of our being provided by our constitution never has our has to devote hours of his time to try to research and study supreme court cases to try to make sure we do the right thing here but the most important thing for us to remember there is that senator kyl just in the thirteenth century it is truly a great writ it is truly a powerful too for any person that is being the attained to demand that someone somewhere come forward and tell the world why they are being detained that's what the talent terry and communist governments do all the time these kind of dictators and communist and nazis that go out and grab people and put them in jail and never charge him never announce where they are even though that's not what we want to do here never in the history however of the rich existence has an english or american court granted hey b s to enemy combatants held during a time of war as early as seventy nine three the american courts seventy ninety three recognized that foreign prisoners held by the military during armed conflict have no inherent right to judicial review of their detention so they have no inherent right to do that and you have an inherent right to file a writ of h corpus if you qualify and meet their criteria so that year in seventy nine and three a district court in pennsylvania said quote courts will not even grant  cal johnson versus ours and roger in that case the supreme court made expressly clear that u s constitutional protections do not apply to aliens who detained outside the borders it was a first is twenty eight u s c section twenty two forty one in this case german nationals living in china during world war two having never lived in the united states were accused of violating the laws of war they were tried by a us military tribunal in china convicted and sent to landsberg prison in germany and then argued pad sector of germany stating that the military's actions violated their rights as guaranteed by several portions of the u s constitution including article three and the fifth amendment noting that quote nothing in the text of our constitution aged in such a right close quote it rejected the view that the u s constitution applies to enemy war prisoners held a brawl the court claimed quote no decision of this court supports such a view none of the learned commentators on our constitution has ever hinted at it the practice of every modern government is opposed to it close quote now where we keep coming out with this audio that  prisoner of the war i am baffled the court explain emphatically that such a constitutional entitlement would hamper the war effort and bring aid and comfort to the enemy quote hevia for seedings would diminish the prestige of our commanders not only with enemies about with wavering neutrals it would be difficult to devise a more effective bettering of a field commander then to allow the very enemies he is altered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military of offen abroad to the legal defensive at home close quote now that's a perfect clear statement otherwise congress authorizes a state of hostilities we funded the president as a commander in chief the military commanders execute it and the court further held this is nine hundred fifty that the fifth amendment is in a political to aliens abroad and in reasoning fully up flexible to the suspension clause explained quote extra territorial application organic allow close quote to aliens would be inconceivable writing for the majority justice jackson who would just referred to by senator dodd and  a great justice on the court stated quote the constitution does not confer a ride of personal security or an immunity from military trial and punishment upon an does not give them a immunity from military trial from a military trial even if as opponents mistakenly argue this amendment restores a statutory right to habeas their supreme court has also held that congress may freely repeal habeas jurisdiction if it affords an adequate and effective substitute remain essentially of legislation strips high b s according to the supreme court the substitution of a collateral remedy which is neither inadequate no in drafted with these important supreme court precedents in mind after careful and they go see a sion among our members here and careful analysis of the supreme court's decision in hand on vs rahm's fail congress went above and the yond went above and young on what was required by the constitution and the geneva conventions to ensure that the chinese even terrorists at guantanamo bay had an adequate anything steve substitute method to test the legality of their detention the way he did that we did not fail to respond we did it we did it the to under the geneva conventions and let me or repeat then and drive home the importance of form so that concept of the geneva conventions of our group of nations it came together that thought that during the course of military conflicts too many things happen that are not justified and are not necessary and are damaging to people in a way that they could not be justified we wrote to conventions and nations did try to ameliorate some of the problems in warfare and we said that if you have a lawful combatants part of the tish's manner does not act in a terroristic manner but fight his battles are going to the laws of war if captured they must the treated and afforded the protections of the geneva conventions and so that is a good standard of review and protection well congress passed a law to provide for the people at guantanamo who are not lawful combatants but are on lawful combatants and are really not entitled and i don't think historically have been considered to have been let's talk about our present conflict on the wall and terrorism former attorney general john ashcroft has made this point and if you think about it it's worthy of  consideration john ashcroft is a great believer in american liberty the rights of liberty and the how that's a key characteristic of the american people but he points out that we he says when you engage in an action that is designed to protect us the balance that the task should be not a balancing test but the test would be does it improve liberty in other words if you go to the airport and have to go through one of those checking stations as i did today the question really is do you feel more free to fly having had that inspection occurred is your liberty to travel is your liberty to fly safely and securely in a in an aircraft in america enhanced because you take a couple minutes to go through that line or not if it is then that is a protection of liberty and that we are indeed in a in a different world than we used to be when threats fundamentally came from  have tremendous impact on us and so what we're trying to do is execute lawful actions that improve our liberty not deny liberty we're now we're now here we talking about harmony versus rumsfeld is part of that this year you act of seventeen eighty nine congress conferred on the federal court's jurisdiction to hear petitions for habeas corpus though the language language has never really refers specifically to enemy combatants such a grant was understood not to apply to those individuals detained during a time of war congress understood that detention of enemy combatants during a time of war is strictly a military decision since we don't allow enemy combatants to continue their war against us for the judicia the rumsfeld changed this president precedent and that decision justice o'connor said quote i'll agree that absence suspension a b s corporate remains a valuable to every individual within the united states close quote proponents of this amendment that we have being promoted here this statement by justice o'connor as proof that hey  is available to all those detained within the united states regardless of whether they are an alien enemy combatant let me know that during world war two there were four hundred and twenty five thousand intimate combatants held within the united states none of which were allowed relief through hey this petition furthermore rely on that statement by justice o'connor is wrong since a question on the was whether the executive had the authority to detain a u s citizen as an enemy combatant and times in the opinion and in the holding of the case and the holding of the case is limited to the circumstances of the cases itself on the was after all a u s citizen regardless some advocates maintain that justice o'connor's other was in consequential statement so tenuous to really constitute dicta reversed years of settled president and for the first time to illegal him a combatant detained overseas that proposition just flies in the face of the common sense interpretive rue that one does not had elephant and m code intended to extend havior surprise to all individuals in the united states not just citizens including suspected foreign terrorist the taint outside u s territory it most surely would have been articulated such a consequential ruling with more clarity but hon they did not present that question and the court did not resolve it moreover as the court amply noted quoted ice and stronger quote such extraterritorial application organic law would have been so significant an innovation in the practice of government that if intended or apprehended it could scarcely have failed to excite contemporary cami close quote accordingly a such it consequential holding been made in ice and drago it would have been met with prolific commentary from the legal community from other justices it would have been  but that of it did not occur because it had no such maining of course as evidenced by the lack of a contemporary discussion no decision subsequent to wise and drug has reversed his howling that have no right to habeas protections guaranteed to american citizens by the united states constitution therefore is hauling remains governing law moreover the issue now if it ever would could have been considered ambiguous has been definitively resolved by the same judge who earlier granted  to claim a constitutional right was based not on the constitution which clearly is a historic right we talk about abs but it was based on some statute passed by congress some justices may have wanted to make constitution holding but there clearly was no majority for such a position supreme court cases like ours in triger and virt do go are still the governing law on the constitutional r and the congress's ability to limit its statutory application these precedents hold that aliens who are either held abroad are held here but have no substantial connection to this country are not in tile invoke the us constitution rest so was an unprecedented decision which effectively truthfully seemed a flat in the face of all previous supreme court and english case law engaging in what i would submit from our colleagues is activism the court extended the reach of the federal habeas statute to guantanamo detainees commander in chief to challenge their detention the court by his analysis on the phrase within their respective jurisdiction close quote as used in the federal he statute and various decisions construing that particular provision moral was accorded to pressley distinguish between the statutory and suspension clause holdings of ice and drago and limited just exercise plenary exclusive jurisdiction over the land on which the naval base is situated although it does not have quote ultimate authority close quote  on the executive subjecting guantanamo bay to the oversight of the federal courts even though it has never before been thought to be within the jurisdiction and thus making it a foolish place to have wartime detainees close furthermore the decision opens a veritable pandora's box since a quote from minutes and alien captured in a foreign theatre of active combat to bring a section twenty to forty one petition against the secretary of defense close quote this case with a clear cut example i believe supreme court overreach they just seem determined to do something about this guy they wanted to do something about fairness i didn't like it so in straining to grant us court's jurisdiction over terrorist held outside the united states the supreme court determined for the first time in his sharee that a simple lease agreement brought guantanamo bay within the jurisdiction of the court read brawley the majority opinion could be used to bring u s military bases and facilities across the world within the jurisdiction of u s courts forcefully in that opinion justice kennedy did limit the application of the holding the grandon of all by cuba congress i ever addressed the issue because remember this was based on their supreme court's interpretation of a statute congress passed and which congress can change not on the constitution ratified by the american people less than a year ago congress addressed the issue when it passed the military commissions act which precluded detainees from challenging their detention through hey b s petition that the court relied on the statute as we wrote before we can change that statute and we did and doing so congress did here to supreme court precedent and created an effective an adequate substitute in the form of a combatant status review tribunal and allowing detainees an opportunity to challenge determinations about these determine the tribunals even in the district court here and issues of columbia so we set up a combatant status review tribunal so they can bring and make their arguments and if they don't like the military determination on that they can get to a federal court that's not hey b s but it's a pretty good percentage or more than ever been given before the baby prisoners of war versus bush and al odah the united states refusing to review their claims that the military commissions act of just last year that we passed does not deprive courts have jurisdiction to hear a b s corporate clines and that it would be unconstitutional for congress to pass it they rejected that court did not find that it was unconstitutional what congress passed and in fact found that congress had did what congress intended to do create a substitute appellate process so prisoners could have a review of their detention but not give them the full panoply of hey b s coffers rights provided to american citizens supreme court high ever reversed itself on june twenty ninth of this year and agreed to review both the about ninety and al odah cases this review could very well address the constitutionality now of the hay vs bars in the military commissions act and much like this amendment further undermine the executive constitutional authority to detain him a combatants in a time of war i hope the supreme court won't do that but they have that the constitution does not provide a b s protections for non citizen enemy combatants on foreign territory not part of united states that i say that because people have come in own several points along the way and accused president bush of the attorney general or others  found those procedures not to meet statutory our constitutional muster why i want to cite to the is in those cases in almost eight instance they reversed previous law so that meant the executive branch in our military was operating under what they had every right to consider to be the settled law of the land so the court guns in changes that law and i don't believe our military should be condemned or criticized for taking action they felt and had every right to believe was legitimate when they took it now it is important to remember that the detainees at guantanamo bay are the most dangerous people who we've captured on the battlefield pursuant to executive war making powers they have been determined of a quote alien enemy combatants close quote and the courts have absolutely no road apply  in my view in trying to second guess their wartime decisions made by the executive branch where congress has given their stamp of approval to the process is not supreme court's role t micromanage war making decisions that fall outside the scope of just to show let's start the decisions made by the supreme court have long lasting effect and are not easily undone and we are happy with a president's foreign policy decisions unhappy with them congress can cut off funds for the war or people can vote the president out of office i would note that president bush was reelected on a promise to continue to pursue with vigor the war against terrorism and the war in iraq supreme court justices are appointed for life and are supposed to adjudicate the constitutionality of laws passed by congress not to legislate from the bench or to set foreign policy that is setting up foreign policy and conducting military operations power squarely within the purview purview of the executive branch not nine individuals like damn appointments sitting on black roads is not within the court's jurisdiction to decide on  war making decisions but simply the constitutional powers and it's important to know that the justices lacked the knowledge and in many cases as a practical matter any experience to make these decisions have any of them ever served on the front lines during war or if they have have they  on terrorism i've been a jag officer i've been a company commander someone who's captured enemy prisoners a court's opinion personal views about this are not a matter that impressive to me we expect them the rules and  define congress's statutes we expect them to inforce the constitution but just a flip flop around and try to decide that they don't like the way something is done  it's got to be clear is i've shown that if we apprehend enemy combatants in the theater